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The Rise of Tribes and the Fall of Federal Indian Law
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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)

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