PROVIDENCE, R. I. – Narragansett Indians took a beating in federal court nearly as severe as the State Police raid on their smoke shop last July, but their leaders say it won’t stop their drive toward economic development.
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 December 29. But he did warn the state that it could not “act with impunity” on tribal lands, leading tribal leaders and their lawyers to declare the ruling wasn’t a total disaster.
The ruling “is a bump in the road for us,” said Narragansett Chief Sachem Matthew Thomas in a press conference at the smoke shop site on the main road along the tribes 1800-acre reservation in Charlestown. He said however that in spite of sharp disagreement on some of Judge Smith’s arguments, he was happy “that our sovereignty was upheld and not impugned at all.”
In spite of the silver lining, the ruling knocked the heart out of the Narragansetts’ efforts to sell untaxed cigarettes on their reservation, a move taken 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.
Smith compounded his argument by bringing in Maine state law enforcing its own settlement act with the Penobscot and Passamaquoddy Indians. Legal scholars cite this law as the epitome of a bad deal for tribal sovereignty, and its application in an entirely separate state could also be criticized on appeal. Smith used the court rulings on the Maine law to derive a highly restrictive set of criteria to determine what could be considered “internal tribal matters” outside the reach of state law.
“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 it was still an issue whether the state should have used “less intrusive means.” He also cautioned the state against thinking it had 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.”
