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Two New England sovereignty battles show progress

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BOSTON -- Hard-fought legal battles are winning revived respect for tribal
sovereignty in New England.

Although ambiguous land settlements have eclipsed tribal rights in the
region for a generation, federal judges have recently re-emphasized
fundamental principles of Indian self-rule.

The Aroostook Band of Micmac Indians in Maine won a major victory Dec. 5 in
a longstanding fight against the jurisdiction of the Maine Human Rights
Commission, a state agency. The following day, the 1st Circuit U.S. Court
of Appeals heard a lively debate over tribal sovereignty in a case arising
from the state of Rhode Island's violent raid on the Narragansett Indian
Tribe's smoke shop in July 2003.

The decision by U.S. Magistrate Judge Margaret Kravchuk in Maine accepted
the Aroostook Band's arguments across the board, including its claim that
it never ratified a controversial state Micmac Settlement Act in 1989.
Since the act never went into effect, said Kravchuk, the Micmacs did not
submit to state control in the same way as did other Maine tribes in an
earlier settlement act. Consequently, federal common law of tribal
sovereignty exempted the band from Maine's employment discrimination law.

Kravchuk issued a permanent injunction to prevent the Maine Commission and
its executive director, Patricia Ryan, from applying the state's Human
Rights and its Whistleblower's Protection acts against the band.

Her decision followed a remand of the case from the 1st Circuit, and the
following day the court visited the same ground in the Narragansett case.

In a rare en banc rehearing, a broader panel of appellate judges took a
second look at a May decision by a three-judge panel that reaffirmed the
sovereign immunity of the Narragansett tribal government.

Narragansett Chief Sachem Matthew Thomas compared the case to a classic
prize fight. "You throw punches for 12 rounds, and then you sit down and
wait for the judges' decision," he said. Although he expressed some qualms
about the metaphor, it reflected a memory of the violent confrontation:
Thomas himself was wrestled to the ground and arrested during the raid.
After the hearing, he told reporters the memory was still vivid, but that
he had learned to control his emotions.

Like the Maine case, the argument in the decorous federal courthouse turned
on a close reading of a tribal claims settlement, in this case the joint
memorandum of understanding in 1978 between the Narragansetts and Rhode
Island. Sharp questioning by the six judges focused on the distinction
between sovereign immunity and sovereignty, as they harassed counsel for
the state and the tribe alike.

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Language in the MOU had said that state civil and criminal jurisdiction
would apply on the settlement lands, now the Narragansetts' 1,800-acre
reservation next to the southern beach town of Charlestown. In the May
decision, Circuit Court Judge Juan Torruella accepted the tribe's argument
that the state jurisdiction applied only to individual acts on reservation
land, not to the tribal government itself. "The Narragansett Tribe's
sovereign immunity has not been abrogated," he wrote.

Claire Richards, counsel for the state, argued in the rehearing that the
court confused the tribe's residual sovereignty over internal affairs with
the immunity against suit traditionally claimed by governments. Torruella
asked her what remained of sovereign immunity in her view.

"Nothing," she replied.

Joseph Larissa, Indian law specialist for the town of Charlestown and its
police department, later modified the state's position to say that the
tribe had limited sovereignty over its internal affairs, such as tribal
elections and membership roles. But what, he was asked, if tribal election
procedures violated state rules for corporate conduct? Would the tribe have
immunity against a state suit?

The judges, in turn, bedeviled tribal counsel Douglas Luckerman with the
hypothetical case of a tribal chairman who committed murder: Would the
state have authority to arrest him? Attorneys for the state picked up the
thought, emphasizing that Thomas and several council members had been
charged with resisting arrest.

"The reservation is not a lawless enclave," Luckerman objected.

Although Torruella acknowledged that he was defending his ruling, neither
side was willing to predict after the harrowing hour how the full court
would rule. After the ordeal of the state lawyers, who came second, and his
brief rebuttal, Luckerman said, "I felt better when I stood up the second
time than I did when I sat down."

Even the full-court decision might not be the final round, however. Both
sides in the Narragansett case have said they expect an appeal to the U.S.
Supreme Court. During the hearing, one judge asked how the Supreme Court
decision that morning in the Kansas fuel tax case would affect the argument
-- the first time many in the courtroom had heard that that ruling had come
down.

After the hearing, Chief Judge Michael Boudin invited both sides to submit
further letters on the implications, if any, of the Kansas case.