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Monteau: Guns, dogs and brute force; apparently some habits die hard

When the Rhode Island State Police invaded the Narragansett Reservation on July 14, they authored the latest sorry chapter in this country's long and turbulent history of Indian relations. Which is exactly what they intended to do.

The tribe claims that it is legally entitled to sell cigarettes tax-free on its reservation. The state disagrees. After negotiations between Narragansett Chief Sachem Matthew Thomas and state Governor Don Carcieri over the tax status of the tribe's newly-opened smoke shop broke down, the state could have gone to court to try to resolve the dispute non-violently. Complex issues of jurisdiction, statutory interpretation, and state and federal Indian law were involved, precisely the sort of questions that should be resolved by the federal courts. Indeed, Chief Sachem Thomas asked the state to engage the tribe in just that process when the two sides could not reach an agreement informally. Instead, the state choreographed a confrontation.

Several hours after undercover officers purchased cigarettes from the smoke shop, a state-court judge issued police a warrant to search the shop. (The legality of that warrant itself is a topic for another time.) On July 14, the state chose to execute the warrant in a manner seemingly calculated to ensure vigorous tribal opposition. According to the police's own statements, the warrant was held by plain-clothes officers, who presented it only after they had waited in line to buy another round of cigarettes. Armed, uniformed police then stormed the reservation ostensibly to ensure the safety of their comrades, in the process violating the sovereignty of the tribe's reservation and attacking Chief Sachem Thomas personally. One can only imagine the reaction if tribal police raided the governor's office and bloodied Governor Carcieri.

As deplorable as the police conduct was, this unnecessary confrontation was a wholly foreseeable consequence of a line of United States Supreme Court cases that culminated in this spring's decision Inyo County v. Paiute-Shoshone Indians of the Bishop Community. In that case, the Bishop Paiute Tribe had sought a declaratory judgment that Inyo County sheriffs' violent execution of a search warrant on tribal property in connection with the investigation of alleged off-reservation criminal activity violated federal civil-rights and common law. The Supreme Court ruled that the tribe could not seek such judgment under the civil rights statute because tribes are not "people" within the meaning of that law. Although the Court allowed the tribe's common-law claim to proceed on remand (albeit in the face of a high evidentiary standard), the Bishop Paiute case signaled the Court's continued willingness to countenance forceful state intrusion on Indian lands, even where established (and peaceful) legal processes exist to resolve disputes in a manner that would be far more respectful of both tribal and state interests. The Bishop Paiute decision and its ilk have clearly emboldened state actors to engage in bullying cowboy tactics like those on display in Rhode Island on July 14, and provided a disincentive for non-Indian governments to demonstrate respect for Indian sovereignty and to resolve disputes through the courts as equals.

The High Court sowed the seeds of July 14's troubles in another way as well. Although Chief Justice John Marshall declared in Worcester v. Georgia (1832) that state laws could have no effect on Indian reservations, the Court has been blurring this bright line ever since. By the 1970s and 1980s, the Court had begun to permit states, in certain circumstances, to commandeer Indian tribal governments for the purpose of collecting state sales taxes on goods sold by Indians to non-Indians on Indian lands. Underpinning this line of cases was the notion, first expressed in the 1980 case Washington v. Confederated Tribes of the Colville Indian Reservation, that state taxation was appropriate because tribes had no right to market tax exemptions in order to obtain competitive advantages over non-Indians. Moreover, the Colville Court blithely concluded, the state interest in collecting taxes far outweighed any tribal interest in protecting its sovereignty.

It is difficult to convey just how wrong-headed a notion this is. In the first place, it reflects the Court's and states' trivialization of the concept of tribal sovereignty. Imagine how a state would respond if it were compelled to expend its own resources to help another sovereign enforce its own laws. Wait - don't imagine it; simply consider the 1997 Supreme Court decision in Prince v. United States. In that case, the Court heeded state protests and struck down a portion of the so-called Brady Bill (a federal law gun control law) that required states to conduct background checks of prospective gun purchasers, on the ground that it unconstitutionally forced state governments to become the instruments of the federal government. Yet a majority of the Court did not bat an eye when states sought to impose even greater burdens on tribes.

More deeply, states' efforts to tax on-reservation sales, and the Court's endorsement of these attempts, reflect an astounding degree of economic racism. Rhode Island claimed that its raid was justified by its need to capture tax revenues that would otherwise be lost. But Rhode Island has launched no similar assaults on corporations that engage in legally questionable financial practices to avoid paying taxes, despite the fact that a study released by a consortium of state governments on July 15 revealed that states lost over $12 billion in tax revenue to such shelters in fiscal 2001 alone. If disputes arise in that context, the matters are handled in the courts. Why should Indians be accorded any less respect?

Nor is there any logic to the notion that marketing a tax exemption is adequate justification for violating tribal sovereignty. States and municipalities constantly offer tax incentives to try to lure businesses and spur job creation. Indeed, the Providence, R.I. Chamber of Commerce's Web site prominently boasts of the tax incentives the city can offer to businesses. And only 12 days before the attack on the Narragansett Tribe, the Rhode Island state Senate opened debate on a proposal to confer $75 million in tax exemptions on insurance companies doing business in the state. Yet the Supreme Court, egged on by the states, has denied tribes the ability to offer similar incentives as tools in their struggle to bring themselves out of (often state-imposed) poverty.

Ultimately, July 14's events reinforce the need for eternal vigilance to protect tribes' sovereignty from further political and legal encroachment. Tribes and their allies must deploy all of the weapons available to them not just to try and stem the anti-sovereignty tide that is washing over them, but to push it back. State and local government officials must learn from these events as well. Narragansett tribal members showed remarkable restraint in their resistance to the police's incursions. For serious tragedy to be averted in the future, non-Indian governments must work more closely with tribes in a spirit of respect, not confrontation.

Harold Monteau is a partner in Monteau & Peebles, a national law firm specializing in federal Indian law, complex government negotiations, business transactions and federal lobbying. Mr. Monteau has more than 30 years of experience in Indian affairs and tribal government with 16 of those years as a tribal attorney for various tribes. In addition, he served three years as Chairman of the National Indian Gaming Commission.