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The legal
framework set during the earliest interactions between Indians and
Europeans is still pervasive and still fundamental to the modern
relations, Jordan said.
“It was
originally constructed in a nation-to-nation way, a peer relationship
from the very beginning done on a government-to-government
basis,” he said. “Basically the natives assert today that
nothing has changed and that is the basis of sovereignty.”
Still, the
relationship between states and tribes remains a gray area in many
ways, with contradictory court decisions and selective reading of
precedent-setting cases, Jordan said. If native sovereignty is
increased, states usually feel the brunt.
“There's no
clear cut way to proceed,” he said.
•••••
In the weeks
leading up to the smoke shop raid, the state legislature failed to
authorize a fall referendum for the Narragansetts' proposed casino in
West Warwick. Gov. Donald L. Carcieri met with Chief Sachem Matthew
Thomas and visited the reservation, saying he wanted to help the
tribe improve its financial situation. He set up a meeting with his
economic development team. Carcieri warned Thomas there would be
problems if the tribe opened the smoke shop.
“We've had
problems since the Mayflower,” the chief told the governor.
In the aftermath
of the raid, one man screamed he would be willing to die to protect
the tribe's sovereignty. A woman brought up the hundreds of Sioux
killed at Wounded Knee in 1890. There was talk of smallpox-infected
blankets being distributed to Indians during the French & Indian War.
But over the next
couple of days, Thomas and other tribal leaders were emphasizing that
the tribe would wage its battle in the courts.
“They tried
to incite us to react violently,” said Medicine Man Lloyd G.
“Running Wolf” Wilcox. “My people were wonderful. They
defended the women and children. They didn't return aggression with
aggression ... not this time.”
Thomas met with
the governor briefly to “calm things down.” At the smoke
shop, tribal members discouraged television crews from interviewing a
visiting member of the Wampanoag tribe who implied it would take a
bullet to stop him from defending his fellow Indians. At a unity
rally, the chief sachem told a large crowd that the intention was
unity and peace, “and if those aren't your intentions, you took
a wrong turn somewhere.” Still, tribal members said they would
never forget July 14.
“It's how the
troopers came in and how they manhandled and physically abused
people,” Noka said. “How can you possibly put your hands on
the leader of a nation like they did that day?”
Carcieri has
appointed an independent commission to review the smoke shop
incident. Last week, he received a report on the incident that he had
requested from State Police Col. Stephen Pare. The report, released
Friday, said troopers acted appropriately during the raid. The
incident developed into a major headache for the first-term governor,
who opposes casino development in Rhode Island. If the state was to
vote today, many tribal members feel residents would approve the
Narragansett gaming facility.
Listening to Rhode
Island residents debate the smoke shop issue on talk radio, Noka said
only a few thought the state police raid was a good idea.
“They must
have hooded sheets in their closet,” he said of those callers.
•••••
Cigarette taxes
have long been a point of contention between tribes and states, and
the U.S. Supreme Court has ruled on the issue three times. In
general, Indian law experts say, Indians are supposed to tax
cigarettes sold to non-Indians on their reservations unless they
manufactured the tobacco products themselves. Some tribes enter into
revenue-sharing agreements with states, just as they do for gambling,
but states have a hard time collecting taxes from those tribes that
have no agreements.
Charles K. Smith
II, chairman of the Shinnecock Indian Nation board of trustees, sees
a parallel between his tribe and the Narragansetts.
“We're both
in stages of economic development and on the road to
self-reliance,” Smith said. “As it is, we get reluctance by
the state and they're fighting us. New York State is fighting the
Shinnecock, and Rhode Island is fighting the Narragansett. Both
nations are charged by the government to become self-sufficient,
self-reliant. And when we try to do that ... ”
The Shinnecocks,
backed by Oklahoma developer Ivy K. Ong, broke ground on a casino in
Hampton Bays on June 30. The town and state quickly sued them, and
the tribe is, for the time being, obeying a temporary restraining
order. The matter is in federal court. Shinnecock leaders objected to
one newspaper's characterization that the tribe had “thumbed its
nose” at the government.
“We were just
exercising our sovereignty,” Smith said. “We have a right
to do that. We own the land. The government doesn't have a right to
tell us what we can do on our land. We have been giving the
government courtesy by responding to their temporary restraining
orders. We haven't broken any of those restraining orders. Out of
courtesy we're dong that, but we still have the right. “
The 1,500-member
tribe is not federally recognized. They started the process in 1978
but only just completed their application to the Bureau of Indian
Affairs. Smith said it is “almost an insult” that they are
asked to prove their identity.
“We're
extending ourselves as a courtesy for the government to acknowledge
us as an Indian Nation,” said Smith. “As far as we're
concerned when they started the federal recognition policy, they
forgot to include us and recognize us at that point. We have been
here always and we have been on our original land before there was a
U.S. government.”
Individual tribal
members sell tobacco at three shops on the reservation, enterprises
that Smith said benefit the tribe only slightly. One shop pays a
lease and the others donate to different organizations on the
reservation. When the first shop opened in 1983, local police tried
to shut it down, Smith said, but “they were stopped by tribe
members, then state police.” Elsewhere in New York, the Seneca
and Mohawk tribes have had tense and sometimes violent encounters
with the state throughout the year. Individual members continue to
sell tobacco, and the state government continues its efforts to
collect taxes.
Ten years ago in
Connecticut, the state tried to stop Golden Hill Paugussett War Chief
Moonface Bear from selling cigarettes out of the Colchester
reservation. Indians armed with AK-47s held off state police for
months. Moonface Bear eventually surrendered and was arrested, but
state police never entered the reservation, and the war chief died of
leukemia before his trial.
During the same
summer of 1993, Eastern Pequot member Mark R. Sebastian was arrested
for trying to block a North Stonington road crew from fixing a road
on the reservation because he feared the roadwork would damage
significant archaeological sites. He ultimately pleaded guilty to
creating a public disturbance and paid a fine. He appealed the
jurisdiction issue to the state Supreme Court and lost. Today, both
Connecticut tribes are trying to open casinos, a step that requires
cooperation with, and from, local, state and federal officials. The
outcome remains unclear.
John Peters,
executive director of the Massachusetts Commission on Indian Affairs
and a member of the Mashpee Wampanoag, put Indian “acts of
resistance” in historical perspective. Indians have put up with
a lot over the years, he said, harking back to the so-called
“Mashpee Revolt” of 1830.
“They would
hire people from the surrounding towns to come down and cut our wood
while our people sat and had no employment,” he said. After
complaining to the court and getting no response, tribal members
stopped the workers from cutting wood and sent them off. There was no
bloodshed, Peters said, but “maybe some egos lost.”
“It was
treated as if it was a violent incident,” he said. “The
idea that the natives would actually revolt and tell you, ‘You
can't do this.' ''
© The Day
Publishing Co., 2003
Story and
photos online at TheDay.com
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