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Poarch Band seeks a partial Carcieri fix for existing trust lands

Monday, June 20, 2016

The Poarch Band of Creek Indians has announced plans to replace a building that originally housed its council chambers and health department. Photo from Facebook

The Poarch Band of Creek Indians is asking Congress to confirm the status of its existing trust lands in Alabama and Florida.

As a result of the U.S. Supreme Court decision in Carcieri v. Salazar, the tribe has faced legal challenges to lands already held in trust. H.R.5486, the Poarch Band of Creek Indians Land Reaffirmation Act, would put an end to those claims by confirming that the lands are indeed Indian Country.

But the bill, which was introduced in the House on June 15, does not address future acquisitions. In that respect, it's similar to a partial Carcieri fix that has been included in an appropriations bill under consideration on Capitol Hill.

Congress already embraced the affirmation approach with the passage of S.1603, the Gun Lake Trust Land Reaffirmation Act, in 2014. The new law ended a lawsuit that kept the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians from Michigan and the federal government in court for years.

For the Poarch Band, the bill would end a long-running lawsuit filed by the Muscogee Nation of Oklahoma. The lawsuit argues that the Carcieri decision applies to the Poarch Band because the tribe did not gain federal recognition until 1984.

In Carcieri, the Supreme Court held that the Bureau of Indian Affairs can only place land in trust for tribes that were "under federal jurisdiction" as of 1934. A federal judge has yet to issue a decision even though the complaint was filed more than three years ago.

In a separate case, a federal judge confirmed that the tribe's trust lands are Indian Country and are exempt from local taxes. Although the decision was a victory for the tribe, the tax assessor in Escambia County has asked the 11th Circuit Court of Appeals to overturn it.

Oral arguments were heard on April 12 but a ruling hasn't been issued. In the event the case goes another way, H.R.5486 would still protect the trust status of the tribe's lands if the bill becomes law.

In yet another case, the 11th Circuit ruled that the state of Alabama cannot challenge the status of the tribe's trust lands because the deadline to do so had long passed. Attorney General Luther Strange did not pursue an appeal.

Despite widespread support from Indian Country and the Obama administration, Congress has yet to fix the Carcieri decision to prevent such litigation. Six bills are pending in the House and the Senate but none have been brought up for votes.

"If I had my way, we would fix this all the way to the current date," Rep. Tom Cole (R-Oklahoma), a member of the Chickasaw Nation, said in defense of a "partial" Carcieri fix that was added to fiscal year 2017 Interior appropriations bill last week.

"If we can take a lot of tribes and a lot of Indians out of harm's way and end this legal limbo ... we should do so," said Cole.

The Poarch Band is primarily based in Alabama and H.R.5486 confirms the trust status of its reservation and other lands there. The bill also includes a small property in neighboring Florida.

Supreme Court Decision in Carcieri v. Salazar:
Syllabus | Opinion [Thomas] | Concurrence [Breyer] | Dissent [Stevens] | Concurrence/Dissent [Souter]

Supreme Court Documents:
Oral Argument Transcript | Briefs

11th Circuit Court of Appeals Decision:
Alabama v. PCI Gaming Authority (September 3, 2015)

Department of the Interior Solicitor Opinion:
M-37029: The Meaning of "Under Federal Jurisdiction" for Purposes of the Indian Reorganization Act (March 12, 2014)