Narragansetts' smoke shop raid cases continue in court

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PROVIDENCE, R.I. - Two unresolved cases - one criminal and one civil - stemming from a controversial state police raid at a smoke shop on the Narragansett Indian Tribe's land almost four years ago are moving forward in court.

On April 10, the tribe's lawyers argued in front of U.S. District Court Judge William E. Smith against a motion by state attorneys to dismiss a civil rights lawsuit filed by seven tribal members last July against Rhode Island Gov. Donald Carcieri, state Attorney General Patrick Lynch, State Police Col. Steven Pare and more than a dozen troopers.

Tribal members allege their civil rights of equal protection were violated when state police and a canine unit stormed the tribe's reservation on a search warrant to shut down its tax-free cigarette shop. The members tried to protect their property and the ensuing melee was televised nationwide. State police shut down the smoke shop, seizing cigarettes, documents and money.

After the raid, Narragansett Chief Sachem Matthew Thomas and six tribal members were arrested and charged with various criminal counts of disorderly conduct, resisting arrest, assaulting a police officer and simple assault.

The tribe filed a federal lawsuit claiming the state government violated tribal sovereignty and immunity by sending state police onto land given to the tribe as part of a 1978 settlement agreement.

A three-judge panel of the 1st Circuit Court of Appeals agreed that the 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 tribe's 1,800-acre settlement lands.

Last December, the U.S. Supreme Court denied the Narragansett's petition for a writ of certiorari to hear its appeal of a 1st Circuit Court ruling.

The state's lawyers argued in the civil rights hearing that the case against state officials should be dismissed, because it had already been settled by the 1st Circuit Court of Appeals ruling denying the tribe sovereignty and immunity on its lands.

Tribal attorney John Killoy argued that the jurisdictional ruling should not block tribal members from filing the civil rights claims against the troopers.

''The state argued that the en banc decision of the 1st Circuit Court controlled the current civil rights case and, therefore, the matter should be dismissed based on that precedent. We argued in opposition to that

opinion, including the right to re-file additional claims which we felt were pertinent that arose from the smoke shop incident on July 14, 2003,'' Killoy said.

The 1st Circuit Court of Appeals has, in a sense, upheld that argument. In March, a panel of the appeals court reinstated a $301,000 jury award to tribal member Adam Jennings, who was injured in the raid. Jennings is also bringing claims in the civil rights case.

But Killoy said there is ''a distinction'' between Jennings' original case and claims the tribal members may bring if the court permits them to file an amended complaint.

The judge indicated he would issue a written ruling quickly.

The criminal case filed against tribal members by the state is pending in Providence County Superior Court.

''Presently, there is ongoing discovery for the production of various documents through the governor's office, with subpoenas for various videos from television news. We also issued subpoenas to various radio outlets to get transcripts of interviews of parties and witnesses that might be helpful in the defense,'' Killoy said.

The governor's office has already turned over some documents, and the remaining subpoenaed records are due April 27. A status conference on the case will take place May 3.