The U.S. Supreme Court could soon agree to review an appeal filed by the Poarch Band of Creek Indians (PCI) seeking to overturn a state court case that found the tribe and its business enterprises can be sued.

As the only federally recognized Native American tribe in Alabama, PCI is entitled to sovereign immunity, which means it cannot be sued in state or federal court. The same immunity is enjoyed by the federal government, states and municipalities, with some limitations.

In late 2017, the Alabama Supreme Court handed down a suite of rulings in three civil lawsuits that addressed whether PCI’s immunity means that its businesses entities — such as the PCI Gaming Authority — are immune from legal liability in state and federal courts as well.

All three of those cases were originally dismissed in lower courts on the grounds of sovereign immunity, but after two appeals Alabama’s highest court ruled in two of those cases that the tribe could be held legally liable for injuries caused by its businesses or their employees.

Harrison v. PCI Gaming was brought by the family of a man who died in an auto accident after drinking at Wind Creek Casino, while Wilkes v. PCI Gaming was brought by a couple injured in an auto accident caused by an intoxicated PCI employee with a history of alcoholism.

Harrison settled out of court shortly after the state supreme court’s opinion was issued, but PCI chose to appeal the Wilkes ruling, which held that its, “tribal immunity affords no protection to tribes with regard to tort claims asserted against them by non-tribe members.”

Only the U.S. Supreme Court can hear an appeal of a state supreme court ruling, and since it was filed in December, PCI’s petition asking for a review, Alabama’s opinion has continued to move through the process. Last week, the court called on the Solicitor General to submit a brief “expressing the views of the United States” on the issues central to PCI’s appeal.

That brief will likely have a significant impact on whether the full court opts to review the case.

Until September, the filings were evaluated in the chambers of Senior Justice Clarence Thomas, who has been one of the dissenting opinions in previous rulings upholding tribal sovereignty. In fact, many of Thomas’ own arguments are cited in the state court ruling PCI is appealing.

While the court rejects thousands of petitions every year, PCI’s may have a fighting chance because, if allowed to stand, Alabama’s ruling could significantly impact not only PCI but Native American tribes in other states as well.

At least two lawsuits against PCI in state court have been stayed to await the outcome of the SCOTUS proceedings, and if the case isn’t heard by the full court and overturned, those lawsuits will be able to move forward and Alabama’s Wilkes v. PCI ruling will be the law of the land.

Yet the state’s opinion contradicts rulings previously reached by “four federal judicial circuits and six state supreme courts,” and that contradiction, PCI argues, is why its appeal should be reviewed by the full court. Earlier this year, a group of Indian law scholars and the United South and Eastern Tribes (USET) filed briefs urging SCOTUS to overturn Alabama’s ruling as well.

“While [Alabama’s ruling] may appear to be a mere anomaly, it threatens to destabilize the settled law of tribal sovereign immunity and to sow widespread harm,” a brief filed by USET in March argues. “Letting the decision stand would invite additional state courts to take similar actions in derogation of tribal sovereignty and federal authority.”

Instead, PCI argues that federally recognized tribes retain their immunity from any and all legal claims unless “Congress has abrogated that immunity or the tribe has waived it” in a prior agreement. It cites several other cases where that standard has been applied even in cases when there’s no question about whether a tribe was at fault.

In one case, a telephone company sued the Miami Tribe of Oklahoma after its employees destroyed multiple underground lines while performing work outside its reservation. Yet, the state supreme court dismissed that case and held that, even though the company was “an innocent third party to the negligence of a tribal enterprise,” its sovereign immunity still applied.

Despite PCI’s immunity in state and federal court, spokesperson Sharon Delmar told Lagniappe the tribe “has a history of successfully resolving legal disputes in a fair and timely manner.”

“The tribe has, in fact, waived its immunity in several contexts, including tort cases that arise in its gaming facilities,’ Delmar wrote via email. “Only Congress and the Poarch Band of Creek Indians have the legal right to waive the tribe’s sovereign immunity. The State of Alabama does not have that authority, yet claimed that authority here.”

Delmar says the tribe has sought to be “fair and responsive” to patrons as its gaming operations have grown over the years, but unlike other U.S. tribes that waive immunity from tort claims in tribal-state gaming compact negotiations, Alabama has never managed to successfully reach an agreement with PCI.

Delmar said the tribe “remains open to discussing the mutual benefits of a compact with Alabama,” but in lieu of such an agreement, opted to voluntarily pass a Tort Claims Act in 2009 that waived PCI’s sovereign immunity in its own tribal court with respect to tort claims asserted by its patrons.

“[The Act] waives the tribe’s immunity for up to $100,000 per person and $300,000 per occurrence, Delmar added. “The State of Alabama does not have a Tort Claims Act or waive its immunity at all. Gaming patrons currently pursue claims under [the Act], and the tribe regularly settles or resolves these claims.”

In its petition to the Supreme Court, PCI makes the claim that Congress’ authority over tribes is rooted in Native American tribes’ conflicts with state governments. It goes on to describe “a re-emergence of animus” from Alabama’s state government in recent years.

As Delmar describes it, PCI has “been publicly targeted by at least four different state agencies” over the past nine years through lawsuits, attempts to collect taxes on federally recognized tribal lands and the since disbanded task on illegal gaming established by former Gov. Bob Riley.

She said last year’s ruling was the latest in a series of challenges PCI has had with the state and accused the Alabama Supreme Court of disregarding an “extensive body of case law that has recognized that tribal sovereign immunity extends to any claims against a tribe.”

Regardless of the facts that led to Wilkes’ initial lawsuit, Delmar said Alabama’s conclusion resulted in an unprecedented legal take on tribal immunity.

“Knowing that it was going against [SCOTUS] majority opinions and many federal appellate and state supreme court decisions, the Alabama Supreme Court created a new rule stating that tribes have ‘no inherent sovereign immunity for tort claims asserted by non-tribe members,’” Delmar wrote. “The facts in Wilkes are sympathetic to the plaintiffs but do not support the creation of a new rule.”

Attorney Mike Crow, who is representing the plaintiffs in the proceedings, told Lagniappe the way sovereign immunity has been applied to businesses run by Native American tribes strays far from Congress’ original intent. He believes Alabama’s Supreme Court got it right the first time.

“I don’t believe when Congress granted immunity to the Indians back in 1934 that they could have ever imagined [tribes] would get into commercial industries like they have,” Crow said. “I’m also sure they never envisioned giving them a ‘get out of jail free’ pass for their commercial enterprises.”

Crow also made a distinction between his clients and others who’ve attempted to sue the tribe in the past. While many of those were willing patrons at PCI casinos or resorts, Crow said his clients were simply driving to work on a public road when their car was struck by a PCI employee operating a PCI vehicle, and with a blood alcohol content two times the legal limit.

It’s unclear what arguments from the appeal SCOTUS might entertain, but one of the undercurrents in all three of the Alabama Supreme Court’s rulings last year was whether PCI should be entitled to immunity at all because of the way it was federally recognized as a tribe.

In one of those cases, the court wrote that there were “genuine questions” about the validity of PCI’s federally recognized trust lands because of a 2009 SCOTUS ruling that found the Secretary of the Interior lacked the authority to take land into trust for tribes recognized after 1934.

Because it wasn’t federally recognized until 1984, PCI was sued in 2010 by former state Attorney General Luther Strange, who argued their lands weren’t properly held in trust and should thus be subject to Alabama’s prohibitive gambling laws.

Strange’s theory was rejected by a federal circuit court and the U.S. Court of Appeals for the 11th Circuit twice, but Crow said he plans to file a brief on the same matter if the case moves forward because it was preserved for appeal during the appellate process in state court.

According to the Center for Responsive Politics, PCI spent just $20,000 lobbying at the federal level in 2007, but in 2008 — the year SCOTUS agreed to hear the Carcieri case — that number jumped to $305,000. (opensecrects.org)

While PCI has rejected any notion that its lands weren’t properly taken into trust, the tribe has also spent hundreds of thousands of dollars lobbying Congress in pursuit of a bill that would clarify the confusion.

One beneficiary of those dollars was U.S. Rep. Bradley Byrne’s campaign.

After receiving more than $10,000 in campaign contributions from PCI, Byrne introduced and successfully passed a House bill “reaffirming” that PCI’s lands are properly held in trust by the federal government.

Companion bills pursued in the Senate have not been unsuccessful so far.

Updated Oct. 10, to include comments from PCI Spokesperson Sharon Delmar. Due to publication deadlines, those comments are not included in the printed version of this article.