Escambia County Tax Assessor's Amicus Brief in Jerry Rape v. Poarch Band of Creek Indians (Ala....
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Transcript of Escambia County Tax Assessor's Amicus Brief in Jerry Rape v. Poarch Band of Creek Indians (Ala....
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 [email protected]
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................ii
INTRODUCTION AND INTEREST OF AMICUS CURIAE ...............1
SUMMARY OF ARGUMENT ......................................5
ARGUMENT .................................................8
I. The Poarch Band did not satisfy its burden to establish that it is among the class of Indian tribes entitled to benefits underSection 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
CERTIFICATE OF SERVICE ..................................22
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 DirectorEastern Region, Bureau of Indian Affairsto 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 andReservation Proclamation for theCowlitz Indian Tribe, U.S. Dep’t of the InteriorBureau 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. Although no such proceeding is currently pending
against the Poarch Band in Escambia County, thorough
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 handing down a clear, thorough, unambiguous
decision fully resolving the jurisdiction and immunity
questions common to this case and a potential tax
enforcement case concerning Poarch Creek land. Of course,
Hildreth’s interest in that regard is not particular to the
Escambia County Tax Assessor’s office; it is plainly
generic to the office of tax assessor (or revenue
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 was advised by the Alabama
attorney general that the Poarch Band’s trust land in
2
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 this case that comport with
existing precedent in the realm of taxation of Indian
tribes.
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 (2009). That would require the Court first to
decide a question common to the present case and any
potential property tax case that might 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 “recognized” and “under
federal jurisdiction” in 1934, the Poarch Band did not
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 burden to establish a historical record
sufficient to support its present-day claim to tribal
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,” dismissal for lack of subject-matter
jurisdiction is premature. Jeanie’s Grocery v. Baldwin
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 court’s dismissal of Mr. Rape’s claim is
therefore due to be reversed because the Defendants
presented no evidence, in response to the factual
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, see 50 Fed. Reg. 45,502 (1985)). The real
question is 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 is, the operative question for ...
determining whether [the Interior Secretary’s] trust
authority may properly be exercised [under the IRA] is
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, Tunica-Biloxi Tribe of
L o u i s i a n a ( A u g . 1 1 , 2 0 1 1 ) < h t t p : / /
turtletalk.files.wordpress.com/2012/08/tunica-biloxi-
carcieri-ruling-from-interior.pdf>; Record of Decision:
Trust Acquisition of and Reservation Proclamation for the
Cowlitz Indian Tribe, U.S. Department of the Interior,
Bureau of Indian Affairs (December 2010) <http://
w w w . b i a . g o v / i d c / g r o u p s / m y w c s p / d o c u m e n t s / t e x t /
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 decision for
the Oneida Indian Nation because it lacked “a detailed
analysis of contested, factually-laden historical
accounts”). Only the Plaintiff’s analysis of the Poarch
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 benefit.” (Defs.’ Reply Supp. Defs.’ Mot.
Dismiss, p. 7 (emphasis added)). The whole thrust of
Carcieri is that the Interior Secretary is not 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 Band enjoys tribal sovereign immunity from any
lawsuit filed in an Alabama court. The answer to this
question obviously will apply in every State court,
including the courts on which a county tax assessor relies
for the vindication of his “right and authority to assess
all real estate ... and all personal property” in the
county. Ala. Code § 40-7-1 (1975). If the Poarch Band
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 reducing the county’s ad valorem tax base, and
thereby potentially devastating funding for schools,
hospitals, roads and bridges, public safety, and other
important public services. Theoretically, if the Poarch
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 cut back on tribal immunity, or even
eliminate it completely.” I. Nelson Rose, Seeking a
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 was barred whether asserted
affirmatively in an action brought by the tribe for
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 Tribe of Oklahoma v. Mfg.
17
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 immunity. See id. at 751 (distinguishing
Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-149
(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 record sufficient to support its
present-day claim to sovereign immunity——a burden the
Poarch Band has not met. Therefore, this Court should
reject the Poarch Band’s assertion 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 under Alabama law to clearly
establish its right to a tax exemption——something the
Poarch Band has never done (nor been required to do). State
courts are indispensable participants in the process of ad
valorem tax assessment, collection, and enforcement. If
this Court allows the Montgomery County Circuit 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” tribe “under federal jurisdiction” in 1934
entitled to the benefits of the IRA; and (2) that the
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 AbbottAbbott Law Firm, L.L.C.308 Martin Street North, Suite 200Pell City, AL 35125205-338-7800205-338-7816 (fax)E-mail: [email protected] E-mail: [email protected]
Kelly F. Pate, Esq.Robin G. Laurie, Esq.J. Eric Getty, Esq.Balch & Bingham, LLPP.O. Box 78Montgomery, AL 36101(334) 269-3130; 334-834-6500(866) 501-9985; 334-269-3115 (fax)E-mail: [email protected] E-mail: [email protected] E-mail: [email protected]
/s/ Bryan M. Taylor
OF COUNSEL
22