Petition for Writ of Certiorari — Narragansett Indian Tribe v. Rhode Island, 127 S. Ct. 673 (2006) (No. 06-414)

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Supreme Court,

/N TEE BO

06-414 SEP 21 2006

No. __9 FICE OF THE CLERK

IN THE

Supreme Court of the United States

NARRAGANSETT INDIAN TRIBE,

Petitioner,

STATE OF RHODE ISLAND

AND PROVIDENCE PLANTATIONS, ET AL.,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the First Circuit

PETITION FOR A WRIT OF CERTIORARI

REID PEYTON CHAMBERS [AN HEATH GERSHENGORN*

DOUGLAS B.L. ENDRESON SAM HIRSCH

SONOSKY, CHAMBERS, SACHSE, JENNER & BLOCK LLP

ENDRESON & PERRY, LLP 601 Thirteenth Street, N.W.

1425 K Street, N.W.; Suite 600 Washington, DC 20005

Washington, DC 20005 (202) 639-6000

(202) 682-0240

DOUGLAS J. LUCKERMAN JOHN F. KILLOY, JR.

20 Outlook Drive 74 Main Street

Lexington, MA 02421 Wakefield, RI 02879

(781) 861-6535 (401) 783-6840

September 21, 2006 ~ * Counsel of Record

QUESTION PRESENTED

Whether, in direct conflict with precedents of this Court,

other federal courts of appeals, and state supreme courts, the

First Circuit erred in holding in a divided en banc opinion

that a federal statute’s conferral of “jurisdiction” over Indian

lands, but not over the Tribe as sovereign, impliedly

abrogates the tribal government’s sovereign immunity and

thus empowers a state judge to authorize state police to

execute a search warrant against the Tribe, seize funds and

property belonging to the tribal government, and arrest tribal

officials acting in their official capacities.

PARTIES TO THE PROCEEDING

Pursuant to Rule 14.1(b), the following list identifies all

the parties appearing here and before the United States Court

of Appeals for the First Circuit.

The petitioner here and plaintiff-appellant below is the

Narragansett Indian Tribe, a federally recognized Indian

Tribe.

The respondents here and defendants-appellees below are

the State of Rhode Island and Providence Plantations;

Donald L. Carcieri, in his official capacity as the Governor

of Rhode Island; Patrick C. Lynch, in his official capacity as

the Attorney General of Rhode Island; Colonel Steven M.

Pare, in his official capacity as Superintendent of the Rhode

Island State Police; Justices of the Rhode Island District and

Superior Courts; the Town of Charlestown, Rhode Island;

and the Charlestown Police Department.

ill

TABLE OF CONTENTS

GI SEG RIDING IID veicnccitensvcinidncesecntcentenvcasagwiasetinerenten i

PARTIES TO THE PROCEEDIING.....ccsseccscesssoresessessersvessosees ii

ee FEE BTM vissistcetrnmeninicionienccrintersiiacinnteies vi

EET iinsiisibiiinsininstiniensilhensebensicheitsiegnvnninciichinonnees ]

ETE scnicialscdinsbsnierdiineninininissteindantisnubinapedianteianenininte 1

ee rT UR einiininesiinssirininiresoinemnvenntehercensigniensneen ]

STATEMENT OF THE CARE ..cccccesccccsocssrressecsseosorssoserosqsoses l

TT TT 2

BD, DRRRICE COtt PROCS RTI oo csecciccrcecescecrcccvevecestesorossoses 8

Cl, FIRE CRUE PIRI esinnececsccconnevencernsevassorcosnecsseres 9

REASONS FOR GRANTING THE PETITION..............060 12

I. THE DECISION BELOW CONFLICTS WITH

NUMEROUS DECISIONS HOLDING THAT A

CONGRESSIONAL GRANT OF CIVIL OR

CRIMINAL “JURISDICTION” OVER INDIAN

LANDS DOES NOT ABROGATE A TRIBE’S

ar VEE IET EEIUEE ES ccscccsncconnsesrenevvensesenieoessessonsoen 15

A. The Decision Below Is at Odds with a Wealth of

Decisions Construing Indistinguishable Language...16

B. The First Circuit’s Decision Directly Conflicts

with Numerous Decisions Holding that the

Applicability of Substantive Law to a Sovereign

Does Not Ipso Facto Abrogate that Sove:cign’s

Immunity from Judicial Process. .............:cccsseserees 20

C. “Idiosyncratic” Features of the Settlement Do Not

Support the First Circuit’s Decision. ..............:.0:c000+. 22

Il. THE ISSUE PRESENTED IS OF THE UTMOST

Ce UE siiieseestccernicteisiveccmsasoctoanuapecdiciveneesesiacesiel 25

III. THE FIRST CIRCUIT’S DECISION IS PLAINLY

GT Hc si scecidsisceiielsddicaics-cenishtusiniataeilinielsiacduabiebbenideaumaiit 28

ARMM Miitsiieasihisicebbenisbinolandl diecast nisidstelaadanligildeadimadenmaitias 30

Appendix A

Narragansett Indian Tribe v. Rhode Island, 449

F.36 86 Chet Cis. 2006) (600 WOR) wccccoseccesssosrcosnesdivesonicnvies la

Appendix B

Narragansett Indian Tribe v. Rhode Island, 415

F.3d 134 (ist Cir. 2005) (granting rehearing en

itis sicsscunpsbccecctainstiiadsesncpdbnimaanesauseddiastbuanatatbianaasiadialah 54a

Appendix C

Narragansett Indian Tribe v. Rhode Island, 407

F.3d 450 (1st Cir. 2005) (panel opinion).............:cseeeee 56a

Appendix D

Narragansett Indian Tribe v. Rhode Island, 296 F.

SUD. 2B USS GPA. BOO cscsnctesvnrionsitionstipistcniininmimnen 8Sa

Appendix E

Rhode Island Indian Claims Settlement Act, Pub.

L. No. 95-395, 92 Stat. 813 (1978), codified as

amended at 25 U.S.C. §§ 1701-1716... cssecssereeeseesees 127a

Appendix F

Joint Memorandum of Understanding Concerning

Settlement of the Rhode Island Indian Land Claims

(1978), reprinted in 1978 U.S.C.C.A.N. 1948,

SISTENT iisiiasisshiiasshniibiapivetaassenicineaiaéaminncainmiaasdanemaanaien 139a

Appendix G

Stipulated Facts, Narragansett Indian Tribe v.

Rhode Island, No. 03-296S (D.R.I. July 30, 2003) ....... 145a

Appendix H

Search Warrant (July 12, 2003)..........c.ccesssecsercsscseseeesees 149a

Appendix I

Affidavit of Chief Sachem Matthew Thomas of the

Narragansett Indian Tribe (July 15, 2003)...............000+. 155a

TABLE OF AUTHORITIES

CASES

Aroostook Band of Micmacs v. Ryan, 404 F.3d 48

SOE ares ap MNUN hich scssiceissecicnesecnenesigscnbiipsesbbieiheenenpidasianiddbanbicen 20

Atkinson v. Haldane, 569 P.2d 151 (Alaska 1977)............ 18

Bassett v. Mashantucket Pequot Tribe, 204 F.3d

a MIT icine susasedeisceininipteiesiteicsbesaedagianiabaieiiaadaaiiapiicaas 21

Blatchford v. Native Village of Noatak, 50i U.S.

Ce iieaiitiicenlinpendapcaidaisadviaistsipietiiaieelaehileiihienrhitiap ibd 22

Board of Trustees of the University of Alabama v. —

COG, Fak CEs He ED ccinsctcsctcedciiernionnnicnieien 13,21

Bryan v. Itasca County, 426 U.S. 373 (1976)......... 5, 10, 12,

17, 22, 23, 24, 29, 30

Buchanan v. Alexander, 45 U.S. (4 How.) 20

EPO sevuscscsirecidaiesiiiseiscriciabebaiianiipaeiciaeitannapineniiisiieeeaniaeniaes 28

C&L Enterprises Inc. v. Citizen Band Potawatomi

Indian Tribe of Oklahoma, 532 U.S. 411 (2001) .....14, 29

California ex rel. Calilfornia Department of Fish

& Game v. Quechan Tribe of Indians, 595 F.2d

BR re FF ii inietriccnienstntienineinssnsennintinaianentnntatia 18

Chayoon v. Chao, 355 F.3d 141 (2d Cir. 2004) ...........2000. 21

Daniels Tobacco Co. v. Norberg, 335 A.2d 636

EE, FOE wrvvsscrssinscnsictnianisceniaisuenestiabieninicionmmvaiaaeimtn 7

Elko County Grand Jury v. Siminoe (In re Elko

County Grand Jury), 109 F.3d 554 (9th Cir.

Vii

Federat Maritime Commission v. South Carolina

Ports Authority, 535 U.S. 743 (2002).......:ccccssesseeereeeres 14

Florida Paraplegic Ass'n v. Miccosukee Tribe of

Indians of Florida, 166 F.3d 1126 (11th Cir.

Five icsctvicvtinintssiiuslachpebaibiituiaduledaiaissaabiniondaeniadniaaaaae 21

Garcia v. Akwesasne Housing Authority, 268 F.3d

PR URELAE, BOGE) sniciivtinitsaiisbionieaae guetta 21

Gavle v. Little Six, Inc., 555 N.W.2d 284 (Minn.

ROE P ocnienssnionncensnniierinbiessinintiedaaiaaienianinnimedsnmaabnaiisie 18

Green v. Mansour, 474 U.S. 64 (1985) .......csesseceseseeeeeeee 29

Gross v. Omaha Tribe of Nebraska, 601 N.W.2d

Ee LONI FOOD ccrnsensccisstensnsteiecuntigetiareteciecaduaaiaaamadiniiain 18

Gurley v. Rhoden, 421 U.S. 200 (1975) .......ccscesesceseceseeeseees 7

Houghtaling v. Seminole Tribe of Florida, 611 So.

Be SRE Gras SEP icncishvetcsadinnciesecinictinnanieioiadamasaadaadal 18

Inyo County v. Paiute Shoshone Indians of the .

Bishop Community of the Bishop Colony, 538

We FOR CEE) csvteitnincincnaiaiaiamnmamaa 14, 28

Kiowa Tribe of Oklahoma v. Manufacturing

Technologies, Inc., 523 U.S. 751 (1998)........... 10, 13, 20,

| 27, 30

Long v. Chemehuevi Indian Reservation, 115 Cal.

Pa: PA TRF EE OE Picishinnisnneciisssinciaieninnaiitesaiseennibiatains 18

Mack v. United States, 814 F.2d 120 (2d Cir. 1987)......... 22

Maynard v. Narragansett Indian Tribe, 984 F.2d

BOP EI, Fp sscsnliescencsccsuscsscsenitaiteadinindediimagiaicmetaatins 19

McClanahan vy. Tax Commission of Arizona, 411

SFA DCEO TED sinttsncetsiienrnisactespitnnsnciidenialomomaiamee 16

Vili

Meier v. Sac & Fox Indian Tribe of Mississippi in

Towa, 476 N.W.2d 61 (lowa 1991) .......ccscccseseserererersnees 18

Narragansett Tribe of Indians v. Southern Rhode

Island Land Development Corp., 418 F. Supp.

EEE as ee een acm Oe 3

Narragansett Tribe v. Guilbert, 989 F.2d 484, 1993

WL 88161 (Ist Cir. 1993) (unpublished table

as ssspebuiniunienein 19

Nevada v. Hicks, 533 U.S. 353 (2001) .......cccssessesssseeceseees 27

Oklahoma Tax Commission v. Citizen Band

Potawatomi Indian Tribe of Oklahoma, 498 U.S.

Eo 7, 13, 15, 21, 27, 30

Oklahoma Tax Commission v. Chickasaw Nation,

ERE Re ne 9

Oneida Indian Nation of New York v. County of

TES Bot | ee 3-4

Puyallup Tribe, Inc. v. Department of Game, 433

ae cciseuhicheeneneiennnanntosene 5, 10, 12, 17

Rhode Island v. Narragansett Indian Tribe, 19 F.3d

SS oe 24

Santa Clara Pueblo v. Martinez, 436 U.S. 49

OS EEE ES 5, 14, 29

Silva v. Ysleta del Sur Pueblo, 28 S.W.3d 122

| 18,19

Three Affiliated Tribes of the Fort Berthold

Reservation v. Wold Engineering, 476 U.S. 877

I cc hecalinnidveeapees 10-11, 12, 14, 17, 18, 22, 23

Twin Cities Chippewa Tribal Council v. Minnesota

Chippewa Tribe, 370 F.2d 529 (8th Cir. 1967)..........+0++ 22

United States v. Mazurie, 419 U.S. 544 (1975)........csccece 26

United States v. Nordic Village, Inc., 503 U.S. 30

CDPEED csvitsinristiiisintiitneiitempneiinnccdiinaiins pilates 13, 21-22, 29

Val/Del, Inc. v. Superior Court, 703 P.2d 502

CAE Gi I Fa aiwinccsecnsnctiibiecetiiestiectinitenitaitdaliiaclii 19

Washington v. Confederated Bands & Tribes of

Yakima Indian Nation, 439 U.S. 463 (1979) .......cccccseeeee 16

Williams v. Lee, 358 U.S. 217 (1959).......cccrssccsscsesessceveee 16

Williams v. United States, 327 U.S. 711 (1946) .........e0 16

STATUTES AND REGULATIONS

Le aS ; , SOO RO hae eae EEN Tee 3

DE UGE: 6 IIE is iessssiesistictemincninas 13, 26

ORE CO ee eee 19, 26

DOUG. 6 III a iicescickiniednesocnnae 13

ZS UBL. & PIO AED iccrccevcovsncocsvinsssnvnsonunace 13, 19, 26

Ue CT ae 5

UE Siete 5

WMS ROI oo ie ee 1, 16

MUSE. CNMI ois 30

SU BE ok ceil ae ee 13

WUE CUR 6 ae 13

I NE ica eee 13

Ne Ra aiiiesinciccinaneieees 13

Bes SE FATE iii dintiincviinstinailiaainininaiiaitaanabdaedeel 13

I aia iiip Ge cecccshstniistssticibiteres 13

EL aI PRN oT 5

Mashantucket Pequot Indian Claims Settlement

Act, Pub. L. No. 98-134, § 6, 97 Stat. 851, 855

(1983) (codified at 25 U.S.C. § 1755) ......ceeeseseeteeeees 25

Mohegan Nation of Connecticut Land Claims

Settlement Act of 1994, Pub. L. No. 103-377,

§ 6, 108 Stat. 3501, 3505 (codified at 25 U.S.C.

tt ccceiahapisedinsisibacscitaniensdsanaseidistaniadidiaeidainaiaiienntetbiirs 25

Narragansett Indian Land Management

Corporation Act, Pub. L. No. 1979, ch. 116, 1979

R.I. Pub. Laws 402, codified as amended at R.I.

Gen. Laws §§ 37-18-1 to 37-18-15 wo. eeseseessetecerereeneenee 4

Public Law 280, Pub. L. No. 83-280, §§ 2, 4, 67

Stat. 588, 588-90 (1953), codified as amended at

25 U.S.C. §§ 1321-1322, 28 U.S.C. § 1360.........0..... 5, 26

Rhode Island Indian Claims Settlement Act, Pub.

L. No. 95-395, 92 Stat. 813 (1978), codified as

amended at 25 U.S.C. §§ 1701-1716...........:cssecscseeeees 1,4

Wampanoag Tribal Council of Gay Head, Inc.,

Indian Claims Settlement Act of 1987, Pub. L.

No. 100-95, § 9, 101 Stat. 704, 709 (codified at

Fee te Ae OO i insitctnidiahaterianibinnnaadianisoimclinrnsnannicntniis 25

R.I. Gen. Laws §§ 44-20-33 to 44-20-38 oo... ccsecesessssseserees 7

Bee SN: EE Ee eiceiernisvastnisvenenccotsicqrenesttcnieansiasete 7

An Act to Abolish the Tribal Authority and Tribal

Relations of the Narragansett Tribe of Indians,

TE, Beets TET II, C.F ccccccetnsetvssecenrenineiensnsesnntmnieareta 3

I A iii ccticniicoistenaieasannnanen 6

LEGISLATIVE MATERIAL

H.R. Rep. No. 95-1453 (1978), reprinted in 1978

FRAC IN, FIG cressernirncnscccovirsomertaiennscestinesenseatoasinents 25

MISCELLANEOUS

Bureau of Indian Affairs, U.S. Dep’t of the

Interior, Memorandum re: Recommendatio:. and

Summary of Evidence for Proposed Finding for

Federal Acknowledgement of the Narragansett

Indian Tribe of Rhode Island Pursuant to 25

es er Ee, EID estas tes serennioncatsenemsaresitonenemneees 3

SO Ped. Reg, 6177-78 (19E3) osccccecscosonsserencnsnscesecacosseoncesnseee 6

Carole Goldberg & Duane Champagne, Js Public

Law 280 Fit for the Twenty-First Century? Some

Data at Last, 38 Conn. L. Rev. 697 (2006)...........::0000 26

Letter from -Sen. Campbell to Att’y Gen. John

PT Bs MI thi cris ciddechticseanibetnisanentetienencieen 8

Letter from Richard W. Pombo, Chairman of the

House Committee on Resources, to Att’y Gen.

ee 0 I chains sidcssnianeitrpniateniecucniinnays 8

WILLIAM G. MCLOUGHLIN, RHODE ISLAND (1978)............. 3

TILLER’S GUIDE TO INDIAN COUNTRY (Veronica E.

WE FUE Og BF OU I ssescseioincsinrescecsonnrnisencetonacnssens 6

Vienna Convention on Diplomatic Relations, Apr.

ee ir sy oe. > 7 Se nar 28

Vienna Convention on Consular Relations, Apr.

By Dn ON Fi BE 1 ZEIT FF sisrcevcccesiscensentssstensii 28

OPINIONS BELOW

The divided en banc opinion of the United States Court

of Appeals for the First Circuit is reported at 449 F.3d 16 and

is reprinted in the Appendix to the Petition (“Pet. App.”) at

la-53a. The First Circuit’s panel opinion is reported at 407

F.3d 450 and is reprinted ut Pet. App. 56a-84a. The District

Court’s opinion is reported at 296 F. Supp. 2d 153 and is

reprinted at Pet. App. 85a-126a.

JURISDICTION

The Court of Appeals entered its judgment on May 24,

2006. Justice Souter extended the time to file this petition to

September 21, 2006. This Court has jurisdiction under 28

U.S.C. § 1254(1).

STATUTES INVOLVED

This case involves the Rhode Island Indian Claims

Settlement Act (the “Settlement Act”), Pub. L. No. 95-395,

92 Stat. 813 (1978), codified as amended at 25 U.S.C.

§§ 1701-1716. Section 9 of the Act provides that the

Narragansett Indian Tribe’s “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). The entire Settlement

Act is reproduced at Pet. App. 127a-138a.

STATEMENT OF THE CASE

The decision below arises out of the State of Rhode

Island’s unprecedented effort to resolve a tax dispute with the

Narragansett Indian Tribe by executing a state search warrant

to seize tribal property and funds from the Tribe’s reservation

and to arrest tribal leaders.

The Tribe and the State disagreed about whether a state

tax applied to cigarettes sold by the tribal government at a

tribal smoke shop on the Tribe’s reservation. While other

States and Tribes have resolved such disputes by adjudication

Or negotiated agreement, Rhode Island “chose the

confrontational alternative of a Rambo-like raid,” Pet. App.

52a, sending 30 state troopers with a canine unit onto the

Narragansetts’ reservation to enforce a search warrant issued

by a Rhode Island state court. In the ensuing altercation, the

state troopers arrested eight individuals — including the

Tribe’s Chief Sachem, three Tribal Council members, and a

federally deputized tribal law-enforcement officer — and

confiscated property, documents, and funds belonging to the

tribal government.

A panel of the First Circuit held unanimously that the

Tribe’s sovereign immunity and right to self-government

precluded execution of the state court’s search warrant

against the Tribe and tribal government property. In a 4-to-2

decision, the First Circuit en banc reversed course, upholding

the state seizure of tribal government property from the

reservation. That en banc decision represents a sharp break

with decisions of this Court and other courts of appeals

construing federal statutory language that extends state civil

and criminal laws and jurisdiction over Indian lands. This

Court has definitively construed that language, which appears

in numerous Indian-related statutes, as preserving, not

eliminating, tribal sovereign immunity and thus as not

authorizing the exercise of state jurisdiction over the Tribe

itself. The First Circuit’s unprecedented construction of

ubiquitous statutory language will have an immediate and

substantial destabilizing effect on tribal-state relations,

inviting armed —eonfrontation instead of negotiated

agreements or orderly litigation to resolve jurisdictional

disputes. Accordingly, the decision below warrants this

Court’s immediate review.

A. Factual Background

1. The Narragansett Indians descend from the original

inhabitants of what is now Rhode Island and occupied an

aboriginal territory that included the lands near what is now

Charlestown, Rhode Island. Pet. App. 3a, 93a & n.6.'

In 1880, after seeking for decades to force the

Narragansetts to assimilate, the State passed An Act to

Abolish the Tribal Authority and Tribal Relations of the

Narragansett Tribe of Indians, R.I. Acts 1879-1880, c. 800.

The Narragansetts, by then destitute, were forced to sell

nearly all their remaining lands to the State for a fraction of

their market value. Pet. App. 3a, 43a n.16, 93a. That sale

violated the Nonintercourse Act, 25 U.S.C. § 177, because

the State failed to secure the required federal approval. Pet.

App. 3a, 43a n.16, 93a-94a & n.7.

Although nearly landless and officially “detribalized” by

the State of Rhode Island, the Narragansetts maintained their

traditional tribal government, with Sachems, Medicine Men

and Women, a Tribal Council, Sub-Chiefs, Tribal Prophets, a

War Chief, and Clan Mothers. And they began a century-

long effort — ultimately successful — to regain part of their

tribal lands.”

2. In 1975, the Tribe filed two suits in the U.S. District

Court for the District of Rhode Island seeking the return of

approximately 3,200 acres of land representing a small

portion of the Tribe’s aboriginal territory. Pet. App. 3a, 58a,

93a; see also Narragansett Tribe of Indians v. Southern

Rhode Island Land Dev. Corp., 418 F. Supp. 798 (D.R.I.

1976). Because the 1880 conveyance was void and the

Indians’ aboriginal title had never been lawfully

extinguished, the Tribe held a claim of title superior to that of

any landowner whose chain of title depended on the 1880

sale. Pet. App. 3a, 94a; cf. Oneida Indian Nation of N.Y. v.

' See WILLIAM G. MCLOUGHLIN, RHODE ISLAND 3-49, 220-22 (1978).

? See Bureau of Indian Affairs, U.S. Dep’t of the Interior, Memorandum

re: Recommendation and Summary of Evidence for Proposed Finding for

Federal Acknowledgement of the Narragansett Indian Tribe of Rhode

Island Pursuant to 25 C.F.R. § 83, at 4-18 (July 29, 1982).

County of Oneida, 414 U.S. 661 (1974). These lawsuits

clouded the titles of hundreds of Charlestown landowners

and depressed property values. Pet. App. 28a, 127a.

In February 1978, the State, the Town of Charlestown,

the affected landowners, and the Tribe executed a

“Settlement Agreement” (reproduced at Pet. App. 139a-

144a), and both Congress and the Rhode Island General

Assembly subsequently enacted the necessary enabling

legislation. See Rhode Island Indian Claims Settlement Act

(the “Settlement Act”), Pub. L. No. 95-395, 92 Stat. 813

(1978), codified as amended at 25 U.S.C. §§ 1701-1716, Pet.

App. 127a-138a; Narragansett Indian Land Management

Corporation Act, Pub. L. No. 1979, ch. 116, 1979 R.I. Pub.

Laws 402, codified as amended at R.1. Gen. Laws §§ 37-18-1

to 37-18-15.

The principal object of the settlement was to resolve the

Tribe’s land claims and thereby clear title. Pet. App. 34a

n.12. The settlement established 1,800 acres in and around

Charlestown as the Tribe’s “settlement lands.” Jd. at 4a, 58a-

59a, 87a n.2, 139a-140a. It provided that the State would

donate 900 acres (mostly swampland) to the Tribe and that

another 900 acres would be purchased from private

landowners with $3.5 million in federal funds. Jd. at 95a,

129a, 135a, 139a-140a. In exchange, the Tribe relinquished

its land claims and dismissed its lawsuits. /d. at 127a-144a.

The settlement also gave the State jurisdiction over the

settlement lands. /d. at 135a-136a, 142a. In so doing, both

the Settlement Act and the Settlement Agreement used

language that this Court had construed as preserving the

Tribe’s right to self-government and its sovereign immunity

from state judicial proceedings. Jd. at 3la-34a, 135a, 142a.

The Settlement Act thus provides that “the settlement lands

shall be subject to the civil and criminal laws and

jurisdiction of the State of Rhode Island.” Jd. at 135a (25

U.S.C. § 1708(a)) (emphasis added). And the Scttlement

Agreement states that “all laws of the State of Rhode Island

shall be in full force and effect on the Settlement Lands,

including but not limited to state and local building, fire and

safety codes.” Jd. at 142a (emphasis added).

These phrases echoed the virtually identical language in

“Public Law 280,” Pub. L. No. 83-280, §§ 2, 4, 67 Stat. 588,

588-90 (1953), codified as amended at 25 U.S.C. §§ 1321-

1322, 28 U.S.C. § 1360, the landmark federal statute enacted

in 1953 that authorizes certain States to exercise civil and

criminal jurisdiction over specified Indian lands “to the same

extent that such State has jurisdiction” elsewhere within the

State, and provides that state civil and criminal laws “shall

have the same force and effect” in Indian country as

elsewhere in the State. 25 U.S.C. §§ 1321(a), 1322(a); 28

U.S.C. § 1360(a); see Pet. App. 31a-36a.

This Court had definitively interpreted Public Law 280 in

1976 — just two years before the Tribe executed the

Settlement Agreement and Congress enacted the Settlement

Act. In Bryan v. Itasca County, 426 U.S. 373 (1976), the

Court held that Public Law 280’s grant of civil jurisdiction is

limited to “jurisdiction over private civil litigation involving

reservation Indians in state court,” and that “there is notably

absent [from Public Law 280] any conferral of state

jurisdiction over the tribes themselves.” Jd. at 385, 389. The

next year, in Puyallup Tribe, Inc. v. Department of Game,

433 U.S. 165 (1977), the Court reiterated the long-standing

principle that “[a]bsent an effective waiver or consent, it is

settled that a state court may not exercise jurisdiction over a

recognized Indian tribe,” and it refused to permit state court

jurisdiction over a Tribe even in a case properly before the

State court as to individual tribal members. Jd. at 172-73.

Soon thereafter, this Court reaffirmed the principle that a

waiver of tribal sovereign immunity “‘cannot be implied but

must be unequivocally expressed.’” Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 58 (1978) (citations omitted).

Neither the Settlement Act nor the Settlement Agreement,

nor their legislative or negotiating histories, contained any

suggestion of an intent to depart from this Court’s teachings,

nor did they even hint that the settlement would abrogate or

waive the Tribe’s immunity so as to allow a state court to

exercise jurisdiction over the Tribe itself. See id. at 34a &

n.13, 47a, 127a-144a.

3. Following the Settlement Act, the United States

formally recognized the Tribe and took the settlement lands

into trust for the Tribe, entitling the Tribe to the same

“immunities and privileges” as other federally recognized

Tribes and recognizing it as a self-governing Tribe with a

duly elected tribal government. See 48 Fed. Reg. 6177-78

(1983); see also 25 C.F.R. § 83.2. Today, the Tribe has

2,400 enrolled members, most of whom live on or near the

settlement lands. An elected nine-member Tribal Council

serves as the Tribe’s governing body, a Chief Sachem heads

the Tribe’s executive branch, and a non-elective Medicine

Man serves as a spiritual advisor. The Tribe provides a full

battery of local governmental services, including law

enforcement by the Narragansett Tribal Police Department

and medical care by the Narragansett Indian Health Center.

See generally TILLER’S GUIDE TO INDIAN COUNTRY 911-12

(Veronica E. Velarde Tiller ed., 2005 ed.).

4. While many of its governmental programs depend at

least in part on federal funding, the Tribe has sought to build

its Own revenue base and to become increasingly self-

sufficient. Consistent with this effort, in 2003 the

Narragansett tribal government passed a_ resolution

establishing a tribal smoke shop — wholly owned and

operated by the Tribe and situated on tribal lands ~ to sell

cigarettes to members and nonmembers alike. Pet. App.

145a-146a, 156a.

After consulting with outside counsel, the tribal

government concluded that the state cigarette tax did not

apply to cigarettes sold at the Tribe’s smoke shop because the

tax’s legal incidence falls on the Tribe and is thus preempted

by federal law. /d. at 60a-6la, 64a-68a. Although the state

statute “conclusively presume[s]” that the cigarette tax is “a

direct tax on the retail consumer,” R.I. Gen. Laws § 44-20-

53, long-standing Rhode Island precedent established that the

legal incidence falls instead on the distributor or dealer (here,

the Tribe). See Daniels Tobacco Co. v. Norberg, 335 A.2d

636, 638 (R.I. 1975). This Court has previously deemed

conclusive a state supreme court’s “own. definitive

determination as to [a state tax’s] operating incidence.”

Gurley v. Rhoden, 421 U.S. 200, 208 (1975).

5. The State adopted a contrary view of the tax’s legal

incidence, and it set out to enforce the tax against the Tribe.

Pet. App. 61a. Although the Governor and the Attorney

General had known for weeks that the Tribe was planning to

sell cigarettes at its smoke shop without collecting the state

tax, id. at 40a, the State chose not to resolve the dispute by

any of the peaceable means at its disposal. Cf Oklahoma

Tax Comm'n y. Citizen Band Potawatomi Indian Tribe of

Okla., 498 U.S. 505, 514 (1991) (outlining alternatives).

Instead, the State brought to bear the full brunt of its criminal

law-enforcement apparatus against the Tribe.’

6. On Saturday July 12, 2003, the day of the smoke

shop’s opening, a state-court judge issued a search warrant

authorizing the state police to search the shop and to seize

not only the Tribe’s cigarettes, but also any “United States

Currency, paperwork, items, computers [and] documents

showing ownership or control of the premises.” Pet. App.

1S5la-152a. The warrant listed as the “{njame of the store

owner, or keeper,” Matthew Thomas, the Tribe’s Chief

Sachem. /d. at 15la.

> Under Rhode Island law, selling untaxed cigarettes is a misdemeanor;

the State is entitled to seize (and resell) such cigarettes as contraband.

See R.I. Gen. Laws §§ 44-20-33 to 44-20-38; Pet. App. 146a.

On Monday afternoon, July 14, 2003, the state police

executed the state warrant. Id. at 44a. No fewer than 30 state

troopers marched in formation toward the smoke shop, where

they were met by tribal policemen and officeholders vowing

to resist what they saw as an entirely illegitimate assault on

the Tribe’s sovereignty. Jd.

The result was a violent confrontation between the state

troopers and the tribal officers and members that was

captured on videotape and received widespread media

coverage. By the end of the raid, the state police had arrested

eight Narragansett tribal members — including Chief Sachem

Thomas, three Tribal Councilmen, and a federally deputized

tribal law-enforcement officer — and eight people required

hospitalization for injuries. Jd. at 147a. State police also

confiscated the Tribe’s cigarettes, as well as $900 from the

shop’s cash register and various tribal documents. /d. at

61a. State criminal proceedings arising from the raid have

been stayed pending resolution of this case.

B. District Court Proceedings

Shortly after the raid, the Tribe sued in the U.S. District

Court for the District of Rhode Island, seeking a declaration

first, that the legal incidence of the Rhode Island cigarette tax

fell on the Tribe and that application of the tax to the Tribe

* Members of Congress condemned the State’s actions. Senator Ben

Nighthorse Campbell, Chairman of the Senate Committee on Indian

Affairs, stated that “[a]nyone who witnessed the episode in videotape — as

I have — surely was sickened and profoundly disappointed at the tactics

used by the state in its dispute with the tribe regarding sales of tobacco on

the tribe’s lands.” Letter from Sen. Campbell to Att’y Gen. John

Ashcroft (July 23, 2003); see also Letter from Richard W. Pombo,

Chairman of the House Committee on Resources, to Att’y Gen. Ashcroft

(July 17, 2003) (noting that the place to resolve the “serious, complex,

and legitimate legal questions” implicated by the tax dispute “is in a court

of law, not in an aggressive raid that risks violent confrontation on tribal

land where tribal members, state and tribal law enforcement officers, and

innocent bystanders are all put needlessly in harm’s way”).

was thus foreclosed by Oklahoma Tax Commission vy.

Chickasaw Nation, 515 U.S. 450, 458-59 (1995), and second,

that the Tribe’s sovereign immunity precluded the State from

executing a search warrant to seize tribal property on tribal

lands. Pet. App. 89a. After submitting the case on stipulated

facts, id. at 145a-148a, the parties cross-moved for summary

judgment. /d. at 62a, 86a, 90a.

The District Court granted summary judgment to the

State. Jd. at 86a, 126a. Although recognizing that the Tribe

had a good-faith argument based on the Rhode Island

Supreme Court’s decision in Daniels, the District Court held

as a matter of federal preemption law that the legal incidence

__ Of the tax fell on the non-Indian consumer rather than on the

Tribe. Jd. at 98a-108a. The District Court then concluded

that the Tribe’s sovereign immunity did not bar the State

from enforcing the cigarette tax, even against the Tribe itself.

Id. at 108a-125a. In particular, the court held that the

Settlement Act and the Settlement Agreement supplied

authority for the state troopers to execute the state court’s

warrant to seize tribal property on tribal lands. Jd. at 125a-

126a.

C. First Circuit Proceedings

On appeal, a panel of the First Circuit affirmed in part

and reversed in part. Pet. App. 84a. The panel accepted the

District Court’s determination - as does the Tribe for

purposes of this petition — that the legal incidence of the tax

falls on the consumer and that the Tribe therefore must

comply with the State’s tax scheme when selling cigarettes to

non-Indian purchasers (though not to tribal members). Jd. at

64a-72a. The panel disagreed, however, that the State could

enforce the tax scheme by executing a search warrant against

the Tribe. Jd. at 72a-84a. In the panel’s view, neither the

Settlement Act nor the Settlement Agreement abrogated or

waived the Tribe’s sovereign immunity. Jd. at 73a-75a.

The panel relied on this Court’s opinion in Kiowa Tribe

of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S.

751 (1998), which stated unambiguously that even where a

State “may tax cigarette sales by a Tribe’s store to

nonmembers, the Tribe enjoys immunity from a suit to

collect unpaid taxes.... There is a difference between the

right to demand compliance with state laws and the means

available to enforce them.” Jd. at 755, quoted in Pet. App.

83a. The panel thus held that the tribal government’s

sovereign immunity barred Rhode [sland from enforcing “the

criminal provisions of its cigarette tax laws by executing a

search warrant against the Tribal government’s Smoke Shop,

forcibly entering the Shop and seizing the Tribe’s stock of

[untaxed] cigarettes, and arresting tribal officials who were

acting in their official capacity.” Pet. App. 84a.

In response to the State’s petition for rehearing, the First

Circuit withdrew parts of the panel opinion and voted to

rehear en banc “whether, to what extent, and in what manner

Rhode Island may enforce its civil and criminal laws with

respect to the operation of the Smoke Shop by the

Narragansett Indian Tribe.” /d. at 54a. In a 4-to-2 decision,

the en banc court disagreed with the panel’s conclusion on

the enforcement questions and therefore affirmed the District

Court’s judgment in favor of the State. /d. at 2a, 26a.

The en banc majority focused on the language in the

Settlement Act and the Settlement Agreement providing,

respectively, that the settlement lands are “subject to the civil

and criminal laws and jurisdiction of the State of Rhode

Island,” and that “all laws of the State of Rhode Island shall

be in full force and effect on the settlement lands.” In the

majority’s view, that language eliminated the Tribe’s

immunity, subjecting the Tribe to state-court jurisdiction.

Pet. App. 9a-10a, 15a-18a. The majority acknowledged that

this Court had squarely held — in Bryan, 426 US. at 389;

Puyallup Tribe, 433 U.S. at 170-73; and Three Affiliated

Tribes of the Fort Berthold Reservation v. Wold Engineering,

476 U.S. 877, 890-92 (1986) — that virtually identical

language in Public Law 280 was insufficient to abrogate

tribal sovereign immunity and did not confer jurisdiction

over the Tribe. Pet. App. 19a-23a, 21a n.7. The majority

believed, however, that “the historical context and purpose of

Public Law 280 are so completely different from those of the

Settlement Act that, despite some linguistic coincidences, the

[Supreme] Court’s interpretation of that law has no bearing

on the issues before us.” Jd. at 19a.

The majority also rejected the argument in the panel

opinion and the dissent that a sovereign such as the Tribe

might be subject to state laws but still retain its immunity

from state judicial proceedings to enforce those laws.

Indeed, the majority expressly overruled First Circuit

precedent that had — consistent with case law from this Court

and other courts of appeals — adopted that precise distinction.

Judge Lipez and Judge Torruella dissented. In Judge

Lipez’s view, the majority’s conclusion that the operative

language of the Act and the Agreement eliminated tribal

immunity from state-court jurisdiction was directly at odds

with unambiguous precedent from this Court. Jd. at 30a-36a.

Judge Lipez underscored that “Congress has used this

language for half a century to confer state jurisdiction over

individual Indians on tribal lands” and that, both before and

since the Narragansetts’ 1978 settlement, “the Supreme Court

consistently has held that such language — however

categorically stated — does not waive or abrogate tribal

sovereign immunity.” Jd. at 3la.

Judge Torruella joined Judge Lipez’s dissent and also

wrote separately to emphasize that the majority’s approach

“ignores Supreme Court precedent — some of which is 150

years old,” id. at 42a — holding that “a waiver or abrogation

of sovereign immunity must be unequivocal and explicit.”

Id. (citing Santa Clara Pueblo, 436 U.S. at 58).

REASONS FOR GRANTING THE PETITION

For more than half a century in a variety of settings,

Congress has used virtually the same statutory language to

confer state jurisdiction over civil and criminal matters on

Indian lands. That language — allocating to a State civil or

criminal “jurisdiction” and providing that state laws will have

“force and effect” on the reservation — has been construed

definitively by this Court to render state law generally

applicable to tribal members on reservation lands but not to

abrogate tribal sovereign immunity and thus-not to subject

the Tribe itself to state jurisdiction. In the splintered en banc

decision below, a 4-to-2 majority of the First Circuit held that

this same language when used by Congress and the parties in

the Rhode Island Indian Claims Settlement Act and the

Settlement Agreement impliedly subjected the Tribe in its

sovereign capacity to state judicial process.

The decision below squarely conflicts with decisions of

this Court, principally Bryan v. Itasca County, 426 U.S. 373

(1976), Puyallup Tribe, Inc. v. Department of Game, 433

U.S. 165 (1977), and Three Affiliated Tribes of the Fort

Berthold Reservation v. Wold Engineering, 476 U.S. 877

(1986). Those cases establish that when Congress confers

“jurisdiction” and provides for state laws to have “force and

effect” on Indian lands, it allows the State to exercise

jurisdiction over tribal members and others on those lands —

for example to criminally prosecute (and in the process serve

search warrants upon) individual tribal members on those

lands — but does not subject the Tribe itself to state judicial

process. The decision below also conflicts with countless

decisions of the federal courts of appeals and state appellate

courts — including the highest courts of Alaska, Florida,

Iowa, and Minnesota — holding that a congressional grant of

jurisdiction to a State over Indian lands does not abrogate

tribal sovereign immunity and therefore does not authorize

state courts to exercise jurisdiction over an Indian Tribe.

Indeed, to conclude otherwise, the majority was forced to

reject the well-settled distinction between whether a tribe is

subject to state substantive law and whether that law may be

enforced against the Tribe through state judicial process. In

so doing, the majority created a direct conflict with this

Court’s decisions in Kiowa Tribe of Oklahoma y.

Manufacturing Technologies, Inc., 523 U.S. 751 (1998), and

Oklahoma Tax Commission v. Citizen Band Potawatomi

Indian Tribe of Oklahoma, 498 U.S. 505 (1991), and with

decisions of the Second and Eleventh Circuits, holding that

subjecting a Tribe to state or federal substantive law does not

abrogate tribal sovereign immunity. That same principle is

equally fundamental in this Court’s jurisprudence outside of

Indian law. A sovereign can be subject to the substantive

laws of another sovereign while maintaining its immunity

from suit. See Board of Trs. of the Univ. of Ala. v. Garrett,

531 U.S. 356, 374 n.9 (2001); cf United States v. Nordic

Village, Inc., 503 U.S. 30, 38 (1992).

Review by this Court is of the utmost importance. The

Rhode Island Settlement Act is seminal legislation that

served as the model for almost every other land-claims

settlement act and for other similar legislation — nearly a

dozen federal statutes in all. See, e.g., 25 U.S.C. §§ 1300b-

11, 1300f(c), 1300g-4(f), 1741, 1755, 1771g, 1772, 1773,

1775d(a). The decision below is thus of extraordinary

importance throughout Indian country. That is particularly

so given the breadth of the First Circuit’s holding that the

Settlement Act abrogated the tribal government’s immunity

from suit, subjecting the Tribe to the State’s “entire

armamentarium of legal means for redressing

noncompliance.” Pet. App. 18a. The First Circuit has thus

placed at risk Tribes’ control over a broad range of tribal

programs and leaves the Narragansetts and other Tribes

subordinate to the States. This unprecedented result denies

Indian governments the dignity to which they are entitled

“[a]s separate sovereigns pre-existing the Constitution,”

Santa Clara Pueblo, 436 U.S. at 56, “unduly intru[ding] on

the Tribe’s common law sovereign immunity, and thus on its

ability to govern itself according to its own laws,” Three

Affiliated Tribes, 476.U.S. at 891. Sovereign immunity is a

“necessary corollary to Indian sovereignty and self-

governance,” id. at 890, and is as essential to the dignity of

Indian Tribes, as it is to the States. Cf Federal Maritime

Comm'n v. South Carolina Ports Auth., 535 U.S. 743, 760

(2002) (“The preeminent purpose of state sovereign

immunity is to accord States the dignity that is consistent

with their status as sovereign entities.”).

Moreover, even as to the precise facts of this case — state

enforcement of a search warrant issued by a state court

against a tribal government - the issues presented are

critically important in Indian country, as the First Circuit’s

decision threatens to transform the rules governing tribal-

state relations in areas of mutual concern. This Court itself

recognized the importance of these issues when it granted

certiorari in Inyo County v. Paiute Shoshone Indians of the

Bishop Community of the Bishop Colony, 538 U.S. 701

(2003), a case that likewise involved a tribal challenge to a

State’s efforts to enforce a search warrant against a Tribe and

tribal government property.

The decision below also is wrong. While Congress has

the power to abrogate tribal sovereign immunity, an

abrogation will be found only if Congress has

““unequivocally’ express{ed] that purpose.” C&L Enters.

Inc. v. Citizen Band Potawatomi Indian Tribe of Okla., 532

U.S. 411, 418 (2001) (quoting Santa Clara Pueblo, 436 U.S.

at 58). Nothing in the Settlement Act purports to abrogate

the Tribe’s sovereign immunity.

Nor was the First Circuit correct in its apparent belief that

its result was necessary to give effect to the state tax laws at

issue here. To the contrary, this Court repeatedly has denied

that States have any right to the most convenient method for

enforcing a tax directly against a Tribe, and it has instead

enumerated alternative remedies that provide “a mutually

satisfactory regime for the collection of this sort of tax.”

Citizen Band Potawatomi, 498 U.S. at 514.

In short, this Court has set out a clear formula for

conferring state jurisdiction over tribal members on tribal

lands without subjecting the Tribe itself to state control or

abrogating tribal sovereign immunity, and Congress in the

Settlement Act followed that formula to the letter. The First

Circuit’s unprecedented decision to reinterpret that formula is

indefensible. Moreover, by giving States unchecked power

over tribal governments, the decision eviscerates tribal

sovereignty and encourages confrontation rather than

negotiation or litigation as the mechanism for resolving

good-faith disputes between States and Tribes. Review by

this Court is thus urgently needed.

I. THE DECISION BELOW CONFLICTS WITH

NUMEROUS DECISIONS HOLDING THAT A

CONGRESSIONAL GRANT OF CIVIL OR

CRIMINAL “JURISDICTION” OVER INDIAN

LANDS DOES NOT ABROGATE A_ TRIBE’S

SOVEREIGN IMMUNITY.

The extent of state jurisdiction over Indians and Indian

lands is an issue Congress has addressed frequently over the

past 50 years. Broadly speaking, the issue has arisen in three

contexts. First, under “Public Law 280,” Congress in 1953

gave several States extensive civil and criminal jurisdiction

over Indian lands, and other States later assumed jurisdiction

as permitted in the statute. Second, Congress has passed

legislation approving land-claims settlements that set aside

certain lands for a Tribe and conferring state jurisdiction over

that land in return for the Tribe’s relinquishment of its land

claims. Third, Congress has resolved claims for tribal

recognition by providing a Tribe with federal recognition and

a reservation and conferring some level of jurisdiction upon

the State. In all three settings, the congressional purpose of

the jurisdictional provisions is the same: to grant jurisdiction

over Indian lands that the State would otherwise lack.”

The language that Congress has used to grant jurisdiction

in these contexts has been remarkably constant: The State is

given civil or criminal “jurisdiction” over Indian land, and

often Congress provides that state laws will have “force and

effect” on that land. The Rhode Island Settlement Act —

which was the first of the land-claims settlement acts — is

typical of the later ones and tracks the language of Public

Law 280: 25 U.S.C. § 1708(a) provides that “the settlement

lands shall be subject to the civil and criminal laws and

jurisdiction of the State of Rhode Island,” and the Settlement

Agreement between the State and the Tribe provides that “all

laws of the State of Rhode Island shall be in full force and

effect on the Settlement Lands.” Pet. App. 135a, 142a. The

First Circuit’s conclusion that this language abrogates tribal

sovereign immunity and thus subjects the Tribe to state law

conflicts directly with decisions of this Court, other federal

courts of appeals, and state appellate courts.

A. The Decision Below Is at Odds with a Wealth of

Decisions Construing Indistinguishable Language.

This Court has definitively construed the relevant

statutory language in cases arising under Public Law 280,

which grants certain States civil and criminal “jurisdiction”

and provides that their laws will have the same “force and

effect” on Indian lands as those laws have elsewhere. In

* As this Court has often held, absent congressional authorization, States

lack criminal jurisdiction over offenses committed by or against Indians

on Indian lands, see Washington v. Confederated Bands & Tribes of

Yakima Indian Nation, 439 U.S. 463, 470-71 (1979); Williams v. Lee, 358

U.S. 217, 220 & n.5 (1959); Williams v. United States, 327 U.S. 711, 714

(1946), and generally lack civil jurisdiction over Indians on Indian lands,

see McClanahan v. Tax Comm'n of Arizona, 411 U.S. 164, 171, 177-78

(1973); Williams v. Lee, 358 U.S. at 219-20.

Bryan v. Itasca County, a case decided just two years before

Congress passed the Settlement Act, this Court expressly

stated that Public Law 280’s operative language did not

confer state jurisdiction over Tribes themselves. Bryan, 426

U.S. at 389. Refusing to risk “the undermining or destruction

of such tribal governments as did exist and a conversion of

the affected tribes into little more than ‘private, voluntary

organizations,” the Court distinguished between jurisdiction

over individual Indians on tribal lands and jurisdiction over

the Tribe itself, concluding that “there is notably absent [in

Public Law 280] any conferral of state jurisdiction over the

tribes themselves.” Jd. at 388-89 (quoting United States v.

Mazurie, 419 U.S. 544, 557 (1975)). Bryan contrasted

Public Law 280 with other contemporaneously enacted

statutes that had terminated the federal recognition of certain

Tribes and in so doing had expressly extended state

jurisdiction over the Tribes themselves, holding that these

statutes demonstrated that if Congress had intended Public

Law 280 to have such an effect “it would have expressly said

so.” Id. at 389-90.

The following year, in Puyallup Tribe, the Court

considered whether a state-court action to enjoin violations of

state law in connection with off-reservation fishing activities,

“analogous to prosecution of individual Indians for crimes

committed off reservation lands,” could proceed against the

Tribe as well as against individual tribal members. 433 U.S.

at 171. The Court held that, “[a]bsent an effective waiver or

consent, it is settled that a state court may not exercise

jurisdiction over recognized Indian tribe,” and that those

portions of the state-court order that involved relief against

the Tribe “must be vacated in order to honor the Tribe’s valid

claim of immunity.” Jd. at 172-73.

In Three Affiliated Tribes, the Court reaffirmed the core

holding in Bryan, stating that “[w]e have never read Pub. L.

280 to constitute a waiver of tribal sovereign immunity, nor

found Pub. L. 280 to represent an abandonment of the federal

interest in guarding Indian self-governance,” confirming that

“there is noiably absent [in Public Law 280] any conferral of

state jurisdiction over the tribes themselves.” 476 U.S. at

892 (quoting Bryan, 426 U.S. at 389). Recognizing that

tribal sovereign immunity is a “necessary corollary to Indian

sovereignty and self-governance,” the Court held that “in the

absence of Federal authorization, tribal immunity, like all

aspects of tribal sovereignty, is privileged from diminution

by the States.” Jd. at 890-91. The First Circuit’s decision

construing the indistinguishable language of the Settlement

Act conflicts directly with these cases.

The decision likewise conflicts with the interpretation of

this language given by every lower court to consider the

question. For example, in California ex rel. California

Department of Fish & Game v. Quechan Tribe of Indians,

595 F.2d 1153 (9th Cir. 1979), the Ninth Circuit held that

Public Law 280’s grant of criminal jurisdiction does not

abrogate tribal immunity because “[n]either the express terms

of [Public Law 280], nor the Congressional history of the

statute, reveal any intention by Congress for it to serve as a

waiver of a tribe’s sovereign immunity.” Jd. at 1156

(footnote omitted). The highest courts in Alaska, Florida,

Iowa, and Minnesota have all reached the same conclusion.

See Atkinson v. Haldane, 569 P.2d 151, 167 (Alaska 1977);

Houghtaling v. Seminole Tribe of Fla., 611 So. 2d 1235,

1238-39 (Fla. 1993); Gross v. Omaha Tribe of Neb., 601

N.W.2d 82, 83 (Iowa 1999); Meier v. Sac & Fox Indian

Tribe of Miss. in Iowa, 476 N.W.2d 61, 63-64 (Iowa 1991);

Gavle v. Little Six, Inc., 555 N.W.2d 284, 289 (Minn. 1996);

see also Long v. Chemehuevi Indian Reservation, 115 Cal.

App. 3d 853, 856-58 (1981).

The decision below likewise conflicts with state-court

decisions construing legislation providing for federal

recognition of a Tribe. In Silva v. Ysleta del Sur Pueblo, 28

S.W.3d 122 (Tex. App.-El Paso 2000), for example, the court

rejected the argument that Congress had abrogated the

Tribe’s sovereign immunity by passing 25 U.S.C. § 1300g-

4(f), which extends state civil and criminal jurisdiction

“within the boundaries of such reservation as if such state

had assumed such jurisdiction with the consent of the tribe

under [Public Law 280}.” 28 S.W.3d at 124-25 (internal

quotation marks omitted) (citing Bryan and Three Affiliated

Tribes); see also Val/Del, Inc. v. Superior Court, 703 P.2d

502, 507-08 (Ariz. Ct. App. 1985) (rejecting contention that

grant of federal recognition to the Pascua Yaqui Tribe and

extension of state jurisdiction over Pascua Yaqui lands in 25

U.S.C. § 1300f abrogated the Tribe’s sovereign immunity).

Indeed, prior to the decision below, the First Circuit itself

had squarely held in Maynard v. Narragansett Indian Tribe,

984 F.2d 14 (ist Cir. 1993), that neither the Settlement Act

nor the Settlement Agreement had accomplished “‘a waiver or

abrogation of the Tribe’s sovereign immunity.” /d. at 16.

The court in Maynard unanimously held that there was “no

provision or source which even alludes to the concept of

tribal sovereign immunity, much less to its relinquishment,”

and it noted that the Narragansetts’ settlement of land claims

“neither says nor implies anything about a surrender of its

sovereign immunity from suit relating to its territorial or

extraterritorial actions.” Jd. In the decision below, without

citing any intervening siatutes or new evidence, the First

Circuit expressly “disavow{ed]” Maynard. Pet. App. 23a.°

* The majority weakly suggested that Maynard might be distinguishable.

See id. at 22a-23a & n.8; see also id. at 36a-37a. But Maynard is

unambiguous, see Pet. App. 35a-36a (Lipez, J., dissenting), and other

First Circuit panels had read Maynard to mean what it said. For example,

in Narragansett Tribe v. Guilbert, 989 F.2d 484, 1993 WL 88161 (lst

Cir. 1993) (unpublished table decision), then-Chief Judge Breyer

explained that Maynard held that “the Narragansett Indian Tribe

possesses sovereign immunity, despite Congress’s enactment of the

Rhode Island Indian Claims Settlement Act.” /d. at *1.

B. The First Circuit’s Decision Directly Conflicts

with Numerous Decisions Holding that the

Applicability of Substantive Law to a Sovereign

Does Not Ipso Facto Abrogate that Sovereign’s

Immunity from Judicial Process.

In ruling that the Settlement Act abrogates tribal

sovereign immunity by granting jurisdiction to the State to

apply its substantive laws to the settlement lands, the First

Circuit also expressly rejected the well-settled distinction

between whether state law applies to a Tribe and whether a

State can enforce that law through judicial process directed at

a tribal government and tribal government property. See Pet.

App. 13a-14a. Indeed, the court below began its analysis by

expressly overruling its prior decision in Aroostook Band of

Micmacs v. Ryan, 404 F.3d 48, 68 (1st Cir. 2005), which had

recognized exactly that distinction. Pet. App. 14a. The First

Circuit’s novel understanding of sovereign immunity was

critical to its ruling: The language making state law and

jurisdiction applicable to the Narragansetts’ settlement lands

provided the only basis for the court of appeals’ elimination

of the Tribe’s sovereign immunity.

The First Circuit’s decision in this regard is flatly at odds

with decisions of this Court and other courts of appeals. In

Kiowa Tribe, for example, this Court considered whether

sovereign immunity barred a suit in state court for breach of

contract involving off-reservation conduct. 523 U.S. at 754.

While recognizing that States generally may apply their

substantive laws to tribal activities occurring outside Indian

reservation lands, the Court held that “[t]o say state

substantive laws apply to off-reservation conduct, however,

is not to say that a tribe no longer enjoys immunity from suit.

There is a difference between the right to demand

compliance with state laws and the means available to

enforce them.” Id. at 755 (emphasis added). Similarly, in

Citizen Band Potawatomi, the Court made clear that,

although “tribal sellers are obliged to collect and remit state

taxes on sales to nonmembers at Indian smokeshops on

reservation lands,” sovereign immunity barred the State from

enforcing that right by suing the Tribe directly. 498 U.S. at

513-14.

Relying on Kiowa Tribe, other federal courts of appeals

have expressly held that the applicability of substantive law

to a Tribe does not abrogate the Tribe’s sovereign immunity

from suit to enforce that law. In Florida Paraplegic Ass'n v.

Miccosukee Tribe of Indians of Florida, 166 F.3d 1126 (11th

Cir. 1999), the Eleventh Circuit held that under the principle

of Kiowa Tribe “whether an Indian tribe is subject to a statute

and whether the tribe may be sued for violating the statute

are two entirely different questions.” /d. at 1130. Applying

this distinction, the court ruled that while Title III of the

Americans With Disabilities Act applied to the Tribe, tribal

sovereign immunity barred an action against the Tribe for

violating the Act. /d. at 1130-35. Similarly, the Second

Circuit held in Bassett v. Mashantucket Pequot Tribe, 204

F.3d 343 (2d Cir. 2000), applying the Copyright Act, that

“the fact that a statute applies to Indian tribes does not mean

that Congress abrogated tribal immunity in adopting it.” Jd.

at 357; see also Garcia v. Akwesasne Hous. Auth., 268 F.3d

76, 85 n.5 (2d Cir. 2001); Chayoon v. Chao, 355 F.3d 141,

143 (2d Cir.), cert. denied, 543 U.S. 966 (2004).

This same principle is equally important in this Court’s

jurisprudence outside of Indian law. Although Congress may

enact federal laws that apply to the States, whether state

sovereign immunity has been validly waived to permit

enforcement of those laws is a separate question. See, e.g.,

Board of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. at 374

n.9. And this Court has similarly concluded without

exception that grants of “jurisdiction” to courts do not

abrogate sovereign immunity, whether that immunity belongs

to States, the United States, or Tribes. See Nordic Village,

503 U.S. at 38; Blatchford v. Native Village of Noatak, 501

U.S. 775, 776 (1991); see also Mack v. United States, 814

F.2d 120, 122-23 (2d Cir. 1987); Twin Cities Chippewa

Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529,

$32 (8th Cir. 1967).

In sum, the First Circuit’s holding that the applicability of

substantive law to a Tribe also abrogates its sovereign

immunity squarely conflicts with decisions of this Court and

of the Second and Eleventh Circuits. Review by this Court is

necessary to resolve this conflict and to correct a serious

error of federal law on a question that is fundamental in both

this Court’s Indian-law jurisprudence and its jurisprudence

outside of Indian law.

C. “Idiosyncratic” Features of the Settlement Do Not

Support the First Circuit’s Decision.

Although the First Circuit purported to focus on

“idiosyncratic” features of the Settlement Act and the

Settlement Agreement, Pet. App. 10a; accord id. at 17a n.5,

there is no doubt that its decision squarely conflicts with the

cases described above.

1. The Court of Appeals focused on the term

“jurisdiction” and concluded that “if the reference to

‘jurisdiction’ in section 1708(a) is to have any meaning, it

must effectuate some limitation on the Tribe’s sovereign

immunity.” Pet. App. 16a-17a. That conclusion is plainly

wrong.

First, the majcrity’s logic is directly at odds with Bryan

and Three Affiliated Tribes, where this Court emphatically

rejected the notion that the unadorned reference to state

“jurisdiction” in federal legislation would divest a Tribe of its

sovereign immunity. See Bryan, 426 U.S. at 388-90; Three

Affiliated Tribes, 476 U.S. at 890-92. Thus, whatever the

word “jurisdiction” means in the statute, it cannot mean that

tribal sovereign immunity is abrogated. Indeed, since Bryan,

no other court has ever held that the assignment of

“jurisdiction” abrogates sovereign immunity. The First

Circuit’s stubborn conclusion to the contrary flatly

contradicts Bryan and Three Affiliated Tribes.

Second, the First Circuit is wrong that reading the term

“jurisdiction” to grant jurisdiction without waiving tribal

sovereign immunity would render the term “mere

surplusage.” Pet. App. 16a. It is beyond dispute that States

generally lack jurisdiction over suits involving Indians that

arise on Indian lands, see supra note 5 — indeed, the First

Circuit recognized as much later in its opinion. Pet. App.

20a. Against that backdrop, the grant of “jurisdiction” in the

Settlement Act — like those in Public Law 280, the land-

claims settlement acts, and the federal-recognition acts —

simply provides state courts with jurisdiction over activities

on Indian lands. In short, Section 1708(a) has the same

effect as Public Law 280: It grants jurisdiction that the State

would otherwise lack. Cf. Three Affiliated Tribes, 476 U.S.

at 879. The fear that the statutory term would be superfluous

thus provides no reason to disregard Bryan and its progeny.

See Pet. App. 37a-39a.

2. A second alleged “idiosyncrasy” on which the Court of

Appeals relied was the Settlement Agreement’s provision

that “all laws of the State of Rhode Island shall be in full

force and effect on the Settlement Lands.” Pet. App. 10a.

But that provision cannot possibly serve to distinguish this

Court’s decision in Bryan because, as the Court noted in

Bryan, Public Law 280 provides that state laws “‘shall have

the same force and effect within such Indian country as they

have elsewhere within the State.”” 426 U.S. at 377 (quoting

28 U.S.C. § 1360(a)). It is precisely the First Circuit’s

interpretation of that language in the face of Bryan that

creates the conflict.

Nor is the analysis altered by the First Circuit’s

observation that the Settlement Agreement “did not

materialize out of thin air; it followed intense negotiations

and led to the Tribe’s receipt of over 1800 acres of land.”

Pet. App. 9a. First, although it cited the “intense

negotiations,” id., the court never claimed that there was even

a mention of tribal sovereign immunity in those negotiations,

and indeed no party has ever asserted that there was. Thus,

the negotiations do not render this case “idiosyncratic.”

Second, that the Agreement resulted from voluntary

negotiations cannot eliminate the split. Indeed, at the time

Bryan was decided, Public Law 280 also required a Tribe’s

voluntary agreement to state jurisdiction. Bryan, 426 U.S. at

386. But nothing in Bryan suggests that such agreement

would waive tribal sovereign immunity. The “voluntariness”

of the State’s assumption of jurisdiction is thus not a basis to

distinguish Public Law 280 or to eliminate the direct conflict.

Third, the distinction offered by the First Circuit makes

no sense. Even if the jurisdiction were by “mutual consent,”

Pet. App. 16a, 20a, that begs the question of what the parties

were consenting to. The inescapable fact is that, a mere two

years after Bryan was decided, the parties consented to the

precise language construed by this Court in Bryan. The First

Circuit had no license to ignore this Court’s unambiguous

definition of that language.’

The conflict presented here is thus direct and

unavoidable.

’ The First Circuit also distinguished Section 1708 from Public Law 280

as construed in Bryan by relying on its prior decision in Rhode Island v.

Narragansett Indian Tribe, 19 F.3d 685, 694-97 (Ist Cir. 1994), which

held that Section 1708, unlike Public Law 280, conferred regulatory

jurisdiction upon Rhode Island over the Tribe’s lands. Pet. App. 21a.

But even if this conclusion were correct — which the Tribe does not

concede — Section 1708 would at most authorize the State to enforce its

regulatory laws against tribal members on reservation lands, not against

the Tribe itself in the operation of its own government.

Il. THE ISSUE PRESENTED IS OF THE UTMOST

IMPORTANCE.

Review is warranted now because the issue presented is

critically important not just in Rhode Island but throughout

Indian country. As Judge Lipez noted in his dissent, the

“history of litigation and legislation outlined in the majority

opinion is prototypical of that involving several tribes,

especially in the East but also in parts of the West,” and thus

“(what the majority says about sovereign immunity in this

case has implications for the application of sovereign

immunity in these similar contexts.” Pet. App. 27a-28a.

Judge Lipez was correct. Congress understood that the

Rhode Island Act was “the first legislation submitted to the

Congress which would resolve the land claims of an Indian

Tribe arising under the Trade and Intercourse Act of 1790...

on the basis of an out-of-court settlement negotiated between

the Tribe and the affected parties.” H.R. Rep. No. 95-1453,

at 7 (1978), reprinted in 1978 U.S.C.C.A.N. 1948, 1951.

Congress intended the bill to be “precedential” and a

“landmark for the resolution of other land claims by eastern

tribes under the Trade and Intercourse Act.” /d. at 7-8. And

indeed, many land-claims settlement acts contain similar

language. See, e.g., Mashantucket Pequot Indian Claims

Settlement Act, Pub. L. No. 98-134, § 6, 97 Stat. 851, 855

(1983) (codified at 25 U.S.C. § 1755) (“the reservation of the

Tribe ... [is] subject to State jurisdiction to the maximum

extent provided in” Public Law 280); Wampanoag Tribal

Council of Gay Head, Inc., Indian Claims Settlement Act of

1987, Pub. L. No. 100-95, § 9, 101 Stat. 704, 709 (codified at

25 U.S.C. § 1771g) (“settlement lands . . . shall be subject to

the civil and criminal laws, ordinances, and jurisdiction of

the Commonwealth of Massachusetts and the Town of Gay

Head, Massachusetts”); Mohegan Nation of Connecticut

Land Claims Settlement Act of 1994, Pub. L. No. 103-377,

§ 6, 108 Stat. 3501, 3505 (codified at 25 U.S.C. § 1775d(a))

(authorizing “assumption of jurisdiction of the State of

Connecticut over criminal offenses committed by or against

Indians on the reservation . . . to the same extent as the State

has jurisdiction over such offenses committed elsewhere

within the State,” and providing that “[t]he criminal laws of

the State shall have the same force within such reservation

. as such laws have elsewhere within the State”). All

reservations subject to these acts could be affected by the

First Circuit’s aberrant decision. See Pet. App. 27a-28a, 35a-

36a, 44a n.17.

As noted above, the impact of this case extends beyond

land-claims settlement acts to settlement legislation

providing federal recognition to specific Tribes, see, e.g., 25

U.S.C. § 1300b-11 (Texas Band of Kickapoo Indians); id.

§ 1300f (Pascua Yaqui Tribe); id. § 1300g-4(f) (Ysleta del

Sur Pueblo), and to Public Law 280, which applies to

hundreds of Tribes in 11 States, spread across four federal

judicial circuits.* The First Circuit’s jurisdictional holding is

thus of broad nationwide significance.

Moreover, the decision’s consequences for Tribes are far-

reaching. First, the court below read the Settlement Act as

effecting a broad abrogation of tribal sovereign immunity,

subject only to the grudging acknowledgement that the Tribe

would retain “some degree of autonomy ‘in matters of local

governance,’ including ‘matters such as membership rules,

inheritance rules, and the regulation of domestic relations.’”

Pet. App. 17a (citation omitted). But limiting sovereign

immunity to these few areas would eviscerate Tribes’ ability

to function as sovereign governments rather than as “private,

voluntary organizations,” Mazurie, 419 U.S. at 557, and

® The 11 States are Alaska, California, Florida, Idaho, lowa, Minnesota,

Montana, Nebraska, Oregon, Washington, and Wisconsin. See generally

Carole Goldberg & Duane Champagne, Js Public Law 280 Fit for the

Twenty-First Century? Some Data at Last, 38 Conn. L. Rev. 697, 697 &

n.2 (2006).

would leave Tribes subordinate to the command of state

officials empowered to enforce state law. This Court has, by

contrast, specifically rejected arguments that tribal immunity

from suit should be confined to transactions on reservations,

to the internal affairs of tribal government, or to

governmental activities generally; and it has explained that

“Congress has consistently reiterated its approval of the

immunity doctrine,” reflecting Congress’s “desire to promote

the ‘goal of Indian self-government, including its “overriding

goals” of self-sufficiency and economic development.”

Citizen Band Potawatomi, 498 U.S. at 510 (quoting

California v. Cabazon Band of Mission Indians, 480 U.S.

202, 216 (1987)); see Kiowa Tribe, 523 U.S. at 755.

Indeed, the decision below threatens much of the recent

progress in tribal-state relations. In areas such as tax and

criminal law enforcement, Tribes and States increasingly

have settled their differences on a sovereign-to-sovereign

basis, forging bilateral agreements that resolve jurisdictional

conflicts and provide mutual waivers of sovereign immunity.

See Nevada v. Hicks, 533 U.S. 353, 372 (2001) (expressly

recognizing “state-tribal cooperative agreements, including

those pertaining to mutual law enforcement assistance, tax

administration assistance, and child support and paternity

matters”); id. at 393 (O’Connor, J., concurring) (providing

numerous examples of States that have “enter[ed] into

consensual relationships with tribes, such as contracts for

services or shared authority over public resources”). If a

State may use its coercive power to compel surrender of

tribal immunity (while preserving its own immunity), this

growing body of tribal-state agreements that benefit Indians

and non-Indians alike is in jeopardy. Such a drastic

reworking of tribal-state relations — for the Narragansetts and

for scores of other Tribes — without any indication that this is

what Congress intended, cries out for review.

Finally, the troubling practical implications of the First

Circuit’s decision are well illustrated by the facts of this case.

The parties were engaged in what was indisputably a good-

faith disagreement over the applicability of certain state tax

laws. Rather than continuing discussions or engaging in civil

litigation, the State resorted to armed enforcement of a state-

court-issued search warrant. No federal or foreign sovereign

would be subject to such treatment,’ and the intrusion on

tribal dignity was brazen and severe. It is hard to imagine an

approach better designed to provoke a violent confrontation.

No sensible rule of law would encourage such a result.

The fact that this Court very recently noted but reserved

issues relating to state searches and seizures of Tribes’ on-

reservation property speaks both to the recurring nature of

these conflicts and to their importance. In Jnyo County v.

Paiute Shoshone Indians, the Court granted certiorari in a

case that likewise involved a tribal challenge to a State’s

efforts to enforce a search warrant against a Tribe and tribal

government property. See 538 U.S. at 712 (noting, but

reserving, Tribe’s claimed right to be free from criminal

processes). Here, the issues are squarely framed and cleanly

presented, and this Court should resolve them now.

Il1l.THE FIRST CIRCUIT’S DECISION IS PLAINLY

INCORRECT.

The decision below also merits review because it is flat

wrong. No other case holds that statutory language remotely

like the language here effects an abrogation of immunity.

1. The First Circuit’s decision is irreconcilable with case

law from this Court regarding waiver and abrogation of

® See, e.g., Buchanan vy. Alexander, 45 U.S. (4 How.) 20, 21 (1846); Elko

County Grand Jury v. Siminoe (In re Elko County Grand Jury), 109 F.3d

554, 556 (9th Cir. 1997); Vienna Convention on Diplomatic Relations,

Apr. 18, 1961, art. 22, cl. 1, 23 U.S.T. 3227; Vienna Convention on

Consular Relations, Apr. 24, 1963, art. 31, cl. 1, 21 U.S.T. 77.

sovereign immunity. As this Court has made clear, “a waiver

of [tribal] sovereign immunity ‘cannot be implied but must

be unequivocally expressed.’” Santa Clara Pueblo, 436 U.S.

at 58 (quoting United States v. Testan, 424 U.S. 392, 399

(1976)). That holding, which was expressly reaffirmed in

C&L Enterprises, 532 U.S. at 418, protects tribal sovereign

immunity using the same high standard that protects the

immunity of the federal government and the States. Nordic

Village, 503 U.S. at 33-34 (waiver of federal government’s

sovereign immunity must be “unequivocally expressed”);

Green v. Mansour, 474 U.S. 64, 68 (1985) (“States may not

be sued in federal court unless they consent to it in —

unequivocal terms or unless Congress ... unequivocally

expresses its intent to abrogate the immunity.”).

The First Circuit’s decision makes a mockery of this case

law. Neither the Settlement Act nor the Settlement

Agreement (nor the history of either) contains any evidence

that the Tribe or Congress intended to subject the Tribe and

its government — as distinct from individual tribal members —

to the jurisdiction of state courts. Pet. App. 34a & n.13, 47a,

127a-144a.'° Nor does the language of the Act refer at all to

sovereign immunity — indeed, as noted above, the language

used has authoritatively been construed by this Court not to

abrogate sovereign immunity.

The First Circuit’s approach is all the more egregious

because Congress has expressly abrogated tribal immunity in

other land-claims settlement acts. In the Maine Indian

Claims Settlement Act — passed in 1980 by virtually the same

Congress that just two years earlier enacted the Rhode Island

Act — Congress provided that Indian Tribes in Maine “may

sue and be sued in the courts of the State of Maine and the

'° The absence of such evidence is telling. As the Court stated in Bryan,

“some mention would normally be expected if such a sweeping change in

the status of tribal government and reservation Indians had been

contemplated by Congress.” 426 U.S. at 381.

United States to the same extent as any other entity or person

residing in the State of Maine.” 25 U.S.C. § 1725(d\(1). If

Congress had intended to abrogate the Narragansetts’

sovereign immunity in the 1978 Act, it would have said so,

as it did in the Maine Act two years later. Pet. App. 33a

n.11, 50a; see Bryan, 426 U.S. at 389-90 (clear abrogation

language in termination acts is strong evidence that Congress

did not intend to abrogate when it used different language in

Public Law 280).

2. The First Circuit likewise erred in its apparent belief

that its result was necessary to give effect to the state tax

laws at issue here. In Citizen Band Potawatomi, this Court

expressly rejected the State’s complaint that allowing the

State to impose the tax but not to sue to collect it would

effectively “give them a right without any remedy.” 498

U.S. at 514. Although “sovereign immunity bars the State

from pursuing the most efficient remedy,” the Court was “not

persuaded that [the State] lacks any adequate alternatives.”

Id.; see id. (listing remedies).

3. Finally, to the extent the First Circuit had concerns

about the practical impact of tribal sovereign immunity more

broadly, it was error_to- address those concerns by radically

reinterpreting settled law. This Court has repeatedly

“defer[red] to the role Congress may wish to exercise” in

shaping tribal sovereign immunity, recognizing that Congress

is best positioned “to weigh and accommodate the competing

policy concerns and reliance interests.” Kiowa Tribe, 523

U.S. at 758-59. If Congress is unhappy with the allocation of

jurisdiction accomplished by Public Law 280, the Rhode

Island Indian Claims Settlement Act, and similar legislation,

Congress knows how to change it.

CONCLUSION

The petition for a writ of certiorari should be granted.

REID PEYTON CHAMBERS

DOUGLAS B.L. ENDRESON

SONOSKY, CHAMBERS, SACHSE,

ENDRESON & PERRY, LLP

1425 K Street, N.W.; Suite 600

Washington, DC 20005

(202) 682-0240

DOUGLAS J. LUCKERMAN

20 Outlook Drive

Lexington, MA 02421

(781) 861-6535

September 21, 2006

Respectfully submitted,

IAN HEATH GERSHENGORN*

SAM HIRSCH

JENNER & BLOCK LLP

601 Thirteenth Street, N.W.

Washington, DC 20005

(202) 639-6000

JOHN F. KiLLOY, JR.

74 Main Street

Wakefield, RI 02879

(401) 783-6840

* Counsel of Record

APPENDIX

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 04-1155

NARRAGANSETT INDIAN TRIBE,

Plaintiff, Appellant,

STATE OF RHODE ISLAND AND

PROVIDENCE PLANTATIONS ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge}

Before BOUDIN, Chief Judge, TORRUELLA, SELYA,

LYNCH, LIPEZ and HOWARD, Circuit Judges.

OPINION EN BANC

May 24, 2006

SELYA, Circuit Judge. This case pits the Narragansett

Indian Tribe (the Tribe) against the State of Rhode Island

(the State).’ 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.1. 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 (Ist 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.

I. BACKGROUND

We begin with a synopsis of the unique relationship

between the Tribe and the State and then turn to the

' The named defendants include various Rhode Island state officials, the

Town of Charlestown, and the Charlestown Police Department. Because

the central dispute is between the Tribe and the State, we address it in

those terms.

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 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

Nonintercourse 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 Staie 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).’

? The statutory scheme does exempt the settlement lands from state

hunting and fishing regulations, see 25 U.S.C. § 1706(a)(3), but that

exemption is of no consequence here.

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 Geneval 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). 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 (Ist 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 gambiing 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. /d. §§ 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. Jd. §§ 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. /d.

§ 44-20-29. The sale or purchase of unstamped cigarettes is

a misdemeanor. /d §§ 44-20-33, 44-20-35, 44-20-36.

Unstamped cigarettes are contraband and, as such, are subject

to seizure by the State. /d. § 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

precollect 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 search warrant

issued by a state court of competent jurisdiction. Despite the

warrant, the troopers’ entry sparked an altercation with

members of the Tribe. When the smoke cleared, the troopers

had arrested eight individuals, including the Tribe’s Chief

Sachem, and had confiscated the Tribe’s entire inventory of

unstamped, untaxed cigarettes.

In the aftermath of this acrimonious episode, the Tribe

filed suit in the federal district court, seeking a declaratory

judgment that its sovereign status as a federally recognized

Indian tribe precluded the State from applying its cigarette

tax scheme to the Tribe’s sale of cigarettes on the settlement

lands. Relatedly, the Tribe sought a declaration that

sovereign immunity insulated it from the State’s criminal

process and shielded from arrest those tribal members who

had participated in the operation of the smoke shop. After

submitting the case on stipulated facts, the parties cross-

moved for summary judgment.

The district court granted brevis disposition in the State’s

favor, grounding its decision on two crucial determinations.

First, the court concluded that the legal incidence of the

cigarette tax fell on the purchaser rather than the seller and

that, therefore, the Tribe had to comply with the tax scheme

when selling cigarettes on the settlement lands. 296 F. Supp.

2d at 167. Second, the court concluded that section 1708(a)

of the Settlement Act authorized state officers to enter the

settlement lands, seize the Tribe’s stock of unstamped,

untaxed cigarettes, and arrest tribal members working in the

smoke shop. /d. at 170, 177.

The Tribe appealed. A panel of this court affirmed in

part and reversed in part. The panel accepted the district

court’s determination that the Tribe must comply with the

State’s cigarette tax scheme when selling cigarettes on the

settlement lands.’ Op. at 24-25. The panel disagreed,

however, with the lower court’s ruling that the State could

enforce the cigarette tax scheme through the execution of a

search warrant against the Tribe. /d. at 33. Although section

* In granting rehearing en banc, we chose not to revisit this point. That

choice left intact the panel’s holding that the Tribe must comply with the

cigarette tax scheme when it sells cigarettes on the settlement lands. That

holding has, therefore, become the law of the case. See United States v.

Moran, 393 F.3d 1, 7 (ist Cir. 2004) (stating that “a legal decision made

at one stage of a. . . civil proceeding should remain the law of that case

throughout the litigation, unless and until the decision is modified or

overruled by a higher court”).

1708(a) preserved the State’s criminal jurisdiction over the

settlement lands, the panel reasoned, it did not grant the State

criminal jurisdiction over the Tribe and, accordingly, the

Tribe’s sovereign immunity prevented the State from

executing a search warrant against the Tribe. Jd. at 33.

On the State’s petition, see Fed. R. App. P. 35(b), we

vacated the portions of the panel opinion relating to the

State’s enforcement powers and granted rehearing en banc on

the narrow questions of “whether, to what extent, and in what

manner Rhode Island may enforce its civil and criminal laws

with respect to the operation of the [s}moke [sJhop by the

Narragansett Indian Tribe” and “the effect (if anv) of tribal

sovereign immunity” on the State’s enforcement authority.

Narragunsett Indian Tribe v. Rhode Island, 415 F.3d 134 (lst

Cir. 2005) (unpublished order). We turn now to those

questions.

Il. ANALYSIS

It is beyond peradventure that a state may seize

contraband cigarettes located outside Indian lands but in

transit to a tribal smoke shop. See Washington v. Confed.

Tribes of Colville Indian Reserv., 447 U.S. 134, 161-62

(1980). Withal, the question of whether a state, as a general

matter, may enter Indian lands and seize unstamped

cigarettes owned by an Indian tribe is open. See id. at 162.

We need not answer that vexing question in the abstract;

here, the plain language and purport of the J-Mem and the

Settlement Act supply the answer with respect to activities on

the settlement lands.

We bifurcate our analysis, first addressing whether the

State may execute a search warrant on the settlement lands

and then mulling whether tribal sovereign immunity can be

said to prevent the State from executing such a warrant

against the Tribe and from arresting tribal members involved

in the smoke shop enterprise.‘

A. The Ability to Execute a Search Warrant.

The State asseverates that the J-Mem and the Settlement

Act, when read in light of the unique historical context in

which they arose, permitted state officers to execute a search

warrant on the settlement lands as part of the due

enforcement of the State’s cigarette tax scheme. We think

that proposition is correct.

The Tribe agreed in the J-Mem (with certain modest

exceptions not relevant here) that “all laws of the State of

Rhode Island shall be in full force and effect on the

settlement lands.” That agreement did not materialize out of

thin air; it followed intense negotiations and led to the

Tribe’s receipt of over 1,800 acres of land. Congress

confirmed this negotiated arrangement in the Settlement Act,

mandating (again with explicit but modest exceptions) 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). As the unqualified language of both the J-

Mem and the Settlement Act makes pellucid, the authority

ceded to the State and assented to by the Tribe was broad in

its terms. The negotiated arrangement and the confirmatory

* In his separate dissent, Judge Torruella argues that this second question

is not properly before the en banc court under the law of the case

doctrine. See post at (45a n.18] (Torruella, J., dissenting). This argument

mischaracterizes the unrevoked portion of the panel opinion, which

concludes only that the Settlement Act did not effectuate a “wholesale

abrogation of the Tribe’s sovereign immunity.” Op. at 27 (emphasis

supplied). This statement leaves ample room for us to examine the

dimensions of the Tribe’s sovereign immunity vis-a-vis the settlement

lands. In all events, the order granting rehearing en banc, quoted supra,

indisputably opened the sovereign immunity question to our

consideration.

10a

statute effectively extinguished the Tribe’s right to resist the

application of state authority as to matters occurring on the

settlement lands. And that arrangement drew no distinction

between tribal members and the Tribe itself, on the one hand,

and the general public, on the other hand.

In effect, then, the Tribe abandoned any right to an

autonomous enclave, submitting itself to state law as a quid

pro quo for obtaining the land that it cherished. It is

surpassingly difficult to imagine what the linguistic

formulation that embodied this concession would entail if not

an acknowledgment that the State may enforce its applicable

criminal laws on the settlement lands by conventional means;

any contrary interpretation would make the relevant

provisions of both the J-Mem and the Settlement Act

meaningless. The execution of a search warrant referable to

violations of the State’s legally binding cigarette tax scheme

falls squarely within_the ambit of the ceded authority.

Indeed, the carefully calibrated agreement between the Tribe

and the State — an agreement from which, by virtue of the -

creation and conveyance of the settlement lands, the Tribe

greatly benefited — would be altered dramatically if the

State were without power to enforce its binding laws through

conventional means such as the execution of a search warrant

on the settlement lands.

The J-Mem-the—Settlement Act, and their historical

antecedents make this case strikingly different from the

mine-run of cases that have struggled to reconcile the

sovereignty of Indian tribes with the legitimate interests of

host states. Thus, we rest our decision squarely on these

idiosyncratic features. We note, however — contrary to the

view of our dissenting brethren — that the general body of

Indian law also supports a conclusion that the State may

undertake the enforcement activities at issue in this case.

lla

The Supreme Court has held that because Congress has

plenary power over Indian matters, see Morton v. Mancari,

417 U.S. 535, 551-52 (1974), the assertion of state suzerainty

within tribal lands is permissible where it has not been

preempted by the operation of federal law. New Mexico v.

Mescalero Apache Tribe, 462 U.S. 324, 333 (1983). The

application of federal preemption doctrine in Indian matters

has special characteristics; it “calls for a particularized

inquiry into the nature of the state, federal, and tribal interests

at stake.” Jd. (quoting White Mountain Apache Tribe v.

Bracker, 448 U.S. 136, 145 (1980)). Courts must conduct

this inquiry in the albedo of traditional notions of Indian

sovereignty, including the settled federal policy of promoting

Indian self-governance and the overarching goal of

encouraging tribal self-sufficiency and economic

development. /d. at 334-35.

Employing this paradigm requires us to identify and

weigh the competing state, federal, and tribal interests that

obtain within the concrete factual context of this dispute. In

conducting this tamisage, we are cognizant that Congress has

not granted the Tribe any special powers with respect to the

specific subject matter involved here (cigarette sales). This is

important because, in the absence of special legislation, the

balance of state, federal, and tribal interests in regard to

Cigarette taxation leaves considerable room for state

intervention on tribal lands. See Dep’t of Tax. & Fin. v.

Milhelm Attea & Bros., 512 U.S. 61, 73 (1994). Here,

special legislation of a different sort — the Settlement Act —

figures in the balance, and, as we have explained, that

legislation increases the room for state intervention.

Keeping in mind that both the Tribe and its members are

subject to a legal obligation to comply with the State’s

cigarette tax scheme, see supra note 3, it is readily evident

that the State’s interest in maintaining the integrity of that

12a

scheme contrasts favorably with the Tribe’s interest in

Operating the smoke shop as a tax haven. Appropriate

enforcement measures are needed to check wholesale

transgressions of the State’s scheme by price-conscious

purchasers willing to flout their legal obligations. See Moe v.

Confed. Salish and Kootenai Tribes, 425 U.S. 463, 482

(1976). Enforcement is also necessary to prevent the Tribe

“from marketing [its] tax exemption to nonmembers who do

not receive significant tribal services and who would

otherwise purchase their cigarettes” outside the settlement

lands. Colville, 447 U.S. at 157.

The Tribe’s countervailing interest is not impressive.

Although the Tribe has a legitimate stake in generating

revenue for its social programs free from unwarranted state

interference, that interest is significantly weaker where, as

here, it seeks to purvey goods made by outsiders — goods as

to which the Tribe has only a fleeting commercial

connection. See Mescalero Apache Tribe, 462 U.S. at 341;

see also Colville, 447 U.S. at 156-57. Moreover, the fact that

the Tribe and its members are legally required to comply

with the State’s cigarette tax scheme makes it very difficult

for the Tribe to identify any legitimate reason for resisting

state enforcement of the scheme. In this case, then, the scales

tip in favor of recognizing the State’s authority to execute a

search warrant on the settlement lands.

Endeavoring to blunt the force of this reasoning, the

Tribe importunes us to resurrect a line of cases that at one

time insulated tribal action on tribal lands from state

interference independent of federal preemption. See, e.g.,

Williams v. Lee, 358 U.S. 217, 220 (1959) (pronouncing that

Indian tribes’ inherent sovereign right to “make their own

laws and be ruled by them” constitutes a bar to state action

on tribal lands). We reject these importunings. While the

approach of treating inherent tribal sovereignty as an

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independent impediment to state action on tribal lands has

never been abandoned by the Supreme Court in haec verba,

the Justices have come to treat this doctrine as no more than a

piece of the background against which preemption analysis

must be conducted. See, e.g., Nevada v. Hicks, 533 U.S. 353,

362-64 (2001) (indicating that state officers may execute, on

reservation lands, a search warrant referable to a tribal

member’s off-reservation violation of state law); see also

Colville, 447 U.S. at 156; McClanahan vy. Ariz. State Tax

Comm'n, 411 U.S. 164, 172 (1973).

To sum up, the J-Mem and the Settlement Act, seen in

their historical setting, compel a conclusion that the State

retains the authority to issue and enforce a search warrant

relative to the sale of unstamped, untaxed cigarettes on the

settlement lands. General principles of Indian law reinforce

that conclusion.

B. The Effect of Tribal Sovereign Immunity.

To this point, we have determined that the State may

enforce its cigarette tax scheme by executing an otherwise

valid search warrant on the settlement lands. The remaining

question is whether tribal sovereign immunity prohibits the

State from executing such a warrant against the Tribe or

from arresting tribal members participating in the operation

of the smoke shop pursuant to a tribal ordinance. We believe

that the resolution of this binary question is clearly

adumbrated by our earlier discussion of the purpose and .

effect of the J-Mem and the Settlement Act.

At the threshold, we pause to confront a point made by

our dissenting brethren. They suggest that our approach to

this question disregards the “subtle but important” distinction

between tribal sovereignty and tribal sovereign immunity

announced in a decision of a panel of this court. Post at

[28a] (Lipez, J., with whom Torruella, J., joins, dissenting)

(quoting Aroostook Band of Micmacs v. Ryan, 404 F.3d 48,

14a

68 (lst Cir. 2005)). This criticism rests on shaky ground.

The Aroostook panel-with scant citation to authority-saw a

distinction that is not apparent to us; it framed the distinction

as being that the doctrine of tribal sovereignty contemplates

that, in certain circumstances, a tribe “is not subject to state

laws . . . at all,” whereas tribal sovereign immunity “means

that [a tribe] is not amenable to state judicial or quasi-

judicial proceedings to enforce those laws.” Aroostook, 404

F.3d at 68 (emphasis in original). In our view, both the

Aroostook panel’s sculpting of the distinction and its ensuing

discussion of the scope of tribal sovereign immunity misread

the applicable Supreme Court precedents and, thus, are

incorrect. As we already have explained, “the trend has been

away from the idea of inherent Indian sovereignty as a bar to

state jurisdiction and toward reliance on federal pre-

emption,” McClanahan, 411 U.S. at 172; see Hicks, 533 US.

at 362, treating sovereignty instead as the source of “tribal

power . . . to protect tribal self-government or to control

interna! relations” through tribal regulation of activities on

tribal lands, Montana vy. United States, 450 U.S. 544, 564

(1981); see Hicks, 533 U.S. at 358-60. Consistent with this

trend, tribal sovereign immunity is most accurately

considered an incidence or subset of tribal sovereignty. See,

e.g., Okla. Tax Comm'n v. Citizen Band Potawatomi Indian

Tribe, 498 U.S. 505, 509 (1991) (indicating that tribal

sovereign immunity is an incidence of tribal sovereignty).

Consequently, we expressly overrule Aroostook with respect

to the distinction in question and proceed with our bifurcated

inquiry.

1. Confiscation of Cigarettes. The Tribe asserts that its

sovereign status as a federally recognized Indian tribe

immunizes it from state court process, including search

warrants related to the enforcement of the State’s cigarette

tax scheme. On this rationale, the State, even if it may enter

the settlement lands and execute a search warrant against an

15a

individual, may not execute such a warrant against the Tribe

or its property. As indicated above, see supra Part II(A), the

State’s most potent retort is that the combined force of the J-

Mem (by waiver) and section 1708(a) (by abrogation) defeats

the Tribe’s claim of sovereign immunity. We find this retort

dispositive.

An Indian tribe’s sovereign immunity may be limited by

either tribal conduct (i.e., waiver or consent) or congressional

enactment (i.e., abrogation). Kiowa Tribe v. Mfg. Techs.,

Inc., 523 U.S. 751, 754 (1998); Ninigret Dev. Corp. v.

Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21,

29 (ist Cir. 2000). While such actions must be clear and

unequivocal in their import, see C & L Enters. v. Citizen

Band Potawatomi Indian Tribe, 532 U.S. 411, 418 (2001),

there is no requirement that talismanic phrases be employed.

Thus, an effective limitation on tribal sovereign immunity

need not use magic words. See id. at 420-21.

At the expense of repastinating ground already well-

ploughed, we explain why we find both waiver and

abrogation here. In the J-Mem, the Tribe, for valuable

consideration received — 1,800 acres of coveted land —

explicitly acknowledged that, with certain modest exceptions

not applicable here, “a// laws of the State of Rhode Island

shall be in full force and effect on the settlement lands.”

(Emphasis supplied). This concession was an integral part of

the bare-knuckled negotiations that created the settlement

lands. Read in light of this unique historical context, the

provision quoted above clearly and unambiguously

establishes that the parties to the J-Mem intended to

subjugate the Tribe’s autonomy on and over the settlement

lands (and, thus, its sovereign immunity) to the due

enforcement of the State’s civil and criminal laws. Any other

interpretation of the J-Mem would defy common sense and,

16a

in the bargain, nullify the State’s most important quid pro

quo. Hence, there was a waiver.

The record also evinces an abrogation of the Tribe’s

sovereign immunity with respect to activities on the

settlement lands. Unlike most other federal statutes touching

on the complicated relationship between tribes and states, the

Settlement Act codified an agreement based on “the mutual

consent of all parties.” H.R. Rep. No. 95-1453, at 11 (1978),

reprinted in 1978 U.S.C.C.A.N. 1948, 1954. In order to

effectuate the parties’ shared intent, the Settlement Act,

consistent with the J-Mem, guaranteed that the settlement

lands would be “subject to the civil and criminal laws and

jurisdiction of the State of Rhode Island.” 25 U.S.C.

§ 1708(a) (emphasis supplied); see Narragansett Indian

Tribe, 19 F.3d at 695 & n.8 (noting that, at all pertinent

times, the Tribe and the State took pains to reaffirm section

1708(a)’s vitality).

We must read statutes, whenever possible, to give effect

to every word and phrase. United States v. Ven-Fuel, Inc.,

758 F.2d 741, 751-52 (ist Cir. 1985). Moreover, we must

presume that Congress acts with knowledge of relevant

Supreme Court precedent. See Goodyear Atomic Corp. v.

Miller, 486 U.S. 174, 184-85 (1988). At the time Congress

passed the Settlement Act, the Supreme Court already had

adopted the approach of permitting the exercise of state

jurisdiction within Indian lands where the exercise of such

jurisdiction had not been preempted by federal law. See

McClanahan, 411 U.S. at 172; Mescalero Apache Tribe v.

Jones, 411 U.S. 145, 148 (1973); Organized Vill. of Kake v.

Egan, 369 U.S. 60, 74-75 (1962). Thus, section 1708(a)

would be mere surplusage if, as the Tribe contends, it

contemplates no more than that the State may exercise

jurisdiction within the settlement lands subject to the

constraints of tribal sovereign immunity. In other words, if

17a

the reference to “jurisdiction” in section 1708(a) is to have

any meaning, it must effectuate some limitation on the

Tribe’s sovereign immunity. Combining this language with

the historical background, we conclude that section 1708(a)

largely abrogates the Tribe’s sovereign immunity.”

We say “largely” in an abundance of caution. We

recognize that the Tribe may continue to possess some

degree of autonomy “in matters of local governance,”

including “matters such as membership rules, inheritance

rules, and the regulation of domestic relations.”

Narragansett Indian Tribe, 19 F.3d at 701. But that core

group of sovereign functions, whatever its dimensions, is not

implicated in this case. Here, the State is seeking to enforce

laws binding on the Tribe’s commercial transactions with

outsiders, not to dictate, say, tribal membership or

inheritance rules. Whatever the exact contours of the Tribe’s

retained sovereignty, those contours are narrow-and it is

perfectly clear that trafficking in contraband cigarettes is not

within them. Cf Felix S. Cohen, Handbook of Federal

Indian Law 122 (1988 ed.) (noting that “Indian self-

government . . . includes the power of an Indian tribe to

adopt and operate under a form of government of the Indians’

choosing, to define conditions of tribal membership, to

* The Tribe notes that the Maine Indian Claims Settlement Act, which

was passed some years after the statute at issue here, includes a more

explicit abrogation of tribal sovereign immunity. See 25 U.S.C.

§ 1725(d). From this, the Tribe argues that Congress’s failure to be

similarly explicit in section 1708(a) heralds an intent not to cancel out the

Tribe’s sovereign immunity. In our view, the particulars of the Maine

Act have little bearing here. Cf Akins v. Penobscot Nation, 130 F.3d

482, 484 & n2 (ist Cir. 1997) (remarking the uniqueness of the

“structure of analysis” under the Maine Act and distinguishing it from the

Rhode Island Settlement Act). That is particularly so given the

idiosyncratic circumstances surrounding the execution of the J-Mem and

the subsequent enactment of section 1708(a).

: 18a

regulate domestic relations of members, to prescribe rules of

inheritance, to levy taxes” and the like).

This result is consistent with two important principles.

First, the Settlement Act, properly read, ensures that the State

may demand the Tribe’s compliance with state laws of

general application. Second, it also ensures that the State

may use its entire armamentarium of legal means for

redressing noncompliance. The “full force” of the State’s

preserved criminal jurisdiction logically encompasses the

enforcement of criminal laws that are binding on the Tribe’s

commercial transactions with outsiders. That, in turn,

encompasses the authority to execute a search warrant

against the Tribe for its violations of those laws on the

settlement lands. We conclude, therefore, that, under the

terms of the J-Mem and the Settlement Act, the Tribe is not

immune from the execution of a search warrant secured as

part of the State’s effort to enforce the Tribe’s obligation to

comply with a legally applicable cigarette tax scheme.

Judge Torruella, in his separate dissent, calumnizes this

construction of the Settlement Act, arguing that it is

inconsistent with the canon of construction teaching that

“statutes are to be construed liberally in favor of the Indians,

with ambiguous provisions interpreted to their benefit.”

Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766

(1985). In Judge Torruella’s view, section 1708(a) is such a

provision. See post at [42a) (Torruella, J., dissenting). But

that argument rests on a flawed premise. Section 1708(a),

when read in light of the J-Mem and the unique historical

context surrounding its enactment, clearly abrogates the

Tribe’s sovereign immunity with respect to the State’s

enforcement activities on the settlement lands. And because

there is no ambiguity in the meaning and purport of section

1708(a), this case does not implicate the hoary canon of

construction relied on by the dissent.

19a

The dissenters attack our reading of the “full force and

effect” language on a different front as well. They assert that

the Supreme Court “has held that such language . . . does not

waive or abrogate tribal sovereign immunity.” Post at [31a]

(Lipez, J., with whom Torruella, J., joins, dissenting). In

support of this proposition, they rely on the Supreme Court’s

refusal to construe language in a different federal statute

(commonly referred to as Public Law 280) as an abrogation

of tribal sovereign immunity. See Three Affiliated Tribes of

Fort Berthold Reserv. v. Wold Eng’g, 476 U.S. 877, 892

(1986). This reliance is mislaid: the historical context and

purpose of Public Law 280 are so completely different from

those of the Settlement Act that, despite some linguistic

coincidences, the Court’s interpretation of that law has no

bearing on the issues before us. We explain briefly.

Public Law 280 authorizes the courts of five enumerated

states to assert jurisdiction over certain criminal and civil

actions that may arise on designated Indian lands. See Pub.

L. No. 83-280, §§ 2, 4, 67 Stat. 588, 588-90 (1953), codified

as amended at 18 U.S.C. § 1162 and 28 U.S.C. § 1360. The

law also prescribes a procedure by which any other state can

extend its adjudicatory jurisdiction to actions arising in

Indian country. See 25 U.S.C. §§ 1321-1322. The criminal

jurisdiction component of Public Law 280 allows a state to

assume “jurisdiction over offenses committed by or against

Indians in . . . Indian country . . . to the same extent that such

State . . . has jurisdiction over offenses committed elsewhere

within the State” and mandates that “the criminal laws of

such State . . . shall have the same force and effect within

such Indian country as they have elsewhere within the State.”

18 U.S.C. § 1162(a) (emphasis supplied). The civil

jurisdiction component of Public Law 280 allows state courts

to assume jurisdiction over “civil causes of action between

Indians or to which Indians are parties which arise in. . .

Indian country” and directs that “those civil laws of such

20a

State that are of general application to private persons or

private property shall have the same force and effect within

such Indian country as they have elsewhere in the State.” 28

U.S.C. § 1360(a) (emphasis supplied).

Prior to the enactment of Public Law 280, the Supreme

Court had held that states had no jurisdiction to prosecute

crimes committed on a reservation so long as either the

perpetrator or the victim was an Indian. See Williams v.

United States, 327 U.S. 711, 714 & n.10 (1946). In a similar

vein, state courts historically have had no jurisdiction over

civil suits against tribal members when the cause of action

arose out of on-reservation activities. See, e.g., Lee, 358 U.S.

at 222. For the most part, then, both types of cases were

within the exclusive jurisdiction of tribal courts. See Bryan

v. Itasca County, 426 U.S. 373, 379-83 (1976). But many

tribal court systems failed to provide effective public and

private justice to reservation Indians.

In an effort to ameliorate this situation, Congress enacted

Public Law 280. See id. (explaining that Congress enacted

the statute to correct this failure and to redress “the problem

of lawlessness on certain Indian reservations” and “the lack

of adequate Indian forums for resolving private legal

disputes” involving reservation Indians). Accordingly, the

predominant purposes of Public Law 280 were to provide

reservation Indians with access to state courts and to

authorize the application of state law to disputes arising in

Indian country. /d This background clearly differentiates

Public Law 280’s extension of state jurisdiction over Indian

lands from that contemplated by the Settlement Act. Public

Law 280 neither reflected the “mutual consent of all parties,”

H.R. Rep. No. 95-1453, at 11 (1978), reprinted in 1978

U.S.C.C.A.N. 1948, 1954, nor resulted from a negotiated

arrangement in which a tribe surrendered certain sovereign

21a

rights in exchange for substantial concessions from the host

state.

_ If more were needed-and we doubt that it is-Public Law

280 was primarily intended to facilitate the extension of state

adjudicatory jurisdiction over Indian country. See Bryan,

426 U.S. at 379-83, 96. By contrast, the purpose of the

Settlement Act was to extend “all sorts of jurisdiction,”

including state regulatory jurisdiction, over the settlement

lands. Narragansett Indian Tribe, 19 F.3d at 695. Given the

stark contrast between the purposes of these two statutes,

comparing Public Law 280 and the Settlement Act is like

comparing plums and pomegranates. It follows inexorably

that the Supreme Court’s determination that Public Law

280’s “force and effect” language did not abrogate tribal

sovereign immunity from civil suit is uninstructive of the

meaning of the “full force and effect” phrase in the context of

the carefully calibrated agreement between the Tribe and the

State.

* In fact, Public Law 280 originally authorized states to assume civil and

Criminal adjudicatory jurisdiction over Indian country without first

securing tribal consent. Pub. L. No. 83-280, § 7, 67 Stat. 588, 590

(1953). Congress subsequently amended the law to require such consent

as a precondition to the extension of state jurisdiction over tribal lands.

See 25 U.S.C. §§ 1321-1322; see also Bryan, 426 U.S. at 386.

” The Supreme Court cases cited by the dissenters in support of the “force

and effect” argument involve Public Law 280’s civil jurisdiction

provision and operate against the general rule of tribal sovereign

immunity from civil suit. See Three Affiliated Tribes, 476 U.S. at 890-

91; Puyallup Tribe, Inc. v. Dep't of Game, 433 U.S. 165, 170-73 (1977);

Bryan, 426 U.S. at 389. To our knowledge, the Supreme Court has not

addressed whether sovereign immunity ordinarily insulates an Indian

tribe from state criminal process or whether Public Law 280’s criminal

jurisdiction provision places any limitation on tribal sovereign immunity.

22a

The Tribe takes a somewhat different path, averring that

our conclusion that the J-Mem and the Settlement Act largely

cancel out the Tribe’s sovereign immunity is inconsistent

with general principles of Indian law which, according to the

Tribe, routinely vindicate claims of tribal sovereign

immunity from state court process. We perceive no such

inconsistency.

Most of the cases cited by the Tribe stand for the entirely

unremarkable proposition that an Indian tribe is generally

immune from civil suits brought by state governments or

private individuals. See, e.g, Kiowa Tribe, 523 U.S. at 754;

Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir.

1997); Tamiami Partners v. Miccosukee Tribe of Indians, 63

F.3d 1030, 1048 (11th Cir. 1995) (Tamiami I] ); Imperial

Granite Co. v. Pala Band of Mission Indians, 940 F.2d 1269,

1271 (9th Cir. 1991); see also TTEA v. Ysleta Del Sur

Pueblo, 181 F.3d 676, 680-81 (Sth Cir. 1999) (holding that

an Indian tribe enjoys sovereign immunity from an award of

money damages only, not with respect to declaratory or

injunctive remedies). However, these cases also recognize

that tribal sovereign immunity may be circumscribed by

waiver or abrogation. See, e.g., Kiowa Tribe, 523 U.S. at

754; Fletcher, 116 F.3d at 1324; Tamiami II, 63 F.3d at 1038

n.30. None of these cases arise under a statute configured in

the fashion of the Settlement Act; nor do any of them address

a state’s power to enforce its admittedly applicable criminal

laws against a noncompliant Indian tribe. Consequently,

they offer no insight into the question of whether the State

may execute a search warrant against the Tribe on the

settlement lands as part of its enforcement of the Tribe’s

obligation to comply with binding state law.

The decision in Maynard v. Narragansett Indian Tribe,

984 F.2d 14 (ist Cir. 1993), does not require a different

result. That case involved a civil suit against the Tribe for an

23a

alleged trespass on private property outside the settlement

lands. /d. at 15. In upholding the district court’s dismissal of

the complaint against the Tribe, a panel of this court

indicated that neither the J-Mem nor the Settlement Act

vitiated the Tribe’s sovereign immunity. Jd. at 15-16. The

facts of the Maynard case dictate that any holding there was

necessarily limited to civil suits premised on activities

occurring outside the settlement lands. That holding may or

may not be correct-the case at hand does not require us to

Say-but to the extent that Maynard contains dictum that is

susceptible to a broader reading, see, e.g., id. at 16, that

dictum is flatly incorrect, and we disavow it.

In a last-ditch effort to salvage its case, the Tribe proffers

a Ninth Circuit case holding that tribal sovereign immunity

prohibits a state from executing a search warrant against an

Indian tribe. Bishop Paiute Tribe v. County of Inyo, 291 F.3d

549, 560 (9th Cir. 2002). The Tribe fails to mention that the

Supreme Court subsequently vacated that decision, albeit on

other grounds. See /Jnyo County v. Paiute-Shoshone Indians

of the Bishop Cmty. of the Bishop Colony, 538 U.S. 701, 712

(2003). At any rate, the decision is easily distinguished. It

neither addressed a state’s power to enforce its applicable

criminal laws against a noncompliant Indian tribe nor

involved a statute that had the teeth that Congress implanted

in the Settlement Act. Consequently, the decision offers no

guidance with respect to the unique relationship between the

* The Tribe's reliance on the unpublished opinion in Narragansett Tribe

v. Guilbert, 989 F.2d 484 (ist Cir. 1993) (table), is equally misplaced.

That case, like Maynard, involved the Tribe’s immunity from a civil suit

(in the form of a counterclaim for money damages) for activities

occurring outside the settlement lands. In all events, the opinion has no

precedential force. See Ist Cir. R. 32.3.

24a

Tribe and the State in regard to activities occurring on the

settlement lands.”

2. Arrests. The stipulated facts do not specify the basis

for the arrests of tribal members during the raid. We accept

for purposes of this appeal the Tribe’s contention that the

persons in question were arrested because of their

participation in a tribally owned enterprise (the smoke shop).

Building on this contention, the Tribe maintains that its

sovereign immunity shielded those individuals from arrest.

The premise of this argument-that the Tribe itself enjoys

immunity from the enforcement activities at issue in this

case-is incorrect. See supra Part II(B){1). Accordingly, there

is no derivative immunity available to the Tribe’s members.

We add, moreover, that even if the Tribe was entitled to

the protection of sovereign immunity in this case-which it is

not-that protection would not cover the tribal members

involved in the operation of the smoke shop. The general

rule is that tribal sovereign immunity does not protect

individual members of an Indian tribe. See Puyallup Tribe,

Inc. v. Dep’t of Game, 433 U.S. 165, 171-72 (1977). At its

most expansive, tribal sovereign immunity may extend to

tribal officers-but only when such officers are acting within

the legitimate scope of their official capacity. See Tamiami

Partners v. Miccosukee Tribe of Indians, 177 F.3d 1212,

1225 & n.16 (11th Cir. 1999) (Tamiami III) (collecting

cases); but cf Santa Clara Pueblo v. Martinez, 436 U.S. 49,

59 (1978) (holding that “[a]s an officer of the [Indian tribe],

petitioner . . . is not protected by the tribe’s immunity from

suit”).

* The Tribe's citation to United States v. James, 980 F.2d 1314, 1319 (9th

Cir. 1992), in which the Ninth Circuit ruled that tribal sovereign

immunity. bars a federal court from issuing a subpoena duces tecum

against a non-party tribe, suffers from the same infirmities.

25a

Whatever the scope of a tribal officer’s official capacity,

it does not encompass activities that range beyond the

authority that a tribe may bestow. See Tamiami III, 177 F.3d

at 1225; Tamiami II, 63 F.3d at 1045, 1050-51. It follows

from this tenet that because the Tribe is legally obligated to

comply with the State’s cigarette tax scheme, see supra note

3, violations of that scheme by the Tribe’s officers fall

outside the scope of their official capacity. Therefore, the

arrests of the Tribe’s officers involved in the smoke shop

operation would be valid regardless of the scope of the

Tribe’s sovereign immunity.

Iii. CONCLUSION

In the final analysis, the J-Mem and the Settlement Act

dictate the result we reach. Under their terms, the Tribe

surrendered any right to operate the settlement lands as an

autonomous enclave. It is plainly not the case, as the Tribe

would have it, that an Indian tribe can render any conceivable

act on Indian lands (say, drug trafficking) impervious to state

regulation by the simple expedient of labeling it “tribal.”

That is emphatically true with respect to the Tribe’s activities

on the settlement lands.

In sum, the Tribe remains as free as ever to Operate the

smoke shop; it simply must comply with state law in the

process. That result is not disquieting: after all, no principle

of federal law or tribal self-governance authorizes Indian

tribes “to market an exemption from state taxation to persons

who would normally do their business elsewhere.” Colville,

447 U.S. at 155. The Tribe has not explained how being

subject to the enforcement of the State’s cigarette tax scheme

is an infringement on its retained sovereignty when being

subject to the requirements of the scheme is not.

Consistent with the foregoing, we hold, first, that the J-

Mem and the Settlement Act authorized state officers to enter

the settlement lands and execute a search warrant as part of

26a

the enforcement of the State’s cigarette tax scheme. Second,

in light of the unique historical and legal context in which

this case arises-and, particularly, the provisions of the J-Mem

and the Settlement Act-we conclude that the Tribe’s

sovereign immunity neither prohibited the State from

executing that warrant against the Tribe nor barred it from

arresting tribal officers and members for activities incident to

the operation of the smoke shop. Consequently, the State’s

actions here-its entry into the settlement lands, its seizure of

the Tribe’s inventory of unstamped, untaxed cigarettes, and

the accompanying arrests-were lawful.

In arriving at these conclusions, we do not diminish the

dignity and respect that should be afforded the Tribe as a

sovereign entity. Nor do we imply that dragnet arrests and

police raids on the settlement lands should be the State’s

preferred method for enforcing the Tribe’s obligation to

comply with state law. We recognize, however, that the

Tribe and the State negotiated a carefully calibrated

agreement between sovereigns, memorialized that agreement

in the J-Mem, and sealed the deal by obtaining Congress’s

imprimatur. It is not for the courts to rewrite the terms of

that arrangement.

The district court's order granting the appellees’ motion for

summary judgment and denying the appellant’s motion for

summary judgment is affirmed.

27a

LIPEZ, Circuit Judge (with whom TORRUELLA, Circuit

Judge, joins), dissenting.

In an apparent attempt to limit the scope of its holding,

the majority claims to rest its decision “squarely on [the]

idiosyncratic features” of the Narragansett Tribe’s

relationship with the State of Rhode Island. Then, in an

effort that belies this narrow approach, the majority engages

in a lengthy analysis of “the general body of Indian law” to

support its idiosyncratic holding. Along the way, it

repudiates two of our precedents to varying degrees.

Respectfully, neither the majority’s characterization of this

case as idiosyncratic nor its analysis of the general body of

Indian law can withstand scrutiny. The Narragansett Tribe’s

relationship with the State of Rhode Island reflects a familiar

history. The majority’s application of tribal sovereign

immunity in this case is incompatible with Supreme Court

precedents. For these reasons, I join Judge Torruella in

dissenting. 1 write separately to elaborate on my

disagreement with the majority’s analysis.

A. A Common Fact Pattern

This is not an “idiosyncratic” case based on a “unique

relationship.” The history of litigation and legislation

outlined in the majority opinion is prototypical of that

involving several tribes, especially in the East but also in

parts of the West. The Narragansetts, like many of these

tribes, brought suit in the 1970s to contend that their

ancestral lands had been alienated in violation of the Indian

Non-Intercourse Act, | Stat 137 (1790) (codified as amended

at 25 U.S.C. § 177 (2000)). See, e.g, Oneida County v.

Oneida Indian Nation of New York, 470 U.S. 226, 229-30

(1985) (recounting litigation in New York); Miccosukee

Tribe of Indians of Florida v. Florida, No. 79-253-CIV-JWK

(S.D. Fla. 1979); Mohegan Tribe of Indians v. Connecticut,

C.A. No. H-77-434 (D. Conn. 1977). Rhode Island, like

28a

several other states, decided to agree to certain of the Tribe’s

demands, rather than to tolerate the depressed property

values that had resulted from the Indians’ claims. See, e.g.,

25 U.S.C. § 1772 (detailing “agreement” between Florida

and Seminole Tribe, intended to resolve clouded land titles);

25 U.S.C. § 1771 (same re: Massachusetts and Wampanoag

Tribe); 25 U.S.C. § 1774 (same re: New York and Seneca

Nation). And, as it did in resolving other disputes between

states and tribes, Congress enacted legislation to seal the

deal. See generally 25 U.S.C. §§ 1701, 1721, 1741, 1751,

1771, 1772, 1773, 1774, 1775 (discussing Congressional role

in resolving disputes in Rhode Island, Maine, Florida,

Connecticut, Massachusetts, Washington State, and New

York). What the majority says about sovereign immunity in

this case has implications for the application of sovereign

immunity in these similar contexts. The majority’s treatment

of tribal sovereign immunity will not be limited to the facts

of this case.

B. Sovereignty and Sovereign Immunity

The concept of tribal sovereign immunity derives, of

course, from the more general concept of tribal sovereignty.

See Blatchford v. Native Village of Noatak, 501 U.S. 775,

782 (1991) (explaining that Indian tribes are sovereign

entities, subject to the contro! of the federal government but

not the states); United States v. James, 980 F.2d 1314, 1319

(9th Cir. 1992) (“Tribal immunity is just that: sovereign

immunity that attaches to a tribe because of its status as a

dependant domestic nation.”). But the two doctrines are not

interchangeable. In a recent decision, we described the

distinction between sovereignty and sovereign immunity as

“subtle but important.” Aroostook Band of Micmacs v. Ryan,

404 F.3d 48, 68 (Ist Cir. 2005). We noted that when a tribe

asserts its sovereignty, it is claiming, “in essence, that it is

not subject to state laws ... at all.” Id. On the other hand,

29a

we said, “tribal sovereign immunity means that [a tribe] is

not amenable to state judicial or quasi-judicial proceedings

to enforce those laws,” even if the tribe is bound to observe

them. /d.

The majority now overrules Aroostook “with respect to

the distinction in question.” However, there are several

Supreme Court cases in which a tribe has been held immune

from suit even though it was subject to state law. Indeed, the

case the majority cites for its rejection of the distinction in

Aroostook, Oklahoma Tax Comm'n vy. Citizen Band

Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 512-13

(1991), distinguished between tribal sovereignty and tribal

sovereign immunity exactly as the panel did in Aroostook. In

Oklahoma Tax Comm'n, the Supreme Court concluded that

an Indian tribe in Oklahoma lacked any sovereign authority

to sell tax-free cigarettes on its lands. Even so, the Court

reasoned, the tribe’s sovereign immunity remained intact,

and Oklahoma could not sue the tribe to collect wrongfully

withheld taxes. More recently, in Kiowa Tribe of Oklahoma

v. Manufacturing Technologies, Inc., 523 U.S. 751, 754-55

(1998), the Court emphasized the same distinction. That case

also involved a situation in which an Indian tribe had flouted

State contract law but could not be sued in state court for a

remedy. “There is a difference,” the Court observed in

Kiowa Tribe, “between the right to demand compliance with

State laws and the means available to enforce them.” /d. at

755. This “difference” is the precise distinction noted by the

panel in Aroostook, and it is exactly the difficulty that the

majority overlooks in this case. The State’s actions here

cannot be approved solely by virtue of the State’s substantive

authority to demand the Tribe’s compliance with the cigarette

tax laws. Oklahoma Tax Comm'n could not have been

clearer on that point.

30a

I accept that the Tribe never had any authority to “market

an exemption from state taxation to persons who would

normally do their business elsewhere,” and so was bound to

assist the State in its collection of cigarette taxes.

Washington v. Confederated Tribes of Colville Indian

Reservation, 447 U.S. 134, 155 (1980). I acknowledge, as I

explain below, that in agreeing to the language later

embodied in section 1708(a), the Tribe could no longer shield

its own members from state prosecution for offenses

committed on tribal lands. 1 will even assume, without

deciding, that the majority is correct that the Tribe’s

sovereign autonomy is now limited largely to “matters of

local governance.” Maj. Op. at 26 (quoting Rhode Island v.

Narragansett Indian Tribe 19 F.3d at 701). None of this

changes the fact that the Tribe’s sovereign immunity still

extends, unless specifically limited, to “governmental or

commercial activities . . . on or off a reservation.” Kiowa

Tribe, 523 U.S. at 760. A tribe’s sovereign authority and its

sovereign immunity simply are not coterminous.

- The majority also questions whether tribal sovereign

immunity serves as a defense to the execution of a search

warrant. At its core, tribal sovereign immunity protects a

tribe from a lawsuit. See Kiowa Tribe of Oklahoma, 523-

U.S. at 754 (holding that tribe’s sovereign immunity

prevented lawsuit to collect on promissory note). But

sovereign immunity also provides a defense to the efforts of

states to enforce their criminal law against tribes. See

Puyallup Tribe v. Department of Game, 433 U.S. 165, 171,

172-73 (1977) (allowing enforeement “analogous” to

criminal prosecution against individual tribal members, but

barring the state from using the same measures against a tribe

itself); see also James, 980 F.2d at 1319-20 (recognizing that

tribal sovereign immunity required quashing a criminal

subpoena directed to Indian tribe). Since a tribe’s sovereign

immunity protects it from a state’s civil suit to recover

3la

cigarette taxes, see Oklahoma Tax Comm'n, 498 U.S. at 513,

and also provides protection in situations “analogous” to

criminal prosecutions, tribal sovereign immunity is

implicated when a state uses its criminal process to seize,

from the Tribe itself, cigarettes that do not have tax stamps.

C. Waiver and Abrogation of Tribal Sovereign

Immunity

1. “Force and Effect”

In addressing whether the Tribe’s sovereign immunity is

intact, which it does despite disavowing the importance of

the question, the majority focuses on language in the JMOU

stating that the laws of Rhode Island would apply in “full

force and effect,” and a similar statement in the Settlement

Act providing that “the settlement lands shall be subject to

the civil and criminal laws and jurisdiction of the State of

Rhode Island.” There is no other provision about jurisdiction

in either document. I find the majority’s analysis of this

language unconvincing. Congress has used this language for.

half a century to confer state jurisdiction over individual

Indians on tribal lands. Both before and since the JMOU and

Settlement Act, the Supreme Court consistently has held that

such language-however categorically stated-does not waive

or abrogate tribal sovereign immunity.

As best as I can tell, the language of the JMOU and

Settlement Act originated in 1953’s Public Law 280, where

Congress provided for state “jurisdiction” to exist “to the

same extent” and for the state laws to have “the same force

and effect” on affected Indian lands as on non-Indian lands."”

° Public Law 280 gave state courts criminal jurisdiction over all Indian

country in California and Nebraska, and most Indian country in

Minnesota, Oregon, and Wisconsin, and allowed states to assert

jurisdiction over many other Indian lands without tribal consent. The

(. .. cont’d)

32a

Two years before Congress adopted the Settlement Act, the

Supreme Court expressly rejected the contention that this

conferral of “jurisdiction” by the “force and effect” provision

had abrogated or waived tribal sovereign immunity. In

Bryan v. Itasca County, 426 U.S. 373, 389 (1976), the Court

stated in plain language that “there is notably absent [in

Public Law 280] any conferral of state jurisdiction over the

tribes themselves.” The next year, the Supreme Court

reiterated that the categorical grant of jurisdiction in Public

Law 280 did not contain any abrogation of tribal sovereign

immunity. See Puyallup Tribe, 433 U.S. at 172-73. Nine

years later, in Three Affiliated Tribes of the Fort Berthold

Reservation v. Wold Engineering, 476 U.S. 877 (1986), the

Court repeated the conclusion in /tasca County and iejected a

suggestion that Public Law 280 could provide an escape from

tribal sovereign immunity. “We have never read Pub. L.

280,” the Court said, “to constitute a waiver of tribal

sovereign immunity.” /d. at 892. See also California ex rel

California Dep't of Fish and Game v. Quechan Tribe of

Indians, 595 F.2d 1153, 1156 (9th Cir. 1979) (explaining

why Pub. L. 280’s extension of state jurisdiction over tribal

lands did not subject the tribe to suit by the state to enforce

State criminal laws).

As the majority says, “we must presume that Congress

acts with knowledge of relevant Supreme Court precedent.”

If we are to apply this maxim to an interpretation of section

1708(a), the most relevant precedents are /tasca County,

(Cont'd...)

criminal jurisdiction provision in the law provides that relevant states

shall have jurisdiction over offenses committed by or against Indians in

the [relevant] areas of Indian country . . . to the same extent that such

State has jurisdiction over offenses committed elsewhere within the state,

and the criminal laws of such State shall have the same force and effect

within such Indian country as they have elsewhere within the State.

33a

which was decided just two years before Congress adopted

§ 1708(a), and Puyallup Tribe, enacted just one year before.

If Congress had wanted to abrogate the Tribe’s sovereign

immunity in 1978, it would not have done so by repeating

language that the Supreme Court had held in each of the

previous two years did not result in “any conferral of state

jurisdiction over the tribes themselves.” /tasca County, 426

U.S. at 389. This is especially so because, when it acted,

Congress knew very well that the statute it produced would

be “liberally construed, doubtful expressions being resolved

in favor of the Indians.” Jd. at 392 (internal quotation marks

omitted).

Nor do I understand how the “force and effect” language

constituted a waiver of the Tribe’s sovereign immunity when

it appeared in the Tribe’s JMOU with the State. The Tribe

could not have understood that it was waiving its sovereign

immunity to suit by the State by agreeing that its lands —

like the lands of so many other tribes — would be under the

criminal authority of the State. Instead, the Tribe bargained

for a relationship with State law enforcement that would

mirror the relationship in dozens of places around the

country, where the “force and effect” of a state’s criminal

jurisdiction did not impair tribal sovereign immunity. In

short, in preparing the JMOU and the Settlement Act,

Congress, the State, and the Tribe all understood that the

language they had chosen could not abrogate a tribe's

sovereign immunity.'' Surely, if a waiver of tribal sovereign

'' The majority claims that, because this case is “idiosyncratic,” we can

ignore the Maine Indian Claims Settlement Act, 25 U.S.C. §§ 1725(a) &

(d), which was adopted in 1980 and contains explicit abrogations of tribal

sovercign immunity. In the Maine act, Congress made clear that certain

“Indian nations, or tribes or bands of Indians” would be “subject to the

civil and criminal jurisdiction of the State.” 25 U.S.C. § 1!725(a).

Congress also explicitly provided for all Maine tribes to “sue and be sued

(.. . cont’d)

34a

immunity really was “the State’s most important quid pro

quo” — as the majority insists, without citation to any

historical document — the State would have demanded

different language.’

Accepting the majority’s contention that the Settlement

Act contains a broader conferral of substantive jurisdiction

than Public Law 280 does not change anything. I do not

suggest that the Settlement Act and Public Law 280 serve

identical purposes. I aver only that the parties to the JMOU

and Settlement Act borrowed language from Public Law 280

at a time, and in a manner, that does not evince any intent to

subject the Tribe itself to the criminal processes of the State.

No matter how broadly the majority construes section

1708(a)’s jurisdictional language, the majority cannot point

to anything in that section, in the broader Act, in the JMOU,

or in the history underlying those documents, that even

suggests any agreement that the Tribe itself could be made a

party to state court process involuntarily."

(Cont'd...)

. .. to that same extent as any other entity or person residing in the State

of Maine.” 25 U.S.C. § 1725(d). Contrary to what the majority suggests,

that statute-which speaks precisely to the question of tribal sovereign

immunity-adds considerable doubt to any assertion that Congress

intended to abrogate Narragansett tribal immunity in the nearly

contemporaneous But very differently-worded Settlement Act.

'2 In reality, the Congressional findings of fact that accompanied the

Settlement Act indicate that the State’s most important “quid pro quo”

was the Tribe’s agreement not to institute any further land claims suits, so

that “clouds on titles” would be removed, and the “severe economic

hardships” born by non-Indians who held lands near the contested area

would end. Sve 25 U.S.C. §§ 1701(b), (c).

'’ The majority places substantial reliance on the Supreme Court's

statement in C & L Enterprises v. Citizen Band Potawatomi Indian Tribe,

532 U.S. 411, 418 (2001), that “talismanic” phrases are not required to

effectuate a tribal waiver of sovereign immunity. The cases applying C

(... cont’d)

35a

There is another reason to doubt the majority’s reading of

the Settlement Act and JMOU, and another reason we can be

sure that this is not an “idiosyncratic case.” The phrases that

the majority uses to find an abrogation and waiver of the

Tribe’s sovereign immunity have become widely-used terms

of art, well known to extend jurisdiction over individuals on

tribal lands without affecting the sovereign immunity of

tribes themselves. Identical or similar phrasing has been

commonly part of agreements between states and tribes, and

the Congressional legislation that validates them. Many of

the Eastern tribes that have regained their sovereign rights

through the combination of negotiated agreement and

statutory provision that I sketched above possess their lands

subject to language remarkably similar to language that the

majority analyzes here. See, e.g., 25 U.S.C. § 1775d (“The

criminal laws of [Connecticut] shall have the same force

within [the Mohegan tribe’s} reservation and Indian country

as such laws have elsewhere in the State.””). Other tribes

around the country hold their lands subject to 25 U.S.C.

§§ 1321 and 1322 — the modern-day version of Public Law

280, enacted in 1968 — which allow states and tribes to

agree that certain tribal lands will fall under state jurisdiction.

Again, the wording is nearly identical to that at issue here.

See 25 U.S.C. § 1321 (providing that, upon agreement, the

(Cont'd...)

& L have recognized that a waiver of sovereign immunity requires some

reference to the tribe itself (rather than to its lands or members). See,

e.g., Building Inspector and Zoning Officer of Aquinnah v. Wampanoag

Aquinnah Shellfish Hatchery Corp., 818 N.E.2d 1040, 1048-49 (Mass.

2004) (holding that even though specialized phrasing was not employed,

tribe clearly waived its sovereign immunity from zoning enforcement by

agreeing to hold the relevant lands “in the same manner . . . as any other

Massachusetts corporation”). The problem here is not a choice of

language, but the lack of any language in any of the relevant documents

tha? sigeaks to jurisdiction over the Tribe.

36a

state’s “jurisdiction [will apply] to the same extent that such

State has jurisdiction over any such offense committed

elsewhere within the State,” and that the “the criminal laws

of (the State] shall have the same force and effect within such

_ Indian country or part thereof as they have elsewhere within

the State”); 25 U.S.C. § 1322 (similar in civil context).

Given this array of laws, I see no way to limit the majority’s

abrogation of the Tribe’s sovereign immunity, so that it does

not also call into question the sovereign immunity claimed by

the many tribes that hold lancs brought under state

jurisdiction by the several settlement acts or 25 U.S.C.

§§ 1321-22."

2. The Maynard case

We already have held that the Settlement Act and JMOU

did not constitute an abrogation or waiver of the Tribe’s

sovereign immunity. Maynard v. Narragansett Indian Tribe,

984 F.2d 14 (1st Cir. 1993). In Maynard, we correctly stated

that any “waiver or abrogation” of tribal sovereign immunity

would have to be “infer[{red}” from the settlement documents.

Id. at 16. But such waivers cannot be inferred.

Congressional abrogation of tribal sovereign immunity must

be “unequivocal[ ]” to be effective, and a tribe’s waiver cf its

immunity from state court process must be “clear.” C & L

Enterprises, 532 U.S. at 418 (internal quotation marks

omitted).

As an en banc court, we have the authority to discard

precedents. But I disagree with any suggestion that today’s

'* The majority places great emphasis on the fact that the State’s

jurisdiction over the Tribe’s lands was “based on ‘the mutual consent of

all parties,"” Maj. Op. at 28 (quoting H.R. Rep. No. 95-1143, at 11). But

this fact does not distinguish this case from the run of the mill. The

mutual consent of all the involved parties underlies each of these post-

1968 conferrals of jurisdiction over Indian lands.

37a

holding can be squared with Maynard. The majority says

that Maynard is inapposite here because this is not a “civil

suit premised on activities occurring outside the settlement

lands.” As I have explained above, however, the same

sovereign immunity that protects a tribe from civil lawsuits

also protects it from criminal process. If anything, there is a

stronger rationale for recognizing the Tribe’s sovereign

immunity here than in Maynard because, while Maynard

involved an injunctive suit to stop the Tribe’s purported

interference with a private landowner’s activities on his own

lands, this case involves the State’s effort to execute its

process on tribal lands. See Kiowa Tribe, 523 U.S. at 763-64

(Stevens, J., dissenting) (noting that tribal sovereign

immunity has a stronger basis when applied to quash actions.

relating to activities on tribal Jands). In short, Maynard

cannot be distinguished to reach the result of the majority

Opinion. It must be overruled. Regrettably, the majority has

done just that. Maynard’s analysis of the Tribe’s sovereign

immunity was correct.

D. Surplusage

The majority is simply wrong that “section 1708(a)

would be mere surplusage if, as the Tribe contends, it

contemplates no more than that the State may exercise

jurisdiction within the settlement lands subject to the

constraints of tribal sovereign immunity.” The majority says

that “[a]t the time Congress passed the Settlement Act, the

Supreme Court already had adopted the approach of

permitting the exercise of state jurisdiction within Indian

lands where the exercise of such jurisdiction had not been

preempted by federal law.” This statement reflects a basic

misunderstanding of Indian law.

At the time Congress adopted the Settlement Act, as now,

a State not expressly granted jurisdiction over Indian lands by

Congress, pursuant to Public Law 280, 25 U.S.C. §§ 1321-

38a

22, 18 U.S.C. § 1162, or another similar statute, lacked

criminal or civil jurisdiction over individual Indians who

committed crimes on those lands. See, e.g., Ross v. Neff, 905

F.2d 1349 (10th Cir. 1990) (recognizing that in the absence

of an express Congressional grant of jurisdiction, a state law

enforcement_officer has no authority to arrest an individual

Indian for a criminal offense committed on Indian land);

United States v. Daye, 696 F.2d 1305, 1307 (11th Cir. 1983)

(same). See also Williams v. Lee, 358 U.S. 217, 220 (1959)

(“[{S]tate courts have been allowed to try non-Indians who

committed crimes against each other on a reservation. .. .

But if the crime was by or against an Indian, tribal

jurisdiction or that expressly conferred on other courts by

Congress has remained exclusive.”).

That is also the state of the law now. No Supreme Court

case authorizes a state to extend its criminal court processes

by preemption to conduct committed by individual Indians

on Indian lands.—Fhe-majority’s reliance on McClanahan v.

State Tax Comm'n of Arizona, 411 U.S. 164, 172 (1973), for

the proposition that Rhode Island needed neither

Congressional authorization nor the Tribe’s approval to

exercise such jurisdiction over the Tribe’s lands, is

misguided. The McClanahan Court expressly rejected an

approach that would allow states to exercise jurisdiction over

Indians on tribal lands on their own initiative. Rather, the

Court said, Congress has made it clear that states cannot

exert jurisdiction over Indians on Indian lands — not to

mention Indian tribes — ”unilaterally.” /d. at 178. Indeed,

McClanahan routinely is cited for precisely the opposite of

the majority’s proposition. The case stands for the nearly

irrebuttable presumption that a state cannot extend its

jurisdiction to activities conducted by individual Indians, on

their tribal lands, without an express grant of authority by

Congress. See Oklahoma Tax Comm'n v. Sac & Fox Nation,

$08 U.S. 114, 125-26 (1993).

39a

If there had been no section 1708(a) or similar express

conferral of criminal jurisdiction, the State would not have

been able to prosecute a crime committed by an Indian on the

Settlement Lands. Any such crime would have been

prosecuted in tribal or federa] court. See 18 U.S.C. §§ 1152-

1156. That is the way things are done, to this day, on many

Western reservations over which no state ever has been

granted jurisdiction. See, e.g., State v. Eagle Speaker, 4 P.3d

1 (Mont. 2000) (recognizing that indictment for theft must be

dismissed because the state lacked jurisdiction to prosecute

an individual Indian who had committed a crime within a

reservation).'° Congress knew when it promulgated section

1708(a) that states lack criminal jurisdiction over individual

Indians in Indian country absent an express conferral of

jurisdiction by Congress. Section 1708(a), which undoes this

baseline rule, is not mere “surplusage” if it does not abrogate

the Tribe’s sovereign immunity.

E. Ex parte Young

As Judge Torruella indicates, the State had options for

enforcing its cigarette tax laws that would have been

compatible with the Tribe’s sovereign immunity. For

example, the State could have sought an injunction, pursuant

to Ex parte Young, 209 U.S. 123 (1908), against the tribe’s

Chief Sachem and any other relevant official, for violating

the federal law giving Rhode Island the ability to tax

cigarette sales on the settlement lands.

'S Nevada v. Hicks, 533 U.S. 353 (2001), does not change this principle in

the least. Hicks merely clarified that a tribal court did not have

jurisdiction over an Indian's tort claim against non-Indian defendants.

The conduct subject to the tort claim in Hicks, moreover, was a state's

prosecution of an individual Indian for off-reservation conduct. See id. at

358-59; id. at 375 (Souter, J., concurring).

40a

In Oklahoma Tax Comm'n, a case involving cigarette tax

enforcement, the Supreme Court explicitly left open the Ex

parte Young door. 498 U.S. at 514. In Santa Clara Pueblo

v. Martinez, 436 U.S. 49 (1978), the Court allowed a suit to

enjoin enforcement of a purportedly illegal tribal ordinance

to proceed against a tribal official, even though tribal

sovereign immunity barred the same suit against the tribe

itself. See id. at 59. See also Puyallup Tribe, 433 US. at

173. The extension of the Ex parte Young doctrine to tribal

officials is well established in the courts of appeals as well.

The Ninth Circuit has endorsed the idea categorically. See

Dawavendewa v, Salt River Project Agr. Imp. & Power Dist.,

276 F.3d 1150, 1159-60 (9th Cir. 2002) (recognizing that

“suits against [tribal] officials allegedly acting in

contravention of federal law” are “permitted”). The Eighth

Circuit has recognized that state Ex parte Young suits against

tribal officials are available with “mutuality” to the same

extent as tribal Ex parte Young suits against state officials.

See Fond du Lac Band of Chippewa Indians v. Carlson, 68

F.3d 253, 256-57 (8th Cir. 1995). The Eleventh Circuit has

held similarly. See Tamiami Partners v. Miccosukee Tribe of

Florida, 63 F.3d 1030, 1050-51 (11th Cir. 1995).

Here, nothing barred the State from taking the Ex parte

Young route. The search warrant was issued on the first day

the tribal smoke shop opened. The search happened two

days later. The officer who swore out the search warrant

admitted that he had known for weeks about the Tribe’s plans

to sell tax-free cigarettes. An action for injunctive relief

could have addressed the State’s concerns (this was not a

case where the State was seeking to recoup a large sum in

uncollected taxes). Further, an Ex parte Young action would

have placed this matter in federal court at the outset, where it

could have been decided in peaceful fashion, according to the

federal law principles the: govern Indian law. Instead, the

State encroached upon the Tribe’s sovereign immunity with

4la

its unwise and unlawful resort to criminal process and seizure

of tribal property.

F. Conclusion.

In Kiowa Tribe, the Supreme Court confronted a situation

similar to this one. Frustrated by its inability to enforce in

court a valid contract it had negotiated with an Indian tribe, a

corporation asked the Court to limit tribal sovereign

immunity because it was incompatible with substantive

obligations to which the tribe had agreed. The Court

acknowledged that the tribal sovereign immunity doctrine

might be incompatible in some instances with modern tnbal

business endeavors. See Kiowa Tribe, 523 U.S. at 757-58.

Still, the Court refused to overrule its precedents on tribal

sovereign immunity, and it rejected any suggestion that tribal

sovereign immunity should only apply in matters relating to a

tribe’s “core group of sovereign functions.” Maj. Op. at

[17a]. Noting that “Congress is in a position to weigh and

accommodate the competing policy concerns and reliance

interests” involved in any new limitations on tribal sovereign

immunity, the Court warned that “the capacity of the

Legislative branch to address the issue by comprehensive

legislation counsels some caution by us in this area.” Kiowa

Tribe, 523 U.S. at 759.

The majority ignores this warning and takes the opposite

course. Casting aside our own precedents, it construes tribal

sovereign immunity not as the Supreme Court has explained

it, nor as the Tribe and State must have understood it, but in a

constrained fashion that the majority believes makes sense in

this case. This is a misguided effort. As the Supreme Court

has repeatedly articulated the doctrine, the law of tribal -

sovereign immunity shielded the Tribe from the State’s

criminal process.

I respectfully dissent.

42a

TORRUELLA, Circuit Judge (Dissenting).

Although I join Judge Lipez’s cogent dissent, I write

separately to add a few additional points of my own.

I dissent from the majority’s holding because I believe

that the majority ignores Supreme Court precedent — some

of which is 150 years old, see, e.g., In re Kansas Indians, 72

U.S. (5 Wall.) 737, 760 (1866) — in two significant ways.

First, it brushes aside the Supreme Court’s consistent

guidance that a waiver or abrogation of sovereign immunity

must be unequivocal and explicit. See, e.g., Santa Clara

Pueblo v. Martinez, 436 U.S. 49, 58 (1978) (noting that “i]t

is settled that a waiver of sovereign immunity cannot be -

implied but must be unequivocally expressed”) (internal

quotation marks and citations omitted). Second, even

assuming arguendo that there was some ambiguity about

whether there has been a waiver or abrogation of sovereign

immunity in this case, the majority fails to take into account

the so-called Indian canon of construction — i.e., that

“statutes are to be construed liberally in favor of the Indians,

with ambiguous provisions interpreted to their benefit.”

Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766

(1985). This is most unfortunate, for the majority chooses to

disregard a long-standing policy rule of obvious necessity

and importance in the trust relationship between the United

States and Indian nations. See Choate v. Trapp, 224 US.

665, 675 (1912) (noting that in the construction of a statute

dealing with Indians, “doubtful expressions . . . are to be

resolved in favor of a weak and defenseless people, who are

wards of the nation, and dependent wholly upon its

protection and good faith. This rule of construction has been

recognized, without exception, for more than a hundred

years .. .” (emphasis added)). See also Alaska Pacific

Fisheries v. United States, 248 U.S. 78, 89 (1918); Carpenter

v. Shaw, 280 U.S. 363, 367 (1930); Choctaw Nation of

43a

Indians v. United States, 318 U.S. 423, 432 (1943);

McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164,

174 (1973); Northern Cheyenne Tribe v. Hollowbreast, 425

U.S. 649, 656 n.7 (1973).

With reference to the application and enforcement of

state laws to Indian tribes, the Supreme Court has held in a

number of instances that “[t}here is a difference between the

right to demand compliance with state laws and the means

available to enforce them.” Kiowa Tribe of Okla. v.

Manufacturing Techs., Inc., 523 U.S. 751, 755 (1998); Okla.

Tax Comm’n v. Citizen Band of Potawatomi Tribe of Okla.,

498 U.S. 505, 513-14 (1991). The matter before this Court

involves the enforcement by a state of its law against an

Indian tribe qua tribe.

Although this case directly concerns only the

Narragansett Indian Tribe (the “Narragansetts” or “the

Tribe”), whose ancestral lands'® are located in what is today

part of the State of Rhode Island (“Rhode Island” or “the

State”), this Court has before it a neuralgic issue of import

that extends beyond this specific appeal. If the views adopted

by the majority regarding the power of Rhode Island to

enforce its laws directly against the Tribe gua tribe ultimately

prevail, the concept of tribal sovereignty developed by the

Supreme Court, Montana v. United States, 450 U.S. 544

(1981) (Indian tribes retain all sovereignty not specifically

withdrawn by Congress), will be radically altered, and Native

' In 1880, the Tribe sold all of its lands with the exception of two acres

for the sum of $5,000, all in violation of the Indian Nonintercourse Act,

25 U.S.C. § 177, designed to protect Indians from being taken advantage

of, and declaring void ab initio the sale of Indian lands to non-Indians

unless previously authorized by the federal government. Since 1988, the

Settlement Lands have been held in trust by the United States. See

Carcieri v. Norton, 423 F.3d 45, 50-51 (ist Cir. 2005).

44a

American tribal governments throughout the United States!”

may very well become irrelevant facades. See Bryan v.

Itasca County, 426 U.S. 373, 388 (1976) (Congress did not

intend, when extending civil and criminal jurisdiction of

states to Indian reservations to undermine or destroy such

tribal governments as did exist, or to convert the affected

tribes into little more than private, voluntary organizations).

The record of this case establishes that on July 14, 2003,

members of the Rhode Island State Police entered

Narragansett tribal land to execute a search warrant issued by

a Rhode Island state court, authorizing the search of a smoke

shop located on tribal lands and owned by the Tribe. The

police officers found quantities of cigarettes in the smoke

shop which did not have the appropriate tax stamps affixed as

required by state law, R.I. Gen. Laws § 44-20-33, and

proceeded to confiscate them as contraband, id. § 44-20-37,

after overcoming the physical resistance of various tribal

officers and members who considered the actions of the

State’s officers a violation of the Tribe’s sovereignty.

Rhode Island alleges that its actions constituted a valid

exercise of its substantive and jurisdictional powers pursuant

to § 1708(a) of the Rhode Island Indian Claims Settlement

Act, 25 U.S.C. §§ 1701 et seg. (“Settlement Act”), and

Paragraph 13 of the “Joint Memorandum of Understanding

"” Particularly affected are other tribes subject to settlement acts. See,

e.g., Florida Indian Land Claims Settlement Act of 1982, 25 U.S.C. §§

1741 ef seq.; Mashantucket Pequot Indian Claims Settlement Act of

1983, 25 U.S.C. §§ 1751 et seg.; Seminole Land Claims Settlement Act

of 1987, 25 U.S.C. §§ 1772 ef seqg.; Wampanoag Tribal Council of

Gayhead, Inc., Indian Claims Settlement Act 1987, 25 U.S.C. §§ 1771 ef

seq.; Seneca Nation Settlement Act of 1990, 25 U.S.C. §§ 1774 et seq.;

Aroostook Band of Micmacs Settlement Act of 1991, Pub. L. No. 102-

171, 105 Stat. 1143 (1991); Mohegan Naticn of Connecticut Land Claims

Settlement Act of 1994, 25 U.S.C. §§ 1775 et seq.

45a

Concerning the Settlement of the Rhode Island Settlement

Lands” (“JMOU”).

Paragraph 13 of the JMOU, which predates the

Settlement Act and was entered into in 1978, states that

except as otherwise specified in this memorandum, all

Laws of the State of Rhode Island shal

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