NARRAGANSETT HOMELAND, R.I. – Warning of dangerous language for all of Indian country, the Narragansett tribal council has decided to appeal a U.S. Court decision legitimizing the State Police raid on their smoke shop last July.
The council voted to continue the fight a day after U.S. District Court Judge William Smith declared that the raid did not violate federal law or the Narragansett Tribe’s sovereign rights, in a long-awaited decision issued Dec. 29.
Tribal leaders and their lawyers had declared the ruling wasn’t a total disaster when it first came down, because Judge Smith did warn the state that it could not “act with impunity” on tribal lands. On closer reading, however, legal scholars warned that Smith’s “slippery slope” reasoning could undermine the very meaning of tribal sovereignty.
Douglas J. Luckerman, a lawyer for the Narragansetts in the case, said that “a whole range of aspects in that decision” would harm “the interests of tribes around the country.” He noted several areas that “other tribes would want to look at and make a response to, on their own or as a group.”
The decision ignored the basic principle of tribal sovereign immunity, Luckerman said. It gave such narrow scope to tribal self-government that it would eliminate most avenues for economic development. In justifying the police raid, it exceeded even the most objectionable of the U.S. Supreme Court’s recent rulings allowing state enforcement on reservations.
In addition, said Luckerman, it recast the terms of the on-going debate over untaxed reservation cigarette sales, leaving tribes with little defense against state government control.
“It’s a dangerous decision,” Luckerman said.
Judge Smith’s ruling knocked the heart out of the Narragansetts’ efforts to sell untaxed cigarettes on their reservation, a move the tribe took in frustration after the state legislature put a stall on their drive for a much more lucrative casino venture.
Judge Smith, appointed to the federal bench by President George W. Bush in July 2002, held that the state had the right to tax cigarettes at the tribal smoke shop and that it could enforce its criminal laws there. He avoided the tribal sovereignty defense by declaring that the tax did not fall on the tribe but was borne by the purchasers of the cigarettes (who were assumed to be non-tribal members.)
“Under the state’s cigarette tax scheme, the Tribe (like other retail sellers of cigarettes) acts merely as an agent for the collection of the tax,” he wrote. “It is appropriate for the State to impose this burden on the Tribe; and such a burden does not amount to taxation of the Tribe, nor does it violate the Tribe’s sovereign rights.”
But Smith went on to argue that, because of the specific terms of the federal Settlement Act that ended tribal land claims in 1983, the state also had the right to impose its criminal law on the reservation in enforcing this tax. The Settlement Act, one of a controversial series of compromises that New England tribes were making at that time, required that Rhode Island’s “civil and criminal laws and jurisdiction” would apply to the lands returned to the tribe.
Smith acknowledged that the tribe still had “retained rights of sovereignty” barring some state action. He said he had no “definitive guidance” from higher courts on “the extent to which the State may encroach upon the Tribe’s Settlement Lands to enforce its criminal laws.” But, in reasoning very likely to be challenged on appeal, he distinguished between a state’s attempt to tax a tribe, which would be unconstitutional, and its attempt to enforce criminal provisions of state tax laws.
“It is worth repeating that the alleged criminal violation is the holding for sale of unstamped cigarettes, not the failure to pay taxes on sales of those cigarettes. This may be a fine distinction, but it is a relevant one, nevertheless,” he wrote.
“Therefore, in this writer’s view, the special treatment which the Supreme Court has reserved for direct taxation of tribes by states does not apply to the criminal enforcement provisions of such law, particularly where, as here, the Court holds that the Cigarette Tax is not a direct tax upon the Tribe.”
Smith signaled that a rocky road might lie ahead for an appeal by invoking the U.S. Supreme Court decision in Nevada v. Hicks. The ruling by Justice Antonin Scalia, widely regarded as an attack on tribal sovereignty, allowed state law enforcement against a tribal member on tribal land.
Luckerman retorted that Smith missed a crucial distinction between enforcement against an individual member and police action against tribal institutions. But Smith, in what could turn out to be the most widely quoted and most controversial part of the decision, laid out highly restrictive criteria for defining protected tribal activities.
“In sum,” he wrote, “whether a ‘retained right of sovereignty,’ as used in the context of Indian law and applied in this case, may shield a particular activity from the enforcement of state law, comes down to this: whether the persons affected by the particular activity in which a tribe is engaged are tribal members; and whether the activity may properly be described as ‘governmental’ in nature.”
By these criteria, he concluded, the Narragansett smoke shop was fair game for the state police raid.
Smith did add a warning in a final footnote that it was still an issue whether the state should have used “less intrusive means.” He also cautioned the state against thinking it carte blanche for raids on the reservation. “In other words, nothing in this opinion should be read to suggest that the State’s ability to enter upon tribal land to enforce its criminal/regulatory laws is limitless, or that State authorities may act with impunity. It is not; and they may not.”
It remains to be seen, however, whether this nod toward sovereignty would be a hollow gesture after the reasoning in the rest of the ruling played itself out.
