No. 1111250 _________________________________________________ IN THE SUPREME COURT OF ALABAMA _________________________________________________ JERRY RAPE, Appellant, v. POARCH BAND OF CREEK INDIANS, ET AL.

, Appellees. _________________________________________________ BRIEF OF AMICUS CURIAE JIM HILDRETH, IN HIS OFFICIAL CAPACITY AS ESCAMBIA COUNTY TAX ASSESSOR __________________________________________________ On appeal from the Circuit Court of Montgomery County (CV-2011-901485, Hon. Eugene W. Reese presiding) __________________________________________________

Submitted by: Bryan M. Taylor Counsel for Amicus Curiae 2005 Cobbs Ford Rd., Ste. 403 Prattville, Alabama 36066 (334) 595-9650 bryan@bryantaylorlaw.com

TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................ii ...............1

INTRODUCTION AND INTEREST OF AMICUS CURIAE SUMMARY OF ARGUMENT ARGUMENT

......................................5

.................................................8

I. The Poarch Band did not satisfy its burden to establish that it is among the class of Indian tribes entitled to benefits under Section 5 of the Indian Reorganization Act, such as tax exemption or civil lawsuit protection .......................................9 II. The Poarch Band did not satisfy its burden to establish the historical predicate necessary to support its assertion of tribal sovereign immunity ........................................15 CONCLUSION ..............................................20 ..................................22

CERTIFICATE OF SERVICE

i

TABLE OF AUTHORITIES Cases Boswell v. Abex Corp., 317 So. 2d 317 (Ala. 1975) ..........................3 Carcieri v. Salazar, 555 U.S. 379 (2009) ......5, 6, 8, 10, 11, 12, 13, 20 City of Pinson v. Utilities Board, 986 So. 2d 367, 370 (Ala. 2007) ....................3 City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005) .................6, 7, 16, 17, 20 Gordon, Dana ,Still, Knight & Gilmore, LLC v. Jefferson County, 44 So. 3d 491 (Ala. Civ. App. 2009) ................4 Jeanie’s Grocer v. Baldwin County Elec. Membership Corop., 331 So. 2d 665 (Ala. 1976) .........................8 Kiowa Tribe of Oklahoma v. Mfg. Technologies, Inc., 523 U.S. 751 (1998) ............................17,18 Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973) ..............................18 New York v. Salazar, No. 6:08-CV-00644, 2012 WL 4364452 (N.D.N.Y. Sep. 24, 2012) ......................11, 12 Newman v. Sava, 878 So. 2d 1147 (Ala. 2003) ........................9 Pontius v. State Farm Mut. Auto. Ins. Co., 915 So. 2d 557 (Ala. 2005) .....................9, 13 State v. Delaney’s, Inc., 668 So. 2d 768, 775 (Ala. Civ. App. 1995) ..........3

ii

Stone v. Paris, 70 So. 3d 420 (Ala. Civ. App. 2011) ................8 Weatherspoon v. Tillery Body Shop, Inc., 44 So. 3d 447 (Ala. 2010) ..........................9 Constitutions and Statutes 25 U.S.C. § 465 .....................................5, 10 Ala. Const. of 1901, Amend. 373(c) (1978)............... 4 Ala. Code § 40-7-1 (1975)........................... 4, 14 Regulations 49 Fed. Reg. 24083 (June 11, 1984) .....................11 50 Fed. Reg. 45502 (1985)2, 10 ......................2, 10 Other Authorities Adam Pestridge, Poarch wants more trust land, Brewton Standard, March 30, 2011 (Exhibit A) .......2 Ala. Att’y Gen. Op. 86-00327 (Aug. 18, 1986) ............3 I. Nelson Rose, Supreme Court Tries to End Tribes’ Sovereign Immunity, Gambling and the Law (visited Jan. 21, 2012) <http://www.gamblingandthelaw.com/columns/ 77-96tribalimmunity.html> .........................15 I. Nelson Rose, Seeking a Dangerous Precedent, 16 Gaming L. Rev. & Econ. 547 (2012) ..............16 Letter from Randall Trickey, Acting Director Eastern Region, Bureau of Indian Affairs to Hon. Earl Barbry, Sr., Chairman, Tunica-Biolxi Tribe of Louisiana (Aug. 11, 2011) <http://turtletalk.files.wordpress.com/2012/08/ tunica-biloxi-carcieri-ruling-from-interior.pdf> ..12

iii

Record of Decision: Trust Acquisition of and Reservation Proclamation for the Cowlitz Indian Tribe, U.S. Dep’t of the Interior Bureau of Indian Affairs (December 2010) <http://www.bia.gov/idc/groups/mywcsp/ documents/text/idc012719.pdf> .....................12 Treaty of Fort Jackson (Treaty with the Creeks), 7 Stat. 120 (Aug. 9, 1814) ........................18

iv

INTRODUCTION AND INTEREST OF AMICUS CURIAE This case implicates interests infinitely larger than the $1 million jackpot at issue in the underlying lawsuit. Given the breathtaking scope of the tribal sovereign

immunity asserted by the Defendants before the trial court, funding for schools, hospitals, law enforcement, roads and bridges, and other public services, at both the state and county levels, is what’s at stake. The Court’s decision in this case may establish a

binding precedent for the resolution of another important, closely related legal controversy: whether the property of the Poarch Band of Creek Indians, wherever situated, is subject to State and local taxation and, ultimately, to judicial enforcement proceedings for nonpayment of property taxes. against Although the no such Band proceeding in is currently County, pending thorough

Poarch

Escambia

treatment of the questions before the Court in the present case could supply State and local revenue officials with much-needed clarity on this subject, as well as a

controlling precedent for the resolution of the identical questions that would likely arise in the event of a tax enforcement case involving Indian lands. 1

Amicus Curiae Jim Hildreth takes no position on the merits of the underlying lawsuit. However, as tax assessor of Escambia County, where the Poarch Band of Creek Indians holds nearly 200 acres in federal trust, see 50 Fed. Reg. 45,502 (1985), operates numerous commercial enterprises

(including a 50,000-square-foot casino), and actively seeks to increase its landholdings, see Adam Prestridge, Poarch wants more trust land, Brewton Standard, March 30, 2011 (Exhibit A), Hildreth has the strongest interest in this Court’s decision questions handing fully down a clear, the thorough, unambiguous and immunity tax

resolving to

jurisdiction and a

common

this

case

potential

enforcement case concerning Poarch Creek land. Of course, Hildreth’s interest in that regard is not particular to the Escambia generic County to the Tax Assessor’s of tax office; it is (or plainly revenue

office

assessor

commissioner) of every county where the Poarch Band owns, or might one day own, property. Hildreth is caught in limbo and wants only to

faithfully perform his official duties in accordance with the law. In 1986, Hildreth the was Poarch 2 advised Band’s by the Alabama land in

attorney

general

that

trust

Escambia County was not subject to taxation because it had been proclaimed a “reservation” by the U.S. Secretary of the Interior. See Ala. Att’y Gen. Op. 86-00327 (Aug. 18, 1986). However, in light of more recent Supreme Court

decisions, which are discussed in detail below, Hildreth has sufficient reason to be concerned that he is

nonetheless under an absolute legal duty to assess all of the Poarch Band’s property in Escambia County, whether or not held in trust, because of the possibility (or

probability) that none of the land actually falls within the scope of the common-law “reservation” tax exemption (or immunity) contemplated by the Attorney General’s Opinion. Hildreth is mindful that a county tax assessor has no

discretion to grant a tax exemption to which a property owner is not legally entitled. See State v. Delaney's,

Inc., 668 So. 2d 768, 774 (Ala. Civ. App. 1995) (quoting Boswell v. Abex Corp., 317 So. 2d 317, 319 (Ala. 1975). Moreover, Hildreth understands that the burden is on the property owner “to clearly establish the right” to a tax exemption. City of Pinson v. Utilities Board, 986 So. 2d 367, 370 (Ala. 2007) (internal citations omitted). “In all cases of doubt as to legislative intention, the presumption 3

is in favor of the taxing power.” Id. Therefore, in the absence of a clearly established tax exemption, or a clear holding of this Court that the Poarch Band enjoys tribal sovereign immunity, Hildreth is obligated to carry out his statutory and constitutional duty to value and assess the Poarch Band’s property in Escambia County as he would the property of any other resident or business. See generally Ala. Code § 40-7-1 (1975); Gordon, Dana, Still Knight & Gilmore, LLC v. Jefferson County, 44 So. 3d 491 (Ala. Civ. App. 2009); Ala. Const. of 1901, Amend. 373(c) (1978). Given the uniqueness and size of the Poarch Band’s

casino alone, such an undertaking would require Hildreth to devote a substantial amount of his office’s time and

resources to this task. The Court’s thorough resolution of the jurisdictional and immunity questions in this case will provide Hildreth and other revenue officials with much-

needed clarity, serve the interests of judicial economy, and promote efficiency with taxpayer resources.

4

SUMMARY OF ARGUMENT On its way to resolving the two procedural questions presented on appeal, the Court should be mindful of the broader ramifications its decision could have, including

the precedent it might set for the resolution of potential tax enforcement cases involving Indian lands in Alabama. To that end, Hildreth submits this brief to assist the Court in reaching conclusions in in the this realm case of that comport of with

existing tribes.

precedent

taxation

Indian

First, the Court should resolve the threshold question ——one of subject-matter jurisdiction——consistent with the U.S. Supreme Court’s decision in Carcieri v. Salazar, 555 U.S. 379 decide a (2009). That question property would to require the the that present might Court case first and to any

common tax

potential

case

arise

involving

property of the Poarch Band. That is whether or not, in light of Carcieri, the Poarch Band is among the class of Indian tribes entitled to the benefits of Section 5 of the Indian Reorganization Act, 26 U.S.C. § 465, which benefits include the right to have land taken into federal trust beyond the jurisdiction of State courts (relevant to Mr. 5

Rape’s claim), and exemption from State and local taxes (relevant to a potential tax enforcement case). The thrust of Carcieri is that these benefits of the IRA do not extend to any tribe that was not a “recognized tribe now under federal jurisdiction,” with “now” meaning 1934, the date of the IRA’s enactment. Carcieri, 555 U.S. at 389 (emphasis added). Because the Defendants presented no evidence that the Poarch Band was federally in 1934, “recognized” the Poarch and “under did not

federal

jurisdiction”

Band

satisfy its burden to esablish that it is among the class of tribes entitled to the benefit of Section 5‘s shield from State and local taxation and civil lawsuits in State courts. Second, the Court should resolve the immunity question against the Poarch Band, consistent with the U.S. Supreme Court’s decision in City of Sherrill v. Oneida Indian

Nation, 544 U.S. 197 (2005). In that case, the Court shot down the Onedia Nation’s claim to sovereign immunity from local ad valorem taxation, holding that the tribe could not “unilaterally revive its ancient sovereignty” over the land at issue because, prior to its acquisition by the tribe in the 1990’s, it had been under the governance and taxation 6

of New York and its local units for two centuries. Id. at 202. As the tribe in Sherrill, the Poarch Band did not satisfy its to burden to establish its a historical claim to record tribal

sufficient

support

present-day

sovereign immunity. Nor could it, since the land at issue in the case at bar was, as in Sherrill, under State and local governance and taxation for at least 180 years prior to its acquisition in the 1990’s by the Poarch Band. See Treaty of Fort Jackson (Treaty with the Creeks), 7 Stat. 120 (Aug. 9, 1814).

7

ARGUMENT In light of recent U.S. Supreme Court decisions, the questions on appeal turn on this Court’s resolution of

important sub-issues that are common to the present case and any potential tax case that might arise involving

property of the Poarch Band. In order to affirm the trial court’s dismissal of Mr. Rape’s claim on either of the two grounds on which it

stands, this Court would be required to speculate crucial missing facts with respect to these sub-issues in favor of the Defendants. Specifically, as to subject-matter

jurisdiction, this Court would have to speculate in light of Carcieri that the Poarch Band was, in fact, a federally “recognized” tribe “under federal jurisdiction” in 1934,

such that it was among the class of tribes entitled Section 5’s shield from State and local taxation and civil lawsuits in State courts. When the Court must “engage in speculation because [it is] without the benefit of facts beyond those alleged in the complaint,” is dismissal premature. for lack of subject-matter v. Baldwin

jurisdiction

Jeanie’s

Grocery

County Elec. Membership Corp., 331 So. 2d 665, 667 (Ala. 8

1976); accord Stone v. Paris, 70 So. 3d 420, 423-24 (Ala. Civ. App. 2011). According to the standard of review set

out by this Court, a ruling on a motion to dismiss for lack of subject-matter jurisdiction “‘is reviewed without a

presumption of correctness,’” and the Court “‘must accept the allegations of the complaint as true.’” Pontius v.

State Farm Mut. Auto. Ins. Co., 915 So. 2d 557, 563 (Ala. 2005) (quoting Newman v. Savas, 878 So. 2d 1147 (Ala.

2003)) (internal citations omitted); see also, Weatherspoon v. Tillery Body Shop, Inc., 44 So. 3d 447, 449 (Ala. 2010). The trial due no court’s to be dismissal reversed in of Mr. Rape’s the to claim is

therefore presented

because

Defendants factual

evidence,

response

the

allegations in Mr. Rape’s complaint, concerning their 1934 status or the historical basis for their claim to

sovereignty over the land at issue. I. The Poarch Band did not satisfy its burden to establish that it is among the class of Indian tribes entitled to benefits under Section 5 of the Indian Reorganization Act, such as tax exemption or civil lawsuit protection.

The sole basis of the Defendants’ assertion of lack of subject-matter jurisdiction is that the underlying claim 9

arose on the tribe’s “trust lands,” (Defs.’ Mot. Dismiss, p. 2), that is, land that was purportedly taken into

federal trust for the benefit of the Poarch Band pursuant to Section 5 of the IRA. It is undisputed that the land on which Mr. Rape’s claim arose was purportedly accepted into trust by the Interior Secretary (like the land in Elmore and Escambia Counties on which the Poarch Band’s other two casinos sit, question is see 50 Fed. Reg. 45,502 (1985)). The real whether the Interior Secretary’s trust

acquisition was legally effective to clothe the Poarch Band with the IRA’s protections from State and local taxation and civil lawsuits. Section 5 of the IRA authorizes the Interior Secretary to acquire land in trust “for the purpose of providing land for Indians.” 25 U.S.C. § 465. It further provides that “such lands and rights shall be exempt from State and local taxation.” Id. However, based on the IRA’s temporal

limitation on the definition of “Indian,” the Supreme Court held in Carcieri that it was Congress’s intent to limit the availability of the IRA’s benefits to Indian tribes that were “recognized tribe[s] now under federal jurisdiction,” with “now” meaning 1934, when the IRA was enacted. Id., 555 10

U.S.

at

389.

Therefore,

after

Carcieri,

a

tribe’s

1934

status is a threshold question of eligibility for Section 5’s benefits. “That whether is, the operative question for ...

determining authority may

[the be

Interior exercised

Secretary’s] [under the

trust is

properly

IRA]

whether the tribe in question was federally recognized and under federal jurisdiction in 1934.” New York v. Salazar, No. 6:08-CV-00644, 2012 WL 4364452, at *8 (N.D.N.Y. Sep. 24, 2012). Applying this two-pronged analysis to the Poarch Band on the record before this Court, the Poarch Band’s 1934 status, at best, remains an open question. The first prong appears not to be satisfied because the Poarch Band of

Creek Indians did not receive federal recognition as such until 1984, some 50 years after the enactment of the IRA. See 49 Fed. Reg. 24,083 (June 11, 1984). The Poarch Band presented no evidence that it was a recognized tribe prior to 1934, notwithstanding its lack of formal federal

acknowledgement until 1984. As to the second prong, the Poarch Band proffered no evidence that it was “under federal jurisdiction” in 1934 within the meaning of the IRA as enlightened by Carcieri. 11

In contrast, other tribes have sought an exhaustive agency review and determination of their 1934 status in light of Carcieri. See, e.g., Letter from Randall Trickey, Acting Director, Eastern Region, Bureau of Indian Affairs, to Hon. Earl Barbry, Sr., Chairman, 11, Tunica-Biloxi 2011) Tribe of

Louisiana

(Aug.

<http://

turtletalk.files.wordpress.com/2012/08/tunica-biloxicarcieri-ruling-from-interior.pdf>; Record of Decision:

Trust Acquisition of and Reservation Proclamation for the Cowlitz Bureau Indian of Tribe, U.S. Department (December of the Interior, <http://

Indian

Affairs

2010)

www.bia.gov/idc/groups/mywcsp/documents/text/ idc012719.pdf>. A factual inquiry into and resolution of a tribe’s 1934 status is an absolute prerequisite to the determination of a tribe’s eligibility for benefits under the IRA. See New York v. Salazar, 2012 WL 4364452 (remanding to the Interior Department a pre-Carcieri trust acquisition the Oneida Indian of Nation because it lacked decision for “a detailed

analysis accounts”).

contested, the

factually-laden analysis of

historical the Poarch

Only

Plaintiff’s

Band’s 1934 status is available in the present case. Thus 12

to rule for the Defendants, this Court would have to assume facts in a light most favorable to them, and disregard the allegations contained in the Complaint, which would be

contrary to this Court’s standard of review. See Pontius, 915 So. 2d at 563. The Defendants mistake this argument as an

impermissible “collateral attack on federal agency action by the Department of Interior, which, acting pursuant to a congressional delegation of authority, made the

decision ... to take the land in question into trust for the Tribe’s p. is benefit.” 7 (Defs.’ Reply Supp. Defs.’ Mot. of

Dismiss, Carcieri

(emphasis the

added)).

The

whole is

thrust not

that

Interior

Secretary

acting

pursuant to the authority delegated by Congress (i.e., he acts ultra vires) when he takes land into trust for a tribe that was not “recognized” and “under federal jurisdiction” in 1934. It is axiomatic that an executive officer cannot bestow legal benefits that he is without power to bestow. Thus, this argument is not a collateral attack on the

government’s actual title to the land, agency action, or even the land’s trust status; rather it is a legitimate question of whether the Poarch Band is within the class of 13

Indian tribes intended by Congress to receive a federal tax exemption, jurisdictional protection from civil lawsuits, and other benefits of the IRA. II. The Poarch Band did not satisfy its burden to establish the historical predicate necessary to support its assertion of tribal sovereign immunity. The second question before this Court is whether the Poarch lawsuit question Band filed enjoys in an tribal sovereign court. in immunity The answer State from to any this

Alabama will

obviously

apply

every

court,

including the courts on which a county tax assessor relies for the vindication of his “right and authority to assess all real estate Ala. ... § and all personal (1975). If property” the in the Band

county.

Code

40-7-1

Poarch

enjoys sovereign immunity from lawsuits, no court of any county in this State would be able to enforce the county tax assessor’s ad valorem tax assessments against the

Poarch Band, even on property that is indisputably taxable because it is not held in federal trust (or, in the case of personal property, not located on the Poarch Band’s

“reservation” or trust land). As a practical matter, then, the Poarch Band could not be compelled to pay any of the 14

property

taxes

it

owes.

Moreover,

as

the

Poarch

Band

expands its landholdings, more and more taxable property in the county would effectively be removed from the tax rolls, further thereby reducing the county’s ad valorem funding tax for base, and

potentially roads public and

devastating bridges,

schools, and other Poarch

hospitals, important

public

safety, if

services.

Theoretically,

the

Band enjoys the tribal immunity it asserts in this case, the Poarch Band could eventually swallow up the county’s entire ad valorem tax base and never pay a dime. The Court should take great care to avoid this

disastrous result in resolving the immunity question here. In fact, the most recent precedent weighs heavily against it. Under that precedent, the Poarch Band cannot rely on tribal sovereign immunity because it has not presented an adequate historical record to support it. “The United States Supreme Court hates tribal sovereign immunity, and has told Congress and other courts to get rid of it.” I. Nelson Rose, Supreme Court Tries to End Tribes’ Sovereign Immunity, Gambling and the Law (visited Jan. 21, 2012) <http://www.gamblingandthelaw.com/columns/

77-96tribalimmunity.html>. In Professor Rose’s observation, 15

the Supreme Court is “openly antagonistic toward claims of tribal sovereign immunity,” even though the doctrine, in some form, persists. Id. He posits that “all nine of the justices agree: tribes should not have the immunity from lawsuits that they now have. They are waiting for cases where they can it cut back on I. tribal Nelson immunity, Rose, or even a

eliminate

completely.”

Seeking

Dangerous Precedent, 16 Gaming L. Rev. & Econ. 547 (2012). In fact, the Supreme Court already significantly

curtailed tribal sovereign immunity in an important case the Defendants failed to mention in their submissions to the trial court. In City of Sherrill v. Oneida Indian

Nation, 544 U.S. 197 (2005), the Court expressly rejected a federally recognized Indian tribe’s claim to “present and future sovereign immunity” from local taxation on land the tribe had acquired in the 1990‘s within an “area that once composed [its] historic reservation,” but which had been continuously governed by New York and its counties and

municipalities for two centuries. Id. at 214, 202. After an exhausting review of the history of the tribe, its

relations with the State and local governments, and the land at issue, the Court held that “‘standards of federal 16

Indian law and federal equity practice’ preclude the Tribe from rekindling embers of sovereignty that long ago grew cold.” Id. at 214 (emphasis added). Thus, based on Sherrill, the Supreme Court does not share the Defendants’ apparent view of tribal sovereign

immunity as something that just comes automatically with being a federally recognized Indian tribe; rather, a

tribe’s assertion of sovereign immunity from suit must be predicated on a fully-developed historical record of a kind that is glaringly absent from the record in the present case. Moreover, Sherrill arguably may be understood as

totally abrogating tribal immunity where it is asserted by a tribe in relation to land that had been under state and local governance for many decades prior to the tribe’s

acquisition in recent times. The Court in Sherrill made clear that the tribe’s claim to sovereign immunity in an was barred brought whether by the asserted tribe for

affirmatively

action

declaratory or injunctive relief, or as a defense to an action brought against the Tribe for nonpayment of taxes. See id. at 214 n.7. Thus Sherrill appears, on this point, to implicitly overrule Kiowa 17 Tribe of Oklahoma v. Mfg.

Technologies,

Inc.,

523

U.S.

751

(1998).

In

Kiowa,

the

Court upheld a tribe’s claim to sovereign immunity from suit on a note. Revisiting earlier cases which had held that a tribe could be subject to taxation outside Indian country, the Court in Kiowa took care to distinguish those cases on the ground that they only involved the question of the substantive application of the tax laws outside Indian country, not the invocation of the procedural defense of sovereign Mescalero immunity. Apache Tribe See v. id. at 751 411 (distinguishing U.S. 145, 148-149

Jones,

(1973)). Sherrill is clear, however, that where the “embers of sovereignty” have “grown cold,” a tribe is barred from asserting sovereign immunity as a defense. The case at bar presents a very similar set of

circumstances to that in Sherrill. Like the Oneida tribe in Sherrill, the Poarch Band only acquired the land at issue here in the 1990’s. Prior to that, the land was subject to the governance and taxation of the State of Alabama and its local units for over 180 years, at least since the Creeks ceded the territory. See Treaty of Fort Jackson, 7 Stat. 120 (Aug. 9, 1814). Therefore, at best, on the record

before this Court, the Poarch Band is trying to “rekindle 18

embers of sovereignty that long ago grew cold.” At worst, it is trying to stoke a fire that has never been lit. In any event, the burden is on the Poarch Band to establish a historical claim has to not record sufficient to support burden Court its the

present-day Poarch reject Band the

sovereign met.

immunity——a this

Therefore, assertion

should

Poarch

Band’s

of

tribal

sovereign

immunity as an absolute defense to actions in State courts, including tax enforcement cases.

19

CONCLUSION In light of Carcieri and Sherrill, and for all the reasons explained in this brief, all of the real and

personal property of the Poarch Band, wherever located in Alabama, may well be taxable, at least until the Poarch Band meets its burden to under a tax Alabama law to clearly the

establish

its

right

exemption——something

Poarch Band has never done (nor been required to do). State courts are indispensable participants in the process of ad valorem this tax assessment, allows the collection, Montgomery and enforcement. Circuit If

Court

County

Court’s

order to stand on the ground that the Poarch Band’s trust lands are beyond the jurisdiction of State courts or that the Poarch Band enjoys tribal sovereign immunity from suit, contrary to the weight of the most recent Supreme Court precedents, then State courts will be divested of

jurisdiction over this essential governmental function with respect to the Band’s taxable property. The extensive and costly process of valuation and assessment of the Band’s property would be futile, even though the property be

taxable, because, at the end of the day, a court would have

20

no

power

to

enforce

the

collection

of

taxes

through

appropriate proceedings. Hildreth therefore asks this Court to hold: (1) that in light of Carcieri, the Poarch Band’s trust lands are not beyond the subject-matter jurisdiction of State courts

because the Poarch Band did not establish that it was a “recognized” entitled to tribe the “under federal of the jurisdiction” IRA; and (2) in that 1934 the

benefits

Poarch Band does not enjoy tribal sovereign immunity from lawsuits arising on or in relation to the land because the Poarch Band cannot “rekindl[e] embers of sovereignty that long ago grew cold.”

21

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been served on this 29th day of January, 2013 to the following by email as noted: Andrew J. Moak Matt Abbott Abbott Law Firm, L.L.C. 308 Martin Street North, Suite 200 Pell City, AL 35125 205-338-7800 205-338-7816 (fax) E-mail: matt@abbottfirm.com E-mail: andrew@abbottfirm.com Kelly F. Pate, Esq. Robin G. Laurie, Esq. J. Eric Getty, Esq. Balch & Bingham, LLP P.O. Box 78 Montgomery, AL 36101 (334) 269-3130; 334-834-6500 (866) 501-9985; 334-269-3115 (fax) E-mail: kpate@balch.com E-mail: rlaurie@balch.com E-mail: egetty@balch.com

/s/ Bryan M. Taylor OF COUNSEL

22

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