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Narragansett’s appeal denied

CHARLESTOWN, R.I. – In a decision that could undermine Indian tribal sovereignty everywhere, the U.S. Supreme Court has let stand an appeals court ruling that the state of Rhode Island can enforce all of its laws on the Narragansett Indian Tribe’s settlement land.

On Nov. 27, the Supreme Court denied the Narragansett’s petition for a writ of certiorari to hear its appeal of a 1st Circuit Court ruling, which gave the state jurisdiction on the tribe’s 1,800-acre reservation.

The case arose from a controversial raid by the Rhode Island State Police on the tribe’s smoke shop in 2003 in which Narragansett Chief Sachem Matthew Thomas and seven other tribal members were arrested. The police claimed the tribe’s sale of tax-free cigarettes was illegal and shut down the shop, seizing cigarettes, documents and money during the raid.

Claiming its rights were violated, the tribe sued the state. In May 2005, a three-judge panel of the 1st Circuit Court of Appeals agreed that the police raid did indeed violate tribal sovereignty but ruled that the state could impose taxes on the reservation.

The case was re-heard in front of all the judges and, in a 4 – 2
decision last May, the court not only reversed its earlier decision but also broadened its previous ruling to say that the state can enforce all of its laws on the reservation.

John Brown, a Narragansett tribal council member, said the decision reflects the current trend of “judicial termination.”

“They’ve been rewriting the law as it relates to Indians and Indian tribes, especially in the area that deals with sovereign immunity and state jurisdiction. They’ve been whittling those entitlements away over the last several years and ceding tribal jurisdiction to the states,” he said.

Brown said the council would weigh its options before making any further statements.

“The court decision is a ticking time bomb,” tribal attorney Douglas Luckerman said. “The potential is out there for it to have a devastating effect.”

First Circuit Court Judge Bruce Seyla, who wrote the decision, argued that the Narragansetts waived their sovereign immunity in a 1978 land claim settlement act between the tribe and the state.

The two dissenting judges argued that the decision ignored Supreme Court precedent regarding tribal sovereign immunity, and in doing so put into jeopardy other tribes with settlement acts and tribes falling under Public Act 280 – a somewhat discredited law from the 1950s termination era that permits states to have some limited criminal and civil jurisdiction over reservations.

Luckerman said he hopes the complexity of the case will keep other courts away from it.

“I can only hope it’s not adopted by other circuits, and that when the 1st Circuit looks at other tribal cases in New England that it will look at the ‘unique facts,’ as Judge Seyla put it,” Luckerman said.

In a statement released after the Supreme Court decision, Rhode Island Attorney General Patrick Lynch echoed Seyla’s argument that the tribe had waived its sovereign immunity in the land settlement act.

“As the First Circuit Court of Appeals has previously observed, the Settlement Act of 1978 was ‘a carefully calibrated agreement between sovereigns’ whose terms can be rewritten only by Congress. We have always understood the parameters of our relationship with the tribe, and we appreciate the court’s reaffirmation of those parameters today,” Lynch said.

But Congress did rewrite the state settlement act in its own law approving the land acquisition, Luckerman pointed out.

The state document has no binding force under federal law, Luckerman argued, because “Congress did not ratify it. Congress created their own document that’s based on the state agreement, but they did not adopt that agreement,” Luckerman said.

“The state document was superseded by Congress in an act that says nothing – not a peep – about state authority over the tribe itself and nothing about waivers of sovereign immunity.”

Furthermore, the tribe was not federally recognized when its land settlement act was approved, so even if tribal authority had been limited by the agreement, it should have been totally restored when the tribe received federal recognition in 1983, Luckerman said.

The standing circuit court decision leaves the tribe in the anomalous position of having tribal sovereignty, but no sovereign immunity on its land.

It’s an “unusual construct,” said Claire Richards, special counsel to Rhode Island Gov. Donald Carcieri.

“I don’t think it leaves them without tribal sovereignty. I think they still have all the inherent tribal sovereignty rights over membership, elections and so on, but they do not have the land-based sovereignty that other tribes have. I think the settlement act
severed their sovereignty from their land and that’s an unusual construct, and it may be that’s why this case is not something from which people can take lessons of larger Indian law,” Richards said.

Richards said she does not think the decision will impact other tribes.

“If I had to choose an argument, I would say it probably was a limited decision with limited utility,” she said.

The tribe could seek a remedy to the dilemma through Congress, Luckerman said.

“They could go to Congress and say, ‘This is a travesty. This is not what Congress intended in 1978. They didn’t intend to deprive us of any of our federal rights,’” Luckerman said.

There is also a potential silver lining for the tribe in that the 1st Circuit Court decision clearly applies only to the settlement lands and not to anywhere else, Luckerman said.

The tribe has asked Interior to take into trust a 32-acre parcel it bought in fee simple several years ago. The state appealed the tribe’s request and the case is pending. But even without trust land, Luckerman said, “the actions of the tribal government off its settlement lands are immune and have the protection of the federal law.”

While the tribal council has not declared its intentions, Luckerman said he’s certain the tribe will take the next step.

“The Narragansetts are fighters. They don’t give up,” Luckerman said.