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Something is rotten in Rhode Island

As we have discussed in this space many times before, the Indian Gaming Regulatory Act was meant to foster the economic development of the nation's federally recognized tribes. Yet federal law specifically prohibits the Narragansett Indian Tribe of Rhode Island from reaping the potential gains IGRA has allowed other tribes to harvest. Why?

The disturbing incidents of July 14 that took place at Charlestown in southern Rhode Island will likely resonate throughout Indian country for some time to come. That was the day that Rhode Island State Police, acting under direct orders from Governor Donald Carcieri, raided a smoke shop operated on tribal land by the federally recognized Narragansett Indians to confiscate untaxed cigarettes.

While cigarettes may be the immediate focus of this dispute, the larger issue involves sovereignty - i.e., who has the authority to exercise political jurisdiction over tribal lands?

In 1978, the Rhode Island Indian Claims Settlement Act attempted to answer this question to the advantage of the state. In exchange for 1,800 acres of ancestral territory in and around Charlestown, the tribe agreed to a provision stating that "the settlement lands shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island." Practically landless at the time, perhaps the tribe felt it had no choice but to also agree to provisions stipulating that while the lands themselves would be exempt from taxation, "income-producing activities" on said lands would not be exempt.

The Narragansetts received their federal recognition in 1983, which from their perspective freed them from any type of state jurisdiction, oversight or control over tribal affairs. The tribe sees the state's action, in part at least, as an ill-willed attempt to siphon tribal money into the state treasury.

In a posting on its Web site, the Rhode Island District Attorney's Office cites the 1978 Act as the basis for its case and makes no mention of the Narragansetts' federal status. Neither the tribe nor the attorney general's office returned phone calls requesting comment.

The case, which could well end up before the Supreme Court, will be tried in U.S. District Court with Judge William E. Smith presiding. According to a recent report in the Providence Journal, Smith's "political patron" is none other than U.S. Senator Lincoln D. Chafee, whose father managed to single-handedly deprive the Narragansetts of their rights under IGRA.

After Congress enacted IGRA in 1988, the tribe eventually compacted for a casino with then-Gov. Bruce G. Sundlun in 1994, only to have the proposal quashed by a statewide referendum.

In 1997, Congress approved a "midnight rider" sponsored by former Republican Senator John H. Chafee, Lincoln's father that exempted the Narragansetts from the provisions of IGRA. This piece of political chicanery overturned a decision by the 1st Circuit Court of Appeals that upheld tribal gaming rights.

As Narragansett Chief Sachem Matthew Thomas recently told Indian Country Today correspondent Jim Adams, the tribe's situation has taken on a new face.

"There's been a tremendous public outcry about this incident from the non-Indian public," Thomas said. "It's gone beyond the smoke shop and the casino to becoming a human rights issue. That's the biggest issue now."

Internal whitewash

The report of the state police's internal investigation of the smoke shop raid makes for interesting reading. Certainly without intending to, the report's author all but laid the blame for the confrontation on the state police themselves. The report's two main flaws are glaringly obvious. One, it fails to address the fact that the cops blatantly disregarded Gov. Carcieri's orders to withdraw in the face of resistance; and two, the police's faulty plan of placing undercover officers inside the shop gave the cops outside a convenient reason to force their way into the shop.

After the fact, Carcieri said he ordered that the troopers withdraw in the face of resistance. The report, which admits these orders, makes it quite clear, however, that they did the exact opposite. The Narragansetts were not "obstructing justice" as the confused cops thought, but were defending themselves from the aggressive behavior of a political entity whose jurisdiction they don't recognize.

When a tribal police officer at the scene informed the state police that their state-court-issued warrant would not be honored by the smoke shop's proprietor, this should have been enough "resistance" for them. In fact it confirmed "intelligence" that the police admitted to receiving beforehand. Instead, they marched onto tribal lands and proceeded to figuratively shove the warrant down the tribe's throat.

Policemen, by definition, are not diplomats; and while the police certainly have an important role to play in society, they should never be sent on a diplomatic mission. Yes, this delivery of the warrant should have been treated as such because it represented contact between two sovereign governments. The cops' apparent lack of understanding of their mission, to deliver a warrant, coupled with their further apparent lack of understanding of the nature of the dispute, namely sovereignty over territory, further exacerbated the problem.

The state police's failure to obey their orders and withdraw from the scene when informed that their state warrant would not be honored was the sole and direct cause of the ugliness that followed.

Regarding their tactical plan, which was clearly designed to provoke a response, the police deserve further rebuke. Several undercover officers were sent in to determine whether untaxed cigarettes were being sold - no problem there. But once they determined that such cigarettes were for sale, they had their "evidence" and should have withdrawn. Instead, the plainclothes cops in the shop tried to serve a warrant that they already knew would not be accepted, instead of withdrawing as their orders indicated.

The cops outside, who apparently had no way to see or communicate with the cops inside (the report makes no mention of any direct communication between the two separated groups), then moved in a line toward the shop out of "concerns of the safety of the undercover detectives inside the shop." No one appeared to be in any type of danger until the cops failed to withdraw from Narragansett territory.

Even more repugnant is the report's praising of the police dog who three times "apprehended" (i.e. "bit") a tribal member who was handcuffed and prone on the ground. The presence of this dog, who also bit his handler, was completely unnecessary in the context of the cops' mission, which was to attempt to serve a warrant and withdraw in the face of the resistance they knew was coming.

More amazing still is this statement in the police report: "The utilization of the Quick Response Team was appropriate as these individuals were specifically trained in handling disorderly/actively resisting individuals." If the cops' orders were to withdraw in the face of resistance, why employ a unit trained in handling disorderly resistors? The only reason that makes sense is that the cops actively sought a confrontation.

The state police report is available on the Providence Journal's Web site.

Carcieri has appointed what some have called a "non-partisan" panel to investigate the matter. While this board is comprised of several respected members of the Rhode Island community, it is not surprising that Indians were excluded. In a state that has consistently failed to understand and respect Indian sovereignty, this cannot bode well for the tribe. The Narragansetts want and deserve a federal investigation.

The Governor, who refused to comment on the police report, must assert tighter control over his Keystone Kops, who for their part need to learn how to obey orders and to utilize proper tactics. Cops are supposed to protect and serve, not harass and intimidate.

Indeed, something is rotten in Rhode Island.