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

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: matt@abbottfirm.com E-mail: andrew@abbottfirm.com

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: kpate@balch.com E-mail: rlaurie@balch.com E-mail: egetty@balch.com

/s/ Bryan M. Taylor

OF COUNSEL

22