ATLANTA (CN) — An 11th Circuit panel on Friday refused to decide whether the Muscogee Creek Nation can force another tribe to tear down a massive casino resort and restore hundreds of artifacts removed from a burial ground in Alabama.
In a 21-page opinion, the 11th Circuit said the lower court that dismissed the Muscogee’s suit failed to properly review the complaint claim by claim and determine whether the Poarch officials enjoy sovereign immunity.
The panel vacated the lower court’s dismissal and remanded the case, where the Muscogee will be allowed to amend their complaint that the circuit judges criticized as “shotgun pleading.”
In their opinion, the panel said the Muscogee’s drafting of the complaint makes uncertain which allegations and remedies are relevant to each claim. Several counts assert “multiple claims against multiple defendants without specifying which of the defendants are responsible for which acts or omissions, or which of the defendants the claim is brought against.”
“This kind of pleading fails to give defendants ‘adequate notice’ of the ‘grounds upon which each claim rests.’ It also impairs the ability of courts to perform the claim-by-claim analysis that is necessary here,” Chief Circuit Judge William Pryor wrote for the panel.
The Muscogee Creek Nation sued the Poarch Band of Creek Indians, U.S. Interior Department, Auburn University and others in 2012 claiming the defendants violated federal law and desecrated the 34-acre historical site, called Hickory Ground, by removing more than 57 bodies of Muscogee ancestors and thousands of sacred artifacts from the land in order to build the Wind Creek Casino and Hotel Wetumpka.
The site, which is listed on the National Register of Historic Places, served as the last Muscogee capital before its people were forced west by federal authorities during the deadly Trail of Tears in the 19th century.
In dismissing the suit, U.S. District Judge Myron H. Thompson ruled the Poarch Indian officials were protected by sovereign immunity, but did not properly apply the exception claim by claim, Pryor wrote.
While tribal officials ordinarily enjoy sovereign immunity in federal court from claims against them in their official capacities under federal or state law, the Supreme Court has carved out a narrow exception against officials for ongoing violations of law.
The Muscogee argued that the tribal group can still be sued under the Ex parte Young exception because it continues to violate federal law and refuses to carry out the historic preservation responsibilities delegated in 1999 by the National Park Service.
Thompson determined the Poarch officials were entirely immune under Supreme Court precedent from the 2002 case Coeur d’Alene in Verizon Maryland Inc. v. Public Service Commission.
In Coeur d’Alene, the justices held that sovereign immunity bars a claim against an official that is the “functional equivalent of quiet title” and implicates “special sovereignty interests.”
However, the panel found there is “substantial reason to doubt” whether Hickory Ground is an “essential attribute of sovereignty” that is “infused with a public trust” like the submerged lands owned by Idaho in Coeur d’Alene, meaning that not all of the claims against them may satisfy the exception.
In its charge against the federal government, the Muscogee claimed that taking the land into trust for the benefit of the Poarch Band violated the Indian Reorganization Act because the Interior Department can only take land into trust for tribes that were under federal jurisdiction in 1934 — and the Poarch Band was not federally recognized as a tribe until 1984.
Unlike state jurisdiction over submerged lands, the Poarch Band purchased Hickory Ground with federal grant funds in 1980, as any private party would acquire land. And its regulatory jurisdiction over Hickory Ground depends on the United States’s decision to hold the land in trust, Pryor wrote.
He added that the Poarch Band also doesn’t hold the area to protect common use of public resources.
“Although the casino on Hickory Ground serves a commercial purpose, that enterprise does not implicate concerns about public access to natural resources,” the George W. Bush appointee wrote.
U.S. Circuit Judge Robert Luck, a Donald Trump appointee, disagreed with the majority’s finding that the lower court did not err in applying the Coeur d’Alene precedent, but did not write separately to explain why.
Pryor, who was joined by U.S. Circuit Judge Frank Hull, a Bill Clinton appointee, wrote that lower court should have separately considered each claim against the Poarch officials and the relief sought to determine whether Coeur d’Alene applies to that claim.