A yearslong dispute between two federally recognized tribes — the Muscogee Nation from Oklahoma and Poarch Band of Creek Indians from Alabama — over the future of the remains of people from which both tribes claim descent was heard in the Federal 11th Circuit Court of Appeals on Wednesday.
“For over 20 years, people have been fighting,” said Raelynn Butler, Secretary of Culture and Humanities for the Muscogee Nation. “I just hope that the court system hears us and our ancestors, and our plea to help to hold those accountable for what happened.”
During the construction of their Wind Creek Casino and related properties, the Poarch Band of Creek allowed the disinterment by archaeologists of 57 people at a place called Hickory Ground, a historic Muscogee ceremonial ground now situated inside the city of Wetumpka, Ala.
The Muscogee Nation maintains that disinterment violated the federal Native American Graves Protection and Repatriation Act, or NAGPRA, and that the remains should be returned to the living descendants of the dis-interred, Muscogee citizens who maintain the modern-day Hickory Ground in Oklahoma.
A district judge had tossed the suit brought by the Muscogee Nation against the much smaller Poarch Band of Creek Indians on the grounds that the Poarch Band, like any other federally recognized tribe, enjoys sovereign immunity.
Before the three-judge panel of the 11th Circuit, attorney for the Muscogee Nation Mary Kathryn Nagle sought to revive the action, arguing the Muscogee Nation should instead be allowed to sue individual Poarch officials for what she said is an ongoing violation of NAGPRA, and therefore a violation of federal law.
“They dug up 57 Muskogee relatives, put them in trash bags and sent many of them off to Auburn University for scientific study," Nagle said. "And that directly violates NAGPRA.”
Former United States Poet Laureate Joy Harjo is a Hickory Ground descendant and one of a handful of Muscogee citizens who have visited the Auburn University archaeology department collection.
“So I walked in the door; the entry there was so intense, I almost turned around and ran,” Harjo said.
Both Harjo and Raelynn Butler said on their visits they saw people’s remains stored in large plastic bins.
“There's no kindness or tenderness; everybody's been just thrown into boxes, a number put on him,” Harjo said.
Under NAGPRA, museums and universities like Auburn which still hold human remains or related burial items are bound to return them to the tribes who can demonstrate their connection to them. Both the Poarch Band and the Muscogee Nation have competing NAGPRA claims on what Auburn University still holds.
“Auburn could return them tomorrow," said Raelynn Butler. "This would settle a lot of it."
During the proceedings, the judges of the 11th Circuit spent little time on the NAGPRA allegations and instead focused on the logic of breaking apart into smaller pieces what they called the original “shotgun plea” that ran aground on the sovereign immunity issue.
After the hearing, attorney Mary Kathryn Nagle said she hoped the pieces the court identifies still amount to the whole.
“We're hoping and praying the entire case goes back,” Nagle said. “But they are doing their due diligence and looking at it claim by claim, because it's a different claim for each of the parties, each of the defendants.”
After arguments, Poarch Band Chairman and CEO Stephanie Bryan maintained her tribe was within its sovereign rights.
“We own the land,” Bryan said. "And we control what happens on the land."
Bryan said while the Poarch Band has no control over the Auburn collection, they have returned a smaller number of remains to the Muscogee Nation.
“They have been repatriated based on the Muscogee Creek's repatriation guidelines, the state, federal and the Poarch Creek guidelines,” Bryan said.
As the Mekko, or leader, of the present-day Hickory Ground tribal town, it would have fallen to George Thompson to re-inter his ancestors in the Muscogee tradition and in a manner to let them rest again.
“We received notification, but it was like two days after,” Thompson said. “So it kind of more or less tells you, you know, that something went wrong.”
Muscogee Secretary of Culture and Humanities Raelynn Butler said what she’s really hoping for from the court now is a path to save other tribes from similar conflict in the future.
“That we work to prevent something like this, that there are no more loopholes in the law,” Butler said. “Nobody else should ever have to experience this.”
The decision by the 11th Circuit Court of Appeals could take weeks or even months to arrive.
