author: MURDOCK, Justice.

text:
    Jerry RAPE v. POARCH BAND OF CREEK INDIANS et al.
    1111250
    Supreme Court of Alabama.
    September 29, 2017
    Andrew J. Moak and Matt Abbott of Abbott Law Firm, L.L.C., Pell City, for appellant.
    Ed R. Haden of Balch & Bingham LLC, Birmingham; and Robin G. Laurie and Kelly F. Pate of Balch & Bingham LLP, Montgomery, for appellees.
    Luther Strange, atty. gen., and John C. Neiman, Jr. (withdrew 02/14/2014), and Andrew L. Brasher, deputy attys. gen., for amicus curiae State of Alabama, in support of the appellant.
    Bryan M. Taylor, Prattville, for amicus curiae Jim Hildreth, in his official capacity as Escambia County Tax Assessor, in support of the appellant.
    R. Bernard Harwood, Jr., of Rosen Harwood, P.A., Tuscaloosa; and Richard A. Guest and Joel West Williams of Native American Rights Fund, Washington, D.C., for amicus curiae National Congress of American Indians, in support of the appellees.
    Thomas A. Woodall of Sirote & Permutt, P.C., Birmingham; and Gregory A. Smith and Elliott A. Milhollin of Hobbs, Straus, Dean & Walker, LLP, Washington, D.C., for amicus curiae United South and Eastern Tribes, Inc., in support of the appellees.
   MURDOCK, Justice.

The Court today decides three appeals involving similar issues of Indian tribal sovereign immunity and subject-matter jurisdiction arising out of actions filed by various plaintiffs against the Poarch Band of Creek Indians ("the Tribe"), and business entities wholly owned by the Tribe, and, in two of these cases, including this one, individual defendants. In addition to the present case, the Court today addresses the appeals before us in Harrison v. PCI Gaming Authority, 251 So.3d 24 (2017), and Wilkes v. PCI Gaming Authority, [Ms. 1151312, September 29, 2017] --- So.3d ---- (2017). In each case, the circuit court granted a motion to dismiss the claims against the Tribe and its related business entities on one of those two grounds.

In the present case, Jerry Rape appeals from the Montgomery Circuit Court's dismissal of his action alleging breach of contract and various tort claims against the Tribe, PCI Gaming Authority, Creek Indian Enterprises, LLC, and Creek Casino Montgomery ("Wind Creek Casino" or "Wind Creek") (hereinafter referred to collectively as "the tribal defendants") and casino employees James Ingram and Lorenzo Teague and fictitiously named defendants. Because the plaintiff has no viable path to relief, we affirm.

I. Facts and Procedural History

On November 19, 2010, Rape and his wife visited Wind Creek Casino. At approximately 8:00 p.m., Rape inserted five dollars into a machine the complaint describes as an "electronic bingo gaming machine." The complaint alleges that "during a ... spin bet," the machine indicated a winning jackpot in the approximate amount of $459,000. Immediately thereafter, the machine indicated a payout multiplier of approximately $918,000, followed by an indication of a second payout multiplier of approximately $1,377,015.30. Several noises, lights, and sirens were activated when the machine displayed the payout amount. The screen then displayed a prompt to "call an attendant to verify winnings."

Rape alleged that at that point he was approached and congratulated by casino employees and patrons and that one casino employee said to him: "[D]on't let them cheat you out of it." Rape alleged that the machine printed out a ticket containing the winning amount of $1,377,015.30 but that representatives of Wind Creek Casino took possession of the ticket and refused to return it to him. Rape was then taken by tribal officials or casino employees into "a back room," where they discussed how Rape's winnings would be paid, mentioning the possibility of a structured payout over a period of 20 to 30 years. Those officials then instructed Rape that he had to wait outside the room while they "called PCI" to confirm his winnings.

Rape alleged that he was made to wait into the early morning hours with no information provided to him, even though he saw several individuals entering and leaving the room, presumably to discuss the situation. Rape also stated that casino employees shut down and barricaded the machine in question so that it could not be patronized by other customers of Wind Creek Casino.

At 6:00 a.m. on November 20, 2010, Rape went home for a time before returning to Wind Creek Casino at approximately 11:00 a.m. In his complaint, Rape stated that, at approximately 9:00 p.m. on November 20, he

"was taken into a small room in the rear of [Wind Creek Casino] by casino and/or tribal officials, where he was told, in a threatening and intimidating manner, that the machine in question 'malfunctioned,' and that [Rape] did not win the jackpot of $1,377,015.30. [Rape] was given a copy of an 'incident report,' and left [Wind Creek Casino] empty-handed approximately 24 hours after winning the jackpot."

On November 16, 2011, Rape sued the defendants in the Montgomery Circuit Court. He alleged claims of breach of contract; unjust enrichment; misrepresentation; suppression; civil conspiracy; negligence and/or wantonness; negligent hiring, training, and/or supervision; respondeat superior; and spoliation of evidence. For each claim, Rape requested damages in the amount of the jackpot he had allegedly won at Wind Creek Casino on November 19, 2010.

On January 20, 2012, the defendants filed a motion to dismiss Rape's complaint. All the defendants argued that the claims against them were barred by the doctrine of sovereign immunity and that the Tribe's court had exclusive adjudicative, or subject-matter, jurisdiction of any claim. On April 12, 2012, the circuit court held a hearing on the motion. On May 2, 2012, the circuit court entered a two-word order: "Granted. Dismissed." Rape filed a timely appeal.

II. Standard of Review

"In Newman v. Savas, 878 So.2d 1147 (Ala. 2003), this Court set forth the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction:
" 'A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala. 2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299.'

" 878 So.2d at 1148-49."

Hall v. Environmental Litig. Grp., P.C., 157 So.3d 876, 879 (Ala. 2014).

III. Discussion

A. Introduction

This case presents two intertwined issues: (i) the adjudicative jurisdiction, or what usually is referred to as simply the "subject-matter jurisdiction," of the tribal and state courts over the underlying dispute and (ii) the alleged sovereign immunity of the tribal defendants. Both issues are grounded in the same fundamental principles regarding the nature of sovereignty and in corollary notions as to the reach of a sovereign's adjudicative authority and the extent of its immunity, as discussed in Part B, infra.

Rape argues that the Tribe was not formally "recognized" at the time of Congress's enactment of the "Indian Reorganization Act of 1934," 25 U.S.C. § 461 et seq. ("the IRA"), and that, therefore, under the United States Supreme Court's holding in Carcieri v. Salazar, 555 U.S. 379, 381, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009), the Tribe cannot demonstrate a right to self-governance and sovereign immunity. Similarly, in an amicus brief in this appeal, the State of Alabama argues that the Tribe has not shown that it was both "recognized" and "under federal jurisdiction" in 1934 and that, therefore, it has no "tribal lands" validly removed from state political and adjudicative jurisdiction under the terms of the IRA. (The same arguments are made by the plaintiff in Harrison as to both the question of subject-matter jurisdiction and sovereign immunity and by the plaintiff in Wilkes insofar as the arguments in that case relate to immunity.)

The tribal defendants focus on the holding in Carcieri as one they contend is limited to the question whether the United States government could properly take land into trust. They contend that the answer to this question has no bearing on the issue of tribal sovereign immunity. That said, the tribal defendants in this case (as in Harrison ) argue vigorously that the land on which the claims arose was land that was properly taken into trust under the terms of the IRA and thereby properly removed from the political jurisdiction of the State of Alabama. According to the tribal defendants, this fact alone means that the Tribe's court has exclusive adjudicative, or subject-matter, jurisdiction over the dispute.

B. Attributes of Sovereignty and Sovereign Authority

As to the issue of sovereignty and of jurisdiction over Indian tribes and tribal lands, the Supreme Court has stated:

"Generalizations on this subject have become particularly treacherous. The conceptual clarity of Mr. Chief Justice Marshall's view in Worcester v. Georgia, 6 Pet. 515, 556-561 (1832), has given way to more individualized treatment of particular treaties and specific federal statutes, including statehood enabling legislation, as they, taken together, affect the respective rights of States, Indians, and the Federal Government.... The upshot has been the repeated statements of this Court to the effect that, even on reservations, state laws may be applied unless such application would interfere with reservation self-government or would impair a right granted or reserved by federal law."

Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973) (emphasis added). Given the import of our decisions in the three appeals we decide today, and the case-by-case approach described by the United States Supreme Court, we think it important to undergird our review and application of Supreme Court precedents with a clear understanding of the fundamental nature and attributes of sovereignty and sovereign immunity.

Most fundamentally, of course, sovereignty is the power to govern-the power of a government to regulate the affairs of men. As to a matter over which a government has no regulatory authority, it is not sovereign. Black's Law Dictionary 1631 (10th ed. 2014) defines "state sovereignty" as "[t]he right ... to self-government; the supreme authority exercised by each state." See, e.g., United States v. Wheeler, 435 U.S. 313, 320, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978) ("[I]t is a State's own sovereignty which is the origin of its [governmental] power."); see also United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 316-17, 57 S.Ct. 216, 81 L.Ed. 255 (1936) ("A political society cannot endure without a supreme will somewhere.").

Second, the power of the sovereign is the power both to make law (sometimes itself referred to as "regulatory authority") and to adjudicate disputes arising under that law, those two powers necessarily being codependent and coextensive. See, e.g., Nevada v. Hicks, 533 U.S. 353, 357-58, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) ("A tribal court's adjudicative authority is, at most, only as broad as the tribe's regulatory authority."); Strate v. A-1 Contractors, 520 U.S. 438, 453, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997) ("As to nonmembers ... a tribe's adjudicative jurisdiction does not exceed its legislative jurisdiction ....").

Third, sovereignty corresponds with, and is a function of, authority over some portion of the earth's surface-some "territory." It is not freestanding. "[F]ull and absolute territorial jurisdiction ... [is] the attribute of every sovereign." The Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116, 137 (1812). As the Restatement (Third) of Foreign Relations Law § 201 (1987) explains, "[u]nder international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities." (Emphasis added.)

"On [a] transfer of territory [between two sovereigns], ... the relations of the inhabitants ... with their former sovereign are dissolved, and new relations are created between them, and the government which has acquired their territory."

American Ins. Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511, 542-43, 7 L.Ed. 242 (1828).

Fourth, the very reason for the existence of sovereign immunity is to facilitate the sovereignty of the sovereign. Thus, it is the essential nature of sovereign immunity that it is coextensive with the sovereignty it serves; by nature it operates only within the physical boundaries and the regulatory and adjudicatory boundaries of that sovereignty. "It is 'inherent in the nature of sovereignty not to be amenable' to suit without consent." The Federalist No. 81, p. 511 (Alexander Hamilton) (B. Wright ed. 1961). See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 169 n.18, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982) (discussing "sovereign immunity" as an "attribute[ ] of sovereignty"). Explaining that it is "[s]overeignty" itself that "implies immunity from lawsuits," the Court in Michigan v. Bay Mills Indian Community, 572 U.S. 782, ----, 134 S.Ct. 2024, 2030, 188 L.Ed.2d 1071 (2014), described immunity as a "core aspect of sovereignty" and, moreover, as a " 'necessary corollary to ... sovereignty and self-governance.' '' (Quoting Three Affiliated Tribes of Fort Berthold Reservation v. World Eng'g, P.C., 476 U.S. 877, 890, 106 S.Ct. 2305, 90 L.Ed.2d 881 (1986) (emphasis added).)

Fifth, as corollary to the principle that sovereign immunity is coextensive with the sovereignty it serves, so too sovereign immunity naturally exists only in the courts that themselves derive from and serve that same sovereignty, and that thus operate within the same physical and regulatory boundaries that define that sovereignty. That is, historically and by its fundamental nature, sovereign immunity is and has been limited to the courts of the sovereign itself-courts formed by the government and located within the territory over which the government served by the doctrine is sovereign. See Black's Law Dictionary 868 (10th ed. 2014) (defining "sovereign immunity" as "1. A government's immunity from being sued in its own courts without its consent").

In Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), the United States Supreme Court explained:

"In [ Nevada v.] Hall [, 440 U.S. 410 (1979) ], we considered whether California could subject Nevada to suit in California's courts and determined the Constitution did not bar it from doing so. We noted that '[t]he doctrine of sovereign immunity is an amalgam of two quite different concepts, one applicable to suits in the sovereign's own courts and the other to suits in the courts of another sovereign.' 440 U.S. at 414. We acknowledged that '[t]he immunity of a truly independent sovereign from suit in its own courts has been enjoyed as a matter of absolute right for centuries. Only the sovereign's own consent could qualify the absolute character of that immunity,' ibid., that 'the notion that immunity from suit is an attribute of sovereignty is reflected in our cases,' id., at 415, and that '[t]his explanation adequately supports the conclusion that no sovereign may be sued in its own courts without its consent,' id., at 416. We sharply distinguished, however, a sovereign's immunity from suit in the courts of another sovereign:
" '[B]ut [this explanation] affords no support for a claim of immunity in another sovereign's courts. Such a claim necessarily implicates the power and authority of a second sovereign; its source must be found either in an agreement, express or implied, between the two sovereigns, or in the voluntary decision of the second to respect the dignity of the first as a matter of comity.' Ibid."

527 U.S. at 738.

With these foundational principles in mind, we turn to the case before us.

C. Analysis

The trial court in the present case dismissed the action without providing a rationale for its decision. It simply entered a copy of the defendants' motion to dismiss on which it wrote: "Granted. Dismissed." We can affirm the trial court's order of dismissal if it can be upheld on either of the two jurisdictional grounds presented in the defendants' motions, namely (i) the alleged lack of adjudicative, or subject-matter, jurisdiction of the court itself or (ii) the asserted sovereign immunity of the tribal defendants. See generally Liberty Nat'l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala. 2003). The State, in its amicus brief, suggests that it would be more appropriate to begin with the more fundamental, and threshold, issue of adjudicative, or subject-matter, jurisdiction.

In April of this year, the United States Supreme Court issued its opinion in Lewis v. Clarke, 581 U.S. ----, 137 S.Ct. 1285, 197 L.Ed.2d 631 (2017). Under Lewis, regardless of what we might decide as to the issue of sovereign immunity in relation to the tribal defendants, the individual defendants, being sued in their individual capacity, would not be entitled to tribal immunity simply because they were employed by the tribe or acting within the scope of that employment. See Lewis, 581 U.S. ----, 137 S.Ct. at 1289. On that basis, we would have to reach the issue of the court's subject-matter jurisdiction in any event, i.e., at least for purposes of resolving the claims against the individual defendants. Consequently, and consistent with the State's suggestion that subject-matter jurisdiction is the more threshold question in any event, we turn first to the issue of subject-matter jurisdiction.

The issue presented is whether jurisdiction over this dispute resides in the tribal courts to the exclusion of the state courts. In 2008, the United States Supreme Court reiterated that a tribe's sovereign authority is unique, with limitations as to both (i) its territorial reach and (ii) the subject matter and persons to which it extends:

"For nearly two centuries now, we have recognized Indian tribes as 'distinct, independent political communities,' Worcester v. Georgia, 6 Pet. 515, 559 (1832), qualified to exercise many of the powers and prerogatives of self-government, see United States v. Wheeler, 435 U.S. 313, 322-323 (1978). We have frequently noted, however, that the 'sovereignty that the Indian tribes retain is of a unique and limited character.' Id., at 323. It centers [i] on the land held by the tribe and [ii] on tribal members within the reservation. See United States v. Mazurie, 419 U.S. 544, 557 (1975) (tribes retain authority to govern 'both their members and their territory,' subject ultimately to Congress ) ...."

Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 327, 128 S.Ct. 2709, 171 L.Ed.2d 457 (2008) (emphasis added).

In Hicks, supra, the Supreme Court, in an opinion authored by Justice Scalia, held that, even though the claims at issue there occurred within the boundaries of an Indian reservation: (1) a tribal court did not have jurisdiction to adjudicate trespass and other tort claims arising from the actions of state officials while executing process on reservation lands in relation to a crime that occurred off reservation and (2) a tribal court did not have authority to adjudicate § 1983 claims arising from those same actions occurring on the reservation. The Supreme Court explained that "[t]he principle of Indian law central to this aspect of the case is our holding in Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997) : 'As to nonmembers ... a tribe's adjudicative jurisdiction does not exceed its legislative jurisdiction.' " 533 U.S. at 357-58 (emphasis added). As the Supreme Court more fully explained elsewhere in Hicks:

"Respondents' contention that tribal courts are courts of 'general jurisdiction' is also quite wrong. A state court's jurisdiction is general, in that it 'lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe.' [The Federalist No. 82 (Alexander Hamilton) ] at 493 [ (C. Rossiter ed. 1961) ]. Tribal courts, it should be clear, cannot be courts of general jurisdiction in this sense, for a tribe's inherent adjudicative jurisdiction over nonmembers is at most only as broad as its legislative jurisdiction."

533 U.S. at 367 (emphasis added).

As to the subject matter and persons to which tribal regulatory authority extends, the United States Supreme Court has consistently recognized that, absent congressional involvement, Indian tribes retain regulatory authority over "internal and social relations" on Indian land, sometimes expressed as tribes having "attributes of sovereignty over both their members and their territory." United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975) (emphasis added).

"Indian tribes are 'distinct, independent political communities, retaining their original natural rights' in matters of local self-government. Worcester v. Georgia, 6 Pet. 515, 559 (1832) ; see United States v. Mazurie, 419 U.S. 544, 557 (1975) ; F. Cohen, Handbook of Federal Indian Law 122-123 (1945). Although no longer 'possessed of the full attributes of sovereignty,' they remain a 'separate people, with the power of regulating their internal and social relations.' United States v. Kagama, 118 U.S. 375, 381-382 (1886). See United States v. Wheeler, 435 U.S. 313 (1978). They have power to make their own substantive law in internal matters, see Roff v. Burney, 168 U.S. 218 (1897) (membership); Jones v. Meehan, 175 U.S. 1, 29 (1899) (inheritance rules); United States v. Quiver, 241 U.S. 602 (1916) (domestic relations), and to enforce that law in their own forums, see, e. g., Williams v. Lee, 358 U.S. 217 (1959)."

Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56 (1978) (emphasis added) (holding that a tribal court had exclusive jurisdiction over a dispute arising from an Indian tribe's denial of tribal membership to the children of certain female tribal members).

Accordingly, as to matters arising on Indian lands,

"[t]he sovereignty retained by tribes includes 'the power of regulating their internal and social relations,' United States v. Kagama, 118 U.S. 375, 381-382 (1886), cited in United States v. Wheeler, 435 U.S. 313, 322 (1978). A tribe's power to prescribe the conduct of tribal members has never been doubted, and our cases establish that 'absent governing Acts of Congress,' a State may not act in a manner that 'infringed on the right of reservation Indians to make their own laws and be ruled by them.' McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 171-172 (1973), quoting Williams v. Lee, 358 U.S. 217, 219-220 (1959)."

New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 332-33, 103 S.Ct. 2378, 76 L.Ed.2d 611 (1983).

Thus, a tribe has the right to regulate its own "internal and social relations" on a reservation-i.e., the "right of reservation Indians to make their own laws and be ruled by them"-except as a "governing Act of Congress" may otherwise prescribe. As Justice Scalia, writing for the Court in Hicks, further explained:

"Indian tribes' regulatory authority over nonmembers is governed by the principles set forth in Montana v. United States, 450 U.S. 544 (1981), which we have called the 'pathmarking case' on the subject, Strate [v. A-1 Contractors, 520 U.S. 438, 445 (1997) ]. In deciding whether the Crow Tribe could regulate hunting and fishing by nonmembers on land held in fee simple by nonmembers [within a reservation], Montana observed that, under our decision in Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978), tribes lack criminal jurisdiction over nonmembers. Although, it continued, ' Oliphant only determined inherent tribal authority in criminal matters, the principles on which it relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.' 450 U.S. at 565 (footnote omitted). Where nonmembers are concerned, the 'exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.' Id., at 564 (emphasis added).
"....
"In Strate, we explained that what is necessary to protect tribal self-government and control internal relations can be understood by looking at the examples of tribal power to which Montana referred: tribes have authority '[to punish tribal offenders,] to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members,' 520 U.S. at 459 (brackets in original), quoting Montana, supra, at 564. These examples show, we said, that Indians have ' "the right ... to make their own laws and be ruled by them," ' 520 U.S. at 459, quoting Williams v. Lee, 358 U.S. 217, 220 (1959). See also Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424 U.S. 382, 386 (1976) (per curiam) ('In litigation between Indians and non-Indians arising out of conduct on an Indian reservation, resolution of conflicts between the jurisdiction of state and tribal courts has depended, absent a governing Act of Congress, on whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them' (internal quotation marks and citation omitted)). Tribal assertion of regulatory authority over nonmembers must be connected to that right of the Indians to make their own laws and be governed by them."

533 U.S. at 358-61 (footnote omitted; some emphasis added).

In Strate v. A-1 Contractors, 520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997), to which the Hicks Court referred, the Court noted the State's authority to regulate conduct on a State highway right-of-way located on a reservation. Based largely on this fact, the Court held that adjudicative authority over an accident occurring on the highway was not part of the tribe's "self-governance'':

"The second exception to Montana [v. United States'] general rule [against tribal-court jurisdiction over nonmembers] concerns conduct that 'threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.' 450 U.S. [544], at 566 [ (1981) ]. Undoubtedly, those who drive carelessly on a public highway running through a reservation endanger all in the vicinity, and surely jeopardize the safety of tribal members. But if Montana 's second exception requires no more, the exception would severely shrink the rule....
"....
"... Key to its proper application ... is the [ Montana ] Court's preface: 'Indian tribes retain their inherent power [to punish tribal offenders,] to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members.... But [a tribe's inherent power does not reach] beyond what is necessary to protect tribal self-government or to control internal relations.' 450 U.S. at 564. Neither regulatory nor adjudicatory authority over the state highway accident at issue is needed to preserve 'the right of reservation Indians to make their own laws and be ruled by them.' Williams [v. Lee ], 358 U.S. [217], at 220 [ (1959) ]."

Strate, 520 U.S. at 457-59 (emphasis added).

"Our cases make clear that the Indians' right to make their own laws and be governed by them does not exclude all state regulatory authority on the reservation. State sovereignty does not end at a reservation's border. Though tribes are often referred to as 'sovereign' entities, it was 'long ago' that 'the Court departed from Chief Justice Marshall's view that "the laws of [a State] can have no force" within reservation boundaries. Worcester v. Georgia, 6 Pet. 515, 561 (1832),' White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 141 (1980). 'Ordinarily,' it is now clear, 'an Indian reservation is considered part of the territory of the State.' U.S. Dept. of Interior, Federal Indian Law 510, and n.1 (1958), citing Utah & Northern R. Co. v. Fisher, 116 U.S. 28 (1885) ; see also Organized Village of Kake v. Egan, 369 U.S. 60, 72 (1962).
"That is not to say that States may exert the same degree of regulatory authority within a reservation as they do without. To the contrary, the principle that Indians have the right to make their own laws and be governed by them requires 'an accommodation between the interests of the Tribes and the Federal Government, on the one hand, and those of the State, on the other.' Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134, 156 (1980) ; see also id., at 181 (opinion of Rehnquist, J.). 'When on-reservation conduct involving only Indians is at issue, state law is generally inapplicable, for the State's regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its strongest.' Bracker, supra, at 144. When, however, state interests outside the reservation are implicated, States may regulate the activities even of tribe members on tribal land, as exemplified by our decision in Confederated Tribes [in 1980]."

Hicks, 533 U.S. at 361-62 (footnote omitted; emphasis added).

Based on the foregoing, the proposition that the tribal court had exclusive adjudicative, or subject-matter, jurisdiction turns on two elements. The first is whether the dispute arose within territory, i.e., on land, that is properly within the political jurisdiction of the Tribe. The second is whether the dispute concerns a subject and persons over which the tribal court has regulatory authority, either because it concerns tribal or internal relations or because Congress has otherwise so stated.

As to whether the present claims arose on land under the political jurisdiction of the Tribe rather than the State, it appears that genuine questions are raised regarding the status of the Tribe in 1934 and, accordingly, whether the Tribe was eligible to have land taken out of the political jurisdiction of the State of Alabama under the taking-in-trust provisions of the IRA. See note 3, supra (discussing the IRA and Carcieri's construction of it). It is undisputed that the Tribe had not formed as a discrete political entity at that time and that there existed little in the way of organizational parameters until well after 1934. It likewise is undisputed that the Tribe did not obtain formal recognition by the federal government until 1984. In the Tribe's own submission to the Department of Interior in 1983 by which, for the first time, it sought that recognition, the Tribe states that it had "no formal political organization ... in the nineteenth century, nor in much of the 20th century." If this is the case, it is difficult to see how it can be said that a tribe existed that was "under federal jurisdiction" in 1934. Further, in 1937, shortly after IRA was enacted, the Bureau of Indian Affairs prepared a list of 258 tribes that were "recognized" at that time; the Tribe was not on that list. See Letter from Secretary of Interior John Collier to Chairman, Committee on Indian Affairs, E. Thomas, March 18, 1937: List of Indian Tribes Under the Indian Reorganization Act. Thus, even if the Tribe, though not possessing a formal structure in 1934, could be said in some, perhaps inchoate, sense, to have been "under federal jurisdiction" in 1934, it is difficult to conclude that the Tribe was formally "recognized" by the federal government at that time.

The United States Supreme Court has not decided whether the temporal limitation recognized in Carcieri applies only to the "under-federal-jurisdiction" requirement, or also to the recognition requirement.

Although three Justices (Breyer, Souter, and Ginsburg) have suggested that it applies only to the under-federal-jurisdiction prong of the test, this position has been taken in special writings by those Justices; it has not yet been adopted by a majority of the Court.

We note again the specific language of the IRA at issue: "recognized Indian tribe now under federal jurisdiction." This phrase must be read as a whole, with both parts taking meaning from the other. Indeed, the simplest explanation for this structure (and one consistent with the aforesaid statutory purpose) would seem to be that Congress was describing a fixed universe of tribes possessed of the necessary attributes described in the IRA at the time of its adoption. See note 7, supra. That is, it reasonably may be put that the phrase simply means that singular and fixed group of tribes that, as "recognized ... tribe[s]," were "under federal jurisdiction" at the specified date.

Moreover, grammatically, in the phrase "recognized Indian tribe now under federal jurisdiction," the adjectival phrase "now under federal jurisdiction" does not modify the term "tribe." It modifies the term "recognized Indian tribe." One may ask therefore how it is that an Indian tribe could have been a "recognized ... tribe ... under federal jurisdiction" on the prescribed date, unless it first was a "recognized ... tribe" on that date.

The tribal defendants contend that the challenge by Rape to the removal of the land from the political jurisdiction of the State of Alabama must be brought within the confines of the Administrative Procedure Act ("APA"), 5 U.S.C. § 702, and its six-year statute of limitations, both of which were held to be bars to the State's action in Alabama v. PCI Gaming Authority, 801 F.3d 1278, 1291-92 (11th Cir. 2015). But, of course, in contrast to the State of Alabama in that case, the plaintiff here was not given notice of the taking into trust when it occurred, had no reason to take notice of it, and certainly had no reason to challenge it at that time, considerations that were key to the decision of the United States Court of Appeals for the Eleventh Circuit (even as it pretermitted discussion of other potential obstacles to the State's action). See 801 F.3d at 1291-93. Compare, e.g. Big Lagoon Rancheria v. California, 741 F.3d 1032, 1042-43 (9th Cir. 2014), overruled on reh'g en banc, 789 F.3d 947 (9th Cir. 2015) (quoting Wind River Mining Corp. v. United States, 946 F.2d 710, 715 (9th Cir. 1991) ) (distinguishing between procedural APA challenges and substantive claims). Compare Wind River (allowing a challenge outside of an APA proceeding and beyond the six-year statute of limitations prescribed by the APA and beyond the APA's six-year statute of limitations to a federal agency's commitment of land to a watershed-protection program).

Ultimately, it is not necessary for this Court to resolve the foregoing issue. In Michigan v. Bay Mills Indian Community, 695 F.3d 406 (6th Cir. 2012), aff'd and remanded, 572 U.S. 782, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014), the United States Court of Appeals for the Sixth Circuit described a "Catch-22" that made it unnecessary to decide a similar issue:

"That said, we acknowledge the irony of this case: Bay Mills, the defendant here, alleges that the Vanderbilt casino is located on 'Indian lands'-in which case [ 25 U.S.C.] § 2710(d)(7)(A)(ii) would supply federal jurisdiction. Thus, the plaintiffs say, the district court should cut to the chase and determine whether the Vanderbilt casino is, in fact, located on Indian lands. But that leads to the second Article III defect in the plaintiffs' claims: there is no possibility of redressing their injury by means of a § 2710(d)(7)(A)(ii) claim. See Lujan [v. Defendersof Wildlife ], 504 U.S. [555] at 561[ (1992) ]. As the case comes to us here, a determination whether the Vanderbilt casino is located on Indian lands would be purely advisory: if the Vanderbilt casino is not located on Indian lands, there is no jurisdiction for the plaintiffs' claims ...."

695 F.3d at 412-13.

In the present case, we find ourselves in a comparable "Catch-22." Were we to conclude that the lands on which the wrongs occurred were not properly taken into trust and therefore were not properly considered "Indian country," this would mean that those lands remain fully within the political jurisdiction of the State of Alabama. The activity out of which Rape's claim arose, however, was gambling. If it occurred on land within the regulatory and adjudicative jurisdiction of the State of Alabama, that activity was illegal. Specifically, that land is located in Elmore County and, therefore, is not located in one of the counties in Alabama where even the game commonly and traditionally known as bingo is permitted. See State v. $223,405.86, 203 So.3d 816, 849 (Ala. 2016) (appendix listing local amendments legalizing the game commonly and traditionally known as "bingo" in selected localities); Article IV, § 65, Ala. Const. 1901 (generally prohibiting games of chance in Alabama); Code of Alabama 1975, Title 13A, Ch. 12, Art. 2 (to like effect).

It is well established that this Court will not aid a plaintiff seeking to recover under an illegal contract but, instead, will simply leave the parties where it finds them. Thus, in Thompson v. Wiik, Reimer & Sweet, 391 So.2d 1016 (Ala. 1980), this Court affirmed the trial court's order dismissing the plaintiff's claims and explained:

"As a general principle, a party may not enforce a void or illegal contract either at law or in equity. 17 C.J.S. Contracts § 272, pp. 1188-95 (1963).
"The effect of the illegality of a contract is summarized in Corpus Juris Secundum:
" 'No principle of law is better settled than that a party to an illegal contract cannot come into a court of law and ask to have his illegal objects carried out; nor can he set up a case in which he must necessarily disclose an illegal purpose as the groundwork of his claim. The rule is expressed in the maxims, Ex dolo malo non oritur actio, and In pari delicto potior est conditio defendentis. The law in short will not aid either party to an illegal agreement; it leaves the parties where it finds them.'
" 17 C.J.S. Contracts § 272, p. 1188 (1963)."

391 So.2d at 1020.

" ' "[C]ontracts specially prohibited by law, or the enforcement of which violated a law, or the making of which violated the law ... [are] void and nonenforceable ... (and) Whenever a party requires the aid of an illegal transaction to support his case, he cannot recover." ' " Lucky Jacks Entm't Ctr., LLC v. Jopat Bldg. Corp., 32 So.3d 565, 569 n.3 (Ala. 2009) (quoting Bankers & Shippers Ins. Co. of New York v. Blackwell, 255 Ala. 360, 366, 51 So.2d 498, 502 (1951), quoting in turn Ellis v. Batson, 177 Ala. 313, 318, 58 So. 193, 194 (1912) )). See, e.g., Macon Cty. Greyhound Park, Inc. v. Hoffman, 226 So.3d 152, 167 (Ala. 2016) (declining to provide requested relief because "[t]his Court has repeatedly held that electronic-bingo games, such as those at issue in these cases, constitute illegal gambling in Alabama" and, "[a]ccordingly, the arbitration provision itself would constitute a void contract because it is, at least in part, based on illegal gambling consideration").

And as indicated, this principle applies whether the claim framed by a plaintiff sounds in contract or in tort; either way, a plaintiff cannot recover on a claim that depends upon or requires the aid of an illegal contract. Ingraham v. Foster, 31 Ala. 123, 127 (1857) (fraud claim). " 'Related claims based on causes of action other than contract, including negligence, also cannot be pursued if they arise out of the performance of the illegal contract.' " King v. Riedl, 58 So.3d 190, 195 (Ala. Civ. App. 2010) (quoting IPSCO Steel (Alabama), Inc. v. Kvaerner U.S., Inc., (No. Civ. A. 01-0730-CG-C, May 25, 2005) (S.D. Ala. 2005) (not reported in F. Supp. 2d)). See also White v. Miller, 718 So.2d 88, 90 (Ala. Civ. App. 1998) (disallowing claims for "fraud and deceit" grounded in an illegal contract).

"A person cannot maintain a cause of action if, in order to establish it, he must rely in whole or in part on an illegal or immoral act or transaction to which he is a party. 1 Corpus Juris Secundum, Actions, page 996, § 13; 1 Corpus Juris page 957, § 52. An analogy is presented with respect to an illegal contract, where the plaintiff fails if, in order to prove his case, he must resort to such contract. 13 Corpus Juris, page 503, section 445, 17 C.J.S., Contracts, § 276. These principles apply whether the cause of action is in contract or in tort. 1 Corpus Juris Secundum, Actions, page 999, § 13."

Hinkle v. Railway Express Agency, 242 Ala. 374, 378, 6 So.2d 417, 421 (1942). " 'Moreover, this Court has held that "[a] person cannot maintain a cause of action if, in order to establish it, he must rely in whole or in part on an illegal or immoral act or transaction to which he is a party." Limestone Creek Developers, LLC v. Trapp, 107 So.3d 189, 193 (Ala. 2012) (quoting Ex parte W.D.J., 785 So.2d 390, 393 (Ala. 2000), quoting in turn Hinkle, 242 Ala. at 378, 6 So.2d at 421 ). "[S]uch a rule derives principally ... [']from a desire to see that those who transgress the moral or criminal code shall not receive aid from the judicial branch of government.' " Oden v. Pepsi Cola Bottling Co. of Decatur, 621 So.2d 953, 955 (Ala. 1993) (quoting Bonnier v. Chicago, B.& Q. R.R., 351 Ill.App. 34, 51, 113 N.E.2d 615, 622 (1953) ).

This defect is so fundamental that we may raise the issue ex mero motu. See, e.g., Limestone Creek Developers, 107 So.3d at 194 (observing that "the policy behind this principle has been deemed to be of such importance that contracts found to violate the law will not be enforced even if ... the defaulting party failed to properly plead the affirmative defense of illegality. Brown v. Mountain Lakes Resort, Inc., 521 So.2d 24, 26 (Ala. 1988) (' " 'It is the rule ... in Alabama and a few other jurisdictions to not enforce a contract in violation of the law and to deny the plaintiff the right to recover upon a transaction contrary to public policy, even if the invalidity of the contract or transaction be not specially pleaded and is developed by the defendant's evidence.' " ' (quoting National Life & Accident Ins. Co. v. Middlebrooks, 27 Ala. App. 247, 249, 170 So. 84, 86 (1936), quoting in turn Shearin v. Pizitz, 208 Ala. 244, 246, 94 So. 92, 93 (1922) ))."); City of Ensley v. J.E. Hollingsworth & Co., 170 Ala. 396, 413, 54 So. 95, 100-01 (1909) (explaining that in cases involving contracts that are "void as violative of a statute or because offensive to public policy"-in contrast to actions based on contracts that are void for another reason-"no action can arise out of the transaction for any purpose").

Thus, similar to the plaintiff in Bay Mills, Rape ultimately could receive no relief based on the fact that his claims arose on land not properly considered Indian country, because that very fact would create its own bar to relief from this Court. We turn therefore to the second element applicable to a determination of tribal-court jurisdiction, and in turn state-court jurisdiction, namely whether that dispute is a matter of internal or tribal relations or, alternatively, is a dispute specially consigned to the regulatory authority of a tribe by Congress.

Again, as the United States Supreme Court has explained:

"[T]he inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.' [ Montana v. United States,] 450 U.S. [544], at 565 [ (1981) ] (footnote omitted). Where nonmembers are concerned, the 'exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.' Id., at 564 (emphasis added).
"....
"In Strate [v. A-1 Contractors, 520 U.S. 438 (1997) ], we explained that what is necessary to protect tribal self-government and control internal relations can be understood by looking at the examples of tribal power to which Montana referred: tribes have authority '[to punish tribal offenders,] to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members,' 520 U.S. at 459 (brackets in original), quoting Montana, supra, at 564. These examples show, we said, that Indians have ' "the right ... to make their own laws and be ruled by them," ' 520 U.S. at 459, quoting Williams v. Lee, 358 U.S. 217, 220 (1959)."

Hicks, 533 U.S. at 358-59, 360-61 (footnote omitted; some emphasis added).

There is no "express congressional delegation" to Indian tribes of the authority to regulate or adjudicate contract and tort disputes generally that involve a nonmember. Compare 18 U.S.C. § 1153 (commonly known as "the Major Crimes Act") (establishing federal jurisdiction over 13 enumerated felonies committed by "[a]ny Indian ... against the person or property of another Indian or other person ... within the Indian country" except where such offense is "not defined and punished by Federal law" in which case it "shall be defined and punished in accordance with the laws of the State in which such offense was committed"). At first blush, therefore, it might appear that we are left with the same examples the Hicks Court used to measure whether the activity out of which this dispute arises is a matter within the ambit of "tribal self-government and ... internal relations," i.e., a matter as to which tribes "have the right to make their own laws and be governed by them." And if that be the case, the dispute here does not appear to involve internal tribal affairs of the nature described by the Supreme Court in Hicks.

The present dispute does, however, arise out of an activity-gambling on (what we assume for present purposes is) Indian land-as to which there is a "congressional enactment." See Indian Gaming Regulatory Act ("IGRA"), Pub.L. 100-497, § 2, Oct. 17, 1988, 102 Stat. 2467, codified at 25 U.S.C. § 2701 et seq. Of course, in one sense, this legislation is not an "express congressional delegation" to the Tribe of regulatory authority. Instead, Congress itself has made the decision as to whether and what forms of gambling will be available to a tribe. See id. As to those forms of gambling Congress has in fact authorized a tribe to elect, however, it can be assumed that it intended a tribe to exercise such secondary regulatory authority as is reasonably necessary to implement such election and, in that regard, to adjudicate any disputes arising out of that activity.

That said, Congress has not authorized all forms of gambling on Indian reservations. To the contrary, it specifically has prohibited some. That is, Congress specifically has denied to tribes the right to "regulate," or to "self-govern" as to, certain forms of gambling. And as to a form of gambling not otherwise specifically authorized or prohibited under IGRA, whether the tribe has authority to "regulate" the same depends, under 25 U.S.C. § 2701(5), on whether it is a form of gambling "not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity." (Emphasis added.)

The description in the complaint of the activity out of which Rape's claims arise suggests a form of gambling as to which the applicable congressional enactments have not delegated express regulatory authority to the Tribe, but, instead, a form of gambling, the regulation of which may be "specifically prohibited" by those enactments. Sections 2703(7) and 2710(b) of IGRA delegate to tribes the authority to engage in or "regulate" certain forms of gambling as "Class II" gaming if the State permits that type of gaming elsewhere in the State. One of the forms of gambling allowed under this condition is the game "commonly known as bingo," 25 U.S.C. § 2703(7)(A)(i), a concept this Court has examined repeatedly and at great length. Although the federal statute may accommodate certain electronic aids more freely than does Alabama law, see 25 U.S.C. § 2703(7)(A)(i), other fundamental attributes of "the game of chance commonly known as bingo" are not altered by the statute. In any event, insofar as applicable here, IGRA expressly and specifically prohibits "electronic or electromechanical facsimiles of any game of chance or slot machines of any kind." 25 U.S.C. § 2703(7)(B)(ii).

Where a federal enactment does not specifically authorize a given form of gambling on Indian land, and even prohibits it, we see no basis for treating disputes between tribal members and nonmembers arising out of that activity any differently than any other dispute arising out of activity on tribal lands not the subject of an "express congressional delegation." Under that circumstance, the above-discussed criteria outlined by the Supreme Court for disputes arising on Indian lands between two nonmembers or between a tribal member and a nonmember would apply.

At this juncture, however, the record in this case is not adequate to permit a determination as to whether the activity out of which Rape's claims arose is a form of gambling as to which the applicable congressional enactments have delegated express regulatory authority to the Tribe, or one "specifically prohibited" by those enactments. We do not find it necessary to consider further either the question itself, or the possibility of a remand to address it, because, much like the question of the status of the tribal land, neither answer that might be achieved would allow us to provide Rape the relief he seeks.

On the one hand, if the dispute here arises from activity determined to be "permitted by Federal law" and thus to be the subject of a congressional delegation of "regulatory authority" to the Tribe, then disputes arising out of the same would, as noted, likewise be a legitimate adjudicative matter for the Tribe, and the circuit court's dismissal of Rape's claims would have been proper on that basis. But conversely, even if it were to be determined that the gaming at issue were illegal under the provisions of IGRA and therefore not the subject of an "express congressional delegation" of regulatory authority to the Tribe, it would be that very illegality that would also prevent our state courts from providing relief to Rape under the principles discussed previously.

Under the unique circumstances of this case, therefore, there is no analytical path to an award of relief for Rape. Accordingly, we must affirm the circuit court's judgment of dismissal.

IV. Conclusion

For the foregoing reasons, the judgment of dismissal in the present case is affirmed.

AFFIRMED.

Bolin, Parker, and Wise, JJ., concur.

Stuart, C.J., and Main and Bryan, JJ., concur in the result.

Shaw and Sellers, JJ., recuse themselves.

      The complaint does not provide the name of the employee who allegedly made this statement to Rape.

      The text of the IRA has been transferred to 25 U.S.C. § 5101 et seq., but to avoid confusion with the citations in many cases we refer to the original section numbers of applicable provisions.

      25 U.S.C. §§ 465 and 478 (now §§ 5108 and 5129) of the IRA authorize the federal government to take lands into trust for "recognized Indian tribe[s] now under Federal jurisdiction," with "now" being held in Carcieri v. Salazar, 555 U.S. at 388, to mean 1934.

      The attributes of sovereignty and sovereign immunity discussed in this section underlie Justice Stevens's special writings in Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991), and Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998), and Justice Thomas's compelling analysis in Bay Mills. See Bay Mills, 572 U.S. at ----, 134 S.Ct. at 2045 (Thomas, J., dissenting).

      The Hicks Court further explained:
      "[Tribal courts] differ from traditional American courts in a number of significant respects. To start with the most obvious one, it has been understood for more than a century that the Bill of Rights and the Fourteenth Amendment do not of their own force apply to Indian tribes. See Talton v. Mayes, 163 U.S. 376, 382-385 (1896) ; F. Cohen, Handbook of Federal Indian Law 664-665 (1982 ed.) (hereinafter Cohen) ('Indian tribes are not states of the union within the meaning of the Constitution, and the constitutional limitations on states do not apply to tribes'). Although the Indian Civil Rights Act of 1968 (ICRA) makes a handful of analogous safeguards enforceable in tribal courts, 25 U.S.C. § 1302, 'the guarantees are not identical,' Oliphant [v. Suquamish Indian Tribe ], 435 U.S. [191], 194 [ (1978) ], and there is a 'definite trend by tribal courts' toward the view that they 'ha[ve] leeway in interpreting' the ICRA's due process and equal protection clauses and 'need not follow the U.S. Supreme Court precedents "jot-for-jot," ' Newton, Tribal Court Praxis: One Year in the Life of Twenty Indian Tribal Courts, 22 Am. Indian L. Rev. 285, 344, n. 238 (1998). In any event, a presumption against tribal-court civil jurisdiction squares with one of the principal policy considerations underlying Oliphant, namely, an overriding concern that citizens who are not tribal members be 'protected ... from unwarranted intrusions on their personal liberty,' 435 U.S. at 210 (emphasis added).
      "Tribal courts also differ from other American courts (and often from one another) in their structure, in the substantive law they apply, and in the independence of their judges. Although some modern tribal courts 'mirror American courts' and 'are guided by written codes, rules, procedures, and guidelines,' tribal law is still frequently unwritten, being based instead 'on the values, mores, and norms of a tribe and expressed in its customs, traditions, and practices,' and is often 'handed down orally or by example from one generation to another.' Melton, Indigenous Justice Systems and Tribal Society, 79 Judicature 126, 130-131 (1995). The resulting law applicable in tribal courts is a complex 'mix of tribal codes and federal, state, and traditional law,' National American Indian Court Judges Assn., Indian Courts and the Future 43 (1978), which would be unusually difficult for an outsider to sort out."
      Hicks, 533 U.S. at 383-85 (emphasis added).

      Although the Supreme Court in Carcieri stated that some tribes were wrongly left off that list, 555 U.S. at 398, 129 S.Ct. 1058, it also has been said that, "[a]s a practical matter, this can be said to be the constructive 'list' of Indian tribes recognized by the United States in 1934." W. Quinn, Federal Acknowledgment of American Indian Tribes: The Historical Development of a Legal Concept, 34 Am. J. Legal Hist. 331, 356 (1990) (also cited in Carcieri ).

      It has been said that "every Indian tribe could be considered 'under Federal jurisdiction' in some sense," Confederated Tribes of Grand Ronde Cmty. of Oregon v. Jewell, 830 F.3d 552, 564 (D.C. Cir. 2016), but embracing that sense would undermine the essential purpose of the IRA's effort to place a limitation on the tribes that would qualify for the government's willingness to take additional lands in trust for their benefit. Clearly, the language at issue was meant as some kind of limiting principle. See also Carcieri, 555 U.S. at 392 (noting the petitioner's position that the IRA was intended to be "limited to tribes under federal jurisdiction at that time because they were the tribes who [had] lost their lands" under the government's previous allotment policy).

      See, e.g., State v. $223,405.86, 203 So.3d 816, 830, 834-45 (Ala. 2016) (discussing elements and characteristics of "bingo" under various local amendments); Houston Cty. Econ. Dev. Auth. v. State, 168 So.3d 4, 9-18 (Ala. 2014) ; and State v. Greenetrack, Inc., 154 So.3d 940, 943-46, 959-60 (Ala. 2014).

      Compare State v. Greenetrack, Inc., 154 So.3d at 959-60 (explaining that a statutory allowance for "an 'electronic marking machine' [does not] obviate[ ] all the other criteria" of the game commonly and traditionally known as bingo).

      Nor do we find the Court's 1959 decision in Williams v. Lee, 358 U.S. 217, 223, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959), to be contrary to the latter point. Although it involved a suit by a nonmember seeking to collect a business debt from a tribal member, which the Court held to be within the tribal court's jurisdiction, the nonmember was the owner and operator of a permanent general store licensed for operation on the reservation (out of which the debt arose) and, thus, had subjected himself to tribal laws in the same manner as any tribal member choosing to reside or own a business in Indian country. Application of general tribal law and adjudicatory authority in that context was necessary if the tribe was to have a right to engage in "self-governance," i.e., "to make their own laws and be ruled by them." See generally Hicks, supra. Cf. Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 139, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982) (holding that a tribe may exercise its sovereign taxing authority as to "petitioners [who] avail themselves of the 'substantial privilege of carrying on business' on the reservation," comparing them to a nonmember who takes up "residence" on tribal land). The alternative would mean that the subject-matter (versus personal) jurisdiction of a court over a dispute between a member and a nonmember would depend on who sues whom first and, furthermore, would be an unworkable paradigm in a dispute entailing multiple counterclaims, cross-claims, and/or third-party claims between various combinations of members and nonmembers. Ultimately, however, for purposes of this case, because the record does not reveal whether the individual defendants are or are not tribal members, we must consider whether the judgment of dismissal was appropriate assuming we have here a dispute only between nonmembers.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    84 LUMBER COMPANY, INC. v. CITY OF NORTHPORT
    84 Lumber Company, Inc. v. Tuscaloosa County Special Tax Board
    84 Lumber Company, Inc. v. City of Northport and City of Tuscaloosa
    84 Lumber Company, Inc. v. City of Northport and City of Tuscaloosa
    84 Lumber Company, Inc. v. City of Tuscaloosa and Tuscaloosa County Special Tax Board
    2150876 2150877 2150878 2150879 2150880
    Court of Civil Appeals of Alabama.
    May 12, 2017 Rehearing Denied July 14, 2017 Certiorari Denied September 15, 2017
    Alabama Supreme Court 1160931, 1160944, and 1161028.
    G. Scott Frazier, Tuscaloosa, for appellant.
    Suzanne H. Mills and Joel F. Dorroh of Dorroh & Associates, P.C., Tuscaloosa, for appellee.
    Christopher J. England, assoc. city atty., City of Tuscaloosa, for appellee City of Tuscaloosa.
    Timothy H. Nunnally, Tuscaloosa, for appellee Tuscaloosa County Special Tax Board.
   MOORE, Judge.

In these consolidated appeals, 84 Lumber Company, Inc., appeals from a summary judgment entered by the Tuscaloosa Circuit Court in favor of the City of Northport, the Tuscaloosa County Special Tax Board, and the City of Tuscaloosa (hereinafter referred to collectively as "the taxing authorities") in five separate circuit-court actions. We dismiss appeal number 2150876 and appeal number 2150878. We also dismiss the City of Northport as a party to appeal number 2150879. We reverse the circuit court's judgment in appeal numbers 2150877, 2150879, and 2150880.

Procedural Background

Between 2008 and 2013, 84 Lumber filed five separate circuit-court actions, styled as appeals, from assessments of taxes, interest, and penalties entered by the taxing authorities. In the first action (case number CV-07-1122), 84 Lumber alleged that the City of Northport had improperly denied a petition for a full refund of sales taxes that 84 Lumber had erroneously remitted to the City of Northport and that the City of Northport owed interest on the refund amount it had paid to 84 Lumber more than 60 days after its petition had been filed. In the other four actions (case numbers CV-08-900078, CV-08-900285, CV-09-900384, and CV-13-900351), 84 Lumber maintained that the taxing authorities had entered a series of tax assessments against 84 Lumber based on an improper "sampling" method by which the taxing authorities had audited three months of 84 Lumber's sales invoices and extrapolated from those months the sales taxes due for each assessment period. 84 Lumber further maintained that the taxing authorities had also improperly assessed interest and penalties against 84 Lumber in the same assessments.

The circuit court consolidated the actions for purposes of discovery. On August 26, 2015, the taxing authorities filed a joint motion for a summary judgment, along with evidentiary materials in support thereof. On October 29, 2015, 84 Lumber filed a response to the summary-judgment motion, along with evidentiary materials in support thereof. After a hearing, the circuit court entered a summary judgment on February 16, 2016, in favor of the taxing authorities. On March 16, 2016, 84 Lumber filed a postjudgment motion, which was denied by operation of law on June 14, 2016. See Rule 59.1, Ala. R. Civ. P. On July 7, 2016, 84 Lumber filed its notices of appeal to the Alabama Supreme Court; that court subsequently transferred the appeals to this court. See Ala. Code 1975, § 12-2-7. This court consolidated the appeals ex mero motu and held oral argument on March 14, 2017.

Factual Background

The parties presented the following evidence in support of, and in opposition to, the joint motion for a summary judgment. The taxing authorities have established a 5% sales tax on goods sold within Tuscaloosa County, which is divided among the county and municipalities within the county depending upon the point of delivery of the goods. If the goods are delivered to a customer within the corporate limits of either the City of Northport or the City of Tuscaloosa, the seller should remit a 2% sales tax to the appropriate municipality and a 3% sales tax to the Tuscaloosa County Special Tax Board, which collects taxes for the county. See Act No. 56, Local Acts 1953. If the goods are delivered within the police jurisdiction of the City of Northport or the City of Tuscaloosa but outside the city's limits, the seller should remit a 1% sales tax to the appropriate municipality and a 4% sales tax to the Tuscaloosa County Special Tax Board. If the goods are delivered outside any corporate limits and outside any municipal police jurisdiction, the seller should remit the entire 5% sales tax to the Tuscaloosa County Special Tax Board.

84 Lumber operates a lumber store within the corporate limits of the City of Northport. 84 Lumber routinely delivers goods sold in its store to various job sites in Tuscaloosa County, some within the corporate limits or police jurisdictions of the City of Northport and the City of Tuscaloosa and some outside those areas. 84 Lumber records the delivery address on its sales invoices; however, the invoices do not identify the taxing jurisdiction and do not specifically state whether the delivery occurred within or outside the corporate limits or police jurisdictions of the City of Northport or the City of Tuscaloosa. 84 Lumber has historically remitted taxes to the taxing authorities based on the zip code ("the zip code method") of the delivery address.

The taxing authorities have audited 84 Lumber at least three times since the late 1990s. On each occasion, the taxing authorities discovered that, by using the zip code method, 84 Lumber had remitted sales taxes to the incorrect taxing authority. The taxing authorities explained that their taxing jurisdictions do not correspond to zip code areas. The taxing authorities offered assistance to 84 Lumber to enable 84 Lumber to identify the correct taxing jurisdiction for each sale. 84 Lumber had attempted to correct the problem, but, during the periods at issue, it had not successfully implemented a system to assure that it remitted taxes to the correct taxing authority.

In regard to the sales-tax assessments at issue in the five civil actions before the circuit court, the taxing authorities determined the amounts due to each of the taxing authorities by a sampling method. The taxing authorities randomly selected three months out of each audit period, excluding winter months, reviewed the invoices for that sample period, determined the point of delivery for each sale within the sample period, ascertained the proper taxing jurisdiction, established the percentage of the sales applicable to each taxing jurisdiction, and extrapolated from that information the sales taxes owed to each taxing authority for the entire audit period. The audits generally indicated that 84 Lumber had paid the correct amount of sales taxes but that 84 Lumber had overpaid the City of Northport and had underpaid the City of Tuscaloosa and the Tuscaloosa County Special Tax Board. The City of Tuscaloosa and the Tuscaloosa County Special Tax Board assessed interest and penalties against 84 Lumber as a result of the claimed underpayments.

Discussion

I. Appeal Number 2150876

In the summary judgment, the circuit court determined that the City of Northport had properly limited its refund of sales taxes to 36 months, but the circuit court did not address 84 Lumber's claim that the City of Northport owed interest on the refund amount. The record shows that the City of Northport did not move for a summary judgment on that claim.

" '[I]t is well settled that this Court may consider, ex mero motu, whether a judgment or order is sufficiently final to support an appeal.' Natures Way Marine, LLC v. Dunhill Entities, LP, 63 So.3d 615, 618 (Ala. 2010).
" ' "Ordinarily, an appeal can be brought only from a final judgment. Ala. Code 1975, § 12-22-2. If a case involves multiple claims or multiple parties, an order is generally not final unless it disposes of all claims as to all parties. Rule 54(b), Ala. R. Civ. P. However, when an action contains more than one claim for relief, Rule 54(b) allows the court to direct the entry of a final judgment as to one or more of the claims, if it makes the express determination that there is no just reason for delay." '
" North Alabama Elec. Coop. v. New Hope Tel. Coop., 7 So.3d 342, 344-45 (Ala. 2008) (quoting Grantham v. Vanderzyl, 802 So.2d 1077, 1079-80 (Ala. 2001) )."

Patterson v. Jai Maatadee, Inc., 131 So.3d 607, 609 (Ala. 2013). The circuit court did not dispose of 84 Lumber's claim for interest, so it did not conclusively adjudicate all the claims in case number CV-07-1122, from which appeal number 2150876 arises. Therefore, we dismiss appeal number 2150876 because it does not lie from a final judgment.

II. Appeal Number 2150878

Appeal number 2150878 arises from 84 Lumber's appeal of a tax assessment entered by the City of Tuscaloosa in September 2007, designated as case number CV-08-900285. Although 84 Lumber alleged that the assessment was a final assessment, it is undisputed that the City of Tuscaloosa made only a preliminary assessment. Section 40-2A-7(b)(5)b.1., Ala. Code 1975, a part of the Alabama Taxpayers' Bill of Rights, Ala. Code 1975, §§ 40-2A-1 et seq., which applies to tax assessments and tax-collection efforts by local taxing authorities pursuant to the Local Tax Simplification Act of 1998, Act No. 98-192, Ala. Acts 1998, provides a taxpayer with the right to appeal only from a final assessment. Because 84 Lumber did not have a right to appeal the preliminary assessment, the circuit court did not acquire subject-matter jurisdiction over the appeal and its orders relating to that appeal, which included an order adding the City of Northport as a party to the appeal, are void. See generally Alabama Dep't of Revenue v. Morton, 892 So.2d 940 (Ala. Civ. App. 2004). A void judgment will not support an appeal, so we dismiss appeal number 2150878, albeit with instructions to the circuit court to vacate its orders in case number CV-08-900285. Id.

III. Appeal Numbers 2150877, 2150879, and 2150880

The remaining appeals arise out of the same summary judgment, which was also entered by the circuit court in case numbers CV-08-900078, CV-09-900384, and CV-13-900351, respectively. In that summary judgment, the circuit court determined in those three civil actions that the taxing authorities had properly used the sampling method to correctly assess the sales taxes due and had properly assessed interest and penalties against 84 Lumber for incorrectly remitting the sales taxes. 84 Lumber argues that the circuit court erred in both respects.

Before proceeding to discuss the merits of the appeals, we first dismiss the City of Northport as a party to appeal number 2150879. The City of Northport was never joined as a party in case number CV-09-900384 from which appeal number 2150879 arises, and 84 Lumber admits that the City of Northport was added as an appellee in appeal number 2150879 by mistake. We, therefore, grant the City of Northport's motion to dismiss appeal number 2150879 as to the City of Northport. See Rule 3, Ala. R. App. P. (indicating that only an adverse party in the proceedings below may be made an appellee).

Turning to the merits, we first address the contention that the taxing authorities could not use a sampling method to assess the sales taxes due. In the summary judgment, the circuit court found as follows:

"[T]he Court, finds that, as a matter of law, [84 Lumber] failed to meet its duty under the law to maintain adequate records to disclose the exact location of its deliveries. As a result, the Court further finds that [the taxing authorities] were entitled to use any reasonable method to determine the correct tax, and that the use of sampling is a reasonable method. See Wigley & Culp, Inc., v. Dept. of Revenue, Docket No. Misc. 03-658 (Dept. Rev. Admin. Law Div., December 4, 2006). [84 Lumber] has failed to cite this Court to any authority holding to the contrary. Finally, [84 Lumber] had the opportunity to go through its records as the auditors did for all relevant periods, but neglected to do so. Doing so would have given an exact number rather than the sample to which [84 Lumber] objects. Failing that, the Court can find no legal error in [the taxing authorities'] methods."

We respectfully disagree with that analysis.

Section 40-2A-7, Ala. Code 1975, provides, in pertinent part:

"(a) Maintenance of records....
"(1) In addition to all other recordkeeping requirements otherwise set out in this title, taxpayers shall keep and maintain an accurate and complete set of records, books, and other information sufficient to allow the [taxing authority] to determine the correct amount of value or correct amount of any tax, license, permit, or fee administered by the [taxing authority], or other records or information as may be necessary for the proper administration of any matters under the jurisdiction of the [taxing authority]. The books, records, and other information shall be open and available for inspection by the [taxing authority] upon request at a reasonable time and location."

Section 40-2A-7(a)(1) requires a business subject to sales taxation to keep "accurate and complete" records of its business transactions so that the appropriate taxing authorities can determine the sales taxes owed. See State v. T.R. Miller Mill Co., 272 Ala. 135, 141, 130 So.2d 185, 190 (1961). Our supreme court has been reluctant to impose "any particular method of bookkeeping so as to unduly burden the taxpayer." See State v. Mims, 249 Ala. 217, 219, 30 So.2d 673, 674 (1947). Additionally, the Alabama Department of Revenue has not promulgated any regulations that specify the contents necessary to render business records "accurate and complete" for sales-tax purposes. See Ala. Admin. Code (Dep't of Revenue), Rules 810-14-1-.07 and 810-14-1.07.1.

In their motion for a summary judgment, the taxing authorities asserted that "a [Tuscaloosa County] business must keep a record of whether each delivery took place inside city limits, in a police jurisdiction, or in the county, outside any municipal limits." However, in the motion, the taxing authorities did not cite any statute or regulation requiring that information to be recorded by a taxpayer. The motion refers to the testimony of Barbara Hinton, an auditor for the City of Northport, but Hinton did not testify regarding the assertion made by the taxing authorities in its summary-judgment motion. In their briefs to this court, the taxing authorities have not identified any legal authority requiring 84 Lumber to include in its records within which taxing jurisdiction a particular delivery was made. Section 40-2A-7(a)(1) requires 84 Lumber only to maintain "accurate and complete" records from which that information can be gleaned.

Hinton testified that, in conducting the audits in order to make their assessments, the taxing authorities requested that 84 Lumber provide its tax returns, its invoices, and other documentation showing its gross revenue for the assessment periods. Hinton testified that the auditors had determined the sales attributable to each taxing jurisdiction by matching the delivery address on the invoices provided by 84 Lumber to maps and subdivision sheets outlining the jurisdiction of each taxing authority. According to Hinton, in questionable cases the auditors had gathered additional information to ascertain the taxing jurisdiction. The auditors inputted that information into a spreadsheet, which ultimately produced the gross taxable sales made by 84 Lumber in each taxing jurisdiction during the audited months. According to Hinton, some of the invoices had been missing, but, she said, the auditors nevertheless had been able to compute the percentage of gross taxable sales for each taxing jurisdiction from the available invoices. Because the records supplied by 84 Lumber contained sufficient information from which the taxing authorities could determine the taxes due, 84 Lumber complied with § 40-2A-7(a)(1).

In State v. Mims, supra, the supreme court considered an appeal by the State from a judgment of the Chilton Circuit Court reducing an assessment by the Department of Revenue against a Clanton grocer who had used a "crude" record-keeping practice. 249 Ala. at 221, 30 So.2d at 676. After affirming the judgment, the supreme court noted that the Department of Revenue had accepted the grocer's tax remittances for years without objection despite the state of his records. In dicta, the supreme court stated: "Perhaps there should be required a more strict method of bookkeeping, but that is for the lawmaking body, or else the Department itself might give some notice to the taxpayer that he may be warned of the consequences if his bookkeeping method is inadequate." 249 Ala. at 221, 30 So.2d at 676.

The dicta in Mims does not support the position of the taxing authorities that 84 Lumber had failed to keep proper records of its sales. Although the taxing authorities had notified 84 Lumber that it was remitting taxes to the wrong jurisdiction, the record shows that the remittance errors stemmed not from inadequate record-keeping, but from the use of the zip code method instead of the more appropriate method of matching the delivery address on the invoices to the proper taxing jurisdiction. The problem perhaps could have been corrected if 84 Lumber had been required to ascertain and document the appropriate taxing jurisdiction on each invoice, but nothing in the law or the tax regulations requires such precise record-keeping. Thus, we do not consider the fact that the taxing authorities had previously identified the remittance errors as proving that 84 Lumber maintained inadequate records.

Section 40-2A-7(b) provides, in pertinent part:

"(b) Procedures governing entry of preliminary and final assessments; appeals therefrom.
"(1) ....
"a. If the [taxing authority] determines that the amount of any tax as reported on a return is incorrect, or if no return is filed, or if the [taxing authority] is required to determine value, the [taxing authority] may calculate the correct tax or value based on the most accurate and complete information reasonably obtainable by the [taxing authority]. The [taxing authority] may thereafter enter a preliminary assessment for the correct tax or value, including any applicable penalty and interest."

(Emphasis added.) Section 40-2A-7(b)(1) a. requires a taxing authority that disputes the accuracy of a tax reported on a return to use the most accurate and complete information that it can procure without extraordinary effort in order to calculate the correct tax. In this case, it is undisputed that 84 Lumber maintained suitable invoices documenting its sales that were readily available to the taxing authorities for inspection and auditing. Based on the plain language of § 40-2A-7(b)(1) a., the taxing authorities could have based their corrections on only those invoices, which represented the most accurate and complete information reasonably obtainable for the purpose of calculating the sales taxes due.

In her deposition, Hinton testified that the auditors could have determined the taxes due most accurately by reviewing all the available invoices for the assessment periods. Hinton testified, however, that it could have taken up to a year to complete an audit of a 36-month period because of the volume of invoices. Hinton testified that the auditors had decided to use a random sample of three months out of each assessment period. Hinton testified that she could not recall how the auditors had selected the sample months other than that each of the three taxing authorities had randomly chosen a month within the pertinent assessment period. Hinton testified that an audit of 100% of the invoices during the entire assessment period would have produced the most accurate accounting of the taxes due and that she could not express in numbers the accuracy of the results of the sample methodology used by the taxing authorities to determine the taxes due from 84 Lumber.

We have found two cases in which an appellate court of this state has discussed sampling methods in relation to the assessment of taxes. In State v. Mims, supra, the Alabama Department of Revenue entered an assessment for the tax years 1939 through 1944 based on a review of only 13 months of documentation between 1939 and 1944. The Department concluded from its audit that the grocer had underpaid sales taxes by 44% during the audit period and applied that underpayment percentage to the remaining assessment period. The trial court heard evidence indicating that the grocer had not carried out the same amount of business throughout the entire five-year assessment period. The trial court determined that the sampling method used by the Department was too speculative. The supreme court agreed, holding that the grocer had maintained adequate records and that the 44% error found in the audited invoices could not be applied to the remaining assessment period without competent evidence indicating that, in fact, the same error had occurred during that period.

In State v. Ludlam, 384 So.2d 1089 (Ala. Civ. App. 1980), a nursery owner, who "inartfully" kept his books, contested an assessment of sales taxes made by the Alabama Department of Revenue by appealing to the Barbour Circuit Court. 384 So.2d at 1090. An accountant for the nursery owner testified that he had been able to determine the nature and amount of the sales from deposit slips and other documentation supplied by the nursery owner and third parties. The accountant used a "test period," in which adequate records had been kept, to determine that 80% of the sales were exempt. 384 So.2d at 1092. That test period did not coincide with the assessment period, but the evidence showed that the nursery owner had conducted his business in a substantially similar manner during both periods. On appeal, the supreme court affirmed the judgment of the trial court, which had determined that the assessment was incorrect and that 80% of the nursery owner's sales should have been exempted.

Additionally, in Wigley & Culp, Inc. v. State Department of Revenue, Op. of Dep't of Revenue, Admin. Law Div., Docket No. Misc. 03-658 (December 4, 2006) (Final Order on Taxpayer's Application for Rehearing), the administrative-law judge concluded that the Department of Revenue can use a sampling method when a taxpayer fails to produce records covering the assessment period. The judge stated that "[t]he Department was also authorized to calculate the Taxpayer's Alabama liability in the absence of records using the best information available ...." (Emphasis added.)

Taken together, Mims, Ludlam, and Wigley & Culp suggest that sampling can be permitted when a business only minimally complies with record-keeping requirements or fails to comply altogether and the sample period substantially represents the typical course of business of the taxpayer during the assessment period. In this case, however, the record shows that 84 Lumber maintained invoices covering the entire assessment periods. Although some of those invoices may have been missing, the taxing authorities could have more accurately determined the taxes due by reviewing the remaining invoices in the same manner in which they had reviewed the invoices for the sample months. In these circumstances, the taxing authorities should not be allowed to resort to sampling. See, e.g., In re Mohawk Airlines, Inc. v. Tully, 75 A.D.2d 249, 250-51, 429 N.Y.S.2d 759, 760 (1980) ("Although the State Tax Commission may use a 'test period' to determine the amount of tax due where the available records of a taxpayer provide an inadequate basis upon which to conduct a complete audit ..., where ... records are readily available from which the exact amount of tax due can be determined, 'the estimate procedures adopted by [the State Tax Commission] become arbitrary and capricious and lack a rational basis.' " (quoting In re Chartair, Inc. v. State Tax Comm'n, 65 A.D.2d 44, 46, 411 N.Y.S.2d 41, 43 (1978) )).

The taxing authorities maintain that it would be too time consuming to audit each and every invoice to determine the proper allocation of the sales taxes. The taxing authorities argue that, in cases in which a taxpayer keeps voluminous records, as 84 Lumber does, the taxing authorities should be authorized to use a sample method. In § 40-2A-7(b)(1), the legislature explicitly provided that a taxing authority should calculate the correct taxes due from the most accurate and complete information readily obtainable. Despite common knowledge that large businesses undertake voluminous taxable transactions that produce vast amounts of documentation, our legislature has not provided an exception that allows taxing authorities to forgo using the most accurate and complete information readily obtainable to determine the taxes due in such circumstances. " 'A general rule of construction constantly invoked by courts is that, if no exceptions to the positive terms of a general statute are made, the conclusive presumption is that the legislature intended none, and the duty of the court is to interpret law not make law by engrafting exceptions upon statutes.' " City of Birmingham v. Weston, 233 Ala. 563, 567, 172 So. 643, 646 (1937) (quoting 6 McQuillin, Municipal Corporations § 2893). We do not have the power to establish the exception to § 40-2A-7(b)(1) advocated by the taxing authorities.

Section 40-2A-7(b)(5) c.3. provides that, on appeal to the circuit court, "the final assessment shall be prima facie correct, and the burden of proof shall be on the taxpayer to prove the assessment is incorrect." We believe the legislature intended that a taxpayer can overcome the presumption of correctness of a final assessment by proving that the assessment entered by a taxing authority was not calculated based on accurate and complete information as required by § 40-2A-7(b)(1). In this case, 84 Lumber established that the taxing authorities did not calculate the assessments based on the most accurate and complete information available to them. Thus, 84 Lumber overcame the presumption of correctness sufficiently to withstand the motion for a summary judgment. See General Motors Corp. v. Kilgore, 853 So.2d 171, 173 (Ala. 2002) (setting out the standard by which a summary judgment is reviewed on appeal).

Based on the foregoing, we conclude that the circuit court erred in entering the summary judgment as to the validity of the assessments entered by the taxing authorities. It follows that the summary judgment also was not proper with regard to the interest and penalties resulting from those assessments. Therefore, we reverse the trial court's summary judgment.

Conclusion

In conclusion, we dismiss appeal numbers 2150876 and 2150878. We dismiss the City of Northport as a party to appeal number 2150879. As to appeal numbers 2150877, 2150879, and 2150880, we reverse the summary judgment, and we remand the cases to the circuit court for further proceedings in accordance with this opinion.

2150876-APPEAL DISMISSED.

Thompson, P.J., and Pittman and Thomas, JJ., concur.

Thompson, P.J., dissents, with writing.

Donaldson, J., recuses himself.

2150877-REVERSED AND REMANDED WITH INSTRUCTIONS.

Pittman and Thomas, JJ., concur.

Donaldson, J., recuses himself.

2150878-APPEAL DISMISSED.

Thompson, P.J., and Pittman and Thomas, JJ., concur.

Donaldson, J., recuses himself.

2150879-APPEAL DISMISSED IN PART; REVERSED AND REMANDED WITH INSTRUCTIONS.

Pittman and Thomas, JJ., concur.

Thompson, P.J., concurs in part and dissents in part, with writing.

Donaldson, J., recuses himself.

2150880-REVERSED AND REMANDED WITH INSTRUCTIONS.

Pittman and Thomas, JJ., concur.

Thompson, P.J., dissents, with writing.

Donaldson, J., recuses himself.

THOMPSON, Presiding Judge, concurring in part and dissenting in part in appeal number 2150879 and dissenting in appeal number 2150877 and appeal number 2150880.

I concur with that part of the main opinion that dismisses appeal numbers 2150876 and 2150878 and that dismisses the City of Northport as a party to appeal number 2150879.

I dissent from the reversal of the trial court's summary judgment affirming the tax assessments. In State v. Mims, 249 Ala. 217, 30 So.2d 673 (1947), upon which the main opinion relies in part, in concluding that the taxpayer's crude bookkeeping methods were sufficient to support the trial court's judgment reducing an assessment in an appeal by the State arguing that the taxpayer should pay additional taxes, our supreme court noted that "[p]erhaps there should be required a more strict method of bookkeeping, but that is for the lawmaking body, or else the Department [of Revenue] itself might give some notice to the taxpayer that he may be warned of the consequences if his bookkeeping method is inadequate." 249 Ala. at 221, 30 So.2d at 676. In this case, it is undisputed that the taxing authorities have audited 84 Lumber Company, Inc., on previous occasions and have notified 84 Lumber that its record-keeping methods were not adequate; it is also undisputed that the taxing authorities offered 84 Lumber assistance in creating records that would enable both the taxing authorities and 84 Lumber to properly calculate the amount of taxes owed to each taxing authority. However, 84 Lumber has persisted in maintaining its bookkeeping in a manner that makes it cumbersome to determine the appropriate tax liability owed to each taxing authority. For that reason, I agree with the trial court that 84 Lumber has not demonstrated that it kept accurate and complete records. See, e.g., State v. T.R. Miller Mill Co., 272 Ala. 135, 141, 130 So.2d 185, 190 (1961) ("Where there are no proper entries on the records to show the business done, the taxpayer must suffer the penalty of noncompliance and pay on the sales not so accurately recorded as exempt.").

"On appeal to the circuit court or to the Alabama Tax Tribunal, the final assessment shall be prima facie correct, and the burden of proof shall be on the taxpayer to prove the assessment is incorrect." § 40-2A-7(b)(5) c.3., Ala. Code 1975. See also Turner v. State Dep't of Revenue, 643 So.2d 568, 569 (Ala. 1994) ("Tax assessments appealed to the circuit court are deemed prima facie correct, § 40-2A-7(b)(5) ; State Dep't of Revenue v. Birmingham Realty Co., 255 Ala. 269, 50 So.2d 760 (1951), and the burden is on the taxpayer to go forth with evidence that the assessment is incorrect."). I do not believe 84 Lumber has met that burden; instead, it has shifted the burden of calculating the proper amount of taxes due, based on incomplete record-keeping, to the taxing authorities.

      The parties did not provide this court with citations to all the laws and ordinances that establish the taxing system in Tuscaloosa County, but those laws and ordinances are Ala. Code 1975, § 40-23-1(a)(5), Act. No. 56, Local Acts 1953, Act No. 535, Local Acts 1994, City of Tuscaloosa Ordinance No. 7-40 et seq., and City of Northport Ordinance No. 66-67 et seq.

      In Hanner v. Metro Bank & Protective Life Insurance Co., 952 So.2d 1056, 1061 (Ala. 2006), the supreme court held "that a trial court must certify a judgment as final pursuant to Rule 54(b), Ala. R. Civ. P., before a judgment on fewer than all the claims in a consolidated action can be appealed." In this case, however, the circuit court did not consolidate the actions for trial purposes, but only for discovery purposes. See Ex parte Metropolitan Life Ins. Co., 707 So.2d 229 (Ala. 1997) (holding that Rule 42, Ala. R. Civ. P., authorizes a trial court to consolidate actions for discovery purposes only). We conclude that Hanner does not apply in this situation. Thus, we treat each appeal as arising from a separate civil action.

      The record does not contain any evidence indicating that the taxing authorities had ever ordered 84 Lumber to include such information on its invoices.

      In their summary-judgment motion, the taxing authorities asserted that, in case number CV-09-900384, the City of Tuscaloosa could not perform an audit because 84 Lumber had failed to produce requested records. However, as 84 Lumber points out, the taxing authorities failed to cite any evidence in support of that assertion, and 84 Lumber presented undisputed evidence indicating that the City of Tuscaloosa had performed an audit and that 84 Lumber had not refused to supply any records.

      Based on our disposition, we pretermit discussion of 84 Lumber's remaining arguments as to the correctness of the assessments, the ruling of the circuit court on its motion to strike certain exhibits attached to the motion for a summary judgment, and the failure of the circuit court to hold a hearing on its postjudgment motion.