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Special Report: Narragansett legal analysis

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CHARLESTON, R. I. - To justify the raid on the Narragansett smoke shop, state officials cite Section 1708 (a) of the Rhode Island Indian Claims Act of 1978 (25 United State Code, Sections 1702 -1712). It states, in language apparently deadly to tribal sovereignty, that "settlement lands shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island."

Yet the case isn't that clear-cut at all. In fact recent court rulings, including a nearby case from just last month, suggest that tribal sovereignty and separately, sovereign immunity from lawsuit may well have survived even such a poorly negotiated settlement.

New England tribes in general have been plagued by disadvantageous deals in the first round of land claims settlements in the late 1970s and early 1980s. Leaders of three Maine tribal governments nearly landed in jail two years ago for resisting a state court order treating them as just another municipality. The Aquinnah Wampanoag Indians in Massachusetts signed a deal in 1983 accepting "civil or criminal jurisdiction of the Commonwealth of Massachusetts, or any of its political subdivisions" over its lands.

Yet a recent Massachusetts Superior Court ruling in a suit against the Aquinnah Wampanoag highlighted a paradox that could yet save the Narragansetts. In spite of this language, said Judge Richard F. Connon, Congress did not waive Aquinnah sovereign immunity in the act extending federal recognition. (Sovereign immunity, not to be confused with the general idea of sovereignty, means that the tribal government cannot be sued without its consent.)

By contrast, the Maine tribes did waive immunity, agreeing in their 1980 federal settlement act that they "may sue and be sued in the courts of the State of Maine." According to Judge Connon, this language is the touchstone for an explicit Congressional waiver of sovereign immunity. It does not appear in the Narragansett Claims Act.

Federal courts furthermore have explicitly upheld Narragansett sovereignty. Former Rhode Island Attorney General Arlene Violet, who held the elected position from 1983 to 1987, later represented the Narragansett Tribe in a mid-90s suit to win the right to set up a casino. In ruling in favor of the tribe, Judge Bruce M. Selya of the U. S. First Circuit Court of Appeals said that issues of Narragansett tribal sovereignty had to be decided case by case. The Narragansetts won their case all the way to the U. S. Supreme Court, only to have it overturned by a "midnight rider" inserted into an Omnibus Appropriation bill in 1995 by the late U. S. Sen. John Chafee, a Republican.

(As a result of the rider, placed without debate in a bill needed to keep the federal government going, the Narragansetts say they are the only federal tribe in the country to be excluded from the Indian Gaming Regulatory Act (IGRA).)

In a more recent Circuit Court case, Ninigret Development Corp. v. Narragansett Indian Wetuomuck Housing Authority, Judge Selya explicitly recognized the Narragansett Tribe's inherent sovereign immunity. "The parties (who agree on little else) concur that Congress has not abrogated the Tribe's immunity vis-?-vis this suit."

But the most striking parallel to the raid on the Narragansett smoke shop comes from California, in the case of Inyo County v. Bishop Paiute Tribe. County officers executed a search warrant on the tribal casino, even breaking open a safe in pursuit of employment records. The 9th Circuit Court of Appeals ruled resoundingly that the raid was illegal, even though P.L. 280 gave California criminal jurisdiction over reservations.

The jurisdiction, ruled the court, applied only to individuals on the reservation, not to the tribal government. Judge Harry Pregerson wrote, "The Supreme Court has viewed tribal sovereign immunity as a considerable shield against intrusions of state law into Indian country.

"Absent a waiver of sovereign immunity, tribes are immune from processes of the court."

This principle, ruled the court, barred execution of the search warrant on the Bishop Paiute tribe and its enterprise the casino. Inyo County appealed to the U. S. Supreme Court, which remanded the case in late May. But the high court did not overrule the principle of sovereign immunity to the warrant. In fact, in a roundabout way, it relied on the same reasoning. The civil rights law relied on in the suit, wrote Justice Ruth Bader Ginsburg, was not designed "to vindicate the sovereign right [the tribe] here claims."

The Inyo remand leaves the courts open to further argument on tribal sovereign immunity, and Indian lawyers are clearly worried that an unfriendly Supreme Court could break against them. But the recent rulings in New England suggest the trend could also go the other way, and the Narragansetts, not Rhode Island, might emerge the winner.