Narragansett smokeshop case postponed while court hears governor's appeal

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PROVIDENCE, R.I. - The trial of Narragansett Chief Sachem Matthew Thomas and six tribal members, who are facing misdemeanor charges stemming from a state police raid on the tribe's tax-free smokeshop, has been postponed while the state Supreme Court decides whether Gov. Donald Carcieri must testify.

The Supreme Court set an Oct. 30 date to hear oral arguments on Carcieri's appeal of a lower court ruling that he must testify in the Narragansett smokeshop case.

Meanwhile, the court ''earnestly encouraged'' the parties to mediate the case quickly, naming a retired chief justice as mediator and scheduling an early date for talks.

William Devereaux, the tribe's attorney, said the tribe is ready to seek a resolution with the state.

''We told retired Chief Justice [Joseph] Weisberger we'd be more than pleased to sit down with them to see if there's some way to try and resolve the case. It's going to happen on Sept. 24,'' Devereaux said.

But the state is not too eager to negotiate, according to a prepared statement from Attorney General Patrick Lynch.

''With all due respect to the court - and I have great respect for the court - I would simply suggest there is no middle ground to be found on the issue of these criminal cases, and we will look forward to resuming our prosecution of them as soon after the argument on the governor's appeal as practical,'' Lynch said.

The case started in July 2003 when state police and a canine unit stormed the tribe's reservation on a search warrant to shut down its tax-free smokeshop. Tribal members objected and the encounter between state police and tribal members escalated into a clash that was televised across the country.

The members were charged with disorderly conduct, obstruction, resisting arrest and assault.

The tribe was operating its smokeshop at the time on the assumption that it had a right to as a sovereign Indian nation. After the raid, the tribe filed a federal lawsuit claiming the state had violated tribal sovereignty and immunity by sending state police onto sovereign settlement land.

The suit ended late last year when the U.S. Supreme Court let stand a lower court decision upholding state jurisdiction on the tribe's 1,800-acre settlement lands. Once that decision was rendered, the state moved forward on the misdemeanor case.

In August, Carcieri fought the tribe's subpoena to testify about his instructions to the state troopers before the raid, but Superior Court Judge Susan McGuirl ordered him to testify, saying the tribe's right to present evidence outweighed Carcieri's claim to ''executive privilege.''

Lynch said he appreciates the Supreme Court's decision to hear the governor's appeal, but said he is ''puzzled'' by the court's encouragement to mediate the cases.

Lynch said he's willing to mediate the issue of the governor testifying, but if ''the court is suggesting that the criminal cases themselves be mediated, I assure the court that my prosecutors have worked diligently over many months now preparing these cases for trial and, in fact, have made offers to resolved them short of going to trial, but our offers have been rejected by the defendants,'' Lynch said.

Devereaux said the state has rejected various offers to settle because ''they want the chief.''

Months ago, tribal members agreed to enter a ''not guilty filing,'' in which no action is taken and the case is dismissed after a year.

''They said no. Then the trial judge brought in the deputy attorney general and she tried to broker a resolution, and they essentially said, 'Well, we're not going to agree to anything unless someone pleads to something.' So there was an overture to have a couple of tribal members who were in the scuffle plead no contest, and they said no, they want the chief,'' Devereaux said. ''I think they had to know that was not going to resolve the case and so here's where we stand.''

Lynch's spokesman, Michael Healey, said the attorney general would not comment beyond his written statement.

John Brown, a tribal council member, said the state's insistence on getting the chief ''is simply history repeating itself. It's no different than what they've done historically when they murdered Narragansett sachems. The idea is if you cut off the titular head then the body must fall. This time they're doing it with a pen instead of a sword.''

Brown said that the state's ''tenacious pursuit'' of the minor charges against the tribal members obscures its real agenda.

''It has nothing to do with justice. It's all about stopping the Narragansetts from having the right to do any type of economic development. It's all about controlling the tribal government. It's about money. When they are clearly conspiring to maintain control over all economic development in the state of Rhode Island, it's not in their best interest to come and sit down at the table and talk about resolving minor charges,'' Brown said.

The state has not only vigorously and successfully opposed the tribe's efforts to develop a gaming facility; it has used state laws to create a state monopoly on all gaming activities and build an empire that includes a lottery and two hugely successful slot operations that yield more than a quarter of a billion dollars in revenues each year.

The monopoly rests on a state law that defines all gaming, including slots and casino games, as a ''lottery'' and therefore under state control.