Appeals court to consider Narragansett sovereignty

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Law
Appeals court to consider Narragansett sovereignty
Tuesday, December 6, 2005

STATE RAID: Troopers pin tribal members on the ground during raid of the Narragansett Reservation on July 14, 2003.

The Narragansett Tribe of Rhode Island is back in court today to defend its sovereignty from encroachment by state officials.

The tribe won federal recognition in 1983 after its land claims were settled by an act of Congress. But two decades later, the tribe faces unresolved questions over its legal rights as a sovereign entity.

The doubts led state officials to raid the Narragansett Reservation on July 14, 2003, in order to shut down a smoke shop. The state claims it has authority, under the act of Congress, over all activities on tribal land.

But the unprecedented show of force sparked outcries throughout Indian Country and among some members of Congress, who called for an investigation. They say the state disrespected the tribe's sovereignty by engaging in the violent raid.

"Imagine if federal marshals roughed up and arrested your governor and state leaders because the federal government disagreed with a decision made by your state government?" Tex Hall, the former president of the National Congress of American Indians, said at the time. "It is unfathomable."

The 1st Circuit Court of Appeals agreed with those sentiments. This past May, a three-judge panel ruled that the state violated the tribe's rights when troopers raided the reservation, seized tribal property and arrested several tribal members, including Chief Sachem Matthew Thomas.

The victory was largely symbolic because the court upheld the right of the state to seek taxes from the sale of tobacco goods to non-Indians. That prompted the state to seek a rehearing of the case, arguing again that it has broad authority over activities on the reservation.

Two months later, the court said it would indeed hold a new hearing to determine the extent of state jurisdiction on tribal lands. A special panel of six judges will consider the case in Boston, Massachusetts, this afternoon.

At issue are the state's powers under the Rhode Island Indian Claims Settlement Act of 1978. The law granted the state criminal and civil jurisdiction on the reservation.

The law has been interpreted to mean the state can prosecute individual tribal members for violating state laws. But whether the state has power over the tribal government itself is still up for debate.

The U.S. Supreme Court took up that question in a 2003 case that parallels the Narragansett one. Officials in Inyo County, California, raided the casino owned by the Bishop Paiute Tribe and seized tribal property as part of a county investigation.

The 9th Circuit, much like the 1st Circuit, ruled that the county violated the tribe's sovereignty. But in ruling that the tribe had no recourse to sue the county under a federal civil rights law, the Supreme Court bypassed the much larger question of whether a state can tell a tribal government what to do on the reservation.

Most tribes won't encounter the issue. But over 100 tribes in California are affected because the state, under Public Law 280, has criminal and civil jurisdiction on reservations. Five other states still have the law on the books.

In New England, several tribes fall under special acts of Congress that grant the state jurisdiction in Indian Country. In Maine, this has proved disastrous to the Penobscot Nation and the Passamaquoddy Tribe because the state courts have ruled that some of the activities of their tribal governments are subject to state law.

In Massachusetts, the state courts have ruled that the Aquinnah Wampanoag Tribe waived its sovereign immunity by agreeing to state jurisdiction. The tribe decided not to take the case to the U.S. Supreme Court.

Today's case will be heard by Chief Judge Michael Boudin and Judges Juan R. Torruella, Bruce M. Selya, Sandra L. Lynch, Kermit V. Lipez and Jeffrey R. Howard. The May 12 ruling had been decided by Torruella, Howard and Judge Joseph DiClerico, a federal court judge from New Hampshire who was sitting by designation.

En Banc Order:
Narragansett Tribe v. Rhode Island (June 8, 2005)

Smoke Shop Ruling:
Narragansett Tribe v. Rhode Island (May 12, 2005)

Inyo County Decision:
Syllabus | Opinion [Ginsburg] | Concurrence [Stevens]