449 F.3d 16 (1st Cir. 2006), 04-1155, Narragansett Indian Tribe v. Rhode Island

Docket Nº:04-1155.
Citation:449 F.3d 16
Party Name:NARRAGANSETT INDIAN TRIBE, Plaintiff, Appellant, v. State of RHODE ISLAND and Providence Plantations et al., Defendants, Appellees.
Case Date:May 24, 2006
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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449 F.3d 16 (1st Cir. 2006)



State of RHODE ISLAND and Providence Plantations et al., Defendants, Appellees.

No. 04-1155.

United States Court of Appeals, First Circuit.

May 24, 2006

Heard Dec. 6, 2005.


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Douglas J. Luckerman, with whom John F. Killoy, Jr. and David Kaplan were on brief, for appellant.

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Jill Elise Grant, Daniel I.S.J. Rey-Bear, Rodina C. Cave, and Nordhaus Law Firm, LLP on brief for National Congress of American Indians, American Civil Liberties Union, and American Civil Liberties Union, Rhode Island Affiliate, amici curiae.

Claire J. Richards, Special Counsel, for appellee Governor Donald L. Carcieri.

Neil F.X. Kelly, Assistant Attorney General, with whom Patrick C. Lynch, Attorney General, was on brief, for remaining state appellees.

Joseph S. Larisa, Jr., Assistant Solicitor, for municipal appellees.

Before Boudin, Chief Judge, Torruella, Selya, Lynch, Lipez and Howard, Circuit Judges.


SELYA, Circuit Judge.

this case pits the Narragansett Indian Tribe (the Tribe) against the State of Rhode Island (the State).1 It requires us to answer a challenging question of first impression: May officers of the State, acting pursuant to an otherwise valid search warrant, enter upon tribal lands and seize contraband (in this case, unstamped, untaxed cigarettes) owned by the Tribe and held by it for sale to the general public?

The district court answered this question affirmatively. See Narragansett Indian Tribe v. Rhode Island, 296 F.Supp.2d 153, 170 (D.R.I. 2003). A panel of this court disagreed in part, holding that the Tribe's sovereign immunity insulated it from the State's criminal process. See Narragansett Indian Tribe v. Rhode Island, No. 04-1155, slip op. at 36 , 2005 WL 1119758 (1st Cir. May 12, 2005). The en banc court withdrew Parts II(D)(3) and (4) of that opinion, id. at 29-36, and ordered rehearing en banc limited to the questions of whether, to what extent, and in what manner Rhode Island may enforce its civil and criminal laws with respect to the particular activities of the Tribe here at issue.

After careful review, we hold that, given the language and intent of the Rhode Island Indian Claims Settlement Act (the Settlement Act), 25 U.S.C. §§ 1701-1716, state officers were authorized to execute the warrant against the Tribe and to arrest tribal members incident to the enforcement of the State's civil and criminal laws. We therefore affirm the judgment of the district court.


We begin with a synopsis of the unique relationship between the Tribe and the State and then turn to the particulars of the current dispute. For these purposes, we assume the reader's familiarity with the history of the dispute as described in the opinions of the district court and the panel.

A. The Relationship Between the Tribe and the State.

The Narragansett Indians, aboriginal inhabitants of what is now Rhode Island, enjoyed cordial relations with the early English settlers on Roger Williams's Providence Plantations. This peaceful coexistence ended in 1675, when the Tribe was drawn into King Philip's War against Puritan colonists. The war decimated the Tribe, and its surviving members settled in the vicinity of what is now Charlestown, Rhode Island. In 1880, after nearly a century of resistance to the State's assimilation efforts, the Tribe agreed to surrender

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its tribal authority and to sell all but two acres of its lands for the sum of $5,000. Almost immediately, the Tribe regretted the sale. In an effort to recoup the lands, it launched a protracted legal and political battle. See generally Narragansett Indian Tribe v. Nat'l Indian Gaming Comm'n, 158 F.3d 1335, 1336 (D.C. Cir. 1998).

This endeavor reached a fever pitch in 1975, when the Tribe filed a pair of complaints in the United States District Court for the District of Rhode Island. In these complaints, the Tribe alleged that it possessed approximately 3,200 acres of land as part of its aboriginal territory; that the 1880 conveyance of that land mass was void under the Indian Non inter course Act, 25 U.S.C. § 177, because the State failed to secure federal approval; and that, inasmuch as its aboriginal title had never been extinguished, the Tribe held a claim of title superior to that of any landowner whose chain of title depended upon the 1880 sale. See id. at 1336-37.

The pending litigation clouded the titles of hundreds of Rhode Island landowners. To dissipate this cloud, the State, the town of Charlestown, and the affected landowners, as parties of the first part, and the Tribe, as party of the second part, executed a joint memorandum of understanding (the J-Mem) on February 28, 1978. The J-Mem created a carefully calibrated relationship between the Tribe and the State centering on 1,800 acres of land in and around Charlestown (the settlement lands). The J-Mem provided that the settlement lands would be formed out of two parcels, one donated by the State and the other purchased from private landowners with funds furnished by the federal government. The Tribe gained effective control of the settlement lands in exchange for the relinquishment of its claims, the voluntary dismissal of its lawsuits, and its agreement that, with the exception of state hunting and fishing regulations, "all laws of the State of Rhode Island shall be in full force and effect on the settlement lands." In addition to donating half the settlement lands, the State agreed to create an Indian-controlled corporation to hold the settlement lands in trust for the Tribe, to exempt the settlement lands from local taxation, and to work toward securing passage of the federal legislation necessary to implement the agreement. See generally Narragansett Indian Tribe v. Rhode Island, 296 F.Supp.2d at 161.

Both the Rhode Island General Assembly and Congress subsequently passed the necessary enabling legislation. See R.I. Gen. Laws §§ 37-18-1 to 37-18-15; 25 U.S.C. §§ 1701-1716. Dovetailing with the counterpart provision of the J-Mem, the federal piece of this legislative mosaic — the Settlement Act — declared that "the settlement lands shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island." 25 U.S.C. § 1708(a).2

The conveyances to the holding company followed apace. The Secretary of the Interior thereafter granted the Tribe official federal recognition. See 48 Fed. Reg. 6,177-6,178 (Feb. 2, 1983). On the heels of this recognition, the settlement lands changed hands twice more. In 1985, the Rhode Island General Assembly amended the pertinent state statute to permit the conveyance of the settlement lands directly to the Tribe; the amendments included a provision that preserved the State's jurisdiction over the settlement lands in terms substantially identical to those memorialized in section 1708(a). See R.I. Gen. Laws 37-18-13(b).

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The holding company later made the authorized conveyance.

Three years thereafter, the Tribe deeded the settlement lands to the Bureau of Indian Affairs (the BIA) as trustee. The trust deed explicitly confirmed the applicability of state law on the settlement lands as provided by section 1708(a). The BIA continues to hold the settlement lands in trust for the Tribe. See Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 689, 695 & n.8 (1st Cir. 1994).

During the next quarter-century, the relationship between the Tribe and the State was fraught with tension. See, e.g., id. at 690-91 (chronicling a long-running dispute anent the Tribe's desire to conduct gambling operations on the settlement lands). Having failed in its persistent efforts to launch a gaming facility, the Tribe eventually turned to tobacco as a potential source of revenue. This case represents the culmination of that endeavor.

B. The Controversy at Hand.

Rhode Island law establishes a complex scheme for the taxation of cigarettes. See R.I. Gen. Laws §§ 44-20-1 to 44-20-55. Under that scheme, the State imposes an excise tax on all cigarettes sold, distributed, or held for sale or distribution within its borders. Id. §§ 44-20-12, 44-20-13. The excise tax is collected through the sale of cigarette stamps, which must be affixed to every package of cigarettes brought into the State. Id. §§ 44-20-13, 44-20-18, 44-20-29. A dealer has twenty-four hours after coming into possession of unstamped cigarettes within which to affix the stamps. Id. § 44-20-29. The sale or purchase of unstamped cigarettes is a misdemeanor. Id. §§ 44-20-33, 44-20-35, 44-20-36. Unstamped cigarettes are contraband and, as such, are subject to seizure by the State. Id. § 44-20-37.

On July 12, 2003, the Tribe, acting pursuant to a tribal ordinance, opened a smoke shop on the settlement lands. The smoke shop offered an array of cigarettes for sale to the general public (i.e., members of the Tribe and nonmembers alike). The Tribe's avowed purpose in establishing the smoke shop was to generate funds for its social programs.

Believing that the State lacked the legal authority to compel its compliance with the cigarette tax scheme, the Tribe refused to purchase cigarette stamps. It also refused to pre collect the State's sales tax, see id. § 44-18-19, from those who purchased the Tribe's cigarettes. By dint of these refusals, the Tribe was able to sell unstamped, untaxed cigarettes at prices substantially below market.

On July 14, 2003, Rhode Island State Police entered the settlement lands and raided the smoke shop. Their intent was to seize contraband cigarettes pursuant to a...

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