A crucial question was raised at a federal appeals court hearing on Tuesday:
Just exactly what is left of the Narragansett Tribe's sovereignty?
"Nothing," was the one-word response from a lawyer for Rhode Island Gov.
Donald Carcieri (R).
A number of judges on the 1st Circuit Court of Appeals didn't appear to like
that answer. When pressed, attorney Claire J. Richards acknowledged the tribe
retained its inherent sovereignty to deal with internal matters such
as membership and elections.
The question of the tribe's rights remained at the center of the one-hour
hearing in Boston, Massachusetts.
A panel of six judges pressed both sides in the case -- which arose
out of the state's violent raid of the Narragansett Reservation in July 2005 -- to
explain where tribal sovereignty ends and where state sovereignty begins.
The judges seemed to think the answer falls somewhere in the middle.
All of them agreed that the state has criminal and civil
jurisdiction over the activities of individuals on the reservation
based on the plain language of a special act of Congress
that settled the tribe's land claim.
"We're not likely to read the statute to have no meaning," said
Chief Judge Michael Boudin.
Whether the state's powers extend to the activities of
the tribal government itself was the much more difficult issue.
The case arose when the tribe opened a smoke shop and
started selling cigarettes without collecting state taxes.
"The Narragansett Tribe retains its sovereign immunity
and the state has no authority over the tribal
government," Douglas J. Luckerman told the court. He said
the tribe doesn't dispute the state's jurisdiction
over individual Indians.
Standing in disagreement were three lawyers who represented the state's interests.
In addition to Richards, assistant attorney Neil Kelly and Joseph LaRisa,
the attorney for the town of Charleston, gave their own interpretations of
the Rhode Island Indian Claims Settlement Act of 1978.
Kelly's argued that the law, and a separate memorandum of understanding
with the tribe, provides the basis for the state to enforce its laws
against the tribal government. He said the tribe explicitly waived
its sovereign immunity when it made the deal over two decades ago.
"The tribe has agreed to application of al laws," he said
LaRisa, who has battled the tribe on land-into-trust and other issues,
had a more pointed argument. He said Congress "clearly abrogated"
the tribe's sovereign immunity, thus allowing the state to bring
enforcement against the tribal government.
Of the six members of the en banc panel that heard the case,
Judge Juan R. Torruella seemed to be strongly in the tribe's corner.
He repeatedly said the state's attempt to enforce its laws against the
tribal government violated the "core" principles of sovereignty.
Torruella noted that Congress, just two years after the Rhode Island act,
passed a law to settle the land claims of two Maine tribes. In
that case, Congress made it clear that state laws apply to
individuals on tribal land as well as the tribes themselves.
"Isn't there a difference between the statute in this
case and the statute in Maine?" he asked.
Of the other members, Judge Bruce M. Selya seemed most concerned
about giving the tribe too much leeway.
He posed most of his questions to the tribe's lawyer and said
it is possible that the statute gives the state power over
the actions of the tribal government.
"The unlawfulness test here is, presumably, the civil laws
of Rhode Island," Selya said.
The arguments came just hours after the U.S. Supreme Court issued
its ruling in another tribal-state dispute. By a vote of 7-2,
the justices allowed the state of Kansas to impose a distribution
tax on gasoline that is sold on the reservation.
Chief Judge Boudin invited both sides to submit a letter explaining
whether the decision has an impact on the Narragansett case.
He said the letter was optional.
When the 1st Circuit finally makes a decision, it has the potential
to impact a number of pending tribal-state disputes in New England.
In Maine, a federal judge just ruled that the state cannot enforce
its employment and civil rights laws on the Aroostook Band of Micmac Indians
because Congress has not authorized it. In Massachusetts, a state
court ruled that the Aquinnah Wampanoag Tribe can be sued for
not complying with state and local laws.
Sitting as an en banc panel, the six judges have the power
to clarify the 1st Circuit's views on all tribal issues.
Previously, the court refused to get involved when a Maine
court ruled that two tribes must comply with the state's
freedom of information act.
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]
Nevada v. Hicks Decision:
Syllabus
| Opinion
| Concurrence
(Souter) | Concurrence
(Ginsburg) | Concurrence
(O'Connor) | Concurrence
(Stevens)
More on the Smoke Shop Raid:
Video
| Text:
Gov. Carcieri's July 14 Press Conference | Text:
Gov. Carcieri's July 15 Statement | Text:
Excerpts of Narragansett Chief Sachem July 14 Press Conference
Relevant Laws:
Rhode
Island Indian Claims Settlement Act (US Code)
Relevant Links:
Narragansett Tribe - http://www.narragansett-tribe.org
Smoke
Shop Showdown - http://www.projo.com/extra/2003/smokeshop
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