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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006

## Text

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,
V.
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.

ii
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

iV

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

vi

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

ix

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

xi

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

2

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

3
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).

4
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

5
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).

6

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

7

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.

8
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”).

9
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.

10

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

11

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).

12
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.

13

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,”

14

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

15
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

16
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.

17

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

18

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

19

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.

~

20
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,

21
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,

22
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,

23
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

24

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.

25
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))

26

(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).

27

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.

28

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.

29
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.

30

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

la
Appendix A

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 04-1155

NARRAGANSETT INDIAN TRIBE,
Plaintiff, Appellant,

Vv

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

2a
(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.

3a
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

4a
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.

Sa

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

6a

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

Ta

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”).

8a
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

9a
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

13a

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 trib

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1504%3A1. Public record. Not legal advice.