These Native tribes share a history. A conflict steeped in colonialism is tearing them apart

The mood was a mixture of celebratory and somber as citizens of the Muscogee (Creek) Nation gathered at the banks of the Coosa River in Alabama in late September. Some people cried as others knelt to touch the water that held great significance to their ancestral tribal towns. It was many Muscogee citizens’ first time visiting the sacred site Hickory Ground, which has taken center stage in a decades-long dispute between their tribal nation and another. At the heart of the fight are Muscogee human remains and artifacts, and a multimillion-dollar casino built atop the sacred site.

On 25 September, the 11th US circuit court of appeals in Atlanta heard oral arguments in the case between the Muscogee (Creek) Nation of Oklahoma and the Poarch Creek Indians of Alabama. By many accounts, the case illustrates the continued effects of colonization.

In the early 2000s, the Poarch removed Muscogee remains and artifacts on the site of Hickory Ground to build the Wind Creek casino and hotel. The Muscogee Nation say that the exhumed remains are being improperly stored in a garden shed on the site and in plastic totes at Auburn University, which conducted the archeological study, in violation of the federal Native American Graves Protection and Repatriation Act’s standards. Nagpra requires federal agencies and institutions to return Indigenous remains and artifacts to the tribal nations they belong to.

Now, the Muscogee Nation is appealing a 2021 lower court ruling that gave the Poarch sovereign immunity in the case, a legal doctrine that protects them from a lawsuit. While the Muscogee Nation believes that the case could protect the artifacts and remains of other tribal nations forcibly removed from their ancestral lands, the Poarch fear that a successful appeal would amount to a land grab.

In honor of their day in court, 150 Muscogee Nation citizens and their supporters drove two charter buses and a convoy of 15 cars from Okmulgee, Oklahoma, to Montgomery, Alabama, on the Monday before the oral arguments. The next afternoon, they stopped for lunch at a park near Alabama’s Hickory Ground.

“Everyone enjoyed being able to walk around and be in the footprints of our ancestors who were here,” RaeLynn Butler, the Muscogee Nation’s secretary of culture and humanities, said. While some Muscogee citizens prepared balls of dough for frybread, others lounged in lawn chairs on the expansive green space. The following morning, the tribal citizens marched several blocks from their hotel to the Atlanta courthouse.

The Muscogee Nation’s original lawsuit in 2012 against the Poarch, Auburn University and federal agencies including the Bureau of Indian Affairs asked that the 34-acre Hickory Ground be returned to its natural state and that their ancestors’ remains be returned to their original locations. They have also asked that Alabama’s state historic preservation office assume responsibility of the land instead of the Poarch. Auburn University and the Bureau of Indian Affairs did not respond to requests for comment.

If the Muscogee Nation is successful in its appeal, it could set a legal precedent for the protection of sacred sites and tribal sovereignty – the right of Native Americans to govern themselves – throughout the nation, said Mary Kathryn Nagle, the Muscogee Nation’s attorney. “What’s so dangerous about what Poarch is doing is they’re threatening to eradicate that culture that is so important to tribal sovereignty,” Nagle told the Guardian. “And so by protecting sacred sites, by protecting our most holy of holies, we’re protecting who we truly are as Native nations and as Native people.”

For the Poarch’s part, the tribal nation says that it did not break any federal or historic preservation laws by building a casino. “It’s really hurtful to know that these are the circumstances that we’re faced with when the Poarch Creek leaders, back when they purchased this land, asked Muscogee to join Poarch Creek,” Stephanie A Bryan, the Poarch Creek Indians’ tribal chair and CEO, said. “They never responded at that time.”

The dispute is a prime example of how the continued effects of colonialism and forced removal have ruptured historical and current connections among Indigenous communities, according to Keith Richotte, director of the University of Arizona’s Indigenous Peoples Law and Policy Program. “It creates a situation where you have two legitimate, viable tribal nations who come into dispute because there’s a common history and territory,” said Richotte, “but a point of divergence because each is trying to exercise its authority in the same space.”

The 11th circuit court is expected to make a decision on the appeal within the next few months.

‘The footprints of our ancestors’

Hickory Ground, known as Oce Vpofv, was the last capital of the Muscogee people before the removal treaty of 1832 , when Muscogee leaders were forced to cede part of their land in Alabama and traveled west to Oklahoma during the Trail of Tears. When the Muscogee people were violently uprooted from their original lands, they carried the coal of their sacred fire with them – a central part of the traditional religion – to establish Hickory Ground Tribal Town in Oklahoma, which is now led by Chief, or Mekko, George Thompson. The Poarch share history with the Muscogee Nation, as more than 30 Creek towns existed in Alabama before the removal treaty.

The Poarch, which became a federally recognized tribe in Alabama in 1984, purchased Hickory Ground in 1980 with federal preservation grant funds that included a covenant that the tribal nation would preserve the site without excavation for 20 years. This is where the two tribal nations’ perspectives diverge. Around the expiration of the covenant, says the Muscogee Nation, the Poarch excavated 57 Muscogee human remains and more than 7,000 artifacts, which the Muscogee say are currently being improperly stored, to build Wind Creek Casino and Hotel.

When Butler from the Muscogee Nation visited the remains at Auburn University, she said that she was appalled to see them stored in tight boxes without ventilation that may breed mold. “To me, they’re not culturally Creek or Muscogee, because you would never dig up a burial ground for money and profit,” said Butler. “They broke every cultural law that exists within Muscogee tradition by doing that.”

For the Poarch’s part, the tribal nation said that they left the ceremonial grounds on the site untouched, and that they re-interred all remains in their possession using Muscogee Nation’s repatriation guidelines during a 2012 ceremony. The casino provides jobs for 750 people in a poor part of Alabama, said Bryan from the Poarch: “It drives the economy for that area, and it also gives people a safe place to work.”

Casinos provide much-needed revenue for tribal nations to fund government operations, Richotte from the University of Arizona said: “It’s hard to exercise sovereignty without the economic viability to do so.”

The dispute also highlights the complicated role that the federal government plays in settling inter-tribal disagreements. “Because of the nature of the colonial process, tribes will sometimes look to the greater colonial power to resolve these types of disputes,” Richotte said. “If we’re going to exercise sovereignty, running to the federal government every time someone’s aggrieved about this or that or the next thing is maybe not the best practice.”

Instead, Richotte added, tribal nations could settle disputes themselves by drawing upon tribal law, or other conflict-resolution strategies. Separately, the two tribal nations have expressed a desire to strengthen federal regulations to prevent similar situations from happening again.

In the future, Bryan hopes that the Poarch and the Muscogee Nation will create a museum together that highlights their collective Creek history. “Nothing would make me feel better than we come to a resolution as Creek family that descended from Alabama,” Bryan said, “and we work together collectively for the next seven generations … and show love, peace and unity.”