The Wind Creek Casino and Hotel in Wetumpka, Ala., where the Oklahoma-based Muscogee (Creek) Nation contends Alabama's Poarch Band of Creek Indians broke their legal promise to preserve a historic Muscogee site when they acquired it in 1980. (Image: Kim Chandler / AP)

The Muscogee Creek Nation argued in front of a federal appeals court on Wednesday that the Poarch Band of Creek Indians failed to preserve sacred ground when it built the Wind Creek Casino in Wetumpka, Alabama, on land known as Hickory Ground.

Thus they want the casino closed and torn down.

The land was home to the Muscogee Nation before the tribe was removed to Oklahoma during the Trail of Tears, when the federal government forcibly moved several tribes to designated “Indian Territory” beyond the Mississippi River from 1830 to 1850.

Tribal Sovereignty, Handling of Remains at Issue 

Today, the Hickory Ground site is owned by the Poarch Band of Creek Indians, a separate tribe but one that shares ancestry with the Muscogee Nation. According to the Muscogee, the Poarch Band – along with federal officials and Auburn University, which helped excavate the lands – violated the Native American Graves Protection and Repatriation Act when it excavated the remains of 57 Muscogee ancestors in the process of building its casino.

A lower court found that the Poarch Band operated within the limits of its sovereign immunity when choosing how to handle the excavation and the handling of the bodies and other artifacts found during that process. However, judges on the 11^th US Circuit Court of Appeals in Atlanta showed interest in the arguments and concerns of the Muscogee Creek on Wednesday. 

US Chief Circuit Judge Bill Pryor told Muscogee Nation attorney Mary Kathryn Nagle that he was “pretty sympathetic” to the tribe’s concerns.

“Hickory Ground is sacred as the final resting place for some of the nation’s most significant military leaders, tribal leaders and spiritual leaders,” Nagel said in her opening arguments. 

The lawsuit – first filed in 2019 – seeks for the casino on the site to be closed and torn down, and that the remains found on the site be returned to the Muscogee Creek Nation. It also alleges that workers moved remains and artifacts to inadequate storage.

Poarch Band Defends Excavation Procedures

The Poarch Band of Creek Indians dispute these claims, saying that they have tribal sovereignty over the site. Lawyers for the tribe say that the Poarch Band has historical ties to the land, just as the Muscogee do.

“We absolutely do have a longstanding attachment,” Poarch Creek attorney Mark Reeves told the court. “We have a shared history of that property with the Muscogee Nation.”

Poarch Band officials say they followed all regulations and Muscogee Creek repatriation guidelines in handling, relocating, and reburying the remains. The Alabama Tribe says that it asked the Muscogee Creek Nation to join them in purchasing the Hickory Ground site in the 1980s, but that the Muscogee declined that offer.

The National Park Service gave preservation responsibilities for the site to the Poarch Band of Creek Indians in 1999. Soon thereafter, the tribe began constructing a bingo hall at Hickory Ground. That project was expanded to a $246 million casino that opened in 2013.

According to the Poarch Band, the case ultimately comes down to respecting its tribal sovereignty over its own lands.

“The idea that any entity, most especially another tribe, would be allowed to assume control over land it does not own is antithetical to tribal sovereignty and American values,” Reeves said in a statement.

The appeals court has not said when a decision will be issued on this case. If the Muscogee Creek Nation is successful in its appeal, the case will go back to district court for further arguments.