The ACLU of Rhode Island has today intervened in the pending litigation between the state of Rhode Island and the Narragansett Indians over the highly publicized state police raid of the Indians’ smoke shop last month. The ACLU affiliate, joined by its National office, has filed a “friend of the court” brief in U.S. District Court in support of the Tribe’s legal arguments. The brief was prepared by National ACLU staff attorney Stephen Pevar who, as the author of The Rights of Indians and Tribes, has literally written the book on the subject.

The ACLU brief, relying on “bedrock principles of Federal Indian Law” – including the principle that “Indian tribes possess inherent sovereign powers” – argues that the state does not have the authority to tax the Tribe for the sale of cigarettes from its smoke shop, or the right to enter the Narragansett Indian Reservation and seize tribal property. Emphasizing the importance of the doctrine of Indian sovereignty in American law, the brief claims that the state activities challenged here “are among the most virulent and destructive forms of state control over tribal affairs imaginable.”

R.I. ACLU executive director Steven Brown said today: “This case raises issues of enormous consequence for the sovereignty of Indian tribes. The ACLU has been critical of the raid since its inception. Our brief is designed to show that the raid was not just a misguided policy decision, it was unconstitutional as well.”

The brief, calling the smoke shop raid a “shocking abuse of power,” states that “no action could be more threatening to, and disruptive of, any government’s sovereignty than the seizure of its property by outsiders.” The brief notes that “the federal policy of leaving Indian tribes free from state encroachment is deeply rooted in the Nation’s history. Yet Rhode Island sent law enforcement officers into tribal territory and seized tribal property without federal approval. If this action does not encroach upon tribal sovereignty, it is difficult to imagine what does.”

On the taxation issue, the brief acknowledges that if state law imposed the cigarette tax on customers rather than the seller, the Tribe could be required to collect those taxes from non-tribal members. But state laws “place the legal incidence of the tax on the holder of the cigarettes for sale, and not on the purchaser.” As a result, the State “cannot impose its cigarette taxes on tribal sales because the Narragansett Tribe cannot be taxed by the state.” The brief further argues that nothing in the Rhode Island Claims Settlement Act of 1978 – a law the state has previously cited in support of its position – “consents to the state’s taxation of the Tribe’s Smoke Shop.”