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Appeals court hears tribal-state sovereignty dispute

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 -
Smoke Shop Showdown -