Narragansett win suit over raid

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NARRAGANSETT RESERVATION, R.I. - The Narragansett Indian Tribe is debating
whether to reopen its smoke shop, the site of a notorious state police raid
nearly two years ago, now that the U.S. 1st Circuit Court of Appeals has
declared the police action a violation of its sovereignty.

The Narragansett tribal council was scheduled to meet the evening of May
19, after press time, to decide on its next steps after its major win in
the May 12 decision by a three-judge appellate panel. One of its decisions
might be whether to press a further appeal on the portions of the case that
the panel decided in favor of the state.

The state attorney general has already indicated he would take the case to
the full Court of Appeals, sitting en banc, or with its full membership,
lead tribal counsel Douglas J. Luckerman told Indian Country Today.
Luckerman also observed that a spokesman for Rhode Island Gov. Donald L.
Carcieri had refused a request from Narragansett Chief Sachem Matthew
Thomas for an apology and a return of the property confiscated in the July
14, 2003 raid.

After conceding a number of points to the state - incorrectly, argued
Luckerman - Circuit Judge Juan R. Torruella concluded, "The tribe does have
a right of sovereign immunity that should be respected [by] the state.

"For these reasons, we hold that the state violated the tribe's sovereign
rights when it enforced the criminal provisions of its cigarette tax laws
by executing a search warrant against the tribal government's smoke shop,
forcibly entering the shop and seizing the tribe's stock of unstamped
cigarettes, and arresting tribal officials who were acting in their
official capacity."

"How do you spell 'respect?'" asked Luckerman.

Although a federal district judge initially dismissed the suit, the legal
tide has turned in favor of the tribe in recent weeks. Tribal member and
smoke shop employee Adam Jennings recently won a $300,000 federal jury
award against state troopers for a broken ankle he suffered during the
raid.

The Narragansett ruling is also part of a dramatic shift in the 1st Circuit
back in favor of tribal sovereignty. An April ruling by a separate
three-judge panel upheld the right of the Aroostook Band of Micmac Indians
in Maine to have a case heard in federal instead of state court. Luckerman
argued that case as well.

Tribal sovereignty has been under siege in New England because of
concessions tribes made in a series of land settlement acts in the early
1980s. Luckerman and other tribal attorneys, such as Kaighn Smith in Maine,
have brought a number of suits to rescue residual rights from the ambiguous
and sometimes damaging language of state settlement statutes. The
Narragansett ruling was especially important in this context, said
Luckerman.

"The court did a real justice, not only for the Narragansett tribe but for
all of the Settlement Act tribes," he said. "It made a bright line between
jurisdiction over land and jurisdiction over the tribe."

The case revolved around language in the Rhode Island Indian Claims
Settlement Act making "settlement lands," the Narragansett's 1,800-acre
reservation, "subject to the civil and criminal laws and jurisdiction of
the state of Rhode Island." The court held that the state did not supplant
the tribe's authority, but that the two held concurrent jurisdiction over
the land.

Furthermore, wrote Torruella, the tribe "retains its sovereign immunity
despite the grant of jurisdiction to the state."

The court did hold that Rhode Island could enforce its cigarette tax laws
on tribal sales to non-Indians but it adopted a "balancing test" on the
allowable means of enforcement. It said the state had "numerous
alternatives" which "would have been more respectful of the tribe's
sovereignty." (The decision also noted that the Supreme Court accepted a
tribal tax case on Feb. 28, Prairie Band Potawatomi Nation v. Richards,
which could radically change the "interest-balancing" approach.)

Although the tribe disagreed with some of the court's analysis, it said it
would abide by the tax ruling in its future smoke shop plans. Sales of
untaxed cigarettes, it said, would be limited to tribally enrolled Indians,
or other tribes as well as Narragansetts.

The tribe is also actively pursuing other businesses. It operates a
wholesale seafood supplier that serves the nearby Connecticut tribal casino
resorts. It has also renewed its drive to win state approval for a
$650-million casino resort in West Warwick, to be built in partnership with
Harrah's Entertainment.

The push for a voter referendum last year was stymied by a state Supreme
Court ruling that the measure was unconstitutional.

Tribal officials have said that frustration with state inaction on the
casino in 2003 prompted it to re-open the smoke shop in the first place.

The court suggested that state-tribe negotiations on a tax compact were a
preferable alternative to the use of force. Luckerman urged state officials
to follow up. "The time is now for the tribe and the town [of Charlestown]
and the state to sit down to talk about how to work together. But it
doesn't appear about to happen."

Tribal officials were unavailable for comment, and their voice mailboxes
were full.