The opinion
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
MUSCOGEE (CREEK) NATION, )
a federally recognized )
Indian tribe, et al., )
)
Plaintiffs, )
) CIVIL ACTION NO.
v. ) 2:12cv1079-MHT
) (WO)
POARCH BAND OF CREEK )
INDIANS, a federally )
recognized Indian tribe, )
et al., )
)
Defendants. )
OPINION
This dispute concerns the use and ownership of a
34-acre tract of land south of Wetumpka, Alabama. The
land sits at Hickory Ground, the last capital of the
Creek Nation before the Tribe was forced from the eastern
United States in the 1830s, an exodus known as the Trail
of Tears. Burial sites and ceremonial grounds dot the
area, which in 1980 was placed on the National Register
of Historic Places as a site of national significance.
Today the land is held by the United States Department
of the Interior in trust for Poarch Band of Creek Indians
(“PBCI”), and it is the location of PBCI’s Wind Creek
Wetumpka casino and hotel. The excavation of the land
and the construction and operation of the Wind Creek
Wetumpka are the subject of this litigation.
The three plaintiffs who bring this suit are the
Muscogee (Creek) Nation; the Hickory Ground Tribal Town,
which is now located in Oklahoma; and George Thompson,
the chief, or “Mekko,” of the tribal town. They filed
the original complaint in this suit in 2012. In the
operative second amended complaint, filed in March 2020
after the case had been stayed pending unsuccessful
settlement negotiations, the plaintiffs have named three
groups of defendants. The “Federal Defendants” consist
of the Interior Department, the National Park Service,
the Bureau of Indian Affairs, and the officials who head
each of those entities. The “Tribal Defendants” consist
of PBCI; the PCI Gaming Authority, a commercial
enterprise of PBCI that operates the Wind Creek Wetumpka;
various officials on the PBCI Tribal Council and the
Board of PCI Gaming Authority, who are sued in their
official capacities; and the PBCI Tribal Historic
Preservation Officer, who is sued in his official
capacity. The “Individual Defendants” consist of former
and current members of the PBCI Tribal Council, who are
sued in their individual capacities. The plaintiffs have
also sued Auburn University, which has not moved to
dismiss the plaintiffs’ second amended complaint.1
The second amended complaint raises eleven claims,
most of them alleging violations of federal statutes: the
Indian Reorganization Act, or IRA, 25 U.S.C. § 5101; the
Native American Graves Protection and Repatriation Act,
or NAGPRA, 25 U.S.C. § 3001; the Archaeological Resources
Protection Act, or ARPA, 16 U.S.C. § 470aa; the Religious
1. There is one other defendant in this case: Martin
Construction, Inc., a company that helped build the Wind
Creek Wetumpka. The company is named on the plaintiffs’
NAGPRA and outrage claims; it is not wholly clear from
the second amended complaint whether any of the other
claims are also brought against the company. Martin
Construction filed a notice of bankruptcy in April 2020.
See Notice of Bankruptcy (Doc. 198). Because the filing
of such notice imposed an automatic stay of the
proceedings against Martin Construction, see 11 U.S.C.
§ 362, this opinion does not further address the company.
Land Use and Institutionalized Persons Act, or RLUIPA,
42 U.S.C. § 2000cc; the Religious Freedom Restoration
Act, or RFRA, 42 U.S.C. § 2000bb; and the National
Historic Preservation Act, or NHPA, 54 U.S.C. § 300101.
Some of these claims are denominated as dependent on the
court’s resolution of the plaintiffs’ IRA claim, the
first count of their complaint. The plaintiffs also
bring common-law counts of unjust enrichment, promissory
estoppel, and the Alabama tort of outrage, the last of
which they say applies only if the court rules in their
favor on the IRA claim. This tort-of-outrage claim is
the only count brought against the Individual Defendants.
With these claims, the plaintiffs seek, inter alia, to
have Hickory Ground taken out of trust for PBCI and placed
in a constructive trust for them, to have federal
preservation grants to PBCI for the site ceased, to
prevent the Tribal and Federal Defendants from
undertaking any further clearing or construction on the
Hickory Ground site, and to require that the Tribal
Defendants “cause the Hickory Ground Site to be returned
to the condition it was in prior to the construction of
the casino resort.” Second Amended Complaint (Doc. 79)
at 76-79. They do not seek damages, except from the
Individual Defendants for the tort-of-outrage claim if
applicable.
This case is now before the court on the separate
motions of the Federal Defendants, the Tribal Defendants,
and the Individual Defendants to dismiss the plaintiffs’
claims under Rules 12(b)(1) and 12(b)(6) of the Federal
Rules of Civil Procedure. The court has jurisdiction
pursuant to 28 U.S.C. §§ 1331 (federal question), 1362
(federal-law claims brought by Indian Tribes), 1367
(supplemental jurisdiction), and 25 U.S.C. § 3013
(NAGPRA). As explained below, the court finds that the
Tribal Defendants, including the tribal officials named
in their official capacities, are immune from this suit
and must be dismissed. Without the Tribal Defendants
present, the remaining claims cannot be adjudicated under
the precepts of Rule 19 of the Federal Rules of Civil
Procedure. The Tribal Defendants’ motion to dismiss will
accordingly be granted, the motions of the Federal and
Individual Defendants will be denied as moot, and this
suit will be dismissed.
I.FACTUAL BACKGROUND
The court at this stage must accept as true the
factual allegations of the second amended complaint. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). According
to those allegations, Hickory Ground is a site of
longstanding cultural, religious, and political
importance for the Muscogee (Creek) Nation, believed to
date back to the nation’s original tribal town “at the
time of the beginnings.” Second Amended Complaint (Doc.
190) at ¶ 46. Perhaps most importantly for present
purposes, the area contained ceremonial grounds and a
number of burial sites and individual graves, some within
the ceremonial grounds and some beneath the family homes
of the dead. These graves held human remains and funerary
objects of deep significance to the plaintiffs, and the
graves were situated in specific places within Hickory
Ground based on the position held by the deceased
individual in the town’s governance structure.
The plaintiffs explain that it is their
“long-established religious belief that burial and
ceremonial grounds are sacrosanct and must not be
entered, let alone disturbed, without the proper
religious protocol.” Id. at ¶ 55. In accordance with
these religious beliefs, the plaintiffs hold “that their
ancestors must be left at peace in their final resting
places with their possessions,” and that the plaintiffs
“owe a religious duty to their ancestors to care for the
graves and bodies of the deceased.” Id. at ¶¶ 56-57.
PBCI acquired Hickory Ground in 1980 with funding
from a federal preservation grant, subject to a 20-year
protective covenant requiring preservation of the
property. In 1984, the Interior Department took the land
into trust for PBCI, following the recognition of PBCI’s
tribal status by the United States government earlier
that year. See Trust Deed (Doc. 203-2) at 1.2 Shortly
after the protective covenant expired in July 2000, PBCI
began excavating the site alongside archaeologists from
Auburn University to gather information about the
cultural artifacts buried at Hickory Ground prior to
development of the area. The excavation was completed
in 2011.
In the meantime, the Alabama Historical Commission
and others began in 2001 to write letters to the Interior
Department and the Bureau of Indian Affairs raising
concerns about potential disturbance of the cultural
artifacts at Hickory Ground in the course of PBCI’s
excavation. The City of Wetumpka, the Alabama
Preservation Alliance, and an individual member of the
Creek Nation filed suit against PBCI in 2001, making many
of the same allegations reiterated in the present suit,
including that the then-planned excavation and clearing
2. The trust deed is appropriate for the court to
review at this stage because it is “central to the
plaintiff’s claims and is undisputed in terms of
authenticity.” Maxcess, Inc. v. Lucent Techs., Inc., 433
F.3d 1337, 1340 n.3 (11th Cir. 2005).
of the site would violate NAGPRA, ARPA, and the NHPA.
See generally First Amended Complaint (Doc. 20), City of
Wetumpka v. Norton, No. 01-cv-1146-WHA (M.D. Ala. Nov.
9, 2001). The suit was dismissed with prejudice shortly
thereafter by request of the plaintiffs. See Order (Doc.
22) at 1, City of Wetumpka, No. 01-cv-1146-WHA (M.D. Ala.
Nov. 21, 2001) (Albritton, C.J.).
According to the operative complaint in this case,
the plaintiffs here were first notified of the excavation
sometime in 2006. See Second Amended Complaint (Doc.
190) at ¶ 137. The plaintiffs then “engaged in a
years-long effort to persuade [PBCI] not to excavate and
desecrate the remains of Plaintiffs’ ancestors and other
cultural items and to return any cultural items already
excavated from Hickory Ground to their original resting
place.” Id. at ¶ 139. The plaintiffs also contacted the
National Park Service about their concerns.
Negotiations between the plaintiffs and PBCI
ultimately failed in 2011. The following year, PBCI
reinterred many of the cultural artifacts removed from
Hickory Ground at other locations. PBCI notified
plaintiffs Muscogee (Creek) Nation and Mekko Thompson3 of
the planned reburials by letter on April 4, 2012, but
completed the reburials before the plaintiffs responded
nine days later. Id. at ¶¶ 153-58. In July 2012, PBCI
announced plans to develop what is now the Wind Creek
Wetumpka. The plaintiffs filed the present suit that
December. Construction was completed on the Wind Creek
Wetumpka in 2014, during the pendency of this litigation,
and the casino and resort have been operational since
then. In March 2020, as noted above, the plaintiffs
filed the operative second amended complaint after the
case had been stayed pending unsuccessful settlement
negotiations.
II. MOTION-TO-DISMISS STANDARD
In considering a defendant’s motion to dismiss, the
court accepts the plaintiff’s allegations as true, see
3. As both the plaintiffs and the Tribal Defendants
use this honorific when identifying plaintiff Thompson
in their briefing, the court does the same.
Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), and
construes the complaint in the plaintiff’s favor, see
Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993). The
court may draw “reasonable inferences” from the facts
alleged in the complaint. Chesser v. Sparks, 248 F.3d
1117, 1121 (11th Cir. 2001).
To survive a motion to dismiss for failure to state
a claim under Federal Rule of Civil Procedure 12(b)(6),
a complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570, (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id.
The defendants in this case also move to dismiss many
of the plaintiffs’ claims for lack of subject-matter
jurisdiction under Federal Rule of Civil Procedure
12(b)(1). A motion under Rule 12(b)(1) can present
either a facial or a factual attack to the court’s
jurisdiction. See McElmurray v. Consol. Gov’t of
Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir.
2007). When resolving a facial attack under Rule
12(b)(1), as when resolving a Rule 12(b)(6) motion, the
court must assume the truth of the allegations in the
complaint. See id. If the motion instead depends on the
resolution of disputed facts, however, the court must
provide the parties an opportunity for discovery and a
hearing before deciding the motion. See id.
Finally, the Tribal Defendants have moved to dismiss
the entirety of the second amended complaint under Rule
12(b)(7), on the ground that PBCI is an indispensable
party to the litigation but is immune from suit. In such
motions, the burden is on the movant to show the necessity
of the relevant party and the nature of the interests
that will be unprotected in the party’s absence. See W.
Peninsular Title Co. v. Palm Beach County, 41 F.3d 1490,
1492 (11th Cir. 1995) (per curiam). As with a motion
under Rule 12(b)(6), the court must assume the truth of
the factual allegations in the complaint. See 5C Charles
Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1359 (3d ed. 2020). But the court is not
limited to the complaint, and the parties may present
evidence outside the pleadings. See id. A dismissal
under Rule 12(b)(7) is without prejudice. See id.
III. DISCUSSION
The court begins and ends its analysis with the
Tribal Defendants’ motion to dismiss. The Tribal
Defendants named in the second amended complaint are
immune from the claims made here: PBCI and PCI Gaming
Authority because they enjoy sovereign immunity from
unconsented suit, and the tribal officials under the
doctrine announced in Idaho v. Coeur d’Alene Tribe, 521
U.S. 261 (1997). In the absence of any tribal
representatives among the defendants, the plaintiffs’
remaining claims cannot be adjudicated without serious
prejudice to the interests of PBCI. Accordingly,
pursuant to Rule 19(b) of the Federal Rules of Civil
Procedure, the suit must be dismissed.
A. Immunity of the Tribal Defendants
The Tribal Defendants move to dismiss all of the
claims against them as barred by sovereign immunity. As
to the claims against PBCI and the PCI Gaming Authority,
the Tribal Defendants are plainly correct, and the claims
must be dismissed. Tribes are “separate sovereigns
pre-existing the Constitution.” Michigan v. Bay Mills
Indian Cmty., 572 U.S. 782, 788 (2014) (quoting Santa
Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978)). As
“domestic dependent nations,” they maintain “historic
sovereign authority” subject only to Congress’s power to
abrogate their sovereign rights. Id. (quoting Okla. Tax
Comm’n v. Citizen Band Potawatomi Tribe of Okla., 498
U.S. 505, 509 (1991)). Among the incidents of tribal
sovereign authority, Tribes such as PBCI enjoy immunity
against unconsented suits absent express congressional
override of that immunity. See Alabama v. PCI Gaming
Auth., 801 F.3d 1278, 1287 (11th Cir. 2015).
This case is unusual in that Tribes are present as
both plaintiffs and defendants. Although tribal
sovereign immunity bars suits brought by States against
unconsenting Tribes absent congressional authorization,
see Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S.
751, 755-56 (1998), it does not appear that either the
Supreme Court or the Eleventh Circuit Court of Appeals
has decided whether sovereign immunity may be asserted
in suits brought by one Tribe against another. Cf. Caddo
Nation of Okla. v. Wichita & Affiliated Tribes, 786 F.
App’x 837, 840-41 (10th Cir. 2019) (assuming sovereign
immunity applied to suit between Tribes absent waiver).
But since “an Indian tribe is subject to suit only where
Congress has authorized the suit or the tribe has waived
its immunity,” Kiowa Tribe, 523 U.S. at 754, and
considering that Tribes are not subject to the
“‘mutuality of ... concession’ that ‘makes the States’
surrender of immunity from suit by sister States
plausible,’” id. at 756 (alteration in original) (quoting
Blatchford v. Native Village of Noatak, 501 U.S. 775, 782
(1991)), the court does not see why inter-tribal
litigation should be exempt from the principles of
sovereign immunity that govern all other suits against
Tribes.
As such, PBCI is entitled to have the claims against
it dismissed on the basis of tribal sovereign immunity.
Furthermore, the Eleventh Circuit has held that PBCI’s
immunity is shared by PCI Gaming Authority “because it
operates as an arm of the Tribe.” PCI Gaming Auth., 801
F.3d at 1287. The plaintiffs’ argument to the
contrary--that PBCI and PCI Gaming Authority received
delegated federal authority and thereby became subject
to the APA’s general immunity waiver when they signed an
agreement with the National Park Service in 1999 to
undertake certain duties prescribed by the National
Historic Preservation Act--is wrong. The APA waives the
immunity of federal agencies and the officers and
employees thereof from suits seeking non-monetary relief.
5 U.S.C. § 702. PBCI did not turn itself into a federal
agency by signing a contract with one.
The primary case the plaintiffs marshal in support
of their theory, Caddo Nation of Oklahoma, is not on
point. There, the defendant Tribe had expressly waived
its immunity and consented to suit in the agreement it
signed with the Department of Housing and Urban
Development. See 786 F. App’x at 840 n.4. No consent
to suit appears in PBCI’s agreement with the National
Park Service, nor does the complaint contain factual
allegations that PBCI has otherwise consented to suit.
See NPS Agreement (Doc. 190-1) at 115-19. “[T]he Supreme
Court has made it plain that waivers of tribal sovereign
immunity cannot be implied on the basis of a tribe’s
actions, but must be unequivocally expressed.” Furry v.
Miccosukee Tribe of Indians, 685 F.3d 1224, 1234 (11th
Cir. 2012) (quoting Sanderlin v. Seminole Tribe, 243 F.3d
1282, 1286 (11th Cir. 2001)). There is no such
unequivocal waiver here, so PBCI and PCI Gaming Authority
may assert their sovereign immunity.
Whether the tribal officials named as defendants in
their official capacities are immune from suit is a more
complicated question. In general, suits for equitable
relief against officers in their official capacities are
not barred by sovereign immunity under the doctrine of
Ex parte Young, 209 U.S. 123 (1908). The Tribal
Defendants argue that Young is inapplicable here because
the plaintiffs “seek not to stop ongoing violations of
federal law, but to adjudicate the legality of discrete
past acts,” and because the specific nature of the
plaintiffs’ claims implicates “special sovereignty
interests” that exempt them from Young under the doctrine
of Coeur d’Alene. Br. in Supp. Tribal Defs.’ Mot. to
Dismiss (Doc. 202) at 23.
The first of these arguments misconstrues either the
plaintiffs’ complaint or the distinction drawn by the
Young doctrine between retrospective and prospective
claims. While it is true that this suit arises from
things that happened in the past--the taking of Hickory
Ground into trust for PBCI, the excavation of the land,
the construction of the Wind Creek Wetumpka--the relief
that the plaintiffs request is forward-looking and
equitable. They ask that the defendants be enjoined from
continuing to excavate Hickory Ground or operate the Wind
Creek Wetumpka, and that they be required to return to
the plaintiffs the cultural items removed from Hickory
Ground and restore the land itself into the condition it
was in before the excavations began. They say that the
defendants are engaging in an ongoing violation of
federal law by retaining the excavated cultural items and
continuing to operate the Wind Creek Wetumpka. And they
do not ask for money damages from the official defendants
for these alleged violations.
As the Supreme Court has explained and the Tribal
Defendants have acknowledged, this is “ordinarily
sufficient to invoke the Young fiction.” Coeur d’Alene,
521 U.S. at 281. Most suits, including equitable ones,
arise from events that have already occurred. The fact
of past harm makes clear the likelihood of future harm.
See, e.g., Wooley v. Maynard, 430 U.S. 705, 712 (1977).
The Young doctrine does not require an official defendant
not to have done anything wrong yet; it requires that the
plaintiff seek to prevent future or ongoing wrongdoing,
regardless of what happened in the past. That is what
the plaintiffs seek here, and their suit against the
official defendants accordingly falls within the
boundaries of Ex parte Young.
Still, not all suits that meet the general
prerequisites of the Young doctrine may be heard. As
relevant here, the Supreme Court recognized in Coeur
d’Alene that certain suits that impose on “special
sovereignty interests” in important sovereign-owned
lands are subject to sovereign immunity whether they are
brought against the sovereign directly or by naming
officials of the sovereign entity in their official
capacities. Coeur d’Alene, 521 U.S. at 281. In Coeur
d’Alene, for instance, the imposition was an action
seeking relief that the Court found to be “the functional
equivalent of quiet title,” id. at 282--the suit sought
to establish the Tribe’s “entitlement to the exclusive
use and occupancy and the right to quiet enjoyment of”
certain submerged lands in Lake Coeur d’Alene that the
State claimed as its own, id. at 264-65. As the Court
explained, “[t]he suit would diminish, even extinguish,
the State’s control over a vast reach of lands and waters
long deemed by the State to be an integral part of its
territory.” Id. at 282. A suit seeking such
“far-reaching and invasive relief” is for all practical
purposes a suit against the sovereign itself, and as such
it is barred by sovereign immunity unless the sovereign
consents. Id.
Coeur d’Alene was, of course, an “unusual case”
establishing a “narrow exception” to Young. Pls.’
Response to Tribal Defs.’ Notice of Supplemental Auth.
(Doc. 220) at 3 (quoting Curling v. Sec’y of State, 761
F. App’x 927, 933-34 (11th Cir. 2019)). But this case
fits within that exception. The plaintiffs’ suit seeks
to divest PBCI more or less completely of its control
over Hickory Ground. It seeks orders from the court
requiring PBCI to dismantle the Wind Creek Wetumpka,
restore Hickory Ground, “to the greatest extent possible,
to its pre-excavation and pre-construction condition,”
which would include “returning the excavated cultural
items to their original burial locations,” abstain from
“any further ground disturbing, clearing, grading,
leveling, or construction activity” at Hickory Ground,
and placing the land in constructive trust for the
plaintiffs “as relief for Poarch’s breach of its promises
to the Muscogee (Creek) Nation.” Second Amended
Complaint (Doc. 190) at 76-79. Beyond that, the
plaintiffs’ IRA claim seeks to convert Hickory Ground
from reservation land held by the Interior Department in
trust for PBCI into a parcel owned by the Tribe in fee
simple. Not only would this prevent PBCI from operating
a casino there, but it would transform the nature of the
Tribe’s relationship to Hickory Ground, changing it from
one of sovereign ownership of tribal territory to an
everyday property interest that might be held by a
private individual or corporation. This “goes to the
heart of [PBCI]’s sovereign and proprietary interests”
and is every bit as invasive as the relief sought in
Coeur d’Alene. Jamul Action Comm. v. Simermeyer, 974
F.3d 984, 996 (9th Cir. 2020).
In effect, the plaintiffs ask the court to order PBCI
to cease the activities it currently carries out at
Hickory Ground, alter the site drastically at the
plaintiffs’ direction to transform it back into the
condition in which they desire it to remain, and then
leave the land alone. These remedies might not literally
revoke PBCI’s title to Hickory Ground. See Pls.’
Response to Tribal Defs.’ Notice of Supplemental Auth.
(Doc. 220) at 2. But they would do everything short of
that, providing the plaintiffs “de facto beneficial
ownership” of the site and divesting PBCI “of its right
to use what is, after all, its land.” Lyng v. Nw. Indian
Cemetery Protective Ass’n, 485 U.S. 439, 453 (1988)
(emphasis in original).
Moreover, as in Coeur d’Alene, the particular lands
addressed by this suit bear special significance to the
sovereign defendant. In Coeur d’Alene, the plaintiffs
sought to end the State’s control of certain “submerged
lands, lands with a unique status in the law.” Coeur
d’Alene, 521 U.S. at 283. As the Court explained, the
history of American and English law makes clear that
navigable waters and the land beneath them carry special
“importance ... to state sovereignty.” Id. So too does
Hickory Ground carry special importance to the
sovereignty of PBCI. The Tribe has owned the land for
40 years, and the casino it operates there is a major
driver of its economy. See Second Amended Complaint
(Doc. 190) at ¶¶ 202, 211. And PBCI has significant
historical connections to Hickory Ground as well.
According to the Interior Department’s memorandum
acknowledging PBCI’s tribal status, which is cited in the
plaintiffs’ complaint, see id. at ¶ 63, the Tribe
consists of the descendants of members of the Creek
Nation who remained in Alabama after the Trail of Tears,
see U.S. Dep’t of the Interior, Proposed Finding for
Federal Acknowledgement of the Poarch Band of Creeks of
Alabama 1-3 (Dec. 29, 1983). Hickory Ground is central
to the history of the Creek Nation in Alabama; the site
“was involved in nearly all the major historic events in
the southeast before the removal of Creeks from Alabama
in 1836.” Application for Historic Preservation Funds
(Doc. 190-1) at 4.
This land, long owned by PBCI, is a vital part of
both the Tribe’s history and its present economy. No
matter the phrasing of the plaintiffs’ complaint or how
the defendants they name are therein denominated, PBCI’s
sovereign interest in its ownership and use of Hickory
Ground cannot be placed in jeopardy before this court
without the Tribe’s consent. As a result, the Tribal
Defendants--including the tribal officials named in their
official capacity--must be dismissed from this suit.
B. Required Joinder of Parties
Rule 19 of the Federal Rules of Civil Procedure
governs the mandatory joinder of parties to a suit.
Certain entities whose rights or obligations are
implicated by a particular suit must be joined to that
litigation if feasible. An entity becomes a “required
party” under Rule 19(a) if “the court cannot accord
complete relief” in the entity’s absence or if proceeding
on the action without that entity would “impair or impede
the person’s ability to protect their interest” or leave
an existing party “subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent
obligations.” Fed. R. Civ. P. 19(a). If such a “required
party” cannot be joined to the suit, the court must
evaluate, based on various equitable factors, whether it
is appropriate for the suit to proceed without the party
involved. See Fed. R. Civ. P. 19(b). As noted above,
the burden lies with the party seeking dismissal on
Rule 19 grounds to demonstrate the necessity of the
party’s presence and the interests that will be damaged
in the party’s absence.
“[P]ragmatic concerns, especially the effect on the
parties and the litigation, control” the analysis of
whether a party is required under Rule 19(a). Fla.
Wildlife Fed’n Inc. v. U.S. Army Corps of Eng’rs, 859
F.3d 1306, 1316 (11th Cir. 2017) (quoting Focus on the
Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263,
1280 (11th Cir. 2003)). The Tribal Defendants argue
persuasively that they are required parties to this
litigation. As they accurately describe the suit’s
“overarching objective,” it is “to deprive PBCI of
jurisdiction and control over part of its reservation,
to order it to expend substantial resources ..., and to
literally dismantle one of its major economic engines.”
Br. in Supp. Tribal Defs.’ Mot. to Dismiss (Doc. 202) at
86. Proceeding without any of the Tribal Defendants
would seriously impair the Tribe’s ability to protect its
interest in continuing to operate its casino on its land,
an interest not shared by the Federal Defendants who
would remain in the suit. The Eleventh Circuit has found
considerably lesser threats of interest-impairment than
this to make a party required under Rule 19(a). See,
e.g., Fla. Wildlife Fed’n, 859 F.3d at 1317. And the
court could not afford complete relief without the Tribe
or any of its representatives present. No injunction
running against the Federal Defendants could force the
Tribe to stop operating the Wind Creek Wetumpka or to
tear it down, nor could the court grant such relief
against the Individual Defendants, who again are sued
only in their individual capacities for monetary relief
on the tort-of-outrage claim.
The plaintiffs do not meaningfully contest that the
Tribal Defendants as a group are required parties under
Rule 19. They say instead that the interests of PBCI
itself and PCI Gaming Authority could appropriately be
represented by the tribal officials named as
official-capacity defendants. See Pls.’ Response to
Tribal Defs.’ Mot. to Dismiss (Doc. 212) at 105 (arguing
that “Poarch and PCI Gaming are adequately represented
by the tribal official defendants”). But as discussed
above, the tribal officials too enjoy sovereign immunity
and will be dismissed from this suit. Without either the
Tribe or its officials in this case, the interests of
PBCI will not be adequately protected.4
When a required party cannot be joined to a suit,
the court must weigh the relevant equities, including
four specific factors set forth in Rule 19(b), to
determine whether the suit can move forward without the
party. In this case, the Supreme Court’s decision in
Republic of Philippines v. Pimentel, 553 U.S. 851 (2008),
all but answers the question whether the suit can proceed
4. There is one exception in this suit to the
general insufficiency of the remaining defendants to
protect the Tribal Defendants’ interests: the plaintiffs’
tort-of-outrage claim against the Individual Defendants
in their individual capacities. Rule 19 speaks of the
parties required for an “action” to proceed, not
particular claims, and it mandates dismissal of the
“action” in certain instances when these required parties
cannot be joined. Fed. R. Civ. P. 19(a)(1)(B), (b). But
the Supreme Court has explained that a “civil action” may
“comprise[] fewer claims than were included in the
complaint.” Exxon Mobil Corp. v. Allapattah Servs.,
Inc., 545 U.S. 546, 559 (2005). In any event, whether
or not Rule 19 would require the plaintiffs’
tort-of-outrage claim to be dismissed with the other
claims, the plaintiffs have expressly made the viability
of their outrage claim contingent on first succeeding on
their claim under the IRA. See Second Amended Complaint
(Doc. 190) at ¶ 200. As such, because the court will
dismiss the plaintiffs’ IRA claim, it will treat their
tort-of-outrage claim as voluntarily withdrawn.
without the Tribal Defendants present. As the Court
held, “[a] case may not proceed when a required-entity
sovereign is not amenable to suit.” Id. at 867. “[W]here
sovereign immunity is asserted, and the claims of the
sovereign are not frivolous, dismissal of the action must
be ordered where there is a potential for injury to the
interests of the absent sovereign.” Id.
Among the factors enumerated in Rule 19(b), the
difficulties raised by proceeding with a suit that
implicates an absent sovereign’s interests--rather than
the interests of a non-sovereign absent party--go most
directly to whether a judgment rendered in the
sovereign’s absence could “prejudice that person or the
existing parties.” Fed. R. Civ. P. 19(b)(1); see also
Pimentel, 553 U.S. at 869. As explained above, a judgment
rendered in the absence of the Tribal Defendants could
nevertheless all but entirely demolish PBCI’s control
over part of its tribal land. Furthermore, there do not
appear to be any circumscribed remedies the plaintiffs
could seek against the other defendants that would
eliminate the burden on PBCI’s interests. See Fed. R.
Civ. P. 19(b)(2). A ruling against the Federal
Defendants on the plaintiffs’ IRA claim would make PBCI’s
further operation of the Wind Creek Wetumpka illegal; a
ruling against them on the plaintiffs’ NAGPRA or ARPA
claim would require the federal government to do what it
could to force PBCI to tear down the Wind Creek Wetumpka
and restore the site to its pre-excavation status. See
Second Amended Complaint (Doc. 190) at ¶¶ 261(b), 282(b).
Whether the judgment would be “adequate” without the
Tribal Defendants present--the factor set forth in Rule
19(b)(3)--turns on the “public stake in settling disputes
by wholes, whenever possible.” Pimentel, 553 U.S. at 870
(quoting Provident Tradesmens Bank & Tr. Co. v.
Patterson, 390 U.S. 102, 111 (1968)). This longstanding
dispute between the Muscogee (Creek) Nation and PBCI over
control of the human remains and cultural items once
interred at Hickory Ground could not be resolved as a
whole without the Tribe or any of its representatives
present. And while it is true that dismissing this suit
may leave the plaintiffs no forum for at least some of
their claims--the consideration raised by Rule
19(b)(4)--this is sometimes the necessary consequence of
the obligations imposed on courts and litigants by
Rule 19. See Pimentel, 553 U.S. at 872. Moreover, the
disposition of the present suit does not mean that all
hope is lost for these plaintiffs. As noted above, a
dismissal for failure to join a required party is without
prejudice. A narrower suit seeking more limited
relief--such as the return of the bodies and funerary
objects buried at Hickory Ground to the descendants of
the deceased--may not trigger the same sovereign
interests that preclude this litigation from proceeding,
particularly if such a suit were directed at specific
tribal officials responsible for PBCI’s ongoing control
of those bodies and artifacts. In any event, the immunity
of sovereigns against unconsented suits does not bend to
the injustice of claims unheard.
IV. CONCLUSION
For all of these reasons, the court concludes that
the Tribal Defendants are required parties to this suit,
that they cannot be joined to it, and that the suit may
not proceed in their absence. Accordingly, the court
will grant the Tribal Defendants’ motion to dismiss, deny
as moot the motions to dismiss of the Federal and
Individual Defendants, and dismiss this action without
prejudice.5
In so concluding, the court does not question that
the plaintiffs have grave historical, cultural, and
religious interests in the treatment of Hickory Ground
and those who were buried there. But so too does PBCI,
as a sovereign entity, have serious interests in not
having its capacity to exercise dominion over its lands
adjudicated in a federal court without its presence and
consent. Whether these plaintiffs or other descendants
of the people once interred at Hickory Ground could bring
5. As noted above, this dismissal will not include
the claims against Martin Construction, the company that
has filed a notice of bankruptcy in this case.
a suit seeking more limited remedies is not before the
court today. All the court now finds is that the sweeping
relief sought here implicates so deeply the sovereign
interests of PBCI that the claims against the Tribe and
its officials may not proceed without PBCI’s consent, and
that this litigation cannot proceed without PBCI’s
presence or the presence of its representatives.
* * *
A separate judgment will issue.
DONE, this the 15th day of March, 2021.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE