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Clarkson: Bull Connor would have been proud

More than 100 years ago, the U.S. Supreme Court noted in United States vs. Kagama that, for Indian tribes, "the people of the states where they are found are often their deadliest enemies." It doesn't appear that things have changed all that much, at least not in New England.

On July 14, the Rhode Island State Police violently raided a tribal business on the Narragansett reservation. As I watched the news footage, it seemed as if I were watching a newsreel from 1963 Birmingham. There were the burly state troopers, some in uniform, some not, but all with fierce determination in their eyes as they menacingly advanced on the tribal citizens who stood in their path. The assault was rapid and brutally efficient, and in short order, the invaders had subdued their targets - Narragansett Indians who dared to assert their sovereign tribal rights and opposed the heavy-handed tactics of the state police. When the cameras showed a police dog attacking a tribal councilman who lay helpless on the ground in handcuffs, all that was missing from the scene was Bull Connor and over-pressured fire hoses.

As someone who grew up in the South, it seems hypocritical for those in New England who would saddle any Southerner with the racist baggage of Bull Connor and George Wallace to then hold up New England as a model of racial tolerance. While the racists in the South tend to be marginalized rednecks, here in New England the racists are often privileged liberal elites who pay lip service to racial harmony only so long as "those people" don't live in their nice neighborhoods. They are happy to visit Indian reservations in the West and buy some turquoise jewelry and pottery; however, the Indians in the East have no business protesting Columbus Day or interfering with Thanksgiving festivities. And those "damn Wampanoag Indians" better not interfere with their vacation homes or swimming pools on Cape Cod or Martha's Vineyard. The New England law firms that often represent these privileged elites have developed quite a practice fighting Indian tribes up and down the east coast, and the blatant racism in some of their litigation tactics is appalling.

So what was the Narragansetts' crime that prompted the savage assault by the jack-booted thugs? They were asserting their sovereign right to engage in commerce on their own tribal lands without being subject to state taxation. They dared to open a smoke shop that offered cheap cigarettes without charging any state taxes. For this offense, the state police put eight tribal members in the hospital?

Seeming to echo the Supreme Court's pronouncement from 1886, an Indian Country Today editorial stated that the July 14 events "should shatter any and all illusions that there is any benevolence on the part of state institutions toward Indian peoples."

Those unfamiliar with American Indian law may be surprised to learn that states do not have the right to tax Indian tribes, and tribes are rightfully entitled to sell goods tax-free to other Indians, including tobacco products. A state may have the right to tax purchases by non-Indians on a reservation, but it cannot force the tribe to collect the taxes, because tribes, just like the states themselves, are entitled to sovereign immunity. A state's only recourse is to negotiate a compact with the tribe as numerous other states have done, including neighboring Connecticut.

When Rhode Island took issue with the tribe's activities, it should have gone to federal court to seek an injunction. That is what we do in our supposedly civilized society when we feel wronged - we go to court and sue somebody.

As an Indian law professor, I will grant that the nuances and technicalities of these state-tribal conflicts are very complicated. Even if the state thought the law was clear, however, it is also possible that the state was wrong in its view of the law. But the proper way to clarify such issues is with the force of one's arguments, not physical prowess. The state of Rhode Island's actions July 14 were entirely inexcusable and further evidence of the racist underbelly that still girds much of New England.

Gavin Clarkson will teach American Indian law this fall at the University of Michigan Law School. He is currently a research fellow at both Harvard Law School and Harvard Business School. He is also a member of the Choctaw Nation of Oklahoma.