indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+
ph: 202 630 8439
Fredericks Peebles & Morgan LLP
Advertise on Indianz.Com
Home > News > Headlines

printer friendly version
Tribal sovereignty must be respected, court rules
Friday, May 13, 2005


STATE RAID: Troopers pin tribal members on the ground during raid of the Narragansett Reservation on July 14, 2003.
The state of Rhode Island violated the Narragansett Tribe's sovereignty during a highly-publicized raid of the reservation nearly two years ago, a federal appeals court ruled on Thursday.

State officials had no right to enter the reservation in an attempt to enforce state law, the 1st Circuit Court of Appeals concluded in a unanimous decision. Instead of resorting to a violent raid of the tribe's smoke shop, the state could have pursued other legal and political means to resolve a dispute over the collection of cigarette taxes, a three-judge panel said.

"For these reasons, we hold that the state violated the tribe's sovereign rights when it enforced the criminal provisions of its cigarette tax laws by executing a search warrant against the tribal government's smoke shop, forcibly entering the shop and seizing the tribe's stock of unstamped cigarettes, and arresting tribal officials who were acting in their official capacity," Judge Juan R. Torruella wrote for the majority.

In spite the harsh language, the court said the state has a right to seek taxes from the sale of cigarettes to non-Indians. An examination of state law shows that it doesn't infringe the tribe's sovereignty, the judges noted in their 36-page opinion.

"We have determined that, since the legal incidence of Rhode Island's cigarette tax falls on the consumer, rather than the tribal distributor, the Narragansetts are obligated to comply with the State's cigarette tax laws as they pertain to cigarettes sold to non-Indian consumers," the court said. "Therefore, by selling unstamped cigarettes to non-Indian consumers, the smoke shop operators violated Rhode Island tax law, which is a criminal offense."

The mixed ruling hands victories to both the tribe and the state in their long-running battle over the extent of the tribe's sovereignty and the reach of the state's. Both sides claimed victory yesterday after the decision was issued.

"The state should have respected the status of the tribe, knowing that we're a federally recognized tribe and have a relationship with Congress," said Narragansett Chief Sachem Matthew Thomas, one of several officials and members arrested during the July 14, 2003, in a statement.

On the other hand, state attorney general Patrick C. Lynch, who defended the raid on court, said the ruling failed to clear up the matter, pointing to language that supports some form of state authority on tribal lands. "I find it very difficult to reconcile this lack of clarity and, for that reason, I will seek further review of this case," he said in a statement.

There were, however, some key findings that could help New England tribes, whose sovereign rights have been in question in Rhode Island, Massachusetts and Maine within the 1st Circuit. In nearby Connecticut, which falls under the 2nd Circuit, similar issues have arisen.

Along with the Narragansetts, the tribes are subject to special acts of Congress that settled their lands claims and contained nearly identical language granting state criminal and civil jurisdiction on the settled lands. But the court said the provision is not a "clear, express waiver" of sovereign immunity.

"The tribe, therefore, retains its sovereign immunity despite the grant of jurisdiction to the state," the court determined.

The court went further and said the language gives the state absolutely no powers over the tribe itself. "Congress did not expressly give the state jurisdiction over the Narragansett Tribe," wrote Torruella, noting that the tribe retains "concurrent jurisdiction" over its settlement lands.

Additionally, the court rejected an analysis used by a federal judge who had ruled against the Narragansetts in December 2003. U.S. District Judge William E. Smith said the state raid was justified because the smoke shop "affects non-members" and isn't "inherently governmental or political in nature."

But the 1st Circuit said this test was an "inappropriate" way to "determine whether the tribe's operation of the smoke shop should be included in the tribe's retained right of sovereignty." Smith had taken the language from a case involving two Maine tribes but the appeals court warned that the situation there involved acts of Congress that were "very different."

Finally, the court identified other remedies the state could pursue to collect taxes from the sale of tobacco products to non-Indians. The state and the tribe could enter into a compact like others found throughout Indian Country, go could go after non-Indians who distribute cigarettes to the tribe or seek civil -- but not criminal -- action against tribal leaders who are acting in their official capacities.

"The state's hands will not be completely tied while the tribe continues to operate its Smoke Shop in violation of the State's cigarette laws," Torruella wrote. "Although the operation of the smoke shop without complying with Rhode Island's cigarette tax laws is certainly not a sovereign right retained by the Narragansett Tribe, the tribe does have a right of sovereign immunity that should be respected the state."

It is possible that the ruling could be appealed to the U.S. Supreme Court by either or both sides in the case. No decision has been made by any party regarding further legal challenges.

Get the Ruling:
Narragansett Tribe v. Rhode Island (May 12, 2005)

More on the Raid:
Video | Text: Gov. Carcieri's July 14 Press Conference | Text: Gov. Carcieri's July 15 Statement | Text: Excerpts of Narragansett Chief Sachem July 14 Press Conference

Relevant Laws:
Rhode Island Indian Claims Settlement Act (US Code)

Relevant Links:
Narragansett Tribe - http://www.narragansett-tribe.org
Smoke Shop Showdown - http://www.projo.com/extra/2003/smokeshop

Related Stories:
New trial sought in state police raid of reservation (04/14)
Police stand behind trooper in raid of reservation (03/31)
Jury awards damages in state raid of reservation (3/29)
Lawsuit over state raid of reservation goes to jury (3/25)
State troopers defend actions in reservation raid (3/24)
State troopers on trial over raid of reservation (3/22)
Narragansett Tribe marks one year after state raid (07/15)
Narragansett Tribe to mark anniversary of raid (7/13)
State's raid on tribal land sparks strong reactions (07/16)
R.I. raids Narragansett tribal smoke shop (7/15)
Narragansett Tribe wants to head to federal court (7/15)
Analysis: Carcieri 'paternalistic' on Indians (7/15)
Column: Tribal smokeshop raid something out of 1963 (7/15)
Narragansett chief arrested in 'violent' raid (7/14)
R.I. governor promises to help Narragansett Tribe (06/04)
R.I. tribe upset over reservation checkpoint bill (05/30)
R.I. bill sets up reservation checkpoints (5/28)
R.I. tribe delays opening of tobacco shop (5/23)

Copyright 2000-2005 Indianz.Com
More headlines...
Stay Connected:

Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Native Sun News: Urban Indian organization seeks new center (11/26)
Tentative schedule for White House Tribal Nations Conference (11/26)
White House invites youth to DC for Tribal Nations Conference (11/26)
Leslie Wheelock: Touting nation-to-nation trading and tourism (11/26)
Kevin Abourezk: A mystery of Indian agents with same name (11/26)
Michael Allen: My ancestor took part in Sand Creek Massacre (11/26)
Dean Suagee: EPA's Clean Power Plan affects Indian Country (11/26)
Mark Rogers: Finding something to be thankful for this holiday (11/26)
Former convicted leader of Crow Tribe seeks to clear his name (11/26)
Blackfeet Nation denies political motive in arrest of ex-leader (11/26)
Appeal set in dispute over Navajo Nation presidential hopeful (11/26)
Judge allows NFL team lawsuit against young Native activists (11/26)
NPR: Alaska Natives put traditional spin on Thanksgiving meal (11/26)
Column: Group helps rescue dogs from Pine Ridge Reservation (11/26)
First Nation offers reward for information about missing man (11/26)
First Nations face loss of funds over failure to submit salaries (11/26)
Santa Ysabel Band responds to state lawsuit over online bingo (11/26)
Citizen Potawatomi Nation to meet over liquor sales at casino (11/26)
Flandreau Santee Sioux Tribe could lose casino's liquor license (11/26)
Mashantucket Tribe looks to shift revenues away from gaming (11/26)
Agua Caliente Band selects planner to revamp land near casino (11/26)
Washington gaming panel cuts jobs as non-Indian revenue falls (11/26)
Native Sun News: Oglala Sioux Tribe to issue IDs at tournament (11/25)
James Giago Davies: Polygamy and shunning in Lakota culture (11/25)
Ben Shelly: There's a lot to be thankful for on the Navajo Nation (11/25)
Cara Cowan Watts: Share the blessings of the Cherokee Nation (11/25)
Joe Sexton: BIA's 'ugly' land policies stuck in the 19th century (11/25)
Jenny Durkan: Cop who killed Native man wasn't charged either (11/25)
Oklahoma claims Citizen Potawatomi Nation must collect taxes (11/25)
Divided court won't extend Seneca Nation immunity to business (11/25)
Vice: North Dakota tribe sees $25M a month in energy royalties (11/25)
Members of Lumbee Tribe proud to carry on tradition of service (11/25)
Flandreau Santee Sioux Tribe donates $10K to local food pantry (11/25)
Slate: Non-Indians were encouraged to move to tribal territory (11/25)
Column: Remains of Dakota man hanged in 1862 kept in home (11/25)
Family members plead guilty to thefts from reservation town (11/25)
Authorities investigate fatal crash involving Bad River officer (11/25)
Editorial: Yakama Nation must disclose plans for clean water (11/25)
Roy Burton: Montana tribe puts its people at risk with gaming (11/25)
Lawmaker asks BIA to wait on Cowlitz Tribe casino acquisition (11/25)
Gaming compacts on agenda for 2015 session in New Mexico (11/25)
Quapaw Tribe faces even more competition for Kansas casino (11/25)
Pala Band wins final approval for online gaming in New Jersey (11/25)
Mashantucket Tribe still thinking about Massachusetts casino (11/25)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.