Smoke Shop Confrontation
The smoke shop confrontation: some say it's a matter of sovereignty
PROVIDENCE, R.I. (AP) _ The Narragansetts' rationale for why they are allowed to sell tobacco tax-free is simple enough to fit on tribe member Rocky Johnson's T-shirt.
``Homeland Security. In support of the Narragansett tribe, July 14, 2003. Fighting terrorism since 1492,'' the shirt read.
The Narragansetts said they resisted Monday's attempt by state police to search and seize the shop's inventory because it's equivalent to an attack on another nation. They say the tribe is
sovereign and not subject to state law.
State officials see the issue differently, insisting the tribe must follow Rhode Island's civil and criminal codes.
Legal experts said the question is hazier than either side claims, and is one that hinges on frequently debated questions about the tribe's relationship to the state.
In a 1978 settlement agreement, the Narragansetts gained 1,800 acres of land near Charlestown and gave the state authority to apply its laws on Indian lands.
But the agreement didn't give the state jurisdiction over tribal government, said John Dussett, general counsel for the National Congress of American Indians, based in Washington.
It also didn't give the state authority over the tribe, and that, says tribe attorney John Killoy Jr., gives the tribe the right to sell tobacco tax-free.
``The tribe is not subject to the authority of the state. The lands might be,'' Killoy said.
The issue of whether a tribe can sell tobacco without taxes has been to the U.S. Supreme Court three times. Richard Collins, a professor at the University of Colorado School of Law, said the
states have prevailed as long as the tax is levied on the tobacco buyer.
Before Monday's raid, state police in plainclothes bought cigarettes, and were not taxed.
Meanwhile, the state interprets the 1978 agreement differently, saying it proves the state can tax the tribe's tobacco sales.
``I have said consistently that there is no question in my mind, nor in any of the case law: Rhode Island state law governs on those settlement lands. That was part of the original Settlement Act,''
Gov. Don Carcieri said.
Jeff Neal, the governor's spokesman, said one section of the 1978 act excludes income-producing activities on tribal land from a tax exemption.
But Dussett said the Supreme Court's rulings on how the state can collect taxes on tobacco sales to non-Indians have suggested that shutting down the smoke shop wasn't the state's only option.
``As far as enforcement mechanisms, they said states can use a compacting mechanism, there's always federal enforcement, and a third way would be actions against individual tribal members,'' he
said.
No federal law enforcement officers took part in the raid.
Sometimes, Dussett said, a state will stake out the area around a tax-free smoke shop.
``They have jurisdiction over their own state citizens and they
can enforce it,'' he said.
If the Narragansetts bought cigarettes from the Seneca Indians, as state police documents suggest, the legal question could be whether the state can regulate commerce between two Indian tribes, Dussett said. The U.S. Constitution appears to leave that power to
the federal government, he said.
In terms of the legal relationship between a tribe and a state,
what Rhode Island did Monday is unusual, Dussett said.
``The states in other places, they're clear they can't go busting onto an Indian reservation,'' he said. Typically, for criminal enforcement on Indian lands, states present their warrants
to tribal courts and get them approved, he said.
In Rhode Island, the question of the tribe's sovereignty has cropped up most often in the Narragansetts' efforts to open a casino.
In 1996, Congress passed an amendment, pushed by former Sen. John Chafee, R-R.I., that exempts the Narragansetts from a 1988 federal law that has allowed some tribes to open casinos. That law has been upheld in federal court.
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