Raiding the Narragansetts’ smoke shop
ABOUT
The Rhode Island State Police on July 14, 2003 raided a tax-free tobacco shop opened days earlier by the Narragansett Indian Tribe. Gov. Donald L. Carcieri ordered the state police to shut down the facility on Route 2, but when the troopers attempted to do so they faced resistance from tribal members. A violent scuffle ensued. Several Narragansett tribal members were arrested and injured during the melee.
A federal court would rule in 2006 that the state can enforce its laws on tribal land under a 1978 agreement that gave the Narragansetts their 1,800 acres. A Superior Court jury found Chief Sachem Matthew Thomas and two other tribal members guilty of misdemeanor charges in April 2008 for their actions during the 2003 incident.
The following report was published in the Summer 2003 edition of the Narragansett Indian News magazine.
Saturday, July 12
“The state can try anything. It is our opinion and our position that we have a right to be open and remain such until we feel we can’t anymore.”
- First Councilman Randy Noka
CHARLESTOWN — Narragansett Indian Tribe Chief Sachem Matthew Thomas said it was a move that had to be made.
The tribe opened its much-anticipated, tax-free smoke shop on Saturday, and, without any advertising, the facility bristled with business providing a preview of the possible cash windfall that tribal members could soon reap.
While only cigarette cartons were available to the public, the reduced selection didn’t seem to matter much as cheerful customers continuously left the smoke shop, located on the tribe’s land along Route 2, with several cigarette cartons under their arms.
Rhode Island officials would later say that at least 10 percent of the state’s expected $100 million yearly cigarette sales tax revenue might be lost to the tax-free smoke shop.
“We just did a projection and we had to figure out what areas we may have to have cut and what areas we may have to lay people off. So we had to open. We didn’t have a choice,” Thomas said. “The state says we’re going to get 10 percent and I’ll take that any day.”
The smoke shop opened its doors about 11:10 a.m. when a sign in the facility’s window welcomed customers.
Tribal member Domingo Monroe then climbed a ladder onto the roof of the facility and removed a sheet that covered the shop’s eye-catching sign. “Narragansett Smoke Shop” was spelled out in black lettering alongside a pair of pipes, turtles, and feathers.
Customers were greeted inside the shop by an enthusiastic staff and a selection of hundreds of cigarette cartons situated by brand on a series of shelves.
Those brands ranged in price from Move at $9.99 a carton to Newport costing $31.99. In total, there were more than 15 brands that smokers could choose from, costing an average of $25 a carton. Tax-free, $25 cartons cost almost $50 at most convenience stores in the state.
Shop employees said individual packs of cigarette and cigars would soon be available. They also confirmed that the store would be open from 10 a.m. to 9 p.m. Monday to Saturday.
Soon after the official opening, Thomas and tribal Councilman Randy Noka each smoked a cigar in celebration of a notable moment in the tribe’s history.
“We welcome this opportunity because it is a positive step for the tribe and it doesn’t take away from our efforts to work with the state,” Noka said.
“At times, those efforts have not been met with the same desire or the same courtesy extended that we’ve gone to and we’ve done. This is a big day for Narragansetts. We are doing what we feel we have every right to do by opening today.”
But the feel-good atmosphere was soon dampened that evening by Gov. Donald L. Carcieri.
“The sale of cigarettes without charging sales and tobacco taxes is illegal under both state and federal law,” Carcieri said. “The appropriate departments of state government have been notified and we are in the process of responding to what appears to be an illegal act.”
Carcieri’s contention wasn’t a surprise to tribal members, who predicted that the state would find fault with the smoke shop. The differences in opinion would also result in a fast-approaching, and expected, legal battle, tribal members said.
The tribe’s lawyers maintained the Narragansetts didn’t have to tax the tobacco products because the tribe is a sovereign nation. The Rhode Island Indian Claims Settlement Act of 1978 recognized the tribe’s land claims in the state and the federal government recognized the tribe in 1983. Neither measure allows the state to tax the tribe, the lawyers said.
“They (the state) can try anything, it is our opinion and our position that we have a right to be open and remain such until we feel we can’t anymore,” Noka said.
Charlestown Town Council President Deborah A. Carney also expressed safety concerns about the shop because it lacked appropriate parking along the narrow Route 2. Carney said the council had not yet taken a formal position on the smoke shop but it wasn’t something that she could see them approving.
Sunday, July 13
“I would challenge anyone in the room to dispute that.”
- Chief Sachem Matthew Thomas
CHARLESTOWN — Throughout Sunday, tribal members and state officials debated the legality and future of the tax-free smoke shop.
Governor Donald L. Carcieri was advised by his staff and Attorney General Patrick Lynch that the tribe’s actions were criminal.
Carcieri said he contacted Thomas several times during the day and asked that the tribe cease activity at the smoke shop. Thomas refused to do so unless Carcieri supported the tribe’s plans to build a world-class, destination-style gaming facility in West Warwick. The proposal was years in the making but had not received the necessary support from lawmakers to place the matter in front of the state’s voters.
After a final refusal, Carcieri said Lynch assured him that the appropriate process was to have a search warrant delivered to Thomas at the smoke shop.
“Following that advice, I instructed the state police to attempt to serve the warrant under the explicit condition that if any resistance was encountered, the state police were to withdraw,” said Carcieri, who was out of the state for the majority of the weekend.
Thomas said he never asked for Carcieri’s support on the casino but rather that the governor provide state voters with the opportunity to decide whether the tribe should be able to build the casino. Thomas also told Carcieri’s staffers at a sit-down meeting that the tribe would shut down the smoke shop if the governor allowed the casino question to be placed on a ballot.
“I would challenge anyone in that room to dispute that,” Thomas said.
Customers at the smoke shop on Sunday stood in line for more than an hour to purchase tax-free cigarette cartons. During the weekend, the tribe reaped more than $17,000 in gross sales and sold out of most major brands.
Monday, July 14
“It was just horrible. Just the worst thing I’ve ever seen. We didn’t deserve this.”
- Tribal member Lorraine Keyes
CHARLESTOWN — A Rhode Island State Police raid on the Narragansett Indian Tribe’s tax-free smoke shop turned violent on Monday, and left a whole state wondering who was to blame for the spectacle.
More than 20 state troopers, three Charlestown police officers, and several K-9 units responded to execute a court-issued search warrant to shut down what the state considered to be an illegal facility.
But when tribal members disputed the officers’ orders, claiming that the shop was on their sovereign land and exempt from state taxing, a violent 20-minute scuffle ensued. Seven tribal members were arrested, at least eight people were sent to area hospitals and others suffered a range of injuries.
Shortly after 1:30 p.m., the State Police officers pounced on the shop, easily blowing past a human barricade made up of tribal members. But after the early stages of that rush toward the facility, state police officials and tribal members have told a different story of what ensued.
According to Col. Stephen Pare, superintendent of the State Police, two undercover detectives tried to deliver a search-and-seizure warrant to tribal workers inside the shop. Pare said the tribal workers refused to accept the warrant because it was not issued by a federal agency.
Several tribal members said the warrant was never issued and troopers barged into the shop and provided no reason for why they were there.
Shortly after the initial burst into the shop by troopers, Thomas, members of the tribe’s police unit, and several tribal members tried to stop the troopers.
State troopers could be seen at times dragging tribal members and customers away from the facility. Tribal members and state troopers also brawled in the parking lot.
“It was just horrible,” tribal member Lorraine Keyes said. “Just the worst thing I’ve ever seen. We didn’t deserve this.”
With every hand placed on a state police officer, a tribal member was put in handcuffs. Tribal Councilman Randy Noka and his wife, Bella, were among those wrestled to the ground and arrested. Several tribal council members were also arrested.
“They would just violently throw people to the ground, then put the cuffs on them and knee them in the back with their hands cuffed up,” tribal member Angie Machado said.
In the brawl’s early stages, Thomas was seen several times holding back state police officers from entering into the shop and was not initially arrested. As the brawl began to slow, Thomas tried to explain to the officers that the shop was on land that belonged to the tribe and not the state. A state trooper pushed Thomas and told him to settle down. Thomas responded by telling the trooper to keep his hands to himself and pushed back. Several state troopers wrestled Thomas to the ground and arrested him.
“When they (police) first got here, we said to them ‘Get off our land,’ but they just barged into the smoke shop,” tribal member Ellie Stanton said. “For years, every time we take a step forward, they push us back 10,000 miles. The way they treated us today, you don’t treat dogs like that.”
The tribe has been federally recognized since 1983 and because of that federal recognition is not subject to state government sales tax, tribal member continuously said.
Thomas and Hiawatha Brown were arrested and later charged with disorderly conduct and assaulting a police officer.
Bella Noka was arrested and charged with disorderly conduct.
John Brown, Thawn Harris and Randy Noka were arrested and charged with resisting arrest.
At an evening news conference, Carcieri said that the opening and operation of the smoke shop was a flagrant violation of state law. He also said that he debated at length with state officials before authorizing Monday’s response.
“I spoke directly with Chief Thomas to voice my concerns over this illegal act, and indicated that he was causing a confrontation that would require law enforcement response,” Carcieri said.
Carcieri said that he told Thomas that the state was willing to enter into a compact with the tribe but that they had to cease operations of the smoke shop.
Thomas and tribal representatives refused and instead demanded that in return for closing the smoke shop the governor would have to drop his opposition to the tribe’s proposed casino, Carcieri said.
“Their demands were totally unacceptable,” Carcieri said. “They demanded that in return for closing the smoke shop that I must drop my opposition to a casino. That was outrageous.”
For the seventh straight year, the state’s General Assembly refused the tribe’s request to place a referendum on the ballot on whether the tribe should be able to construct a world-class, destination-style gaming resort in West Warwick.
“During each of those meetings, I reiterated the state’s position that the opening of a smoke shop violates both state and federal law,” Carcieri said. “Today’s actions are truly regrettable but clearly necessary. Their unwarranted demands left me with no alternative, except to enforce the law.”
Before authorizing the raid, Carcieri instructed Pare to avoid any hostilities toward the tribe. The violence that clouded the day, Carcieri said, was provoked by Thomas.
Carcieri confirmed that on Tuesday morning state officials would go to Washington County Superior Court in Wakefield to obtain a restraining order to stop any further activity at the smoke shop.
Thomas said that the tribe would be in federal court.
Tuesday, July 15
“What the state did was horrific, just a hideous crime.”
- Chief Sachem Matthew Thomas
PROVIDENCE — The day after a violent scuffle broke out between Rhode Island law enforcement agencies and members of the Narragansett Indian Tribe, state and tribal officials looked to settle their differences in separate courts.
The tribe submitted its lawsuit on Tuesday morning in Providence’s United States District Court, while the state issued its lawsuit a few hours later in Washington County Superior Court in Wakefield.
The Narragansetts’ lawsuit hoped to achieve a declaratory judgment and prove that the tribe is a sovereign nation and allowed to sell tax-free tobacco products on its reservation. The lawsuit also asked federal officials to determine what the tribe’s rights, privileges, immunities and legal relations are with the state.
Defendants in the tribe’s lawsuit include Gov. Donald L. Carcieri, Attorney General Patrick Lynch and Col. Stephen Pare, superintendent of the Rhode Island State Police Department.
Narragansetts’ spokesman Guy Dufault said the tribe also requested a temporary restraining order against the state in order to get their tobacco products returned.
A few hours later, Lynch filed a lawsuit in state Superior Court requesting that the sale of tax-free cigarettes be deemed illegal. He also requested a restraining order to stop the tribe from reopening the smoke shop.
Tribal representatives and attorneys planned to be in federal court at 9 a.m. Wednesday, while state officials expected to be in Superior Court a half-hour later.
Those court cases seemed to be the least of Carcieri’s concerns at a late afternoon news conference, as the first-year governor apologized to Rhode Islanders for Monday’s spectacle.
“I am dismayed and deeply saddened by the events that transpired. I did not expect that to happen,” said Carcieri.
Carcieri again stressed that he asked Pare to avoid any physicality in delivering a search warrant to the tribe.
“To the extent that the failure resulted in any physical injury or harm to any person, I apologize to the people of the state,” Carcieri said in the opening moments of the State House news conference.
Carcieri confirmed he ordered further investigation into the incident be conducted by the state police as well as an independent panel of three to five people. The independent panel would be asked to review the entire incident and make recommendations on how actions should be taken to avoid similar situations in the future, Carcieri said. The panel would also be responsible for looking at police reports, affidavits, search warrants, videotapes and law enforcement protocols to determine if the police response was appropriate.
“I intend to recruit recognized and respected individuals to lead this fact-finding endeavor,” Carcieri said. “It is incumbent on me to ensure that an impartial, dispassionate review of yesterday’s action is conducted fairly and swiftly.”
Carcieri added that he intends to name appointments to the panel within three days and give them a month to conclude their investigation.
The governor said that he asked Pare to conduct an internal investigation to why his nonviolent instructions were not followed as well as to determine who was responsible for Monday’s scuffle. Pare was given 10 days to complete his report.
While Carcieri showed a more sympathetic face on Tuesday, rather than what was provided at a tense Monday news conference, he did not remove blame for the incident from Thomas.
“There would be no incident had Chief Thomas accepted the service of the warrant,” Carcieri said.
But early on Tuesday, Thomas continuously maintained that it was Carcieri who should be held responsible.
“He is wrong, out-and-out wrong,” Thomas said in front of the federal courthouse. “He should have gone to the court in the first place and try to dissolve this peacefully. When he says that ‘Chief Thomas instigated this’ and I couldn’t control my tribe, he’s the one that can’t control his officers.
Even though it was tribe members that were officially charged with assault, Thomas said all he remembers from Monday is trying to keep police officers off of him and being pushed and thrown to the ground.
Thomas stressed that the state illegally came on the tribe’s land and tribal members had tried to stay nonviolent.
“What the state did was horrific, just a hideous crime,” he said. “We will not lower ourselves to their way of doing things. We are going to do this properly and go to the federal courts and have them uphold the rights of the tribe.”
The tribe’s lawsuit states that its sovereign immunity had been established under the Rhode Island Land Claims Settlement Act by seven federal and state court decisions, Thomas said. They all found that the tribe retains its common law immunity from a lawsuit.
The tribe’s lawsuit also stated that Congress did not authorize the state to tax the tribe and that the U.S. Supreme Court confirmed that sovereign immunity bars a lawsuit from being filed against a tribe to recover taxes owed for sales to non-Indians at tribally owned stores.
Thomas said that the lawsuit also accused the state of illegally coming onto the tribe’s property without the proper paperwork, causing physical and emotional harm to the tribe, violating its civil rights and ignoring its sovereign status.
“The governor went the low road and allowed officers to come in there with attack dogs,” Thomas said. “All that was missing on Monday were the fire hoses.”
Wednesday, July 16
“We are thankful for the public’s support.”
- First Councilman Randy Noka.
PROVIDENCE — In an initial step of an expected lengthy court battle, state officials decided on Wednesday to deal with the Narragansett Indian Tribe in federal court.
A day after Attorney General Patrick Lynch filed a lawsuit against the tribe in Washington County Superior Court in Wakefield, the state changed course and decided it would be best to address the matter in United States District Court in Providence.
Attorney General’s Office representatives and the tribe’s legal team met Wednesday in front of U.S. District Court Judge William E. Smith to begin pre-courtroom discussions. The meeting lasted a little under two hours and concluded with both sides being asked to return Monday to Smith’s chamber.
“The judge is going to consider our arguments and continued everything until Monday,” said John F. Killoy Jr., the tribe’s lawyer.
The Monday meeting would entail further discussion on legal and factual issues surrounding the case, the possible reopening of the tribe’s tax-free smoke shop and finalizing a schedule for future hearings.
Along with its lawsuit against several state officials and law enforcement agencies, the tribe was also seeking a temporary restraining order to reopen the smoke shop, which has remained closed since Monday’s state police raid.
“This is the typical process for a temporary restraining order,” Killoy said.
Smith understood that events of the past few days had transpired quickly and wanted both sides to work closely with one another, Killoy said.
“The fundamental issue is whether the smoke shop will reopen,” said Gerald J. Coyne, deputy attorney general. “In preliminary matters, the judge asked us to work together with the tribe.”
Both sides were told by Smith to not share a lot of details regarding Wednesday’s meeting.
Narragansett Indian Tribe Chief Sachem Matthew Thomas, who joined Killoy in federal court, followed the judge’s wishes and kept a tight lip on any legal issues. But Thomas said that he was disappointed in Governor Donald L. Carcieri’s apology to the people of Rhode Island at a Tuesday news conference.
“We certainly respect the fact that he apologized to the citizens that were hurt and the citizens of the state of Rhode Island in general,” said Thomas. “However, we’d like an apology to the Narragansett Indian Tribe for the actions that were taken.”
Throughout the day, dissension could be witnessed amongst the ranks of state officials as Lynch could be heard on talk radio criticizing Carcieri for trying to shift the blame for the smoke shop incident to the Attorney General’s Office and the state police.
At the Tuesday news conference, Carcieri said he was advised by Lynch to have a search-and-seizure warrant served to the tribe and ordered that it be delivered at the smoke shop, but to stop if any resistance was encountered.
The smoke shop remained closed Wednesday but bristled with activity as Native Americans from throughout New England converged there to show support for the Narragansetts.
