PROVIDENCE, R.I. - Clouds from the July 14 state police raid on the Narragansett Indian Tribe smoke shop still hang over Rhode Island, even as an independent commission begins hearings to clear the air.
The first day of hearings Aug. 19 before the Independent Review Committee pitted Rhode Island's Republican Governor against its Democratic Attorney General and illustrated how severely limited that forum would be in resolving the basic issues of the raid.
Gov. Donald L. Carcieri told the committee in his lead testimony that he had asked advisers whether he should take the case to Federal Court rather than authorize a search warrant. "I was advised that's not the way it works," he said. Later in the day, Attorney General Patrick Lynch cited a previous federal case to support his position that the action against the Narragansett Tribe had to begin in state court.
Although the issue hinted at by Gov. Carcieri is whether he received bad advice, the review committee chair Brown University President Ruth J. Simmons has indicated that her group will not be able to address that question. Citing an Aug. 6 letter from Gov. Carcieri, who appointed the committee, she said it would not investigate matters that the tribe and the state are taking to federal court.
Carcieri wrote, "In light of the present federal court litigation arising from the incident, I ask that the Committee not make any finding, recommendation or comment on either the Tribe's or the State's case." The central issue for both cases is the extent of state jurisdiction in the face of tribal sovereignty. The Narragansetts are federally recognized, a status that they maintain supersedes earlier legislation imposing state law on their 1800-acre territory.
Even while limiting the committee's scope, however, Carcieri sought to involve it in the finger pointing between him and Lynch. As one of its four mandates, he asked it to "independently assess the respective roles and responsibilities of the Governor and the Attorney General leading up to the Incident."
The committee will have a full work load, however, in carrying out its first mandate, reviewing "the facts and circumstances" behind the state police attempt to close down the Narragansett smoke shop, which resulted in violent confrontations with tribal leaders which were videotaped and nationally broadcast. A preliminary report by the state police attempting to justify its conduct appears to have fallen flat. After the Governor and the Attorney General, the bulk of the testimony in the committee's first two days of public hearings came from state police officers.
Narragansett Chief Sachem Matthew Thomas and other tribal leaders were scheduled to appear Aug. 21. All of the hearings so far are taking place on the Brown University campus, where Simmons is also busy starting the new school year.
The issues excluded by the Committee are already heading for a full debate in other forums, however. Federal Judge William E. Smith, a native of Idaho, took the state action against the Narragansetts out of the state courts and consolidated it with the Narragansetts' federal civil rights suit against Rhode Island.
On Aug. 20, the U.S. District Court in Providence started to receive briefs on the case, including a 90-page document from tribal attorneys Douglas Luckerman and John Killoy and a significant 24-page amicus curiae (friend of the court) essay from the Rhode Island chapter of the American Civil Liberties Union. Authors of the ACLU brief are Lynette Labinger and Stephen L. Pevar, who wrote the highly praised book "The Rights of Indians and Tribes."
Said the ACLU brief, the federal policy "of leaving Indian tribes free from state encroachment is deeply rooted in the nation's history. Yet Rhode Island sent law-enforcement officers into tribal territory and seized tribal property without federal approval. If this action does not encroach upon tribal sovereignty, it is difficult to imagine what does."
In the meantime a separate report from a coalition of state civil rights groups soundly denounced Gov. Carcieri for his treatment of minorities.
The Simmons Committee appears to have surmounted an initial controversy over its lack of Indian representation. Although when first announced on July 25 it included distinguished minority figures, including Simmons herself, a black woman, Gov. Carcieri deliberately excluded anyone with Native heritage or affiliation. After bitter complaints from Narragansett Chief Sachem Thomas and others in Indian country, Carcieri reversed himself. On Aug. 8, he added Jacqueline J. Johnson, executive director of the National Congress of American Indians (NCAI).
Johnson is a member of the Raven/Sockeye Clan of the Tlingit Tribe of Alaska. In a statement issued by the NCAI, she said, "In order to heal the wounds created on July 14 and move forward toward better state-tribal relations in Rhode Island, there must be accountability for what has taken place, and a commitment to build a better understanding of tribal sovereignty throughout state government, deeper knowledge of the history that has led to this point, and broader perspective on the important role the Narragansett tribe plays in the region."
The Governor's press secretary Jeff Neal told Indian Country Today that Carcieri appointed Johnson "as a result of advice he received from Sanford Cloud, chief advisor to the Independent Review Committee."
Neal noted that the Committee still had no representation from law enforcement and that he had "no reason to believe" that one would be added.
The state police issued its own version of the incident in a detailed July 28 report, concluding that its officers "used the least amount of force necessary" to protect themselves while making arrests. "This is reflected by the fact that no weapons, pepper spray, batons or physical blows were used," it concluded.
The report devoted one of its 12 summary pages to defending the conduct of the police dog involved in the raid, an unnamed 7-year-old male German shepherd with five years experience in patrol and narcotics. During the scuffle, the dog "apprehended and released" the wrist and arm of tribal member Hiawatha Brown, who was wrestled to the ground. At that point, said the report, "With the canine in a heightened state, the canine attempted to apprehend the subject in the shoulder area." The dog also "apprehended" (apparently police talk for "bit") the calf of his handler and the thigh and calf of another uniformed trooper.
The report, however, stated that the police dog "maintained an extreme level of restraint during this raid. "This is the most difficult situation for a canine with a large number of people present, multiple physical struggles, yelling, pushing, shoving, and the handler engaging unruly subjects," it said.