By: Brian Lyman
Attorneys representing the family of a man who died as a result of a car accident last year are challenging the Poarch Band of Creek Indians’ claim of sovereign immunity.
Attorneys for Amada Harrison, mother of Benjamin Harrison, who died last year following a car accident near the Wind Creek Casino in Atmore, on Tuesday appealed an Escambia County judge’s dismissal of the case to the Alabama Supreme Court.
The family sued the tribe last May under the state’s Dram Shop Act, saying employees at the Wind Creek Casino, operated by the Poach Band, served a patron alcohol despite his being visibly intoxicated on March 1, 2013.
The patron, Roil Lamar Hadley Jr., later got into a car with Benjamin Harrison, 29, that morning. According to the lawsuit, tribal police initiated a pursuit of Hadley; during the pursuit, Hadley lost control of the car, which rolled over and ejected Harrison. Harrison, who was a plaintiff in the initial lawsuit, died in July as a result of his injuries.
The suit, which named the Poarch Band and the individual tribal police officers who pursued him, sought damages from the tribe and the named officers as a result of the incident, saying the tribe had failed to adequately train its employees and claiming the tribe has a “policy, custom and practice of serving alcoholic beverages to visibly intoxicated persons.”
The tribe, in turn, argued that its federal status granted the Poarch Band and its officials sovereign immunity from legal action.
“Sovereign immunity … bars actions against Indian tribes and their entities, whether engaged in commercial or governmental pursuits,” the tribe’s response said. In addition, the Poarch Band said there was no remedy under state law for violations of the Dram Shop Act, and that “the hot pursuit of a drunk driver by police officers is not negligence.”
Escambia County Circuit Judge Bradley E. Byrne last October dismissed the claims against the tribe for lack of subject matter jurisdiction, but allowed the claims against the officers to remain. A message left for Robert McGhee, director of government relations for the Poarch Band of Creek Indians, was not returned Thursday.
In the appeal, attorneys for Amada Harrison cited the U.S. Supreme Court’s ruling in Carcieri v. Salazar as reason for the state’s high court to take the case. In that 2009 decision, the U.S. Supreme Court ruled that tribes that received federal recognition after 1934, when the Indian Reorganization Act was passed, could not take land into trust. The Poarch Band of Creek Indians received federal recognition in 1984.
The appeal to the Alabama Supreme Court goes further than the land trust issue, arguing that the terms of the Carcieri case — which cited language in the IRA referring to a “recognized tribe now under federal jurisdiction” — meant that the Poarch Band do not have sovereignty and should fall under state law.
“Because the keystone of all rights claimed by an Indian tribe, including immunity and lack of subject matter jurisdiction, is dependent upon valid federal recognition, and because the defendants were … not a validly recognized Indian tribe, the protections of the IRA don’t apply to it,” the lawsuit said. “The state court has subject matter jurisdiction over the plaintiff’s claims because the IRA had no authority under Carcierito take land into trust for the defendants.”
Brian Murphy, an attorney representing the family, appeared at a news conference with Sen. Bryan Taylor, R-Prattville, on Thursday.
Taylor recently has been embroiled in a fight with Elmore County mayors and Rep. Paul Beckman, R-Prattville, over Sunday sales and draft beer legislation. The senator’s bills excluded the Poarch Band from the legislation. Bills supported by Beckman and the mayors of Wetumpka and Millbrook did as well, but the supporters let the bill die after the Poarch Band indicated they did not support the legislation as written.
McGhee told the Advertiser on March 16 that the tribe believed “all businesses should be treated the same.” At the news conference, Taylor said that the tribe should be liable under state law like other businesses.
“This is just an example of a business that wants to make up the rules as they go, and they want the rules to be completely different for them than anyone else,” Taylor said.