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The Rise of Tribes and the Fall of Federal Indian Law
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Appeals court agrees to rehear sovereignty case
Monday, July 11, 2005


STATE RAID: Troopers pin tribal members on the ground during raid of the Narragansett Reservation on July 14, 2003.
Nearly two years after the state of Rhode Island conducted a violent raid of the Narragansett Reservation, a federal appeals court on Friday agreed to rehear a critical part of the case.

In a short decision, the 1st Circuit Court of Appeals said an en banc panel of six judges will determine how far state jurisdiction goes on the tribe's lands. The rehearing will answer "questions of whether, to what extent, and in what manner" the state can enforce its civil and criminal laws with respect to the tribe's operation of a smoke shop, the order stated.

The court then vacated all parts of a three-judge panel's May 12 ruling that dealt with state enforcement. A rehearing will be held on December 6 at the federal courthouse in Boston, Massachusetts, according to the order.

The move appears to leave undisturbed the earlier holding that the state violated the tribe's sovereignty by storming the reservation on July 14, 2003. In an attempt to shut down the smoke shop, armed troopers arrested several tribal members, including Chief Sachem Matthew Thomas, and seized tribal property.

"I am pleased that the First Circuit has agreed to rehear certain elements of the smoke shop case, but more importantly, that they reasserted the tribe's sovereign rights," Thomas said in a statement.

But the much larger question remains open. The state contends that it has a right to enforce its laws on the tribal government, a theory the three-judge panel had refused to endorse.

"Both the State of Rhode Island and the Narragansett Indian Tribe seek more clarity than the earlier ruling provided," said attorney general Patrick Lynch. "The people of Rhode Island want more clarity, too."

Regardless of the outcome, an appeal to the U.S. Supreme Court is likely. Two similar cases have been heard by the high court but no clear resolution has emerged.

In the first case, Nevada v. Hicks, state game officers raided the home of a tribal member who was accused of violating state law for activity that occurred off the reservation. The 9th Circuit, much like the 1st Circuit, said the officers could be held liable in court for infringing on tribal sovereignty.

That holding was reversed on appeal by the Supreme Court in a 6-3 decision. "State sovereignty does not end at a reservationís border," Justice Antonin Scalia wrote for the majority.

But the ruling failed to fully resolve the question of state jurisdiction. When presented with a second opportunity in Inyo County v. Bishop Paiute Tribe, the justices again passed on the issue.

In that case, county law enforcement raided the casino owned and operated by the Bishop Paiute Tribe of California. The officers used bolt-cutters to break into a secure area and seized tribal records as part of an investigation for activity that occurred off the reservation.

Again, the 9th Circuit ruled that the state violated tribal sovereignty. On appeal, however, the Supreme Court said the tribe couldn't sue the county in court.

The Inyo County case bears another potentially important similarity to the Narragansett case. Federal law granted the states of California and Rhode Island civil and criminal jurisdiction on the reservation. Typically, this has meant individual tribal members who violate state law can be tried in state courts.

Whether that means states can enforce their laws on the tribal government itself appears to be up in the air. "This was an easy way for the court to punt the main issue of the case," Riyaz Kanji, a former Supreme Court law clerk who helped two inter-tribal organizations draft an amicus brief in the Inyo County case, said at the time of the May 19, 2003, ruling.

The 1st Circuit has not dealt directly with the issue either. But state courts in Maine and Massachusetts have ruled that tribal governments can be sued for violating state laws. Just last week, the Aquinnah Wampanoag Tribe of Massachusetts agreed not to take its case to the Supreme Court.

Separately, the Narragansett Tribe faces a challenge from the state overs its ability to expand its land base. A three-judge panel of the 1st Circuit ruled that the Bureau of Indian Affairs can acquire trust lands for the tribe. The state has asked for a rehearing.

En Banc Order:
Narragansett Tribe v. Rhode Island (June 8, 2005)

Smoke Shop Ruling:
Narragansett Tribe v. Rhode Island (May 12, 2005)

Inyo County Decision:
Syllabus | Opinion [Ginsburg] | Concurrence [Stevens]

Nevada v. Hicks Decision:
Syllabus | Opinion | Concurrence (Souter) | Concurrence (Ginsburg) | Concurrence (O'Connor) | Concurrence (Stevens)

More on the Smoke Shop 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:
Massachusetts tribe drops sovereignty case (7/11)
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)
Tribal fears in Supreme Court case go unrealized (5/20)
Supreme Court rules in Inyo County case (5/19)
Supreme Court bars state officials from tribal suit (6/26)
O'Connor defends tribes amidst squabbling (6/26)

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