January 18, 2017

Thlopthlocco Tribal Town affiliation with larger Muscogee Nation heart of court dispute

DENVER — Citing the need for all lower level legal remedies to be exhausted first, the Tenth Circuit Court reversed and remanded an appeal from a Muscogee (Creek) tribal town Wednesday.

The Thlopthlocco Tribal Town, headquartered in Okemah, Okla., had requested a permanent injunction to keep the Muscogee (Creek) Nation’s judiciary from hearing its internal government disputes. A traditional Muscogee (Creek) community, Thlopthlocco is one of three tribal towns with separate federal recognition and many of its almost 900 citizens have dual citizenship with the Muscogee (Creek) Nation.

“We agree with the district court…that the tribal town has yet to exhaust its tribal town remedies,” Judge Timothy Tymkovich wrote for the three-judge panel.   “Further, we find that the exhaustion rule applies and the federal courts may benefit from the tribal court’s analysis and final resolution of the tribal town’s arguments.”

Filed in 2009, the federal lawsuit stems from two tribal court cases concerning a 2007 internal dispute within the Thlopthlocco Business Committee. Thlopthlocco Tribal Town officials argued that the Muscogee (Creek) Nation judiciary violated the Oklahoma Indian Welfare Act and three Constitutional clauses by hearing those cases, even though they had previously acknowledged that the Muscogee (Creek) Nation had the authority to hear its legal disputes due to pre-existing self-governance compacts and the town’s history as part of the tribe’s confederacy.

Wednesday’s decision opens the door for Judge James Payne in the Northern District of Oklahoma to potentially force the larger tribe and its judiciary to participate in the proceedings, as the three-judge panel noted that the Muscogee (Creek) Nation’s judges are not entitled to sovereign immunity.

“In this case, the nature of the tribal town’s affiliation with the Muscogee Nation is at the heart of this dispute and, as a result, we cannot so easily determine whether the Muscogee Nation’s interest in self-government entitles it to some level of involvement in the tribal town’s affairs,” Tymkovich wrote.