Narragansett Indian Smoke Shop Update
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Tribe member appeals verdict in smoke shop lawsuit
August 26, 2008
PROVIDENCE, R.I.—A Narragansett Indian Tribe member who lost a lawsuit last month over a 2003 state police raid on a tribal smoke shop is appealing the jury’s decision.
Adam Jennings accused Trooper Kenneth Jones of breaking his ankle during the July 2003 raid, which was carried out to block the tribe from selling tax-free cigarettes at its smoke shop in Charlestown.
But a federal jury found that Jones had not used excessive force and ruled in his favor.
Jennings on Tuesday filed a notice of appeal with the 1st U.S. Circuit Court of Appeals in Boston.
The recent trial was the second of the lawsuit. In 2005, a federal jury awarded Jennings just over $300,000, but a judge set aside the verdict. A new trial was ordered after an appeal.
Federal Appeals Court Hears Smoke Shop Appeal
State Called Earlier Ruling Contradictory
December 6, 2005
BOSTON — The state of Rhode Island asked a federal appeals court Tuesday to reconsider its ruling that the state violated the sovereignty of the Narragansett Indians when it raided a tax-free tribal smoke shop.
In May, a three-judge panel of the 1st U.S. Circuit Court of Appeals ruled that the state violated the tribe’s sovereignty when state police raided the shop, seized cigarettes and arrested tribal leaders in July 2003. Television news crews recorded the chaotic scene as state troopers moved in.
The court, however, said the federally recognized tribe was breaking state law by selling tobacco tax-free and ruled the state could collect taxes on the tribe’s cigarette sales to non-Indians.
State officials appealed to the full appeals court, calling the ruling contradictory and saying it could limit its ability to enforce laws on the tribe’s 1,800 acres. Lawyers for the state said the ruling did not address to what extent the state can enforce its tax laws on tribal land.
At the time of the raid, the shop — located on tribal land in Charlestown — had been open for two days. The state said the raid was necessary to stop the illegal sale of tax-free cigarettes.
The full court heard arguments on the issue of enforcement Tuesday.
Rhode Island Assistant Attorney General Neil Kelly said a 1978 agreement between the tribe and the state that gave the tribe its land establishes that the tribe is subject to the civil and criminal laws of the state of Rhode Island.
But Douglas Luckerman, an attorney for the tribe, said that while the state has authority over individual members of the tribe, it does not have authority over the tribal government, which was running the smoke shop.
“The tribe’s sovereign immunity limits both the extent and the manner in which the state can enforce its laws against the tribe,” Luckerman said.
Chief Sachem Matthew Thomas said after the hearing that the tribe has agreed to delay the reopening of the smoke shop until the appeal is decided. The court did not indicate when it would issue its ruling.
The 1st Circuit Court invited lawyers for the tribe and the state to submit additional written arguments in light of a case decided by the U.S. Supreme Court on Tuesday.
In a 7-2 vote, the high court ruled that states have the authority to tax fuel sold on Indian reservations. Ruling in a Kansas case, the court said the state can tax distributors who sell fuel at an Indian-owned and operated gas station near the Prairie Band Potawatomi tribe’s casino. The court said the tax did not violate tribal sovereignty.
ACLU backing tribe in smoke-shop suit
The state has asked that the case be reconsidered, saying the ruling would dramatically limit its ability to enforce laws on the Narragansetts’ land.?
The state has asked that the case be reconsidered, saying the ruling would dramatically limit its ability to enforce laws on the Narragansetts’ land.?
September 25, 2005
BY KATIE MULVANEY
Journal Staff Writer?
BY KATIE MULVANEY
Journal Staff Writer?
The American Civil Liberties U nion and the National Congress of American Indians are backing the Narragansett tribe in challenging the state’s raid on a tribal smoke shop.
The Rhode Island Affiliate of the ACLU, the national ACLU and the NCAI filed a friend-of-the-court brief Wednesday arguing that the highly publicized raid violated the tribe’s sovereign rights.
“This case raises issues of enormous consequence for Indian tribes. We are hopeful that the court will agree that the state’s heavy-handed raid was incompatible with long-standing principles of tribal sovereignty,” Steven Brown, executive director of the Rhode Island ACLU, said in a statement.
State police raided the shop in a violent clash on July 14, 2003, two days after the tribe began selling tax-free cigarettes over the state’s objections.
A U.S. District Court judge ruled in December 2003 that the tribe was bound by state tax and criminal laws and that the state was entitled to halt the sale of tax-free cigarettes. The tribe appealed that decision to the 1st U.S. Circuit Court of Appeals.
In May, a three-judge panel from the 1st Circuit found that the state violated the tribe’s sovereignty when troopers executed a state search warrant on the shop, arrested tribal leaders, and seized cigarettes and cash. The judges concluded that the state could collect taxes on the tribe’s cigarette sales to non-Indians, but that it must find other ways to enforce its laws.
The state asked the full court to rehear the case, claiming the ruling would dramatically limit its ability to enforce laws on the tribal land in Charlestown. The court agreed to reconsider the enforcement issues on Dec. 6.
The ACLU and NCAI hope to weigh in on the debate.
“The federal policy of leaving Indian tribes free from state jurisdiction and control is ‘deeply rooted’ in the nation’s history,” the brief notes.
“The tribe retains sufficient inherent sovereignty to preclude enforcement of the state’s tax laws against the tribe. The state can no more impose its tax laws on the tribe than it could impose its laws on surrounding states,” according to the brief.
Rhode Island remains free to collect taxes by other means, including by cooperative agreement with the tribe, the brief says.
“Tribal sovereignty and the substantial federal interests protecting it cannot be abrogated merely because a state chooses not to avail itself of existing mechanisms,” the brief concludes.
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Judge overturns verdict against state trooper in smoke-shop case
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August 24, 2005
PROVIDENCE — A U.S. District Court judge has overturned a jury verdict finding that a Rhode Island state trooper had used excessive force during the Narragansett Indian smoke shop raid two years ago.
The ruling by Chief Judge Ernest C. Torres also sets aside the $301,100 judgment against Trooper Kenneth Jones on March 28 for his handling of plaintiff Adam Jennings.
Jones was among the state troopers who raided the shop on tribal lands in Charlestown on July 14, 2003, at Governor Carcieri’s orders to stop what the state claimed was the illegal sale of tax-free cigarettes. A violent tussle unfolded as troopers executed the state-issued search warrant, televised images of which played nationwide.
Jennings, who was working at the shop, suffered a broken ankle after he was wrestled to the ground by troopers. Police said Jennings was resisting arrest during the raid. Jennings testified that he was not struggling, and denied that he resisted troopers’ efforts to handcuff him.
Jennings, his mother, Paulla Dove Jennings, and shop manager Keith Huertas filed suit in December 2003. They claimed seven state troopers used excessive force and violated their civil rights as Indians during the raid. They also accused the officers of false imprisonment, intentional infliction of emotional distress and assault and battery.
Torres had earlier dropped all but the excessive force and battery claims against Troopers Jones, Staci Shepherd and Ken Bell. The judge also dismissed Jennings’ claim of punitive damages against Jones. The jury ruled in favor of Shepherd and Bell.
The state Attorney General’s Office in April filed for a new trial, saying the jury had “based its decision on sympathy, speculation and conjecture,” and that the $301,100 award was “grossly excessive.”
In his decision today, Torres said he found Jennings’ trial testimony “difficult to accept” and said it was inconsistent with Jennings’ conduct before being wrestled to the floor.
“This is a case in which the plaintiffs’ own conduct in resisting arrest justified the use of physical force and force was applied, solely, for the purpose of subduing him,” Torres wrote.
Attorney General Patrick Lynch today said, “Judge Torres’s ruling plainly states that law enforcement officials, in general, and Trooper Kenneth Jones, in particular, have a right to use reasonable force, when warranted, when confronted with a situation such as existed in the smoke shop case.”
He added, “Today’s ruling confirms what this office has always maintained: The troopers who responded that day fulfilled their duties, and performed well under extremely challenging circumstances.”
Jones has continued working for the state police. A state police report into the incident absolved the troopers.
Full Appeals Court Agrees To Rehear Part Of Smoke Shop Lawsuit
Attorney General Says Ruling ‘Contradictory’
July 8, 2005
PROVIDENCE, R.I. — A federal appeals court has agreed to rehear a lawsuit over the Narragansett Indian tribe’s tax-free smoke shop.
Last month, the state asked the full 1st U.S. Circuit Court of Appeals to review the case after a panel of judges ruled in May that the state can require the Narragansett to collect taxes on cigarette sales, but violated the tribe’s sovereignty when state troopers executed a search warrant on tribal lands and forced their way into the smoke shop.
The state was trying to stop the sale of tax-free cigarettes.
Attorney General Patrick Lynch said the ruling was contradictory, and did not answer the question of how the state could enforce its laws.
The appeals court’s decision Friday vacates the part of the ruling dealing with enforcement so all the court’s judges can rehear arguments on that issue.
Lynch said he was pleased with the court’s decision to rehear the case.
“Both the state of Rhode Island and the Narragansett Indian tribe seek more clarity than the earlier ruling provided. The people of Rhode Island want more clarity, too,” he said.
A message left with the tribe’s chief sachem was not immediately returned.
State police raided the shop in July 2003. It had operated for two days on tribal lands in Charlestown.
COURT TO REHEAR PART OF SMOKE SHOP CASE
July 9, 2005
By The Associated Press And Sun Staff
By The Associated Press And Sun Staff
PROVIDENCE – A federal appeals court has agreed to rehear a lawsuit over the Narragansett Indian Tribe’s tax-free smoke shop in Charlestown.
Last month, the state asked the full 1st U.S. Circuit Court of Appeals to review the case after a panel of judges ruled in May that the state can require the Narragansetts to collect taxes on cigarette sales, but violated the tribe’s sovereignty when state troopers executed a search warrant on tribal lands and forced their way into the smoke shop.
The state was trying to stop the sale of tax-free cigarettes.
Attorney General Patrick Lynch said the ruling was contradictory, and did not answer the question of how the state could enforce its laws.
The appeals court’s decision Friday vacates the part of the ruling dealing with enforcement so all the court’s judges can rehear arguments on that issue.
A spokesman for the attorney general said Lynch feels it is important to have the issue clarified.
A message left with the tribe’s chief sachem was not immediately returned.
In May, the tribe voted and announced plans to reopen the shop and sell tobacco tax-free to only members of American Indian tribes. They said they also hoped to reach an agreement with state officials to sell tobacco to non-American Indians.
The announcement followed a May 12 ruling by the U.S. 1st Circuit Court of Appeals in Boston that state police violated the tribe’s sovereignty when they raided the shop. The decision also upheld a lower court ruling that the tribe must collect state taxes on the sale of cigarettes to non-American Indians.
State and Charlestown officials maintain it is illegal for the tribe to sell tobacco tax free, pointing to the ruling.
State police raided the shop on Route 2 in July 2003. It had operated for two days on tribal lands.
The tribe opened the shop on July 12, 2003. Two days later, Gov. Donald Carcieri deemed the sale of tax-free cigarettes illegal and ordered state troopers to raid the trailer. The events of the raid – in which eight people were injured, seven tribe members arrested and 160,000 cigarettes seized – were shown widely on television.
A separate challenge by the town regarding trust lands is currently awaiting a hearing by the full appeals court. In early February, the court ruled in favor of the tribe bid to place into federal trust 31 acres of land adjacent to the its settlement lands.
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http://www.thewesterlysun.com/articles/2005/07/09/news/news2.txt
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http://www.thewesterlysun.com/articles/2005/07/09/news/news2.txt
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Tribe to reopen smoke shop; state questions legality
“What are they afraid of?” the Narragansetts’ chief sachem asks.
“What are they afraid of?” the Narragansetts’ chief sachem asks.
May 21, 2005
BY KATIE MULVANEY
Journal Staff Writer
BY KATIE MULVANEY
Journal Staff Writer
CHARLESTOWN — Narragansett Indian leaders plan to reopen the tribe’s smoke shop in the coming weeks and sell tax-free cigarettes to Native Americans.
“Our position is we can sell to Native Americans,” Chief Sachem Matthew Thomas said yesterday.
The tribe also aims to broker an agreement with state officials about tobacco sales to non-Indians — a proven moneymaker for tribes elsewhere in the United States.
“We are hopeful that the smoke shop can become a viable economic development initiative for the Tribe in the future,” Thomas wrote in a letter hand-delivered to Governor Carcieri’s office yesterday, requesting a meeting with the governor.
The tribal government voted unanimously Thursday night to reopen the shop on South County Trail and pursue an agreement with the state.
The shop was closed two years ago after a state police raid. The state said the tribe was breaking the law by selling cigarettes without charging state taxes. The tribe claimed that, as a sovereign nation, it was not subject to Rhode Island tax laws.
A federal appeals court ruled last week that the state violated the tribe’s sovereign rights when troopers forcibly entered the shop and arrested tribal officials. The court also ruled that the tribe must collect state taxes on the sale of cigarettes to non-Indians.
State officials balked at the shop’s prospective rebirth yesterday, arguing that last week’s ruling did not explicitly allow tax-free cigarette sales to Indians. The state has requested an emergency conference with U.S. District Judge William E. Smith.
Jeff Neal, spokesman for Carcieri, said the governor hoped to meet with Thomas next week, but added that the decision spoke clearly on the issue of sales to non-Indians.
“The federal court ruling seems to indicate the tribe is obligated to pay Rhode Island taxes. Right now, we are satisfied with that section of the court’s decision and expect no reason to be unsatisfied,” Neal said. The state plans to appeal last week’s ruling by a three-judge panel from the U.S. 1st Circuit Court of Appeals.
Thomas acknowledged that cigarette sales to Native Americans alone will not be lucrative but said the reopening was a major step toward restoring the tribe’s pride.
State police raided the shop on July 14, 2003, at the governor’s orders. The scuffle was televised nationwide. Eight tribal members were arrested, including Thomas.
Joseph S. Larisa Jr., Charlestown’s solicitor on Indian affairs, worried yesterday that the shop’s reopening would create an enforcement nightmare and complicate already-strained tribe-state relations.
The tribe would need to institute a “race-based test” to prove “who’s an Indian and who’s not an Indian,” Larisa said.
Smokers currently pay about $3 per pack in state taxes.
Thomas said buyers would have to prove they were Native American. Most members of federally recognized tribes — such as the Narragansetts — carry identification cards. The tribe would limit the number of cartons each individual can purchase, Thomas said.
“It’s not like we’ll do this willy-nilly. We’ll adhere to the decision,” he said. “What are they afraid of?”
