The state of Rhode Island can enforce its laws against
members of the Narragansett Tribe for activities that occur
on the reservation, a divided federal appeals court ruled
on Wednesday.
By a 4-2 vote, the 1st Circuit Court of Appeals said
state troopers acted legally when they stormed
the Narragansett Reservation on July 14, 2003, as part of a dispute
over cigarette taxes.
In a violent clash that was caught on television cameras and aired
nationwide, officers arrested several tribal members, including
Chief Sachem Matthew Thomas, and seized tribal property
and cash.
The tribe went to court and argued that the raid violated its sovereignty.
But the majority of judges on the 1st Circuit said the tribe
freely surrendered its rights by agreeing to
state jurisdiction in a special land claim settlement act
passed by Congress back in 1983.
The Narragansetts "explicitly acknowledged that, with
certain modest exceptions not applicable here, 'all laws of the
state of Rhode Island shall be in full force and effect on the
settlement lands,'" Judge Bruce M. Selya wrote in the 34-page
decision, quoting the 1983 law.
An equally lengthy set of dissents filed by two other members of the court
sharply disagreed with that conclusion.
Over the course of 32 pages,
Judge Kermit V. Lipez and Judge Juan R. Torruella blasted
the state for its "Rambo-like raid" that ran roughshod over
basic principles of tribal sovereignty.
Both judges said the majority read too much into the
1983 law. Tribal waivers of immunity must be explicit
and unambiguous, they underscored in their dissents.
"It is clear that when tested against long-standing
principles of Indian law, the sweeping asseverations made by the
state regarding waiver and abrogation are lacking in substance.
Tribal sovereignty, and concomitantly, tribal sovereign immunity,
may not be stripped from an Indian tribe by statutory silence or by
inference extracted from ambiguous language," Torruella wrote.
Lipez highlighted what he called the overreaching nature of
the majority's decision. He said the 1st Circuit has adopted
principles that erode the rights of dozens of tribes
who have settled their land claims through acts of
Congress or who fall under Public Law 280 or similar
laws that grant jurisdiction to the state.
"Given this array of laws, I see no way
to limit the majority's abrogation of the tribe's sovereign
immunity, so that it does not also call into question the sovereign
immunity claimed by the many tribes that hold lands brought under
state jurisdiction by the several settlement acts" or Public
Law 280, Lipez wrote in his dissent.
The starkly contrasting views are sure to spark another battle
before the U.S. Supreme Court.
The Narragansett Tribe plans to appeal the ruling, the lawyer
who argued the case told The Providence Journal in a story published
today.
Just two years ago, the justices considered a case with a similar set of
facts. In California, a state that falls under Public Law 280,
officials in Inyo County raided the casino owned by the
Bishop-Pauite Tribe and seized tribal property.
The high court, by a unanimous vote, concluded that the tribe couldn't
sue the county for the raid. But the justices left open the
question of whether the county can enforce state law
against the tribal government, a key issue in the Narragansett case.
The 1st Circuit majority answered that the tribe is indeed subject to state law.
"It is plainly not the case, as the tribe would
have it, that an Indian tribe can render any conceivable act on
Indian lands (say, drug trafficking) impervious to state regulation
by the simple expedient of labeling it 'tribal,'" Selya wrote.
"In sum, the tribe remains as free as ever to operate the
smoke shop; it simply must comply with state law in the process," the ruling
continued.
Despite the strong statements, the majority's repeated use of
the phrase "settlement lands" appears to hold some benefit for the tribe.
Lands taken into trust for the tribe
after the 1983 act are not considered "settlement lands," so the state's
laws may not apply there.
Tribal leaders across the nation have closely watched the dispute over the past three years. For many, it brought to light the harsh realities of past and present excursions on their rights.
"It is inexcusable that a tribal leader would be target of violence by Rhode Island law enforcement officers," said Brenda Soulliere at the time of the incident. Soulliere was vice-chair of the Cabazon Band of Mission Indians when the tribe's gaming facility was raided by the state of California in 1981. The tribe later prevailed at the Supreme Court.
En Banc Decision:
Narragansett
Tribe v. Rhode Island (May 24, 2006)
En Banc Order:
Narragansett
Tribe v. Rhode Island (June 8, 2005)
Prior Decision:
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)
Relevant Links:
Narragansett Tribe - http://www.narragansett-tribe.org
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