PROVIDENCE -- Arguments spanned from Maine to California and back yesterday as lawyers for the state and the Narragansett Indians presented their cases for or against the tribe's right to sell tax-free cigarettes.
The state stuck to its claim that the tribe traded away its immunity from Rhode Island law by entering into the 1978 agreement that gave it its land in Charlestown. The tribe's lawyer insisted that the Narragansetts -- as a federally recognized tribe -- are outside the state's taxing authority.
The two sides cited dozens of cases involving tribes as varying as the Blackfeet Indians in Montana to the Penobscot Nation in Maine in arguing before U.S. District Court Judge William E. Smith. The judge said at the close of the 2 1/2-hour proceeding that he hoped to issue a decision within 60 days.
The matter landed in federal court in July after the Narragansetts opened a tax-free smoke shop against the state's wishes on tribal lands in Charlestown. At Governor Carcieri's orders, the state police raided the shop on July 14, seizing cigarettes and arresting eight tribal members, including Chief Sachem Matthew Thomas.
Thomas attended yesterday's hearing along with Medicine Man Lloyd Wilcox and tribal police officers.
Atty. Gen. Patrick C. Lynch accompanied the five lawyers representing the state and the Town of Charlestown, which is also a defendant in the case.
The state looked to the 1978 Rhode Island Indian Land Claims Settlement Act yesterday as evidence that the tribe must collect state taxes on not only the sale of cigarettes, but on any income-producing activities on its lands.
The tribe regained 1,800 acres of tribal land in Charlestown in an out-of-court settlement in 1978. Congress approved that agreement among the state, town and tribe under the Settlement Act.
Except for "fishing, hunting and gathering," that deal bound the land to the "full force and effect" of Rhode Island civil and criminal laws, according to the state.
"The tribe, I think, is trying to ignore this deal . . . and exclude the role of the state," said Claire Richards, counsel for the governor.
The act, said Richards, gave the state predominate jurisdiction over the land, while granting the Narragansetts authority over tribal governmental affairs. The federal government merely holds the land on the tribe's behalf.
"The state, rather than the federal government, exercises primary jurisdiction," she said.
Neither the tribe's federal recognition in 1983 nor the U.S. Department of Interior's taking of the land into trust "eclipsed state authority," said Asst. Atty. Gen. Neil F.X. Kelly.
But the tribe argued that the federal government has not at any point granted the state authority over the tribe itself. In order to do so, lawyer Douglas Luckerman said, Congress must make its intention "unmistakably" clear.
"Whatever authority the state has does not give it authority over the Narragansett Indian Tribe," said Luckerman, who represents the tribe with lawyer John F. Killoy. The land, he said, also remains under the superintendence of the federal government.
Judge Smith questioned Luckerman's reasoning. By that argument, he said, couldn't the tribal government engage in a criminal conspiracy and then use its claim to sovereign immunity to shield itself from the law.
Luckerman replied that was a "truncated view" of federal Indian law.
He used the Maine Settlement Act as an example of an agreement that explicitly laid out the relationship among the state, tribe, and federal government on tribal lands. In that case, he said, federal authority had clearly been transferred to the state.
"You can't see the intent of Congress to address the legal relationship" between Rhode Island and the Narragansetts, said Luckerman.
Previous case law has found that the state has concurrent jurisdiction on the land at best, he said.
"Jurisdiction on lands does not compute to jurisdiction over tribal government," he said.
By approving the Settlement Act's terms, Congress made the state's authority "'unmistakably clear," Kelly countered.
The late Sen. John H. Chafee further strengthened that authority in 1996, when he wrote a bill specifying that the Narragansett lands "shall not be treated as Indian lands" for the purposes of federal gaming law, Kelly said.
Luckerman viewed that law as evidence that the lands are "Indian lands," meant to be held in the same legal manner as other federal trust lands.
The state and the tribe also differed in their interpretation of state cigarette tax law.
Luckerman argued that Rhode Island law places the cigarette sales tax burden on the tribe, as the seller, violating its sovereign rights.
"A fair interpretation of Rhode Island law is that the tax falls squarely on the tribe," Luckerman said.
In Rhode Island, a tax is imposed on all cigarettes sold or held for sale by any person. The payment of the tax is evidenced by stamps affixed to the individual packages. The cigarettes sold by the Narragansetts were not stamped.
The Supreme Court has found that state law imposes the tax on consumers, countered Joseph S. Larisa Jr., solicitor on Indian affairs in Charlestown.
"The tribe cannot escape the conclusion that the tribe acted illegally by not following state law," Larisa said. "We're talking about all tribes having the same obligation we're talking about today."
