PROVIDENCE, R.I. – Worries about a hostile and far-reaching Supreme Court ruling have national legal strategists urging caution, but the Narragansett Indian Tribe might be forced to a final appeal of their smoke shop case to forestall the arrests of their top tribal leaders.
Rhode Island Attorney General Patrick Lynch repeated his threat to prosecute tribal members for their resistance to the July 14, 2003 State Police raid on the tribal smokeshop after the U.S. 1st Circuit Court of Appeals reversed itself in late May and said the raid was legal. During the televised confrontation, tribal council members, including Chief Sachem Matthew Thomas, were manhandled and thrown to the ground by state police. One smokeshop employee suffered a broken ankle.
The tribe brought a federal lawsuit and appeared to prevail on the crucial point of its sovereign immunity until a May 23 ruling by the full 1st Circuit bench. The ruling, written by Judge Bruce Marshall Selya, reversed its own three-judge appeals panel. It ostensibly turned on a very narrow point: whether the tribe had waived its sovereign immunity against state legal action on territory it received in a land claims settlement in the late 1970s. But in ruling that the tribal government was subject to state police action, the court set in motion an intricate series of reactions.
The prospect of a Supreme Court appeal alarmed strategists for the Supreme Court Project of the National Congress of American Indians and the Native American Rights Fund. “At this point, it seems like any case would be dangerous to take to the Supreme Court,” said Richard Guest, counsel for NARF. (Guest noted, however, that NARF and the NCAI had filed briefs supporting the Narragansetts in the lower courts.)
Guest said that one purpose of the Supreme Court Project was to dissuade tribes from appealing cases that might trigger an adverse decision. But any chance that the Narragansetts might listen vanished when Lynch repeated his intention to prosecute the tribal members arrested during the raid. (According to another attorney supporting the state, Lynch intended to go ahead no matter which way the 1st Circuit ruled.) Although no steps have yet been taken, the lawyer for the Narragansetts, Douglas J. Luckerman, called the state’s position “tragic.”
Luckerman has already asked the 1st Circuit to stay enforcement of its decision while the Narragansetts prepared their Supreme Court appeal, but the Circuit Court denied his motion in mid-June.
Selya’s May 23 opinion also increased the stakes for another pending Rhode Island challenge to federal Indian law, the Carcieri v. Norton case arguing that the U.S. Interior Secretary’s land-into-trust power is unconstitutional. Nearly a year ago, a 1st Circuit panel threw out the state’s case, brought by Gov. Donald Carcieri against then-Interior Secretary Gale Norton. (Other circuits have rejected similar cases, including – notably – one from the state of South Dakota.) But the state and the Narragansett’s neighboring town of Charlestown immediately appealed for a rehearing before the full 1st Circuit bench. “We’re expecting an answer any day now,” said Joseph S. Larisa Jr., Charlestown’s assistant solicitor for Indian affairs, “and we have been for many months.”
The suit concerns 31 acres for tribal housing that the BIA agreed to take into trust for the Narragansetts in 1998. But the real concern for the state is whether the Narragansetts have any surviving tribal sovereignty.
The smokeshop was located on the tribe’s “settlement lands,” which it regained in a 1978 deal that acknowledged state jurisdiction. Selya read this deal as a waiver of the tribe’s sovereign immunity. But the 1978 deal would not restrict tribal power on its new trust land. By Selya’s own declaration that his ruling was “idiosyncratic,” if the tribe chose to reopen its smoke shop on the new 31 acres, the argument over its sovereign immunity would start again from square one.
(In another complication, the Narragansett Tribe is pushing a state referendum this year to authorize a casino project with a private investor. But because of its peculiar legal status, the casino would fall under state law and state regulation and would not involve tribal sovereignty. This anomaly arises from a long-standing tribal grievance. After winning a federal suit in the mid-’90s upholding its right to conduct gaming, the tribe lost its status in a legislative coup conducted by the then-Republican U.S. Sen. John Chaffee. In a “midnight rider” to a general appropriation bill, Chaffee inserted language excluding the Narragansetts from the Indian Gaming Regulatory Act. If the Narragansett casino referendum were to pass this November, it would set up a tribal casino completely outside of IGRA’s regulatory scheme.)
The Supreme Court Project has watched the Carcieri case closely through the district and appeals courts, but no one can say whether the 1st Circuit had it in mind when it limited the scope of Selya’s ruling to the settlement lands. There is certainly a sharp contrast between the first section of the May 23 opinion, stating the grounds to be very narrow and technical, and later sweeping language denigrating basic principles of Indian law in Selya’s distinctively recherche’ vocabulary.
A 73-year-old Rhode Island native first appointed by President Reagan, Selya slanted his opinion strongly in favor of state intervention on tribal lands, even referring to the states as “hosts” of the tribes. “While the approach of treating inherent tribal sovereignty as an independent impediment to state action on tribal lands has never been abandoned by the Supreme Court in haec verba,” he wrote, “the Justices have come to treat this doctrine as no more than a piece of the background against which preemption analysis must be conducted.”
In a strong dissent, Judge Juan Torruella wrote, “the majority runs roughshod over Supreme Court and First Circuit precedent to reach its desired outcome.” He warned that if the majority opinion ultimately prevailed, “the concept of tribal sovereignty developed by the Supreme Court … will be radically altered, and Native American tribal governments throughout the United States may very well become irrelevant facades.”
Torruella wrote the majority opinion of the three-judge appellate panel that first declared the smokeshop raid to be illegal.
