OPINION EN BANC
SELYA, Circuit Judge.
This case pits the Narragansett Indian Tribe (the Tribe) against the State of Rhode Island (the State).
The district court answered this question affirmatively. See Narragansett Indian Tribe v. Rhode Island, 296 F.Supp.2d 153, 170 (D.R.I.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, 2005 WL 1119758 (1st 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.
We begin with a synopsis of the unique relationship between the Tribe and the State and then turn to the 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
This endeavor reached a fever pitch in 1975, when the Tribe filed a pair of complaints in the United States District Court for the District of Rhode Island. In these complaints, the Tribe alleged that it possessed approximately 3,200 acres of land as part of its aboriginal territory; that the 1880 conveyance of that land mass was void under the Indian Nonintercourse Act, 25 U.S.C. § 177, because the State failed to secure federal approval; and that, inasmuch as its aboriginal title had never been extinguished, the Tribe held a claim of title superior to that of any landowner whose chain of title depended upon the 1880 sale. See id. at 1336-37.
The pending litigation clouded the titles of hundreds of Rhode Island landowners. To dissipate this cloud, the State, the town of Charlestown, and the affected landowners, as parties of the first part, and the Tribe, as party of the second part, executed a joint memorandum of understanding (the J-Mem) on February 28, 1978. The J-Mem created a carefully calibrated relationship between the Tribe and the State centering on 1,800 acres of land in and around Charlestown (the settlement lands). The J-Mem provided that the settlement lands would be formed out of two parcels, one donated by the State 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 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 General 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.
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 (1st 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 gambling 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. Id. §§ 44-20-12, 44-20-13. The excise tax is collected through the sale of cigarette stamps, which must be affixed to every package of cigarettes brought into the State. Id. §§ 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. Id. § 44-20-29. The sale or purchase of unstamped cigarettes is a misdemeanor. Id. §§ 44-20-33, 44-20-35, 44-20-36. Unstamped cigarettes are contraband and, as such, are subject to seizure by the State. Id. § 44-20-37.
On July 12, 2003, the Tribe, acting pursuant to a tribal ordinance, opened a smoke shop on the settlement lands. The smoke shop offered an array of cigarettes for sale to the general public (i.e., members of the Tribe and nonmembers alike). The Tribe's avowed purpose in establishing the smoke shop was to generate funds for its social programs.
Believing that the State lacked the legal authority to compel its compliance with the cigarette tax scheme, the Tribe refused to purchase cigarette stamps. It also refused to precollect the State's sales tax, see id. § 44-18-19, from those who purchased the Tribe's cigarettes. By dint of these refusals, the Tribe was able to sell unstamped, untaxed cigarettes at prices substantially below market.
On July 14, 2003, Rhode Island State Police entered the settlement lands and raided the smoke shop. Their intent was to seize contraband cigarettes pursuant to a search warrant issued by a state court of competent jurisdiction. Despite the warrant, the troopers' entry sparked an altercation with members of the Tribe. When the smoke cleared, the troopers had arrested eight individuals, including the Tribe's Chief Sachem, and had confiscated the Tribe's entire inventory of unstamped, untaxed cigarettes.
In the aftermath of this acrimonious episode, the Tribe filed suit in the federal district court, seeking a declaratory judgment that its sovereign status as a federally recognized Indian tribe precluded the State from applying its cigarette tax scheme to the Tribe's sale of cigarettes on the settlement lands. Relatedly, the Tribe sought a declaration that sovereign immunity insulated it from the State's criminal process and shielded from arrest those tribal members who had participated in the operation of the smoke shop. After submitting the case on stipulated facts, the
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. Id. 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.
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 [s]hop by the Narragansett Indian Tribe" and "the effect (if any) of tribal sovereign immunity" on the State's enforcement authority. Narragansett Indian Tribe v. Rhode Island, 415 F.3d 134 (1st Cir.2005) (unpublished order). We turn now to those questions.
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, 100 S.Ct. 2069, 65 L.Ed.2d 10 (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, 100 S.Ct. 2069. We need not answer that vexing question in the abstract; here, the plain language and purport of the J-Mem and the Settlement Act supply the answer with respect to activities on the settlement lands.
We bifurcate our analysis, first addressing whether the State may execute a search warrant on the settlement lands and then mulling whether tribal sovereign immunity can be said to prevent the State from executing such a warrant against the Tribe and from arresting tribal members involved in the smoke shop enterprise.
A. The Ability to Execute a Search Warrant.
The State asseverates that the J-Mem and the Settlement Act, when read in light of the unique historical context in which they arose, permitted state officers to execute a search warrant on the settlement lands as part of the due enforcement of the State's cigarette tax scheme. We think that proposition is correct.
The Tribe agreed in the J-Mem (with certain modest exceptions not relevant here) that "all laws of the State of Rhode Island shall be in full force and effect on the settlement lands." That agreement did not materialize out of thin air; it followed intense negotiations and led to the Tribe's receipt of over 1,800 acres of land. Congress confirmed this negotiated arrangement in the Settlement Act, mandating (again with explicit but modest exceptions) that "the settlement lands shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island." 25 U.S.C. § 1708(a). As the unqualified language of both the J-Mem and the Settlement Act makes pellucid, the authority ceded to the State and assented to by the Tribe was broad in its terms. The negotiated arrangement and the confirmatory 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 benefitted—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.
The Supreme Court has held that because Congress has plenary power over
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, 114 S.Ct. 2028, 129 L.Ed.2d 52 (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 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, 96 S.Ct. 1634, 48 L.Ed.2d 96 (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, 100 S.Ct. 2069.
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, 103 S.Ct. 2378; see also Colville, 447 U.S. at 156-57, 100 S.Ct. 2069. 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
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 32 (Lipez, J., with whom Torruella, J., joins, dissenting) (quoting Aroostook Band of Micmacs v. Ryan, 404 F.3d 48, 68 (1st 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, 93 S.Ct. 1257; see Hicks, 533 U.S. at 362, 121 S.Ct. 2304, treating sovereignty instead as the source of "tribal power . . . to protect tribal self-government or to control internal relations" through tribal regulation of activities on tribal lands, Montana v. United States, 450 U.S. 544, 564, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981); see Hicks, 533 U.S. at 358-60, 121 S.Ct. 2304. Consistent with this trend, tribal sovereign
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, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998); Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 29 (1st 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, 121 S.Ct. 1589, 149 L.Ed.2d 623 (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, 121 S.Ct. 1589.
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, "all 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, 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 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 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
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, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985). In Judge Torruella's view, section 1708(a) is such a provision. See post at 39 (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.
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 33-34 (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, 106 S.Ct. 2305, 90 L.Ed.2d 881 (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 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
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. Id. 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 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 S.Ct. 2102. 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.
The Tribe takes a somewhat different path, averring that our conclusion that the J-Mem and the Settlement Act largely
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, 118 S.Ct. 1700; 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 II); 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 (5th 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, 118 S.Ct. 1700; 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 (1st Cir. 1993), does not require a different result. That case involved a civil suit against the Tribe for an alleged trespass on private property outside the settlement lands. Id. 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. Id. 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 Inyo County v. Paiute-Shoshone Indians of the Bishop Cmty. of the Bishop Colony, 538 U.S. 701, 712, 123 S.Ct. 1887, 155 L.Ed.2d 933 (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
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, 97 S.Ct. 2616, 53 L.Ed.2d 667 (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, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) (holding that "[a]s an officer of the [Indian tribe], petitioner . . . is not protected by the tribe's immunity from suit").
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.
In the final analysis, the J-Mem and the Settlement Act dictate the result we reach. Under their terms, the Tribe surrendered any right to operate the settlement lands as an autonomous enclave. It is plainly not the case, as the Tribe would have it, that an Indian tribe can render any conceivable act on Indian lands (say, drug trafficking) impervious to state regulation by the simple expedient of labeling it "tribal." That is emphatically true with respect to the Tribe's activities on the settlement lands.
In sum, the Tribe remains as free as ever to operate the smoke shop; it simply must comply with state law in the process. That result is not disquieting: after all, no principle of federal law or tribal self-governance authorizes Indian tribes "to market an exemption from state taxation to persons who would normally do their business elsewhere." Colville, 447 U.S. at 155, 100 S.Ct. 2069. The Tribe has not explained
Consistent with the foregoing, we hold, first, that the J-Mem and the Settlement Act authorized state officers to enter the settlement lands and execute a search warrant as part of the enforcement of the State's cigarette tax scheme. Second, in light of the unique historical and legal context in which this case arises — and, particularly, the provisions of the J-Mem and the Settlement Act — we conclude that the Tribe's sovereign immunity neither prohibited the State from executing that warrant against the Tribe nor barred it from arresting tribal officers and members for activities incident to the operation of the smoke shop. Consequently, the State's actions here — its entry into the settlement lands, its seizure of the Tribe's inventory of unstamped, untaxed cigarettes, and the accompanying arrests — were lawful.
In arriving at these conclusions, we do not diminish the dignity and respect that should be afforded the Tribe as a sovereign entity. Nor do we imply that dragnet arrests and police raids on the settlement lands should be the State's preferred method for enforcing the Tribe's obligation to comply with state law. We recognize, however, that the Tribe and the State negotiated a carefully calibrated agreement between sovereigns, memorialized that agreement in the J-Mem, and sealed the deal by obtaining Congress's imprimatur. It is not for the courts to rewrite the terms of that arrangement.
LIPEZ, Circuit Judge (with whom TORRUELLA, Circuit Judge, joins), dissenting.
In an apparent attempt to limit the scope of its holding, the majority claims to rest its decision "squarely on [the] idiosyncratic features" of the Narragansett Tribe's relationship with the State of Rhode Island. Then, in an effort that belies this narrow approach, the majority engages in a lengthy analysis of "the general body of Indian law" to support its idiosyncratic holding. Along the way, it repudiates two of our precedents to varying degrees. Respectfully, neither the majority's characterization of this case as idiosyncratic nor its analysis of the general body of Indian law can withstand scrutiny. The Narragansett Tribe's relationship with the State of Rhode Island reflects a familiar history. The majority's application of tribal sovereign immunity in this case is incompatible with Supreme Court precedents. For these reasons, I join Judge Torruella in dissenting. I write separately to elaborate on my disagreement with the majority's analysis.
This is not an "idiosyncratic" case based on a "unique relationship." The history of litigation and legislation outlined in the majority opinion is prototypical of that involving several tribes, especially in the East but also in parts of the West. The Narragansetts, like many of these tribes, brought suit in the 1970s to contend that their ancestral lands had been alienated in violation of the Indian Non-Intercourse Act. 1 Stat 137 (1790) (codified as amended at 25 U.S.C. § 177 (2000)). See, e.g., Oneida County v. Oneida Indian Nation of New York, 470 U.S. 226, 229-30, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985) (recounting litigation in New York); Miccosukee Tribe Of Indians of Florida v. Florida, No. 79-253-CIV-JWK
The concept of tribal sovereign immunity derives, of course, from the more general concept of tribal sovereignty. See Blatchford v. Native Village of Noatak, 501 U.S. 775, 782, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991) (explaining that Indian tribes are sovereign entities, subject to the control of the federal government but not the states); United States v. James, 980 F.2d 1314, 1319 (9th Cir.1992) ("Tribal immunity is just that: sovereign immunity that attaches to a tribe because of its status as a dependant domestic nation."). But the two doctrines are not interchangeable. In a recent decision, we described the distinction between sovereignty and sovereign immunity as "subtle but important." Aroostook Band of Micmacs v. Ryan, 404 F.3d 48, 68 (1st Cir.2005). We noted that when a tribe asserts its sovereignty, it is claiming, "in essence, that it is not subject to state laws . . . at all." Id. On the other hand, we said, "tribal sovereign immunity means that [a tribe] is not amenable to state judicial or quasi-judicial proceedings to enforce those laws," even if the tribe is bound to observe them. Id.
The majority now overrules Aroostook "with respect to the distinction in question." However, there are several Supreme Court cases in which a tribe has been held immune from suit even though it was subject to state law. Indeed, the case the majority cites for its rejection of the distinction in Aroostook, Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 512-13, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991), distinguished between tribal sovereignty and tribal sovereign immunity exactly as the panel did in Aroostook. In Oklahoma Tax Comm'n, the Supreme Court concluded that an Indian tribe in Oklahoma lacked any sovereign authority to sell tax-free cigarettes on its lands. Even so, the Court reasoned, the tribe's sovereign immunity remained intact, and Oklahoma could not sue the tribe to collect wrongfully withheld taxes. More recently, in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 754-55, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998), the Court emphasized the same distinction. That case also involved a situation in which an Indian tribe had flouted state contract law but could not be sued in state court for a remedy. "There is a difference," the Court observed in Kiowa Tribe, "between the right to demand compliance with state laws and the means available to enforce them." Id. at 755, 118 S.Ct. 1700.
I accept that the Tribe never had any authority to "market an exemption from state taxation to persons who would normally do their business elsewhere," and so was bound to assist the State in its collection of cigarette taxes. Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 155, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980). I acknowledge, as I explain below, that in agreeing to the language later embodied in section 1708(a), the Tribe could no longer shield its own members from state prosecution for offenses committed on tribal lands. I will even assume, without deciding, that the majority is correct that the Tribe's sovereign autonomy is now limited largely to "matters of local governance." Maj. Op. at 26 (quoting Rhode Island v. Narragansett Indian Tribe 19 F.3d at 701). None of this changes the fact that the Tribe's sovereign immunity still extends, unless specifically limited, to "governmental or commercial activities . . . on or off a reservation." Kiowa Tribe, 523 U.S. at 760, 118 S.Ct. 1700. A tribe's sovereign authority and its sovereign immunity simply are not coterminous.
The majority also questions whether tribal sovereign immunity serves as a defense to the execution of a search warrant. At its core, tribal sovereign immunity protects a tribe from a lawsuit. See Kiowa Tribe of Oklahoma, 523 U.S. at 754, 118 S.Ct. 1700 (holding that tribe's sovereign immunity prevented lawsuit to collect on promissory note). But sovereign immunity also provides a defense to the efforts of states to enforce their criminal law against tribes. See Puyallup Tribe v. Department of Game, 433 U.S. 165, 171, 172-73, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977) (allowing enforcement "analogous" to criminal prosecution against individual tribal members, but barring the state from using the same measures against a tribe itself); see also James, 980 F.2d at 1319-20 (recognizing that tribal sovereign immunity required quashing a criminal subpoena directed to Indian tribe). Since a tribe's sovereign immunity protects it from a state's civil suit to recover cigarette taxes, see Oklahoma Tax Comm'n, 498 U.S. at 513, 111 S.Ct. 905, and also provides protection in situations "analogous" to criminal prosecutions, tribal sovereign immunity is implicated when a state uses its criminal process to seize, from the Tribe itself, cigarettes that do not have tax stamps.
In addressing whether the Tribe's sovereign immunity is intact, which it does despite disavowing the importance of the question, the majority focuses on language in the JMOU stating that the laws of Rhode Island would apply in "full force and effect," and a similar statement in the Settlement Act providing that "the settlement lands shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island." There is no other provision about jurisdiction in either document. I find the majority's analysis of this language unconvincing. Congress has used this language for half a century to confer state jurisdiction over individual Indians on tribal lands. Both before and since the JMOU and Settlement Act, the Supreme
As best as I can tell, the language of the JMOU and Settlement Act originated in 1953's Public Law 280, where Congress provided for state "jurisdiction" to exist "to the same extent" and for the state laws to have "the same force and effect" on affected Indian lands as on non-Indian lands.
As the majority says, "we must presume that Congress acts with knowledge of relevant Supreme Court precedent." If we are to apply this maxim to an interpretation of section 1708(a), the most relevant precedents are Itasca County, which was decided just two years before Congress adopted § 1708(a), and Puyallup Tribe, enacted just one year before. If Congress had wanted to abrogate the Tribe's sovereign immunity in 1978, it would not have done so by repeating language that the Supreme Court had held in each of the previous two years did not result in "any conferral of state jurisdiction over the tribes themselves." Itasca County, 426 U.S. at 389, 96 S.Ct. 2102. This is especially so because, when it acted, Congress knew very well that the statute it produced would be "liberally construed, doubtful expressions being resolved in favor of the Indians." Id. at 392, 96 S.Ct. 2102 (internal quotation marks omitted).
Nor do I understand how the "force and effect" language constituted a waiver of the Tribe's sovereign immunity when it appeared in the Tribe's JMOU with the State. The Tribe could not have understood that it was waiving its sovereign immunity to suit by the State by agreeing
Accepting the majority's contention that the Settlement Act contains a broader conferral of substantive jurisdiction than Public Law 280 does not change anything. I do not suggest that the Settlement Act and Public Law 280 serve identical purposes. I aver only that the parties to the JMOU and Settlement Act borrowed language from Public Law 280 at a time, and in a manner, that does not evince any intent to subject the Tribe itself to the criminal processes of the State. No matter how broadly the majority construes section 1708(a)'s jurisdictional language, the majority cannot point to anything in that section, in the broader Act, in the JMOU, or in the history underlying those documents, that even suggests any agreement that the Tribe itself could be made a party to state court process involuntarily.
There is another reason to doubt the majority's reading of the Settlement Act and JMOU, and another reason we can be sure that this is not an "idiosyncratic case." The phrases that the majority uses to find an abrogation and waiver of the Tribe's sovereign immunity have become
We already have held that the Settlement Act and JMOU did not constitute an abrogation or waiver of the Tribe's sovereign immunity. Maynard v. Narragansett Indian Tribe, 984 F.2d 14 (1st Cir.1993). In Maynard, we correctly stated that any "waiver or abrogation" of tribal sovereign immunity would have to be "infer[red]" from the settlement documents. Id. at 16. But such waivers cannot be inferred. Congressional abrogation of tribal sovereign immunity must be "unequivocal[ ]" to be effective, and a tribe's waiver of its immunity from state court process must be "clear." C & L Enterprises, 532 U.S. at 418, 121 S.Ct. 1589 (internal quotation marks omitted).
As an en banc court, we have the authority to discard precedents. But I disagree with any suggestion that today's holding can be squared with Maynard. The majority says that Maynard is inapposite here because this is not a "civil suit premised on activities occurring outside the settlement lands." As I have explained above, however, the same sovereign immunity that protects a tribe from civil lawsuits also protects it from criminal process. If anything, there is a stronger rationale for recognizing the Tribe's sovereign immunity here than in Maynard because, while Maynard involved an injunctive suit to stop the Tribe's purported interference with a private landowner's activities on his own lands, this case involves the State's effort to execute its process on tribal lands. See Kiowa Tribe,
The majority is simply wrong that "section 1708(a) would be mere surplusage if, as the Tribe contends, it contemplates no more than that the State may exercise jurisdiction within the settlement lands subject to the constraints of tribal sovereign immunity." The majority says that "[a]t the time Congress passed the Settlement Act, the Supreme Court already had adopted the approach of permitting the exercise of state jurisdiction within Indian lands where the exercise of such jurisdiction had not been preempted by federal law." This statement reflects a basic misunderstanding of Indian law.
At the time Congress adopted the Settlement Act, as now, a state not expressly granted jurisdiction over Indian lands by Congress, pursuant to Public Law 280, 25 U.S.C. §§ 1321-22, 18 U.S.C. § 1162, or another similar statute, lacked criminal or civil jurisdiction over individual Indians who committed crimes on those lands. See, e.g., Ross v. Neff, 905 F.2d 1349 (10th Cir.1990) (recognizing that in the absence of an express Congressional grant of jurisdiction, a state law enforcement officer has no authority to arrest an individual Indian for a criminal offense committed on Indian land); United States v. Daye, 696 F.2d 1305, 1307 (11th Cir.1983) (same). See also Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959) ("[S]tate courts have been allowed to try non-Indians who committed crimes against each other on a reservation. . . . But if the crime was by or against an Indian, tribal jurisdiction or that expressly conferred on other courts by Congress has remained exclusive.").
That is also the state of the law now. No Supreme Court case authorizes a state to extend its criminal court processes by preemption to conduct committed by individual Indians on Indian lands. The majority's reliance on McClanahan v. State Tax Comm'n of Arizona, 411 U.S. 164, 172, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973), for the proposition that Rhode Island needed neither Congressional authorization nor the Tribe's approval to exercise such jurisdiction over the Tribe's lands, is misguided. The McClanahan Court expressly rejected an approach that would allow states to exercise jurisdiction over Indians on tribal lands on their own initiative. Rather, the Court said, Congress has made it clear that states cannot exert jurisdiction over Indians on Indian lands — not to mention Indian tribes — "unilaterally." Id. at 178, 93 S.Ct. 1257. Indeed, McClanahan routinely is cited for precisely the opposite of the majority's proposition. The case stands for the nearly irrebuttable presumption that a state cannot extend its jurisdiction to activities conducted by individual Indians, on their tribal lands, without an express grant of authority by Congress. See Oklahoma Tax Comm'n v. Sac & Fox Nation, 508 U.S. 114, 125-26, 113 S.Ct. 1985, 124 L.Ed.2d 30 (1993).
If there had been no section 1708(a) or similar express conferral of criminal jurisdiction, the State would not have been able to prosecute a crime committed by an Indian on the Settlement Lands. Any such crime would have been prosecuted in tribal or federal court. See 18 U.S.C. §§ 1152-56. That is the way things are done, to
As Judge Torruella indicates, the State had options for enforcing its cigarette tax laws that would have been compatible with the Tribe's sovereign immunity. For example, the State could have sought an injunction, pursuant to Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), against the tribe's Chief Sachem and any other relevant official, for violating the federal law giving Rhode Island the ability to tax cigarette sales on the settlement lands.
In Oklahoma Tax Comm'n, a case involving cigarette tax enforcement, the Supreme Court explicitly left open the Ex parte Young door. 498 U.S. at 514, 111 S.Ct. 905. In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), the Court allowed a suit to enjoin enforcement of a purportedly illegal tribal ordinance to proceed against a tribal official, even though tribal sovereign immunity barred the same suit against the tribe itself. See id. at 59, 98 S.Ct. 1670. See also Puyallup Tribe, 433 U.S. at 173, 97 S.Ct. 2616. The extension of the Ex parte Young doctrine to tribal officials is well established in the courts of appeals as well. The Ninth Circuit has endorsed the idea categorically. See Dawavendewa v. Salt River Project Agr. Imp. & Power Dist., 276 F.3d 1150, 1159-60 (9th Cir.2002) (recognizing that "suits against [tribal] officials allegedly acting in contravention of federal law" are "permitted"). The Eighth Circuit has recognized that state Ex parte Young suits against tribal officials are available with "mutuality" to the same extent as tribal Ex parte Young suits against state officials. See Fond du Lac Band of Chippewa Indians v. Carlson, 68 F.3d 253, 256-57 (8th Cir.1995). The Eleventh Circuit has held similarly. See Tamiami Partners v. Miccosukee Tribe of Florida, 63 F.3d 1030, 1050-51 (11th Cir.1995).
Here, nothing barred the State from taking the Ex parte Young route. The search warrant was issued on the first day the tribal smoke shop opened. The search happened two days later. The officer who swore out the search warrant admitted that he had known for weeks about the Tribe's plans to sell tax-free cigarettes. An action for injunctive relief could have addressed the State's concerns (this was not a case where the State was seeking to recoup a large sum in uncollected taxes). Further, an Ex parte Young action would have placed this matter in federal court at the outset, where it could have been decided in peaceful fashion, according to the federal law principles that govern Indian
In Kiowa Tribe, the Supreme Court confronted a situation similar to this one. Frustrated by its inability to enforce in court a valid contract it had negotiated with an Indian tribe, a corporation asked the Court to limit tribal sovereign immunity because it was incompatible with substantive obligations to which the tribe had agreed. The Court acknowledged that the tribal sovereign immunity doctrine might be incompatible in some instances with modern tribal business endeavors. See Kiowa Tribe, 523 U.S. at 757-58, 118 S.Ct. 1700. Still, the Court refused to overrule its precedents on tribal sovereign immunity, and it rejected any suggestion that tribal sovereign immunity should only apply in matters relating to a tribe's "core group of sovereign functions." Maj. Op. at 26. Noting that "Congress is in a position to weigh and accommodate the competing policy concerns and reliance interests" involved in any new limitations on tribal sovereign immunity, the Court warned that "the capacity of the Legislative branch to address the issue by comprehensive legislation counsels some caution by us in this area." Kiowa Tribe, 523 U.S. at 759, 118 S.Ct. 1700.
The majority ignores this warning and takes the opposite course. Casting aside our own precedents, it construes tribal sovereign immunity not as the Supreme Court has explained it, nor as the Tribe and State must have understood it, but in a constrained fashion that the majority believes makes sense in this case. This is a misguided effort. As the Supreme Court has repeatedly articulated the doctrine, the law of tribal sovereign immunity shielded the Tribe from the State's criminal process.
I respectfully dissent.
TORRUELLA, Circuit Judge (Dissenting).
Although I join Judge Lipez's cogent dissent, I write separately to add a few additional points of my own.
I dissent from the majority's holding because I believe that the majority ignores Supreme Court precedent — some of which is 150 years old, see, e.g., In re Kansas Indians, 5 Wall. 737, 72 U.S. 737, 760, 18 L.Ed. 667 (1866) — in two significant ways. First, it brushes aside the Supreme Court's consistent guidance that a waiver or abrogation of sovereign immunity must be unequivocal and explicit. See, e.g., Santa Clara Pueblo v. Martínez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) (noting that "[i]t is settled that a waiver of sovereign immunity cannot be implied but must be unequivocally expressed") (internal quotation marks and citations omitted). Second, even assuming arguendo that there was some ambiguity about whether there has been a waiver or abrogation of sovereign immunity in this case, the majority fails to take into account the so-called Indian canon of construction — i.e., that "statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit." Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985). This is most unfortunate; for the majority chooses to disregard a long-standing policy rule of obvious necessity and importance in the trust relationship between the United States and Indian nations. See Choate v. Trapp, 224 U.S. 665, 675, 32 S.Ct. 565, 56 L.Ed. 941 (1912) (noting that in the construction of a statute dealing with Indians, "doubtful expressions . . . are to be resolved in favor of
With reference to the application and enforcement of state laws to Indian tribes, the Supreme Court has held in a number of instances that "[t]here is a difference between the right to demand compliance with state laws and the means available to enforce them." Kiowa Tribe of Okla. v. Manufacturing Techs., Inc., 523 U.S. 751, 755, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998); Okla. Tax Comm'n v. Citizen Band of Potawatomi Tribe of Okla., 498 U.S. 505, 513-14, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991). The matter before this Court involves the enforcement by a state of its law against an Indian tribe qua tribe.
Although this case directly concerns only the Narragansett Indian Tribe (the "Narragansetts" or "the Tribe"), whose ancestral lands
The record of this case establishes that on July 14, 2003, members of the Rhode Island State Police entered Narragansett tribal land to execute a search warrant
Rhode Island alleges that its actions constituted a valid exercise of its substantive and jurisdictional powers pursuant to § 1708(a) of the Rhode Island Indian Claims Settlement Act, 25 U.S.C. §§ 1701 et seq. ("Settlement Act"), and Paragraph 13 of the "Joint Memorandum of Understanding Concerning the Settlement of the Rhode Island Settlement Lands" ("JMOU").
Paragraph 13 of the JMOU, which predates the Settlement Act and was entered into in 1978, states that
Section 1708(a) reads as follows:
The State points to the language of the JMOU for support of its contention that the Tribe has waived its tribal sovereignty and immunity. It also argues that in any event, the language of the Settlement Act demonstrates unequivocally that Congress has abrogated tribal sovereign immunity. During oral argument, the State further expanded its position, claiming that by virtue of these provisions the Narragansetts relinquished all claims to tribal sovereignty and immunity and retained no semblance or residue of sovereignty or immunity that could be validly interposed by the Tribe qua Indian tribe against the actions of Rhode Island.
The majority seizes upon this argument by the State to rule upon an issue that, according to the law of this case, is not before us.
It is essential to understand that but for a valid waiver or abrogation of tribal sovereignty, the State's enforcement actions against the Tribe qua tribe were illegal. Consequently, the key issue in this case is determining whether there has been any such waiver or abrogation.
It is clear that when tested against long-standing principles of Indian law, the sweeping asseverations made by the State regarding waiver and abrogation are lacking in substance. Tribal sovereignty, and concomitantly, tribal sovereign immunity,
Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. 1670 (emphasis supplied) (internal quotation marks and citations omitted). See also Kiowa, 523 U.S. at 754, 118 S.Ct. 1700 ("As a matter of federal law a tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity."); Montana, 450 U.S. at 544, 101 S.Ct. 1245 (Indian tribes retain all sovereignty not specifically withdrawn by Congress).
It is "[w]ith these considerations of `Indian sovereignty . . . [as] a backdrop against which the applicable . . . federal statut[e] must be read'". Santa Clara Pueblo, 436 U.S. at 60, 98 S.Ct. 1670 (citing McClanahan, 411 U.S. at 172, 93 S.Ct. 1257). I have searched exhaustively for any language unequivocally expressing the waiver or abrogation of tribal sovereignty (or the included tribal sovereign immunity) in either the JMOU or § 1708(a), but alas no such provision is to be found. In fact, neither the term "tribal sovereignty" nor "tribal sovereign immunity" are even mentioned in either stipulation. Such tombstone silence can hardly be considered an "unequivocal expression" indicating that either a waiver or an abrogation has taken place.
Although the lack of such specificity makes any search of the legislative history unnecessary and irrelevant, In re Rivera Torres, 432 F.3d 20, 32 (1st Cir.2005) (Torruella, J., concurring), in an abundance of caution I have also looked for any language indicative of Congressional abrogation of these tribal rights in the scant legislative history of the Settlement Act that is available. Again, I have come up empty-handed. The House Report that accompanied the Settlement Act is silent on the subject of either tribal sovereignty or tribal sovereign immunity, much less of language specifically abrogating those rights. See H.R. Rep. 95-1453, 1978 U.S.C.C.A.N. 1948.
What § 1708 means is that the State's laws and jurisdiction apply within the tribal lands to individuals, both Indians and non-Indians, and also that those laws can be enforced against those individuals. Nevada v. Hicks, 533 U.S. 353, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001). Were § 1708(a) not in place, Rhode Island law could not be applied within tribal lands at all. See Title III, 25 U.S.C. §§ 1321-1326; McClanahan, 411 U.S. at 170-71, 93 S.Ct. 1257. However, the application and enforcement of state law against individuals within tribal lands by virtue of § 1708, and actions by the state which involve the enforcement of those laws directly against the Tribe qua tribe are totally different concepts. Kiowa, 523 U.S. at 755, 118 S.Ct. 1700. Thus, as an example, because of the doctrine of tribal sovereign immunity, a state cannot without specific Congressional approval sue an Indian tribe to collect unpaid taxes notwithstanding that those state laws may be applicable to individuals within tribal lands. Potawatomi, 498 U.S. at 510, 111 S.Ct. 905 (recognizing tribal immunity from suit to collect unpaid cigarette taxes). Nor, absent Congressional abrogation or waiver of tribal immunity, can an Indian tribe be sued for governmental
In fact, the panel sustained the validity of the state tax at issue in this case because "the legal incidence of the Rhode Island cigarette tax falls on the consumer, not the Narragansett Tribe." Narragansett Indian Tribe of Rhode Island v. State of Rhode Island, 407 F.3d 450, 459 (1st Cir.2005). The panel also stated in its opinion that
Id. at 456.
The present situation is comparable to that presented by cases and statutes involving federal enclaves in which the federal government, in addition to enforcing federal law within those enclaves, has consented to the concurrent application and jurisdiction of state laws against individuals within those lands. See, e.g., Assimilative Crimes Act, 18 U.S.C. § 13(a) (assimilating into federal law, and thereby making applicable on federal enclaves such as Army bases, certain criminal laws of the state in which the enclave is located); Lewis v. United States, 523 U.S. 155, 118 S.Ct. 1135, 140 L.Ed.2d 271 (1998). Such duality of jurisdiction, however, clearly does not constitute a waiver of sovereign immunity by the federal government absent a specific relinquishment by the United States, as is seen, for example, with the Federal Tort Claims Act. See 28 U.S.C. § 1346(b)(1) (waiving sovereign immunity with respect to certain categories of torts committed by federal employees in the scope of their employment); FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); Bolduc v. United States, 402 F.3d 50, 55 (1st Cir.2005).
There are further indications that no abrogation was intended by Congress by virtue of the limited language in the Settlement Act. In 1978, when Congress enacted that statute, it only provided for Rhode Island law and jurisdiction to apply in the "settlement lands." 25 U.S.C. § 1708 (emphasis supplied). However, only two years later when under similar circumstances it passed the Maine Indian Claims Settlement Act of 1980, 25 U.S.C. § 1725, Congress expressly provided that the State of Maine would have jurisdiction over "all Indians, Indian nations, or tribes or bands of Indians . . . and any lands or natural resources owned by any such Indian, Indian nation, tribe or band of Indians and any lands or natural resources held in trust by the United States" (emphasis supplied). I cannot countenance that the omission of the "tribal" language from the Settlement Act was an unintended oversight by Congress without any purpose in mind. See Brewster v. Gage, 280 U.S. 327, 337, 50 S.Ct. 115, 74 L.Ed. 457 (1930)
In interpreting the Maine statute containing the express inclusion of the aforementioned "tribal" language by Congress, this Court held as recently as April 15, 2005 that the mere threat of an investigation by the Maine Human Rights Commission under Maine law of an alleged discrimination charge against the Micmac Tribe "constitute[d] `enforcement'" because, in effect, such action threatened "tribal sovereignty, self-governance, and sovereign immunity," and that such an allegation was sufficient to state a federal cause of action against the State of Maine by the Micmac Tribe. Aroostook Band of Micmacs v. Ryan, 404 F.3d 48, 65-66, 68 (1st Cir.2005) (tribal sovereign immunity means that a tribe "is not amenable to state judicial or quasi-judicial proceedings to enforce those laws."). See also Bishop Paiute Tribe v. County of Inyo, 275 F.3d 893 (9th Cir.2002) (holding that execution of warrant against a tribe to obtain employee records violated tribal sovereign immunity), vacated on other grounds sub nom. Inyo County v. Paiute-Shoshone Indians, 538 U.S. 701, 123 S.Ct. 1887, 155 L.Ed.2d 933 (2003). If the mere threat of an investigation constituted prohibited enforcement sufficient to allow a federal cause of action to be stated alleging a violation by Maine of the Micmacs' tribal sovereignty, notwithstanding the fact that the Maine Settlement Act is incrementally more expansive in its language than the earlier enacted Rhode Island Settlement Act, what can be said of Rhode Island's infinitely more intrusive action of entering tribal lands and forcibly confiscating tribal property?
What can be said is, first of all, that these are all actions directly affecting the Tribe's sovereignty qua tribe, for the State's invasion is a serious encroachment upon one of the most basic components of the Narragansett tribal government, its treasury. Furthermore, it can be said, these are extreme actions that clearly have not been authorized by any act of Congress. Applying fundamental principles of Indian law to these two propositions there should be no question but that the State's actions directed against the Tribe constituted a clear and egregious violation of its tribal sovereignty.
This is a result that is hinted at by the Supreme Court in Wash. v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980), even if not specifically decided therein. Id. at 162, 100 S.Ct. 2069. In Colville, pursuant to Public Law 280, the State of Washington was granted almost
Rhode Island instead chose the confrontational alternative of a Rambo-like raid, totally invasive of those core tribal interests. Although "[t]here is no doubt that sovereign immunity bars [Rhode Island] from pursuing the most efficient remedy" [a lawsuit against the Tribe], this is not to say "that it lacks any adequate alternatives." Potawatomi, 498 U.S. at 514, 111 S.Ct. 905. Among those remedies suggested by the Supreme Court, id., are the holding of individual agents or officers of the Tribe liable in actions brought by the State, see Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); the collection of the sales tax from cigarette wholesalers by seizing unstamped cigarettes off the reservation, Colville, 447 U.S. at 161-62, 100 S.Ct. 2069; or the assessment of wholesalers who supplied unstamped cigarettes to the tribal stores. City Vending of Muskogee, Inc. v. Okla. Tax Comm'n, 898 F.2d 122 (10th Cir.1990). Rhode Island could also "enter into agreements with the [T]ribe[ ] to adopt a mutually satisfactory regime for the collection of this sort of tax." Potawatomi, 498 U.S. at 514, 111 S.Ct. 905. Lastly, Rhode Island can also ask Congress for a specific abrogation of tribal sovereignty, id., an endeavor which should not prove to be insurmountable considering the imbalance of political forces at stake.
What is conspicuously absent from this laundry list of alternative remedies available to the State of Rhode Island is any remedy involving the State's use of its coercive police power directly against the Narragansett Tribe itself. Rhode Island presently lacks the ability to use such powers directly against the Tribe. Accordingly, I respectfully dissent from the majority's holding to the contrary.
Public Law 83-280, 67 Stat. 588 (1953).