Governor apologizes to those injured

07/16/2003

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.

Journal photo / Connie Grosch 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 him, to investigate Monday's events.

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.