Tribe Lawsuit Update
Narragansetts consider reopening smoke shop
Bolstered by a favorable court ruling, Chief Sachem Matthew Thomas says the tribe will decide its next step within two weeks.
May 14, 2005
BY KATIE MULVANEY
Journal Staff Writer
CHARLESTOWN — Heartened by a federal appeals court ruling, the Narragansett tribal government yesterday began weighing the future of its smoke shop on South County Trail.
“Obviously we’re going to do something. We just don’t know what,” Chief Sachem Matthew Thomas said yesterday. “We can reopen, certainly.”
The state, meanwhile, considered its options.
“We will appeal,” said Attorney General Patrick C. Lynch, who called the court decision “ludicrous” in that it did nothing to more clearly define state-tribal relations.
“I think the tribe and the state both need that. If this was a boxing match, it would be a draw,” he said.
The state will probably seek a review by the full appeals court, said Michael Healey, spokesman for the attorney general.
A three-judge panel from the 1st U.S. Circuit Court of Appeals ruled Thursday that the state violated the tribe’s sovereign rights when it raided the shop and arrested tribal officials in July 2003. The decision said the state had the right to collect taxes on the tribe’s cigarette sales to non-Indians, but that it must use other means of enforcement.
“It’s quite clear we can sell our tax-free cigarettes to Native Americans,” Thomas said. “The bottom line is the tribe has the right to open the shop in one fashion or another.”
State police, executing a search warrant, raided the roadside shop July 14, 2003, two days after the Narragansetts began selling tax-free cigarettes over the objections of the state. Eight tribal members were arrested, including Thomas.
After the raid, the state and the tribe filed suits disputing the tribe’s right to sell tax-free cigarettes on tribal land. Upholding a lower-court ruling, the appeals judges found that the state’s cigarette tax fell on the consumer, not on the tribe as seller.
Thomas yesterday asked for the return of cigarettes and about $800 in cash seized in the raid. The criminal charges against tribal members should also be dropped, he said.
Lynch said it was “grossly premature” for such considerations. “That is more than a bit of posturing,” he said.
When asked how the state would respond to the shop’s reopening, Lynch said, “We’ll address circumstances as they occur.” He added that he expected the tribe would “respect what issues are not at issue.”
The tribe will “extend common courtesy” to the state in keeping officials apprised of its plans as it sees fit, Thomas said.
“We’ve always reached out to the state in one way or another,” Thomas said. The chief sachem said the tribe would decide how it would proceed “within the next week or two.”
Thomas also sought an apology from the state for the raid, which erupted into a violent and widely publicized scuffle.
“The circumstances were unfortunate,” Lynch said, “but there’s no need for an apology.”
Katie Mulvaney can be reached at kmulvane [at] projo.com or 277-7417.
RHODE ISLAND: TRIBE WINS APPEAL ON RAID
A federal appeals court ruled that the state violated the sovereign rights of the Narragansett Indian tribe when state troopers raided a tax-free smoke shop set up by the tribe in July 2003. In overturning a lower court’s ruling, the three-judge panel of the United States Court of Appeals for the First Circuit wrote that the tribe’s “sovereign immunity” rights were violated when the police forcibly entered the shop, seized the cigarettes and arrested tribal officials. The appeals court did uphold the ruling that the tribe broke state law by selling tax-free cigarettes. Katie Zezima (NYT)
May 13, 2005
Narragansett smoke shop worker awarded $300,000 in suit against trooper
By Brooke Donald, Associated Press Writer | March 28, 2005
PROVIDENCE, R.I. –Jurors on Monday ruled that a state trooper used excessive force against an employee of the Narragansett Indians’ smoke shop during a July 2003 raid.
After deliberating for about four hours, the federal jury said Trooper Ken Jones used excessive force against Adam Jennings, whose ankle was broken when police shut the store down for selling cigarettes without collecting state tax. The jury awarded Jennings more than $300,000 in damages.
But jurors rejected claims two other smoke shop employees made against two other troopers.
Mike Healey, spokesman for Rhode Island Attorney General Patrick Lynch, said Lynch would meet Tuesday with the state lawyers who defended the troopers. A state police spokesman said the department would not comment.
During the trial, lawyers for both sides described a frantic and confusing scene that ensued when police moved in to shut down the smoke shop, capping a confrontation over the tribe’s sovereignty rights. The Narragansetts were selling tobacco tax free, saying they had every right to do so on their tribal land. The state disagreed.
“Whether or not the tribal lands were sovereign territory, the U.S. Constitution applied, specifically, the Fourth Amendment right to be free of excessive force,” Jennings’ lawyer, Michael Bradley, said after the verdict.
During closing arguments Monday, Bradley, who also represented Jennings’ mother, Paulla Dove Jennings, and fellow shop worker Keith Huertas, maintained that police “shoved and threw” his clients while attempting to close the shop during the raid.
Bradley acknowledged that the chaos may have warranted some aggressiveness by the police, but he said there is a point when the police should “knock it off when there’s no longer a need.” He said the troopers went beyond that point.
Bradley said after the verdict that Huertas and Paulla Dove Jennings understood that the jury found police perhaps had an understandable right to use force against them because they were detained at a chaotic time. That was not the case for Adam Jennings, he said.
“Adam Jennings’ (ankle) was broken at a point in time when the Rhode Island State Police had complete control over him, as the jury must have found,” Bradley said.
Seven troopers originally were named in the civil lawsuit. U.S. District Judge Ernest Torres threw out claims against one of them last week, and rejected claims of civil rights violations. Before closing arguments Monday, the judge rejected claims of false imprisonment, false arrest and several claims of battery, leaving just three troopers as defendants.
During the trial, witnesses, plaintiffs and defendants all agreed that officers tackled Adam Jennings after telling him they planned to arrest him. But the sides differed over whether Jennings was resisting.
He said he was not struggling and told Jones, who was holding his foot, that the trooper was going to break his ankle if he continued twisting it. Jennings said Jones continued, and the ankle broke.
But Jones said he was using a hold officers are taught to use to get a suspect to stop resisting, and said Jennings was continuing to fight.
Assistant Attorney General Rebecca Partington, who represented the troopers, told jurors Monday that they should find for the troopers if they had any uncertainty.
“The situation was tense, it was uncertain, it was rapidly unfolding,” Partington said. “If you’re confused about what really happened you must return a verdict for the defendants.”
Bradley told jurors that during the raid, the employees, two of whom are tribe members, were complying with orders as best they could. He said they were confused because at first they were confronted by undercover officers and it was not clear what was happening.
A federal judge has since ruled that the tribe cannot sell cigarettes tax-free on its land. The tribe has appealed.
- March 24, 2005: Trooper Testifies In Smoke-Shop Trial
- March 23, 2005: Judge Dismisses Several Claims In Smoke Shop Lawsuit
- March 22, 2005: Witness: Smoke Shop Worker Wasn’t Fighting When Ankle Broken
- March 21, 2005: Trial Begins In Smoke Shop Lawsuit
Trial to begin in smoke shop lawsuit
Mar 21, 2005
ABC 6 News
PROVIDENCE, R.I. (AP) – The federal trial begins today in the lawsuit brought by members of the Narragansett Indian tribe, who say their civil rights were violated when state troopers closed the tribe’s tax-free smoke shop in 2003.
Narragansett Tribal Council member Paulla Dove Jennings, her son, Adam Jennings and Keith Huertas, manager of the shop, are suing.
They say several state troopers did not identify themselves or show a warrant when they raided the smoke shop on July 14th, 2003 — two days after it was opened. They also say the troopers assaulted and injured them.
A federal judge has since ruled that the state acted properly in shutting down the shop, saying the state has the right to tax cigarette sales on the tribe’s land.
RI: Bill 8392. Relating to “Smoking in Public Places.”
A public Yahoo Group for anyone who wants to
talk about the Rhode Island ban situation!
Senate approves statewide smoking ban
04.29.2004 6:24 P.M.
By MICHAEL MELLO
Associated Press Writer
PROVIDENCE, R.I. (AP) – The Senate on Thursday approved a ban on smoking in most public places in the state, leaving exemptions for gambling facilities intact.
The 26-7 vote sends the bill to the House, where legislative leaders have backed a slightly different version. The proposed ban would take effect next March.
Rhode Island has more than 300 smoke-free restaurants, but East Greenwich is the only one of the state’s 39 communities to impose smoking restrictions on eateries.
The Senate bill includes permanent exemptions for the Lincoln Park gambling center and dog track and Newport Grand.
The House bill includes temporary exemptions for those facilities, and for private clubs and some bars.
The Senate easily voted down an amendment offered by Sen. Leonidas Raptakis, D-Coventry, to make the exemptions for the gambling facilities temporary, until October 2006. He said to be fair to everyone, the ban should be complete.
But bill sponsor Sen. Susan Sosnowski, D-South Kingstown, said the state relies heavily on gambling revenues from video lottery terminals at the two facilities and would be hurt by a loss of business at either.
Gov. Don Carcieri supports a smoking ban. The state Hospitality and Tourism Association, which opposed more stringent legislation in past years, supports the ban, but wants a statewide ban with no exemptions.
The American Cancer Society issued a statement after the Senate vote saying the permanent exemptions show “disregard for the lives of nearly 1,200 employees at both Newport Grand and Lincoln Park.”
Senators “said they place a higher value on the revenue generated from these facilities,” the society said.
The state expects to collect more than $200 million this year in payments from video lottery revenues at both facilities.
The Senate last year passed a statewide smoking ban, but the bill died in the House.
House and Senate leaders expect to work out differences in this year’s bills and pass a statewide smoking ban.
In neighboring Massachusetts, more than 90 communities, including Boston, have some kind of smoking ban. California, Connecticut, Delaware, Maine and New York have passed statewide bans.
January 16, 2004
Public pressure and awareness of the dangers of smoking seems to be reducing smoking in public places. Passing a law to ensure smoke-free air in Rhode Island may be overstating the obvious.
Governor blames chief for raidJuly 17, 2003
By Jim Baron
WARWICK — Gov. Donald L. Carcieri placed the blame for Monday’s violent confrontation at the closing of the Narragansett Indians’ tax-free smoke shop squarely on Chief Sachem Matthew Thomas and other tribe members.
Pronouncing himself “extraordinarily dismayed,” by the actions of the tribe, Carcieri told a late afternoon press conference at T.F. Green Airport, “it is clear to me that the chief instigated this confrontation, he did nothing to prevent it and did nothing to calm it down.”
Asked what happened to the amicable relationship between his administration and the tribe that culminated in the governor’s visit to the reservation last month, Carcieri said, “they lost the casino vote, that’s all.” A bill to allow a statewide vote on whether to have a gambling casino was passed by the House but died in the Senate two weeks ago.
Thomas, who was arrested along with seven other tribe members, one a juvenile, could not be reached for comment after his arrest.
Speaking on the radio before the raid and his arrest, Thomas said, “No, absolutely not,” when asked if he would close the smoke shop on the order of a state court. “If a federal court says to close down, we will,” the chief told WHJJ-AM’s John Depetro. “If a state court does, we will not.”
Thomas said the tribe, beset by financial difficulties and faced with a deficit at the end of this year, “held off as long as we could” waiting for economic development help from the state before opening the smoke shop. “We had to take issues into our own hands.”
Shortly before 2 p.m. on Monday, a phalanx of 20 State Troopers accompanied by three Charlestown police officers and German Shepherds from the K-9 corps raided the shop, which had been selling cigarettes without charging state cigarette taxes or sales taxes, dropping the price to half or less that charged by stores that apply the state taxes.
Thomas could be seen on TV news clips grappling with State Police until four troopers brought him to the ground and handcuffed him. “This looks like Mississippi in the damn 60s, Thomas could be heard saying, referring to the violent and bloody civil rights demonstrations of that era. He could also be heard referring to the troopers as “a bunch of goons” and saying “you ought to be ashamed, Governor Carcieri,” for the benefit of reporters and TV cameras.
Eight persons were reported injured in the melee, none of the injuries were considered serious.
State Police Col. Steven Pare said eight tribe members were arrested on charges of resisting arrest and misdemeanor assault on a police officer. All but one was released on personal recognizance, the other posted a bond, he said.
Carcieri said he gave the order for the search warrant to be executed.
“They have no sovereign immunity,” Carcieri said of the Narragansetts. “Under federal law, Rhode Island law is in full force and effect on settlement lands.” The governor acknowledged that the tribe disputes that interpretation, but said that is a matter to be dealt with in court.
Asked whether the Narragansetts, if they took that dispute to court and won, could find themselves on a direct path to opening a casino, Carcieri said, “there are all sorts of possibilities. That is possible. But until that is litigated and resolved, (the Narragansetts) under the Settlement Act (under which the Narragansetts obtained their 1,800 acre reservation) they are bound by Rhode Island law.
The Narragansetts, he said, “Had no right to resist” the execution of the warrant.
All parties are expected to attend a RI Superior Court hearing today on the state’s application for a temporary restraining order (TRO) to stop the tribe from continuing to sell cigarettes tax-free at the smoke shop
Asked about the incident, Attorney General Patrick Lynch said, “to me, it illustrates incredible restraint on the part of law enforcement.” He said Carcieri salso demonstrated “remarkable patience,” in dealing with the recalcitrant Narragansetts.
Asked why the state didn’t first go to court to obtain the restraining order before taking the smoke shop by force, Carcieri and Lynch said the state was following proper procedure by getting a search warrant. The warrant to search the shop and seize any contraband was the purpose of Monday’s raid. The information gathered in the raid will be used to obtain the TRO.
Lynch compared seeking the TRO without first carrying out the warrant to a golfer not having an important club in his bag.
A reporter told Carcieri that Thomas said he would consider such a raid an act of war and asked if the state was at war with the Narragansetts, the governor snapped, “of course not. That kind of language is exactly the problem. That is totally inappropriate language.” Carcieri suggested that Thomas “tone down the language” of the discussion
Carcieri said he and members of his administration had been talking with Thomas and the tribe to avoid butting heads over the cigarette issue but, “their demands were totally unacceptable. “They demanded that in return for closing the smoke shop, I drop my opposition to a casino. From my perspective, that was outrageous.”
July 20, 2003
The Providence Journal
Catherine Flaherty: State tax revenues — Internet, not Indians, poses the threat
ON MONDAY, Rhode Island authorities raided a smoke shop owned by the Narragansett Indian Tribe in an effort to either shut it down or force the owners to collect sales tax on the cigarettes they sell to non-Indians.
Five years ago, when state coffers were overflowing, we would probably not have seen this kind of forceful action taken in an effort to collect sales taxes. But now the economy is sputtering, states face huge budget deficits, and state officials are scrambling to find every penny they can.
Unfortunately, though, shops like the one that was raided are only a drop in the bucket compared with the real cigarette tax bleeding businesses: Internet cigarette retailers. The falling economy and higher state cigarette taxes are driving more and more people to the Internet to buy “tax-free” cigarettes. The vast majority of Internet cigarette retailers operate in the Northeast and sell all over the country, affecting not only Rhode Island’s state revenue but also the revenue of every other state in which they sell.
Of course, cigarettes aren’t supposed to be tax-free, but thanks to a federal tax-enforcement loophole, hundreds of millions of packs of cigarettes are sold every year and the buyers never pay a cent in sales tax.
Internet cigarette retailers alone could, by 2005, annually cost Rhode Island over $40 million in state and local taxes. By 2005, all states combined could lose nearly $4 billion a year in tax revenue.
There is a decades-old federal law on the books called the Jenkins Act, which requires sellers in one state to report a sale they make to a resident of another state to the purchaser’s state tax regulatory administration. The problem with the Jenkins Act is that it does not let an attorney general in one state sue a company in another state for failure to follow that law. As a result, states are powerless against Internet cigarette retailers, who openly flaunt that they violate the law. A General Accounting Office study revealed that of the 147 cigarette-selling Internet sites they investigated, none of them — zero — complied with the Jenkins Act. In fact, nearly all of them used this as a selling point. The study also showed that many of the Internet cigarette sellers are owned by Indian tribes, which claim that their sovereign status shields them from complying with the law.
This year, Internet cigarette sales are expected to account for 2 percent of the cigarette sales in the country. That translates into more than 413 million packs sold over the Internet. Some economists believe that by 2005 Internet sales will have grown to 14 percent of the total cigarettes sold in the United States — meaning an astonishing 2.8 billion packs sold over the Internet, tax-free, of course.
The companies that were examined by the General Accounting Office also have dismal records when it comes to age verification, relying on two favorite techniques to “verify” that the cigarette purchaser is at least 18. Either they state on their site that the purchaser must be 18 to buy cigarettes or they ask the purchaser to “verify” by clicking a box that he or she is at least 18. That would be like a convenience-store clerk taking a buyer’s word that he or she is 18, instead of actually checking the ID.
New England convenience-store operators work very hard to ensure that state cigarette taxes are collected, and that minors are not able to waltz into their corner store and buy a pack. Our association helps to educate and train our members about their responsibilities in following the law.
Now we are supporting legislation in Congress that would close the loophole allowing Internet cigarette sellers to flout the law. The Youth Smoking Prevention and State Revenue Enforcement Act would give state attorneys general the ability to go after these Internet retailers for sales taxes they owe, and would explicitly not exempt Indian tribes from the act’s reach. Would this force Internet cigarette retailers out of business? Only those that find it too much of a burden to comply with the laws that brick-and-mortar stores follow every day.
Congress should act now to pass the Youth Smoking Prevention and State Revenue Enforcement Act.
Catherine Flaherty is executive director of the New England Convenience Store Association, in Norwood, Mass.
State Police Raid Turns Into Confrontation: Carcieri: State Had ‘Every Right’ To Raid Smoke Shop. The videotape also showed a police dog nipping at the clothing of a man who is handcuffed and face-down on the ground.
Then: They went to federal court yesterday seeking a restraining order that would allow them to reopen the smoke shop on tribal lands without state interference. The tribe’s motion is scheduled to be heard in a closed-door hearing before U.S. District Court Judge William Smith. Closer to home, the Rhode Island Civil Rights Roundtable issued a statement calling the raid “inappropriate and excessive.” “While state officials place the blame on the Narragansetts for provoking this terrible incident, one does not defuse a situation by bringing in a few dozen troopers and police dogs to execute a warrant.”
BY MICHAEL CORKERY
Journal Staff Writer
It started with an e-mail, sent to the governor’s office on Saturday morning when no one was around to read it.
Matthew Thomas, the chief sachem of the Narragansett Indians, wrote to Governor Carcieri informing him that the smoke shop was going to open that day.
Thomas, the tribe’s leader, said they were opening the shop due to the failure of Carcieri and the General Assembly to pass a referendum on the casino issue.
The tribe sent the e-mail at 9 a.m. to an address used by the governor’s office for constituent relations. The smoke shop opened for business two hours later.
(photo) Governor Carcieri concludes a news conference at the State House last night in which he said he has directed state police commander Col. Steven M. Pare, standing beside hime, to investigate Monday’s events.The Carcieri administration did not receive the chief’s e-mail that day, but the opening was no secret; the tribe also sent a news release to the media. That morning, people had started to flood the smoke shop to buy the tribe’s offering of tax-free cigarettes — by far the best deal around.
The governor, meanwhile, was flying to Cincinnati to celebrate his grandson Nicholas’s fourth birthday. When he landed Saturday morning, there was a phone message from his chief of staff, Ken McKay.
The Narragansetts were selling cigarettes.
What unfolded over the next 48 hours, as described in interviews with Carcieri, Thomas, the tribe’s lobbyist Guy Dufault and governor’s spokesman Jeff Neal, was a period of negotiations, deliberations and finally a communication breakdown that led to the melee in Charlestown on Monday.
From the beginning, it was clear to all sides that the opening of the smoke shop was not just about the right to sell cigarettes. This was a game of political brinkmanship that began as most of them do: with closed-door meetings, intense lobbying and phone calls. But this ended in a way that most political spats do not: in violence.
Carcieri arrived at his son’s house in Cincinnati Saturday morning, expecting to spend the weekend with his family before heading out to the Republican governor’s conference in Colorado Springs on Monday.
Instead, he would spend the next two days on the phone with his staff and with Thomas in Rhode Island.
Carcieri first contacted Thomas on Saturday at about 3 p.m. Thomas said the governor told him that the smoke shop was illegal and asked the tribe to close down.
“You are putting us in a situation where we are going to possibly have a confrontation,” Carcieri said. “I don’t want this.”
Thomas said he didn’t want a confrontation either, but the tribe planned to keep the shop open. That afternoon, the chief said he pleaded with the governor to use restraint on the issue.
“I said, ‘Governor if you are going to close this, please do it in the courts. I ask you this because emotions are running really high right now, they are very frustrated right now because of the way the state has been dealing with us, especially on the casino issue’,” Thomas said. ” ‘Let’s battle this like gentlemen in the courtroom.’ “
Carcieri woke up Thomas at about 8 a.m. on Sunday. The administration wanted to meet with the tribe.
(photo) Chief Sachem Matthew Thomas of the Narragansett Indians, accompanied by tribal police officer Edward McQuaide, greets supporters outside the federal courthouse in Providence yesterday.”We needed to avoid this, what they are doing is illegal,” Carcieri said he told Thomas. “What can we do?”
Carcieri offered a possible compromise. If Thomas closed the business, the governor would try to entertain the idea of a “compact” between the state and tribe. It might resemble agreements that other states had reached with tribes regarding taxation and other regulation.
The two sides reserved a private room at the Crowne Plaza in Warwick and agreed to meet Sunday afternoon.
Thomas, Dufault, the tribe’s lawyer, John Killoy Jr., and Randy Noka, the tribe’s first councilman, sat on one side of a large table.
McKay, Andrew Hodgkin, the executive counsel, and Jeff Grybowski, the governor’s policy director, sat on the other side.
It was soon pretty clear that Thomas had grander ambitions than the smoke shop. He wanted the governor to drop his opposition to a referendum on the casino issue. Thomas said it was time for voters to decide the issue.
The tribe had tried again this year to lobby for such a referendum and failed. After more than a decade of struggle on this issue, the tribe’s patience had grown thin. Carcieri had offered to help promote economic development opportunities for the tribe. He had visited the tribal lands in Charlestown.
But Thomas said the governor proposed finding jobs for tribal members in non-Indian businesses. The impoverished tribe wants to be self- sufficient, Thomas said. The Narragansetts wanted a casino or at least a smoke shop.
Thomas said in an interview that the smoke shop opening was timed with yesterday’s General Assembly session when lawmakers convened to override Carcieri’s budget veto.
The government had one more chance to take up the casino issue, Thomas figured.
After more than two hours of discussion at the Crowne Plaza, the meeting broke down.
The governor’s team would not budge on the casino issue. The tribe said the smoke shop would remain open. “OK, I’ll see you in court,” Thomas told the governor’s team. The two sides shook hands and went
That night, Thomas went out to dinner with his wife.
The Narragansetts closed for business. After two days, Dufault said the tribe had generated $17,000 in gross cigarette sales.
The governor called Atty. Gen. Patrick Lynch to discuss the next course of action.
Carcieri said that the attorney general recommended that the state police serve a search warrant on the property. The governor said he discussed several ideas with prosecutors, but this one seemed the best.
Carcieri spoke with Col. Steven M. Pare, superintendent of the state police, several times that night to discuss the serving of the search warrant.
At some point during those conversations, Carcieri said he told Pare that if there was any confrontation, the state police should back down.
On Monday morning, Thomas put on a collared shirt and tie. He was expecting to go to court, where he thought the state would seek a restraining order to shut down his business.
Reporters, expecting a story about a court dispute, camped out in the gravel lot of the smoke shop. Thomas was interviewed on TV.
Carcieri called Pare and told him to execute the search warrant at the smoke shop.
Shortly before 1 p.m., Thomas received a call on his cell phone. It was Hiawatha Brown, calling from his car on the way to T.F. Green Airport.
He said there was a convoy of state police cars, driving down Route 2, heading for the smoke shop.
Rhode Island GOv Back Peddles into a deeper Swamp
Governor apologizes to those injured
BY MARK ARSENAULT, MICHAEL CORKERY, PAUL DAVIS, SCOTT MacKAY, and KATIE MULVANEY
Journal Staff Writers
With national attention on the melee between state police and the Narragansett Indians, Governor Carcieri yesterday backed away from wholly blaming the tribe and ordered two investigations into the state’s actions.
State police officers executing a search warrant at the tribe’s newly opened smoke shop in Charlestown on Monday had “explicit” instructions from him to avoid conflict if they met any resistance, Carcieri said yesterday.
“The discussion was that if they met resistance they would withdraw,” Carcieri said at a news conference yesterday. “That’s what we’re going to look at — what happened? It looked to me that they met resistance. Why did they not withdraw?”
At least eight people were injured in the fighting and seven tribal members were arrested, including Chief Sachem Matthew Thomas.
After strongly condemning the Narragansetts on Monday for causing the fracas, Carcieri softened yesterday. “I think there is ample blame to go around on many fronts.”
He said he wants to “lower the temperature” of the dispute.
Carcieri directed state police Col. Steven Pare to conduct an internal investigation within 10 days, “to ascertain why my instructions were not followed” and “whether the conduct of the state police officers was proper under the circumstances.”
He will also appoint within the next few days an independent panel to review the incident and recommend ways to avoid such conflicts in the future. That panel will report back in 30 days.
Video of the melee is drawing complaints from Native American and civil rights groups. The governor, whose popularity is soaring — with more than 70 percent approval in a recent Brown University poll — is suddenly embroiled in the negative national media attention from the raid.
“The way this has played out in the national and international media has given Rhode Island a black eye,” said Senate President William V. Irons, D-East Providence. “I think it is a very sad moment in the history of Rhode Island.”
Several lawmakers last night accused Carcieri of trying to shift blame to the state police.
Rep. Paul Moura, D-Providence, said the governor “threw the state police under the bus” to deflect responsibility. The incident “was a tragedy and an avoidable tragedy. It was caused by extremely poor decision-making.”
The governor said that he didn’t expect the dispute to become violent. “To the extent that this resulted in any physical injury or harm to any person, I apologize to the people of this state.
“I care too much about that state, all of her citizens, our state police, and I did not want this to happen and I’m very sorry about that.”
He maintained that the Narragansetts’ tax-free tobacco shop was illegal, and that nobody would have been hurt if Thomas had “simply accepted the service of the warrant.”
And he reiterated his charge that Thomas offered to close the smoke shop only if the governor dropped his opposition to the tribe’s long- standing dream of opening a casino.
THE FIGHT over the smoke shop moved yesterday from headlocks and handcuffs in a gravel parking lot to state and federal courthouses in Providence and South County.
The heart of the dispute is whether the tribe has a federally protected status that exempts it from state taxes.
The state yesterday asked a Washington County Superior Court judge to shut down the tribe’s smoke shop because customers don’t pay state taxes. The tribe failed to get a retail sales tax permit and a cigarette dealer’s license before opening the store on Route 2, Atty. Gen. Patrick C. Lynch said. Cigarette packs sold at the shop don’t include the necessary tax stamp. The tribe has also failed to collect taxes and remit them to the state, he said.
The state’s division of taxation sells tax stamps to licensed wholesalers for $1.50 a pack. It also charges a 7 percent sales tax.
Without a temporary restraining order, the state “will immediately and permanently lose tax revenue that it may be unable to recover from the tribe,” Lynch said.
The request, filed yesterday afternoon, does not say how much money the state could lose.
Superior Court Judge Ronald Gagnon is scheduled to hear the state’s request today at 9:30 a.m.
James Lee, chief of the attorney general’s criminal division, told members of the Narragansett tribe that they “are not exempt from Rhode Island laws whether they are operating on sovereign land or not.”
The Narragansetts believe otherwise.
They went to federal court yesterday seeking a restraining order that would allow them to reopen the smoke shop on tribal lands without state interference.
The tribe asked the court to affirm that it is a sovereign Indian nation, free from state taxes. They also want the court to vacate the charges against the seven Narragansetts arrested Monday, and to return all cigarettes and money seized by the police.
The tribe’s motion is scheduled to be heard this morning in a closed- door hearing before U.S. District Court Judge William Smith.
The tribe’s lawyer, John F. Killoy Jr., laid out the Narragansetts’ argument against the state in his motion. Citing federal case law, he argues that the tribe’s sovereign immunity prevents the state from taxing them without an act of Congress. “Allowing an unlawful assertion of state authority over the Tribe, absent an express grant by Congress, is a violation of the Constitution and the long established principles of federal Indian law,” the motion states.
The tribe’s argument focuses on its interpretation of the Rhode Island Indian Claim Settlement Act of 1978, which recognized the tribe’s land claims in Rhode Island, and the federal government’s recognition of the tribe in 1983.
Killoy argues that neither the Settlement Act nor federal recognition permits the state to tax the tribe. The motion does not address the issue of cigarette sales specifically, nor the arrangements that other Indian tribes have with other states regarding the sale of cigarettes.
In New York, the state tried for years to stop the Seneca tribe from selling tax-free cigarettes. After a lengthy court battle, the state won the right to tax non-Indians who bought tobacco on tribal land, said Christine Pritchard, a spokeswoman for New York State Atty. Gen. Eliot Spitzer.
In protest, Indians in April 1997 burned piles of tires, closed major roads, fought with state troopers and stole some of their hats and wore them.
“There was a lot of violence,” Pritchard said. The state chose not to enforce the law, a move that was upheld by the courts. In effect, the state “won the right to collect the sales tax and the right not to collect the sales tax,” she said.
STATE DOCUMENTS filed in Washington County Superior Court yesterday said the Seneca tribe supplied the Narragansetts with cigarettes and “initial start-up costs” for the smoke shop.
Police said they saw vehicles with New York plates back up to the Route 2 store before it opened, the state said.
In the two days the shop was open, the Narragansetts collected $17,000 in gross sales of cigarettes, according to Guy Dufault, the tribe’s spokesman. By Sunday afternoon, they had sold out of most major brands.
On talk radio WHJJ, former Rhode Island Atty. Gen. Arlene Violet and radio callers grilled Lynch yesterday on the state’s handling of the smoke-shop raid. Lynch said the 1978 settlement agreement gives the state the right to close the smoke shop.
But Violet cited case law “that says the settlement act does not mean the state has total jurisdiction” in each and every case involving the tribe.
Violet asked Lynch whether he advised the governor to conduct the raid first, and then the civil action?
“I do not, as you know, serve in a supervisory authority over the state police,” said Lynch, “but I certainly give advice when asked, and that certainly happened over the weekend.”
“So why the confrontation route,” asked Violet, “when the decision clearly says you don’t have to make the decision” before filing for injunctive relief?
Lynch said, “My advice was we would advise the governor that a crime had been committed and a search warrant would be appropriate,” and then, the raid.
Lynch also took exception with some people’s reading of the TV footage.
“I must say I see it differently than many other people that talk about the state police going in there on this violent raid,” he said. He said he saw Thomas “jump on the back” of a state trooper.
ABOUT 150 tribal members kept camp yesterday on the dusty lot where tribal leaders clashed with police. Members of the Mohawk, Wampanoag tribe of Gay Head, Abenaki, and Eastern Pequot tribes joined the group in a show of support for the Narragansetts’ rights as a sovereign nation.
In a statement released yesterday, the Mashantucket Pequot Tribal Council expressed support for the Narragansetts. Their reservation lands are sacred, and its government’s right to live peacefully on that land pre-exists the rights of any state or federal government, said the Mashantucket Pequots, who own Foxwoods Casino.
“We are astonished at the level of intervention the state of Rhode Island has chosen in this matter and we believe the level of force was inappropriate and unnecessary,” the statement said. “They jeopardized the personal safety of citizens of a tribal nation, of a community at large, and, in particular, children.”
Moonanum James, of the Wampanoags, traveled to Charlestown yesterday from Cambridge, Mass. He was dismayed by video images of police wrestling Thomas to the ground. “To take down the chief like that. As far as the Narragansett nation goes, he’s just as important as George Bush,” said James, a co-leader of the United American Indians of New England.
“These things should be fought in the federal courthouse, not in the field of battle,” said Lone Wolf Jackson, whose Eastern Pequot tribe recently won federal recognition.
Tribal elders rested at the site in shaded lawn chairs as a car stereo piped in an endless stream of talk radio. The voices of Carcieri and Thomas alternated throughout the day.
The encampment sprang up in the hours after the police raid, and it appeared that it would stay put — at least for a while. A barbecue grill, lid lifted, flanked a table covered with boxes of doughnuts and coffee and petitions in support of the Narragansett Indian tribe. Portable toilets lined up beside the trailer housing the smoke shop. A crude sign asking supporters not to play the state lottery hung on the steps to the closed shop.
Rain Spears, 18, jabbed at the ceremonial fire in the center of the gathering — using a walking stick entwined with a leather rope and a hawk feather dangling from its handle. Seven stones encircled the blaze, symbolizing seven past and future generations of the Narragansett people. The blaze had a dual meaning, tribal members said, to mourn and to heal the tribe.
“We assessed the spirit of the tribe and it’s here, there’s unity,” said Medicine Man Lloyd Wilcox. “I find what they’ve done a despicable act.”
As smoke headed to the sky in the 80-degree heat, talk focused on the previous day’s events. About a dozen photographers and reporters stood by.
Tribal members clung to Thomas’s words during a late afternoon news conference at the smoke shop. He informed them of the lawsuits filed on the tribe’s behalf in federal court yesterday.
“We feel our rights were violated. We intend to push it to the limit,” Thomas said.
The tribe has planned a unity gathering for 7:30 p.m. tomorrow at the site of the smoke shop. Thomas said he has requested federal assistance to ensure safety at the event.
CHARLESTOWN police notified state police around 10 a.m. on Saturday that the tribe’s smoke shop was opening, according to a police affidavit submitted in support of the request for a search warrant.
Trooper Jeffrey Clark responded from the Hope Valley barracks, noting roadside advertising for different brands of smokes. Clark asked Thomas to show him the tribe’s sales permit. Thomas replied, “we don’t need them, this is federal property and I would appreciate it if you would get your state car off our property,” according to the affidavit.
Police came back undercover around 3 p.m. and bought two cartons of cigarettes: Marlboro filters, for $24.99, and Seneca brand, for $9.99. No taxes were recorded for the sale, according to police.
With state taxes, the Marlboros would typically sell for $48 or $49, according to the police.
Carcieri said yesterday that he asked Thomas “numerous times” over the weekend to “cease the illegal activity.”
The governor consulted with his staff and Lynch over the weekend on options for dealing with the smoke shop. The “unanimous” consensus – – recommended by Lynch, according to Carcieri — was to execute a search warrant and seize the untaxed cigarettes.
Carcieri took “full responsibility” yesterday for ordering the seizure, saying he based the decision on the recommendations of Lynch and his own staff. He said he instructed the police “to serve the warrant under the explicit condition that if any resistance was encountered, the state police were to withdraw.”A group of state police officers came through the woods around 1 p.m. on Monday to back up five officers inside the shop who were executing the search warrant. Tribal members met them in a chest-to-chest staredown, which soon escalated.
State police charged Hiawatha Brown and Thomas with disorderly conduct and assaulting a police officer. They were released on bail Monday. John Brown, Thawn Harris, a tribal environmental police officer, and First Councilman Randy Noka were charged with disorderly conduct and resisting arrest. They were released on personal recognizance. Bella Noka, Randy’s wife, was charged with disorderly conduct and released.
The five male Narragansetts arrested Monday are scheduled to appear July 30 at hearings in District Court, South Kingstown.
Eight people hurt in the melee were treated and released from South County Hospital by Monday night, Tony DeSpirito, spokesman for the hospital, said yesterday. On Monday, the medical center on tribal property reported that they treated nine people for injuries, referring two of them to unspecified hospitals.
State police Col. Steven Pare offered this statement yesterday when asked why his officers did not withdraw when tribal members resisted:
“We had every intention of going onto the land, searching for the untaxed cigarettes and leaving after seizing those cigarettes. We were met with some resistance. The officers on the scene, Major [John] Leyden in charge, was comfortable enough that the resistance could be managed. From there it escalated to what we’ve all seen.”
AT THE State House, where the Democratic Assembly leadership has been under relentless fire from Carcieri over budget matters, yesterday was a day to denounce the governor’s handling of the incident. The Assembly was gathered to override Carcieri’s veto of the budget they approved.
“Governor Sound-bite just got bit,” said Rep. William San Bento, D- Pawtucket.
Said Rep. Timothy Williamson, D-West Warwick, “You can’t spin that videotape. I had a lot of respect for him after the Station fire, the way he handled things. Today I’m embarrassed and ashamed about what he has done.”
House Speaker William J. Murphy, D-West Warwick, said Carcieri triggered the mess by failing to get a court injunction before sending police onto tribal lands. “The state police acted properly,” said Murphy. “But it is unfortunate that they were ordered to do this. It would have been more prudent to seek an injunction. There were young children in there.”
Others said Carcieri’s decision to send in the state police on Monday and then yesterday question how they did their jobs showed the governor’s political inexperience.
“I don’t fault the police; I fault the governor,” said Rep. Steve Smith, D-Providence. “The governor has to remember he is no longer a corporate CEO, he is a political leader. He is an intelligent man and I trust he will learn and will learn that you can’t always dictate, sometimes you have to negotiate.”
House Minority Leader Robert A. Watson, R-East Greenwich, gamely stood up for Carcieri, using a parliamentary move to avoid a House vote on a resolution sponsored by Rep. Charlene Lima, D-Cranston, to condemn Carcieri for “using police force” to close the smoke shop.
After Moura and Rep. Frank Montanaro, D-Cranston, stood on the House floor to support the state police, Watson rose from his seat to state his respect for Carcieri.
YESTERDAY BROUGHT vocal reaction to the incident.
Former Atty. Gen. Sheldon Whitehouse called the state police raid “a dumb decision.” Questioned briefly after a hearing yesterday on a lawsuit against the nation’s paint companies, Whitehouse said he felt bad for the state police — that officers were put in a bad position and acted properly.
But he criticized Carcieri’s decision to order the police to seize the cigarettes. “That’s what we have injunctions for,” Whitehouse said. “This is what happens when people with no background in law enforcement start meddling. He [Carcieri] should stick to the budget.”
The National Congress of American Indians, based in Washington, D.C., was “shocked and disgusted” by the video.
Tex Hall, president of the Indian congress, acknowledged that states and tribes across America often disagree over jurisdiction.
“But it has been decades since we have seen a state action as violent and destructive as that taken [Monday] by the State of Rhode Island,” Hall said in a statement. “The NCAI strongly condemns the actions that we witnessed. They remind us of the violent and racist practices that our peoples have suffered for generations.”
Closer to home, the Rhode Island Civil Rights Roundtable issued a statement calling the raid “inappropriate and excessive.”
“While state officials place the blame on the Narragansetts for provoking this terrible incident, one does not defuse a situation by bringing in a few dozen troopers and police dogs to execute a warrant.”
With reports from Peter B. Lord and Karen Lee Ziner.
Rhode Island Tries to claim History is on its side
Each side looking to history to support its argument
At issue is whether the tribe is a sovereign nation or must abide by state laws.
BY JOHN E. MULLIGAN
Journal Washington Bureau
WASHINGTON — Like their bitter casino gambling fight in the 1990s, the State of Rhode Island’s smoke-shop dispute with the Narragansett Indians is rooted in a line from the 25-year-old federal law that settled the tribe’s claim to traditional lands in South County:
“The settlement lands shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island.”
Then, as now, the Narragansetts set out to follow other tribes into a profitable business realm where Indians enjoyed rights unavailable to other citizens.
Then, as now, the Narragansetts argued that their sovereignty exempted the enterprise from state regulation and reduced their obligations under the land-claims settlement.
Then, as now, Rhode Island argued that the tribe had freely accepted state regulation when it made the deal that secured its 1,800 acres of tribal land in Charlestown — and later, federal recognition of the sovereignty that had been legally clouded for centuries.
The gambling issue was settled in the state’s favor in a 1997 federal court ruling — later upheld by the Supreme Court — that said the Narragansetts, like any other group, had to get Rhode Island voter approval of any plan to build a high-stakes gambling hall.
But the state’s path to victory was long and far from straight. At one point in 1993, a federal judge in Rhode Island ruled that the tribe qualified for special gambling-business advantages granted by a federal law enacted a decade after the Narragansett Indian Land Claims Settlement Act of 1978.
In response to that ruling, Gov. Bruce G. Sundlun and the tribe made a deal in 1994 for a casino in West Greenwich, subject to statewide referendum. That proved in retrospect to be the high water mark for the Narragansetts’ dreams of gambling wealth; Rhode Island voters rejected the deal that fall.
In 1996, Congress passed an amendment to the federal Indian gambling law that Sen. John H. Chafee, the amendment’s author, portrayed as closing a legal loophole that superseded the Narragansetts’ 1978 agreement to abide by state and local law.
When the courts ruled that Chafee’s measure was constitutional, he said the terms of the original agreement among the tribe, the Town of Charlestown and the state and federal governments had been made clearer than ever.
“If people want to have some gambling in Rhode Island, then everybody ought to play by the same rules,” the Republican senator said.
The opponents of the tribe’s new effort to start a business in tax-free cigarettes — which would threaten a source of state revenue at a moment of budget belt-tightening — say their case is even stronger than it was against Narragansett casino gambling.
Besides the general clause binding the tribe to state and local law, said Joseph S. Larisa, a lawyer for the Town of Charlestown, the 1978 land claims act says specifically that the tribe is not exempt from taxes on income-producing business.
The tribe’s lawyer, John Killoy, responds that the situation is not that simple and argued that point in the lawsuit he filed yesterday in U.S. District Court, Providence.
One implicit argument in Killoy’s case is that tax law is different from gambling law — and it favors the tribe’s pursuit of a tax-free smoke shop.
Independent experts in Indian law note that tax-free tribe-affiliated smoke shops operate across the country, sometimes under agreements between the tribes and the states where they live.
Prof. Richard B. Collins of the University of Colorado at Boulder said that one quirk in federal case law might be crucial.
Collins said the Supreme Court has ruled more than once that tribal smoke shops must impose the equivalent of state taxes on cigarette buyers who are not members of the tribe. But he said that precedent applies only to the majority of states that share a particular tax-law technicality.
Collins said the court’s guidance applies only to the large majority of states where, technically, the tax burden falls on the individual smoker who buys the cigarettes — not on the retail outlet that sells the smokes.
The tribe’s legal filing suggests that Rhode Island’s tax law works to its advantage because the tax burden falls, technically, on the seller, in this case the tribe, and not on the individual cigarette buyer.
Other things being equal, that seemingly esoteric distinction could be a key to the outcome of the legal dispute over the Narragansetts’ smoke shop, Collins said.
But Jeff Neal, a spokesman for Governor Carcieri, said last night, “It doesn’t matter if the tax falls on the store or the individual.” The language of the 1978 settlement act is so clear that the details of state tax law will not figure in the case, said Neal.
Whatever the result of the court dispute — which could drag on for months or years — it’s clear that political considerations could weigh as heavily as legal ones, according to Steve Tullburg of the Washington-based Indian Law Resource Center.
In upstate New York, Tullburg said, federal court decisions went heavily in favor of the state’s argument that Indian tribes were forbidden to sell tax-free cigarettes to non-tribe members.
“But the state has not in fact enforced the law,” he said, because state efforts to do so could prove so politically volatile.
“The idea of state tax agents coming onto Indian land is so offensive” to the tribes in question that New York has made no concerted effort to do so, Tullburg said.
As a consequence, Tullburg said, tribal smoke shops have proliferated in New York, some under formal agreement with the state, some not.
Some Mohawks and Senecas have expanded, moreover, into tax-free gasoline sales and Internet cigarette sales, deepening what were already intractable disputes among the tribes, their neighbors, the state and retail business organizations.
Occasionally, the disputes have erupted into bigger disruptions than Monday’s smoke-shop confrontation in Rhode Island. Some protests have featured blocked highways, tire-burning and fisticuffs, according to Tullburg.
Rhode Island Pols Backpeddle side-step and Squirm
Settle it in court, R.I. delegation says
The state’s two senators and two representatives refuse to blame either side for Monday’s melee.
BY JOHN E. MULLIGAN
Journal Washington Bureau
WASHINGTON — Members of Rhode Island’s congressional delegation, while deploring the violence of Monday’s confrontation between members of the state police and the Narragansett Indian tribe, refused to assess responsibility for the incident Monday and urged the two parties to settle their differences in court.
With the exception of Sen. Lincoln D. Chafee — who said be believes it is unlawful for the tribe to sell tax-free cigarettes — the legislators also declined to offer views about whether tribal sovereignty entitles the Narragansetts to operate a smoke shop without state approval.
Rep. Patrick J. Kennedy, once the delegation’s lone defender of the tribe’s efforts to seek a gambling casino over state objections, said in an interview that he does not know whether the smoke shop is legal and does not expect to take a position until the issue is settled by the courts.
Said Kennedy in a statement issued by his office: “I do not believe it is the place of a congressman to pass judgment on who is right and who is wrong in this instance. That is why we have a judicial system in place and I believe a resolution should be borne out in that arena.
“In the meantime, I would encourage both sides to mediate this dispute at the negotiating table in an effort to avoid this type of confrontation in the future. It is my hope that we can avoid the type of altercation that most of Rhode Island saw yesterday on the news and come to a settlement that is acceptable to both sides,” Kennedy said.
Sen. Jack Reed and Rep. James Langevin — both opponents of the tribe’s pursuit of a gambling enterprise without voter approval — declined to state a view about the tax-free tobacco business. Reed also declined to be interviewed on the subject, issuing only a printed statement.
Langevin, who represents the tribe and its neighbors in South County, said in an interview, “The state and the tribe both believe their positions are justified.” He said the legality of the smoke shop should be settled in the courts or through negotiation.
Speaking of the video images of the physical clash in Charlestown, Langevin said, “Certainly the scene was disturbing but sometimes pictures don’t tell the entire story and I’m reluctant to pass judgment until I’ve heard from everyone involved.”
Chafee said in an interview that he believes there are limits on Narragansett tribal sovereignty, based on the 1978 federal law that settled the tribe’s claim to lands in the state. “From what I understand, the 1978 agreement was a trade of land for an agreement [by the tribe] to abide by all the local and state laws,” said Chafee, “and to me it sounds like these tobacco taxes are state law.”
But Chafee said he “understands the frustration” of the Narragansetts, who have seen a steady expansion of state-regulated video gambling. “Rhode Island keeps voting down casinos for the Narragansetts, yet Rhode Islanders are streaming across the border to Connecticut,” where two tribes operate lucrative casinos.
“I can understand that they want a piece of it,” said Chafee. He said he remains opposed to casino gambling but added, “there has got to be some way” to consider the tribe’s desire for some portion of state gambling revenue.
Reed said in a printed statement that the courts should settle the dispute.
“The current legal process must be accompanied by an ongoing civil dialogue that respects each side while recognizing that our courts are the best forum for resolving complex issues of state and tribal sovereignties,” Reed said.
Narragansett Indian tribe can only be regulated By federal Law
Chief: Tribe was protecting its sovereignty
The following are excerpts from remarks delivered by Chief Sachem Matthew Thomas at a news conference Monday. The transcript was made from a tape provided through the courtesy of Channel 10, WJAR-TV.
[A] couple of things [are] very concerning to us. First of all, to ignore the federal status about the tribe is unacceptable. That’s number one.
Secondly, I was in discussions with the governor. And to sit here and tell you that emotions weren’t running high among the tribe would be a lie, after 14 years of battling to produce some kind of economic development, especially a casino. So our folks were upset. And I explained to him if we’re going to disagree on a smoke shop, to please do it in a courtroom. Don’t get confrontational.
And it was understood that — at least I had that understanding — that that’s what we were going to do. So when the state police showed up, and their dogs and all of the people in their military garb, the Narragansett Indian tribe did what it’s always done; it stood to protect its land. And I commend those police officers and tribal council members and tribal members in general for standing to protect our land, something we’ve done years ago. And it’s unfortunate because it’s 2003.
And if you look at it historically, how we fought the colonists years ago, they’d just come in and blow our heads off. . . . And now we’re battling in the courts and we’ll see what happens. But I said today, as I was being taken out of here — in my opinion, illegally, and we will prove that tomorrow when we go to the courts, by the state — that Governor Carcieri should be ashamed of himself.
And I stand by that comment, because of the conversations I did have with the governor Saturday evening and Sunday morning. . . .
So today’s actions were unacceptable, not only by us, but it should be [considered] unacceptable by you, the people of Rhode Island. Absolutely. . . .
. . . the tribe has federal status. And under that federal status, our agreement is with Congress. But for anybody who doesn’t understand that, go back and look at 1996 at what’s called the Chafee rider. If we were under state law, there would have been no need for a Chafee rider. We are not under state law. That act had to be a congressional act. Otherwise, he wouldn’t have had to do that, the late Senator Chafee. So I think Governor Carcieri, who’s obviously a smart businessman — and I have a lot of respect for him — a smart businessman should have done his homework. [He] should have done his homework before he took action. Every man is responsible for their actions. Now if I brought this on, as the governor’s claiming — I think he brought it on.
In my conversations with him, I basically said, “Governor, let’s settle this peacefully, in the courts.” Keep in mind, if your sovereignty is attacked I’m talking about non-tribal people — and I’ll give you an example. When those planes hit those buildings on 9/11, Americans jumped up and were ready to grab arms. But if somebody attacks our sovereignty, we’re supposed to sit back and take it.
So we stand, we stand today, if it means facing fire, they’re gonna have to shoot me or keep cuffing me up — and you’ve seen what they’ve done . . . But I’m proud of our tribe.