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The Rise of Tribes and the Fall of Federal Indian Law
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R.I. tribe takes smokeshop case to higher court
Tuesday, January 27, 2004

The Narragansett Tribe of Rhode Island filed court papers on Monday challenging a federal judge's decision stemming from last summer's violent raid by state police.

Acting on orders from Gov. Donald Carcieri (R), state troopers stormed the reservation on July 14. They arrested and charged several tribal members, including chief sachem Matthew Thomas, in a dispute over tax-free cigarettes being sold at the tribe's smokeshop.

The incident drew national attention as videotape of the raid was broadcast on television stations repeatedly. It also brought criticism from tribal leaders and members of Congress, who said the violence could have been avoided.

"Anyone who witnessed the episode on videotape -- as I have -- surely was sickened and profoundly disappointed at the tactics used by the state in its dispute with the tribe regarding sales of tobacco on the tribe's lands," Sen. Ben Nighthorse Campbell (R-Colo.) wrote in a letter to Attorney General John Ashcroft at the time.

But a federal judge, in a ruling this past December, sanctioned the state's actions. U.S. District Judge William E. Smith said the state has a right to enforce its laws on the tribe despite the tribe's status as a sovereign government.

"The state did not violate federal law nor the tribe's sovereign rights when it enforced the criminal provisions of the state's cigarette tax scheme by executing a search warrant on the settlement lands," Smith wrote on December 29.

Though it was fast-tracked and highly-anticipated, Smith's ruling was never expected to be the last on the controversy. Tribal leaders voted soon after to take their case to the 1st Circuit Court of Appeals in Boston, Massachusetts.

Over the years, the court has tackled some state-tribal disputes but tribes have been on the losing end of the stick. In one high-profile case, the court rebuffed two Maine tribes who sought protection from the state's freedom of information law. Tribal leaders were threatened with jail time for refusing to submit to the law.

The Narragansett Tribe finds itself in a similar predicament. Language in the tribe's settlement act, passed by Congress in 1978, imposes criminal and civil jurisdiction on the reservation. In Rhode Island, violation of tax laws is a criminal offense.

But whether the settlement act imposes state laws upon the tribe itself is an open question. The U.S. Supreme Court, in a case involving a county's raid of a tribal casino, weighed the issue but did not directly rule on it. Some Indian law practitioners took the decision as a positive sign that the court was not ready to subject tribes to state law even in places like California, where the state has criminal and civil jurisdiction on Indian lands.

Taxation on reservations, however, is something the high court has ruled on several times. States have a right to impose taxes on sales tobacco, fuel and other products to non-Indians. Throughout the country, tribes and states have come to agreements on how best to resolve the issue.

According to Narragansett leaders, the smokeshop was an attempt to start economic development. Most tribal members live in and around the 1,800-acre reservation, where unemployment is high.

The tribe has its sights set on a casino but cannot open one without state approval. State lawmakers, so far, have refused to put the issue to voters although a mid-1990s referendum failed.

The tribe is barred from the provisions of the Indian Gaming Regulatory Act (IGRA) of 1988, thanks to a rider inserted by former Sen. Jack Reed (D-R.I.). The 1st Circuit upheld the provision.

A decision on the smokeshop could take up to a year. An appeal to the Supreme Court is possible, although the justices have refused several cases involving New England tribes in recent years.

Court Decision:
Narragansett Tribe v. Rhode Island (December 29, 2003)

Relevant Links:
Smokeshop Showdown, Providence Journal - http://www.projo.com/extra/2003/smokeshop
Narragansett Tribe - http://www.narragansett-tribe.org
Rhode Island Governor - http://www.governor.state.ri.us
Rhode Island Attorney General - http://www.riag.state.ri.us

Related Stories:
Narragansett Tribe will challenge smoke shop ruling (01/08)
Campbell 'sickened' by raid of Narragansett smoke shop (07/25)
Tribal raid a sign of 'liberal' New England racism (07/21)
State's raid on tribal land sparks strong reactions (07/16)
R.I. escalates fight over tribal smoke shop (07/15)
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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