Narragansetts mull U.S. Supreme Court appeal in smokeshop case

Gale Courey Toensing
12/31/07

Ruling follows state's rejection of tribe's settlement offer

NARRAGANSETT, R.I. - The Narragansett Indian Tribe will likely ask the U.S. Supreme Court to review whether its constitutional right of due process was violated when a state court freed Rhode Island Gov. Donald Carcieri from testifying at the trial of seven tribal members who were arrested after a state police incursion on the tribe's smokeshop four years ago.

The state Supreme Court ruled Dec. 21 that Carcieri's testimony was not relevant to the tribal members' arguments that the state police used excessive force in July 2003 when around 30 state troopers, a SWAT team and a canine unit stormed the tribe's reservation on a search warrant to shut down its tax-free cigarette shop.

The ruling came a day after the state rejected the tribe's offer to settle the case without a controversial and expensive trial.

In August, state Superior Court Judge Susan McGuirl ruled that Carcieri must testify about the orders he gave State Police Superintendent Col. Steven Pare prior to the smokeshop raid. Carcieri complained in several taped interviews following the raid that the police had disregard his orders to withdraw if they were met with resistance.

The notorious smokeshop raid four years ago descended into a brawl when state police forced their way into the smokeshop and began pushing people around. Tribal members tried to protect their property and the ensuing struggle was televised nationwide. The police claimed the tribe's sale of tax-free cigarettes was illegal and shut down the shop.

Chief Sachem Matthew Thomas and six other tribal members were arrested on charges of assault, disorderly conduct and resisting arrest.

Carcieri appealed McGuirl's ruling to state Supreme Court, claiming he was exempt from testifying because of executive privilege. The higher court did not address the exemption claim, however, and ruled only on the issue of relevancy.

''We can conceive of absolutely no situation in which the testimony that defendants seek to elicit from the Governor would be relevant to the theory of the defense that the state police used excessive force,'' state Supreme Court Chief Justice Frank J. Williams wrote.

''I think you have to have a crystal ball to make that kind of comment, because you don't know what the prosecution witnesses are even going to say - that's the whole reason you have a trial,'' said William Devereaux, the tribe's attorney.

In a prepared statement following the state Supreme Court ruling, Carcieri said he was ''pleased'' that his testimony was ''not relevant in the pending criminal case against the Narragansett tribe members arrested during the State Police raid of a tribal smoke shop in 2003.''

The ruling may violate the Narragansett's constitutional right of due process, and that's why the tribe has discussed an appeal to the U.S. Supreme Court with ''an accomplished appellate attorney,'' Devereaux said.

The trial in state Superior Court has been scheduled for Jan. 7, but Devereaux will ask for stay if the appeal is filed with the federal Supreme Court.

The case is not only important to the Narragansetts, but to all of Indian country, he said.

''The state Supreme Court essentially sidestepped the governor's claim of privilege and decided his testimony is not relevant even though the vast history of jurisprudence in the country states that you give great deference to the trial judge to decide what is and what is not relevant,'' he said. ''What I find troubling is that the state Supreme Court would reach into this case before a single witness has taken a stand and essentially preclude the defense from calling a witness in their defense. It's very perplexing and it's also unfortunate, because this is such an important case for the Narragansett Indians, but also for Indian country overall, because first and foremost it goes to the very integrity of the tribe and the recognition of what the status of the tribe is.''

At the heart of the case are a number of unanswered questions that may speak to the issue of the state's pattern of antagonistic action toward the tribe, he said.

At the time of the police raid, for example, the issue of jurisdiction on tribal lands had not been settled by the 1st Circuit Court of Appeals and U.S. Supreme Court. In opening the smoke shop, the tribe was acting under the assumption that it had the sovereign right to do so.

In Rhode Island, selling cigarettes without a tax stamp is a civil misdemeanor subject to a $100 fine. The state police could have simply bought a couple of packs of cigarettes, then handed the person who sold them summons ordering them to appear in court for selling untaxed cigarettes.

''At that point, the tribe probably would have sought some sort of equitable relief in federal court and a federal judge probably would have said, look, stand down from selling cigarettes until we decide this jurisdictional issue, and we never would have had the circus that unfolded,'' Devereaux said.

The state Supreme Court ruling came on the heels of a Dec. 20 breakdown in negotiations ordered last fall by the court to settle the case and avoid a trial that will likely draw national attention. Chief Justice Joseph Weisberger was appointed as mediator. At the time, the tribe expressed its eagerness to enter settlement negotiations and resolve the case. But state Attorney General Patrick Lynch opposed negotiations from the start.

''There is no middle ground to be found on the issue of these criminal cases,'' Lynch said, adding that he looked forward to prosecuting the case at trial after a ruling on the governor's appeal.

After the breakdown of negotiations, Lynch expressed satisfaction that the case will go to trial.

''As much as I appreciate the Supreme Court's desire to resolve this case, I'm relieved that it will now go back to the Superior Court, where the rules of criminal procedure apply and provide a clear roadmap to ensuring a fair process for both sides and a fair outcome, whatever it may be,'' Lynch said in a prepared statement Dec. 21.

The tribe thought a settlement had been forged two days before things fell apart, Devereaux said. The state appeared ready to accept offers from Thomas, tribal council member John Brown and Hiawatha Brown for Alford pleas - not admitting guilt, but not contesting the charges - if the other four tribal members were ruled not guilty after a year of no action.

''We thought that was a pretty big step on the part of the tribe to try to resolve it, but it became clear to us that law enforcement for whatever reasons did not want to accept that or anything else,'' Devereaux said.

But John Brown said that the breakdown in negotiations followed by the state Supreme Court ruling confirmed his belief that the attorney general's office and the judiciary have once again acted in bad faith against the tribe.

''They wanted us all to plead guilty,'' he said. ''We sat down in good faith when the state said they weren't going to negotiate, and obviously they didn't. They flipped in a matter of days. I don't think the Supreme Court has the power to dispense justice against the political powers of the state of Rhode Island.''

Brown said the state Supreme Court ruling has tainted the trial.

''They've all but precluded that we were guilty. There's no possible way that we're going to get a clean, impartial trial now. They basically bound the hands of the trial judge and all but called us a bunch of thugs and ringleaders. Clearly, we must appeal to the U.S. Supreme Court.''

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