*2 TORRUELLA, Circuit Judge. On July 14, 2003, Rhode Island State Police executed a search warrant and confiscated inventory at a smoke shop ("the Smoke Shop") located on Narragansett tribal land. An altercation ensued between members of the Narragansett Indian Tribe ("the Tribe" or "the Narragansetts") and several State police officers, resulting in the arrest of eight tribal members, including the Chief Sachem of the Tribe.
Following this incident, both the Narragansetts and the State of Rhode Island filed suits disputing the issue of whether the Tribe's operation of a smoke shop and sale of cigarettes on the Tribe's settlement lands are exempt from the application and enforcement of Rhode Island's cigarette tax laws. The State initially filed its complaint in Rhode Island state court and the Narragansetts removed the case to federal district court in an attempt to have it decided together with the Tribe's complaint, which was brought in federal district court. The district court found that it did not have jurisdiction over the state case and remanded it to the state court. However, the district court treated the State's motion for summary judgment in its case as a motion for summary judgment in the Tribe's federal case and decided the federal case accordingly. The district court granted summary judgment in favor of the State, and the Narragansett Tribe now brings the instant appeal.
We must decide three questions related to this incident. First, we are asked whether the district court could exercize jurisdiction over the State's complaint. Second, we must decide whether the Narragansett Tribe has sovereign immunity from the Rhode Island tax on cigarettes, focusing on whether the legal incidence of the cigarette tax falls on the tribe or the consumer of the cigarettes. Finally, we must determine whether the State exceeded its authority in the enforcement of its cigarette tax on settlement lands in violation of the Tribe's sovereignty.
I. Background
The parties submitted this case on stipulated facts,
thus, "no evidence contrary to the facts stipulated can be
considered." Gómez v. Rodríguez,
The Narragansett Indian Tribe is a federally recognized
Indian tribe located in the State of Rhode Island. See Final
Determination for Federal Acknowledgment of Narragansett Indian
Tribe of Rhode Island, 48 Fed. Reg. 6177 (Feb. 10, 1983). The
Tribe is primarily situated on 1800 acres of land known as the
settlement lands, which were given to the Tribe in the Rhode Island
Indian Claims Settlement Act ("the Settlement Act"), 25 U.S.C. §§
*4
1701-1716. The relationship between the Narragansett Tribe and the
State of Rhode Island is defined, in a number of ways, by the
Settlement Act. In the mid-1970s, the Narragansett Indian Tribe
brought two lawsuits in which they claimed aboriginal entitlement
to 3200 acres of land in Charlestown, Rhode Island. Narragansett
Tribe of Indians v. S. R.I. Land Dev. Corp.,
Under the terms of the JMOU and Settlement Act, the State provided 900 acres to the Narragansetts and the Federal government agreed to provide funding for the purchase of an additional 900 acres. These lands comprise the 1800 acres we refer to as the settlement lands. In exchange for this provision of land to the Tribe, the State negotiated for and received the continued applicability of State law to the settlement lands. See 25 U.S.C. § 1708(a) ("Except as otherwise provided in this subchapter, the settlement lands shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island.").
A. The Rhode Island Cigarette Tax Scheme
The sale of cigarettes in Rhode Island is governed by a number of statutory requirements, including taxation provisions. See R.I. Gen. Laws §§ 44-20-1 to 44-20-55. The State's cigarette tax scheme imposes the following requirements:
Every person engaged in the sale of cigarettes in Rhode Island must first obtain a license from the State Tax Administrator.
R.I. Gen. Laws § 44-20-2. In addition to this licensing requirement, Rhode Island imposes an excise tax on cigarettes sold, distributed, held, or consumed within its borders. R.I.
Gen. Laws § 44-20-12. The tax is collected
through the sale of cigarette stamps, which
must be affixed to all packages of cigarettes
possessed within the State (with limited
exceptions). R.I. Gen. Laws § 44-20-13, 44-
20-18, 44-20-30. State law also requires a
retailer to add a sales tax to the sale price
of the cigarettes. R.I. Gen. Laws § 44-18-19.
Narragansett Indian Tribe v. Rhode Island,
affix tax stamps in the proper denominations at the location where their license is issued.
The stamps may be affixed to a distributor's cigarettes at any time before transferring the possession of the cigarettes. R.I. Gen. Laws § 44-20-28. When a dealer receives unstamped cigarettes, he or she must affix stamps within twenty-four hours after coming into possession of the cigarettes. R.I. Gen. Laws § 44-20-29.
. . . State law makes it unlawful to sell or possess unstamped cigarettes, see R.I. Gen.
Laws §§ 44-20-35, 44-20-36, and cigarettes not
bearing stamps that are not exempt are
contraband and subject to seizure by the
State. R.I. Gen. Laws §§ 44-20-37, 44-20-38.
Narragansett Indian Tribe,
Moreover, Rhode Island, with the assistance of the Federal government, has a system by which it collects sales taxes on cigarettes from consumers who reside in the State and purchase cigarettes from out-of-state dealers. See The Jenkins Act, 15 U.S.C. § 375-378 (requiring persons shipping or delivering cigarettes to a state that taxes the sale or use of cigarettes to comply with various reporting requirements identifying to the state the monthly cigarette shipments and the consumers who purchased them).
B. The Dispute
On July 1, 2003, the Narragansett Indian Tribe's Tribal
Council passed a resolution authorizing the opening of a tribally
owned Smoke Shop to sell cigarettes. The Tribe stipulated that the
purpose of opening the Smoke Shop was to provide a means for
economic development for the Tribal Nation. The Tribe imported
unstamped cigarettes from other states and stored them in
anticipation of the Smoke Shop's opening. The Smoke Shop, which
opened on July 12, 2003, was located entirely within the Tribe's
settlement lands. The Shop offered unstamped, untaxed cigarettes
for sale to both tribal and non-tribal members without collecting
Rhode Island's seven percent retail sales tax from any of its
customers. As stipulated before the court below, "a large
proportion of the Shop's customers were not members of the Tribe."
*7
Narragansett Indian Tribe,
The day the Smoke Shop opened, the Rhode Island State Police sought a search warrant to search the Smoke Shop for alleged violations of Rhode Island's cigarette tax laws, specifically, the possession and sale of unstamped cigarettes, which is a misdemeanor offense. See R.I. Gen. Laws §§ 44-20-35, 44-20-36; see also id. at §§ 44-20-37, 44-20-38 (allowing for the seizure of such cigarettes as contraband). The State of Rhode Island District Court issued the requested warrant to search the Smoke Shop that same day. On July 14, 2003, Rhode Island State Police entered the Narragansett Tribe's settlement lands and executed the search warrant on the Chief Sachem of the Narragansett Indian Tribe. The State Police confiscated the Tribe's inventory of unstamped cigarettes as well as various documents and monies. An altercation ensued between the State Police and some tribal members, resulting in the arrest of the Chief Sachem and seven other tribal members.
Both the Narragansetts and the State brought suit over
this incident. The district court found that it had jurisdiction
over the Tribe's case, which was originally brought in federal
district court. See 28 U.S.C. § 1362 (providing that "The
[federal] district courts shall have original jurisdiction of all
civil actions, brought by any Indian tribe or band with a governing
body duly recognized by the Secretary of the Interior, wherein the
*8
matter in controversy arises under the Constitution, laws, or
treaties of the United States."). However, the district court
found that it did not have subject matter jurisdiction over the
State's action, which was originally brought in Rhode Island State
Superior Court and later removed to the federal district court by
the Tribe. The State had brought its action pursuant to Rhode
Island law seeking a declaration that the Tribe's failure to comply
with Rhode Island's cigarette sales and excise tax scheme was
unlawful. The district court therefore remanded the State's suit
back to the Washington County Superior Court, but determined that
it would "treat the State's motion for summary Judgment in the
State's case as a motion for summary judgment in the Tribe's
action." Narragansett Indian Tribe,
II. Analysis
We review the district court's grant of summary judgment
de novo, construing the evidence in the light most favorable to the
appellant. Fenton v. John Hancock Mut. Life Ins.,
The Tribe asserts that the well-pleaded complaint rule did not deprive the district court of jurisdiction over the State's complaint, which the Tribe removed from state court to federal district court. [1] The federal district court determined that it did not have subject matter jurisdiction over the State's complaint because (1) the State did not bring its "claims under the Settlement Act;" (2) 28 U.S.C. § 1362 does not provide a viable basis for federal jurisdiction because it "only vests jurisdiction in a federal court over actions brought by an Indian tribe under the laws of the United States;" and (3) the district court found the cases cited by the Tribe in support of removal to be "unavailing and inapposite." Narragansett Indian Tribe, 296 F. Supp. 2d at 160.
The Tribe argues that the district court should have applied the "artful pleading rule" to the State's complaint. [2] But the alleged federal issue -- whether the State has authority to tax the Tribe under the Settlement Act –- is a defense. Even had it been preemptively included and argued against in the State's complaint, it would not have given rise to federal question jurisdiction over the State's complaint. See Louisville & Nashville R.R., 211 U.S. at 152 (holding that the federal court lacked subject matter jurisdiction under § 1331 because the federal issue arose only from the plaintiff's anticipation of a defense based on a federal statute).
It is not enough that the plaintiff alleges some anticipated defense to his cause of action, and asserts that the defense is invalidated by some provision of the Constitution of the United States. Although such allegations show that very likely, in the course of the litigation, a question under the Constitution would arise, they do not show that the suit, that is, the plaintiff's original cause of action, arises under the Constitution.
Id. Therefore, we find that the court did not err in failing to apply the artful pleading rule in this instance.
*11 B. The Legal Incidence of the Cigarette Tax
The question of whether the legal incidence of Rhode Island's cigarette tax scheme falls on the Narragansett Tribe, as dealers of cigarettes, or merely on the consumer or non-Indian purchaser of the cigarettes, will likely determine whether the Narragansetts are required to comply with the tax scheme. The Narragansetts argue that the legal incidence of Rhode Island's cigarette tax falls directly on the Tribe and its members, and that the tax may not be enforced against the Tribe without express congressional authority. The State, on the other hand, argues that the legal incidence of the cigarette tax, as stated in the language of the Rhode Island statute, rests on the consumer rather than the Tribe. See R.I. Gen. Laws § 44-20-53 ("All taxes paid in pursuance of this chapter are conclusively presumed to be a direct tax upon the retail consumer, precollected for the purpose of convenience and facility only.").
If the legal incidence of the cigarette tax falls on the
Tribe itself, it presents serious tribal sovereignty concerns that
might preclude the State from enforcing its tax due to the United
States' recognition of the Narragansetts as a sovereign Indian
tribe. Oklahoma Tax Comm'n v. Chickasaw Nation,
The district court determined that the legal incidence of Rhode Island's cigarette tax falls on the consumer and not the Narragansett Tribe, noting that the pass through provision in Rhode Island's statute was plain. Narragansett Indian Tribe, 296 F. Supp. 2d at 167. The district court stated that "[w]hile the Supreme Court has held that a tax scheme does not need to contain such an express statement to place the legal incidence of the tax on the consumer, the Court has enforced such provisions when they are present." Id.
In adjudicating matters of state law, federal courts
ordinarily defer to the decisions of state courts. For example, in
Gurley v. Rhoden,
The Narragansett Tribe cites Gurley as the basis for its
argument that the district court should not have made an
independent determination of the legal incidence under Rhode Island
law. Rather than making an independent determination, the Tribe
contends, the district court should have given great weight to
Daniels Tobacco Co. v. Norberg,
determine[d] that the legislative intent in enacting § 44-20-12(1) was to place the risk of loss of cigarettes on the distributor and *14 not on the state," noting that "§ 44-20-28 . . . requires a distributor to affix tax stamps to all cigarettes he distributes. In addition, the mere fact that the ultimate economic burden of a tax is one [sic] the consumer does not determine the legal incidence of the tax.
Id. at 506 (citing Ferrara v. Director, Div. of Taxation, 127 N.J. Super. 240, 317 A.2d 80 (1974)). Thus, the Tribe argues that Daniels establishes that the legal incidence falls on the Tribe.
However, "[i]n situations wherein federal immunity is
affected by a determination as to which party to a transaction
bears the legal incidence of a state tax, the federal courts 'are
not bound by the state court's characterization of the tax.'"
Confederated Tribes of Colville Reservation v. State of Washington,
The Narragansett Tribe argues that the district court should not have applied federal law. Citing Kern-Limerick, Inc. v. *15 Scurlock, 347 U.S. 110 (1954), the seminal Supreme Court case underpinning Gurley and other tax incidence cases, the Tribe notes that the Supreme Court instructs federal courts to defer to state courts on questions of where the incidence of a state tax falls, unless the case involves "federal constitutional issues." Id. at 121. The Tribe asserts that the "federal immunity" at issue in Kern-Limerick does not encompass tribal immunity because, the Tribe argues, tribal sovereignty does not arise under federal or constitutional law, but rather from the inherent sovereignty of the Tribe. The Narragansetts point to United States v. Lara, 541 U.S. 193 (2004), as confirming that tribal sovereignty does not arise under the Constitution or federal law. Lara involves a double jeopardy claim brought in light of recent congressional legislation that authorizes Indian tribes to prosecute members of other Indian tribes. The resolution of this claim hinged on whether there was dual sovereignty, leading the Lara court to consider whether the
source of the power to punish nonmember Indian offenders is "inherent tribal sovereignty" or delegated federal authority. Id. at 1632. The Supreme Court determined that "Congress intended the former" because "the statute says that it 'recognize[s] and affirm[s]' in each tribe the 'inherent' tribal power (not delegated federal power) to prosecute nonmember Indians for misdemeanors" and because "the statute's legislative history confirms that such was Congress' intent." Id. at 1632-33. Based on this logic, the Tribe *16 asserts that federal courts must look first to an existing interpretation of state law by the state's highest court in cases such as the instant case.
The Tribe, however, ignores Supreme Court precedent to
the contrary. For example, in Kiowa Tribe v. Manufacturing
Technologies, Inc., the Supreme Court stated that "[l]ike foreign
sovereign immunity, tribal immunity is a matter of federal law."
523 U.S. 751, 759 (1998). The Tribe also ignores the Supreme
Court's precedent where the Court accepted a district court's use
of federal law in determining whether the legal incidence of the
Washington tax fell on the Indian tribe over the state court's
interpretations. See Washington v. Confederated Tribes of Colville
Indian Reservation,
Even if we were to consider the Rhode Island Supreme
Court's decision in Daniels, it is not outcome determinative.
Daniels predates the Supreme Court decisions, such as Moe, 425 U.S.
at 482, that held that pass through tax provisions are dispositive
as to who bears the legal incidence of a tax. In Moe, the Supreme
Court evaluated a Montana tax statute that provided that the tax
"shall be conclusively presumed to be [a] direct [tax] on the
retail consumer precollected for the purpose of convenience and
facility only." Id. (quoting Mont. Rev. Code Ann. § 84-5606(1)
(1947)). The Supreme Court determined that "to the extent that the
'smoke shops' sell to those upon whom the State has validly imposed
a sales or excise tax . . . the State may require the Indian
proprietor simply to add the tax to the sales price and thereby aid
the State's enforcement and collection thereof." Id. The Supreme
Court has repeatedly affirmed that cigarette tax schemes containing
pass through provisions place the legal incidence of the tax on the
consumer rather than the distributor. See Chickasaw, 515 U.S. at
*18
461; Milhelm Attea, 512 U.S. at 64; Chemehuevi,
It is not required that the law expressly state that the
tax must be passed on to the ultimate purchaser for a State to
require a tribe to collect cigarette taxes from non-Indian
purchasers and remit it to the State. Chemehuevi,
C. Unanswered Questions
The State posits that it has raised two independently sufficient grounds on which we might affirm the district court's judgment, even if the legal incidence of the tax is found to fall on the Tribe. Since we find that the legal incidence of the tax does not fall on the Narragansett Tribe, we find it unnecessary and inappropriate to decide these questions. The grounds put forth by the State are (1) that the settlement lands are not "Indian country," [3] and (2) that direct taxation of the Tribe by the State is allowed pursuant to both section 1708 of the Settlement Act, 25 *20 U.S.C. § 1708(a), and the Tribe's consent, [4] implicit in its agreement to subject the settlement lands to the "full force and effect" of "all laws of the State of Rhode Island," in the Joint Memorandum of Understanding between the Narragansett Tribe and the State of Rhode Island, H.R. Rep. No. 95-1453, at 26, reprinted in 1978 U.S.C.C.A.N. 1948, 1964.
The Narragansetts, on the other hand, want us to declare
that the settlement lands are Indian country and that the State
does not have authority to tax the Tribe directly because Congress
did not expressly and unequivocally consent to state taxation of
the Narragansett Tribe. McClanahan,
We find it unnecessary and inappropriate to decide these questions today. Because we affirm the district court's holding that the legal incidence of Rhode Island's cigarette tax falls on the consumer and not the tribal distributor, it is unnecessary for us to consider whether the tax would be valid if it were a direct tax on the Tribe.
D. Sovereign immunity and the State's enforcement of its laws on the Tribe's settlement lands
The Narragansetts claim that the State of Rhode Island exceeded its authority in enforcing its cigarette laws against the government of the Narragansett Indian Tribe and that the State thereby violated the Tribe's sovereign immunity. The State argues, conversely, that since the State's civil and criminal laws and jurisdiction apply to the settlement lands pursuant to 25 U.S.C. § 1708, the State has concomitant ability to enforce its laws there, including those governing the sale of cigarettes. The State also argues that the Tribe's sovereign immunity was abrogated by section 1708, and therefore tribal sovereign immunity does not bar the State's enforcement of its laws on the settlement lands.
The Tribe asks us to consider six distinct questions regarding the enforcement of Rhode Island's cigarette laws on the settlement lands, including (1) whether the State may invoke its jurisdiction over the settlement lands to enforce its cigarette tax on the government of the Narragansett Indian Tribe (a Land/Tribe *22 distinction); (2) whether the State may issue and serve a search warrant for property of the tribal government; (3) whether the State may enter tribal lands to serve a warrant; (4) whether the State may confiscate Tribal government property while on the settlement lands; (5) whether the State can require the Tribe to purchase a license; and (6) whether the State was bound to use less intrusive means in order to enforce the cigarette tax.
We have determined that, since the legal incidence of Rhode Island's cigarette tax falls on the consumer, rather than the tribal distributor, the Narragansetts are obligated to comply with the State's cigarette tax laws as they pertain to cigarettes sold to non-Indian consumers. Therefore, by selling unstamped cigarettes to non-Indian consumers, the Smoke Shop operators violated Rhode Island tax law, which is a criminal offense. This brings us to the questions regarding what measures the State may take to enforce its cigarette tax laws.
Drawing the line between the sovereign rights of the
Narragansett Tribe and the State of Rhode Island is complicated by
the Rhode Island Indian Claims Settlement Act, which provides for
the continued applicability of Rhode Island's civil and criminal
laws and jurisdiction over the settlement lands. See 25 U.S.C.
§ 1708(a). This is an ongoing and overarching question which has
vexed the State and Tribe over the years as various issues have
arisen. As we have stated before, all of the relevant questions
*23
cannot be answered by an all-encompassing solution. State of Rhode
Island v. Narragansett Indian Tribe,
1. Whether 25 U.S.C. § 1708(a) abrogates the Tribe's
Sovereign Immunity on the Settlement Lands
"Indian tribes have long been recognized as possessing
the common-law immunity from suit traditionally enjoyed by
sovereign powers." Santa Clara Pueblo v. Martínez,
The Narragansett Tribe argues that its sovereign immunity is a complete defense to the State's enforcement of its cigarette laws against the Tribe. The State responds that Congress, by granting jurisdiction to the state in 25 U.S.C. § 1708, abrogated the Tribe's sovereign immunity on the settlement lands. In Narragansett Indian Tribe, 19 F.3d at 701, we stated that "the grant of jurisdictional power to the state in the Settlement Act is valid and rather broad . . . ." We agree with the State that this grant of jurisdictional power, in addition to the applicability of *24 the State's civil and criminal laws, provides the State with the right, and to some extent the means, to enforce these laws on the settlement lands.
However, this does not mean that we agree with the State
that Section 1708(a) abrogates the Tribe's sovereign immunity
altogether. On the contrary, we have recognized and enforced the
Tribe's sovereign immunity in the past. See Maynard v.
Narragansett Indian Tribe,
[T]he mere fact that the Settlement Act cedes power to the state does not necessarily mean . . . that the Tribe lacks similar power and, *25 thus, lacks 'jurisdiction' over the settlement lands. Although the grant of jurisdictional power to the state in the Settlement Act is valid and rather broad, . . . we do not believe that it is exclusive. To the contrary, we rule that the Tribe retains concurrent jurisdiction over the settlement lands . . . .
Narragansett Indian Tribe,
The Tribe's immunity does not, however, provide a complete defense to the enforcement of State laws. There remains a question of the extent to which the State may encroach upon the Tribe's settlement lands to enforce its criminal laws. Neither this Court, nor the Supreme Court, has issued definitive guidance on this question.
2. Whether the State may invoke its jurisdiction over
the settlement lands to enforce its cigarette tax
The district court considered the holdings of Nevada v.
Hicks,
When on-reservation conduct involving only Indians is at issue, state law is generally inapplicable, for the State's regulatory interest is likely to be minimal and the federal interest in encouraging tribal self- government is at its strongest. When, however, state interests outside the reservation are implicated, States may regulate the activities even of tribe members on tribal land, as exemplified by our decision in [Colville]. . . . It is also well established in our precedent that States have criminal jurisdiction over reservation Indians for crimes committed . . . off the reservation. While it is not entirely clear from our precedent whether the last mentioned authority entails the corollary right to enter a reservation (including Indian-fee lands) for enforcement purposes, several of our opinions point in that direction. In [Colville], we explicitly reserved the question whether state officials could seize cigarettes held for sale to nonmembers in order to recover the taxes due.
Hicks,
The Narragansett Tribe argues that the district court
came to the wrong conclusion for several reasons. First, the Tribe
asserts that its sovereign immunity is a complete defense to
enforcement of the State's laws on the settlement lands. The Tribe
relies heavily on a Ninth Circuit decision, Bishop Paiute Tribe v.
County of Inyo, for the argument that even where Congress has
expressly authorized a state to enforce its criminal laws, a
tribe's sovereign immunity bars service of a search warrant against
the tribe itself.
The Tribe has not explained, and the trial and appellate courts have not clearly decided, what prescription of federal common law, if any, enables the Tribe to maintain an action for declaratory relief establishing its sovereign right to be free from state criminal processes. This case is therefore remanded *28 for focused consideration and resolution of that jurisdictional question.
Inyo County v. Paiute-Shoshone Indians,
Second, the Narragansetts argue that we should not rest
our decision on Colville, because the Supreme Court did not decide
the question of state encroachment onto tribal lands to seize
cigarettes in that case. The Court refused to express an opinion
on the question of whether the state may enter onto a reservation
and seize stocks of cigarettes which are intended for sale to non-
Indian purchasers. Colville,
The Court did, however, determine that the State of Washington's interest in enforcing its valid taxes was sufficient to justify seizures of shipments of unstamped cigarettes as contraband while they were in transit, traveling to the reservations. Id. at 161. "By seizing cigarettes en route to the reservation, the State polices against wholesale evasion of its own valid taxes without unnecessarily intruding on core tribal interests." Id. at 162.
Unlike the State of Washington in Colville, Congress provided Rhode Island with civil and criminal jurisdiction on the Narragansetts' settlement lands. 25 U.S.C. § 1708(a). In light of this authority and the precedent set in Colville, we find that the State of Rhode Island may have the power to enter onto the settlement lands and seize unstamped cigarettes as contraband, from *29 the Indian distributor, provided that the action does not violate the Tribe's sovereign immunity.
3. The "Land"/"Tribe" Distinction
The Tribe contends that a distinction should be made between the jurisdiction the State was given over the settlement lands and any power the State might have over the Tribe itself. The Tribe argues that the grant of jurisdiction that Congress gave to the State of Rhode Island merely subjected "the settlement lands . . . to the civil and criminal laws and jurisdiction of the State," 25 U.S.C. § 1708(a), not the Narragansett Tribal government. The Tribe asserts that Congress intentionally limited this jurisdiction to the settlement lands, and that it knew how to write the Act to cover the Tribe as well if it had so intended. See, e.g., Maine Settlement Act, 25 U.S.C. § 1725 (expressly providing the State with jurisdiction over "all Indians, Indian nations, or tribes or bands of Indians in the State of Maine . . . and any lands or other natural resources owned by any such Indian, Indian Nation, tribe or band of Indians, and any lands held in trust by the United States for any such Indian").
In ascertaining the intent of Congress in statutes
regulating Indian tribes, we must read the statutes against a
backdrop of Indian sovereignty. Colville,
Congress did not expressly give the State jurisdiction
over the Narragansett Tribe in Section 1708. While we have said
that the grant of jurisdictional power to the State is broad, we
have also found that "the Tribe retains concurrent jurisdiction
over the settlement lands," Narragansett Indian Tribe,
The Tribe asserts that the opening and operation of the Smoke Shop was a tribal government activity. The Narragansetts' Smoke Shop was opened pursuant to a resolution passed by the Narragansett Tribal Council with the stated purpose of providing economic development for the Tribal Nation. The Tribe, therefore, asserts that sovereign immunity precludes the State of Rhode Island from entering the settlement lands, serving a warrant on the tribal activity, and confiscating tribal government property as contraband.
While retained tribal sovereignty has never been precisely defined, the Supreme Court has offered the following description:
Indian tribes are "distinct, independent political communities, retaining their original natural rights" in matters of local self-government. Worcester v. Georgia, 6 Pet.
515, 559,8 L.Ed. 483 (1832) . . . Although no longer "possessed of the full attributes of sovereignty," they remain a "separate people, with the power of regulating their internal and social relations." United States v.
Kagama,118 U.S. 375 , 381-382,6 S.Ct. 1109 , 1112-1113, 30 L.Ed. 228 (1886). See United States v. Wheeler, 435 U.S. 313, 98 S.Ct.
1079,55 L.Ed.2d 303 (1978). They have power to make their own substantive law in internal matters, see Roff v. Burney,168 U.S. 218 , 18 S.Ct. 60, 42 L.Ed. 442 (1897) (membership); Jones v. Meehan,175 U.S. 1 , 29,20 S.Ct. 1 , 12, 44 L.Ed. 49 (1899) (inheritance rules); United States v. Quiver, 241 U.S. 602, 36 S.Ct. 699, 60 L.Ed. 1176 (1916) (domestic relations), and to enforce that law in their own forums, see, e.g., Williams v. Lee, 358 U.S. 217,79 S.Ct. 269 ,3 L.Ed.2d 251 (1959).
Santa Clara Pueblo,
Precedent dictates that the determination of whether the
Tribe's retained rights of sovereignty or the State's residual
authority takes precedence should involve an interest balancing
test that "[t]est[s] the sturdiness" of the barriers each presents
and makes a "particularized inquiry into the nature of the state,
federal, and tribal interests at stake." Narragansett Indian
Tribe, 19 F.3d at 705 (quoting White Mountain Apache Tribe v.
*32
Bracker,
The district court applied the test this Court used in
Akins v. Penobscot Nation, 130 F.3d 482 (1st Cir. 1997), to
determine whether the Tribe's operation of the Smoke Shop should be
included in the Tribe's retained right of sovereignty. In so
doing, the district court tightly confined the meaning of sovereign
immunity to apply only when the Tribe acts in "matters of local
governance." Narragansett Indian Tribe,
In Akins, we established a multi-factor test for determining whether a policy or activity is, or is not, an "internal tribal matter," as that term was used in the Maine state legislation implementing the federal Maine Indian Claims Settlement Act of 1980, 25 U.S.C. §§ 1725-1735 ("Maine Settlement Act"). The Maine Implementing Act makes the Penobscot Nation subject "to all the duties, obligations, liabilities and limitations of a municipality . . . provided, however, that internal tribal matters . . . shall not be subject to regulation by the State." Me. Rev. Stat. Ann. tit. 30, § 6206(1) (emphasis added).
While Rhode Island and Maine are similar to the extent that each state has reached a settlement with its Indian tribes which has been enacted by Congress, the provisions of the Maine Settlement Act and Implementing Act are very different from the Rhode Island Settlement Act, which did not limit the jurisdiction of the Narragansett Tribe, but rather provided the State with concurrent jurisdiction. In Akins, we repeatedly warned that our analysis was unique to Maine because of the Maine Settlement Act and the State's Implementing Act. 130 F.3d 482, 484 ("The structure of analysis differs here from that which would be used in claims against the vast majority of other Indian tribes in the country."). We will not require the Narragansett Tribe to meet the "internal tribal matter" exception provided in the Maine *34 Implementing Act when Congress did not place a similar limitation on the Narragansetts.
This is not to say that many of the Akins factors are not generally applicable. Nor do we disagree with the district court's conclusion that the Tribe's retained right of sovereignty will not shield the Tribe's unlawful operation of a Smoke Shop that offers non-Indian consumers a means to bypass the State's cigarette tax which would not otherwise be available to them off of the settlement lands.
4. The State's enforcement of its laws against the Narragansett Tribe
The next question concerns the extent to which the State may enforce its cigarette laws directly against the Narragansett Tribal government. We find that it is worthwhile to consider the fact that the Narragansett Tribe's sovereign immunity has not been abrogated and that there exist means by which the State could have enforced its cigarette tax laws which would have been more respectful of the Tribe's sovereignty.
The doctrine of tribal immunity is settled law today.
The Supreme Court has refused to abandon or narrow this doctrine
despite arguments that tribal businesses have become far removed
from tribal self-governance and internal affairs. See Kiowa, 523
U.S. at 757. The Court stated that it "retained the doctrine . . .
*35
on the theory that Congress had failed to abrogate it in order to
promote economic development and tribal self-sufficiency." Id.
For example, in Potawatomi, the Supreme Court "reaffirmed
that while Oklahoma may tax cigarette sales by a Tribe's store to
nonmembers, the Tribe enjoys immunity from a suit to collect unpaid
taxes." Kiowa, 523 U.S. at 755 (citing Potawatomi, 498 U.S. at
510). "There is a difference between the right to demand
compliance with state laws and the means available to enforce
them." Id. (citing Potawatomi,
Today we have held that the State's cigarette tax laws are applicable to sales to non-Indian customers on the settlement *36 lands. The State of Rhode Island has numerous alternatives that it may use to enforce its cigarette tax on the settlement lands without violating the Tribe's sovereign immunity. The State's hands will not be completely tied while the Tribe continues to operate its Smoke Shop in violation of the State's cigarette laws. Although the operation of the Smoke Shop without complying with Rhode Island's cigarette tax laws is certainly not a sovereign right retained by the Narragansett Tribe, the Tribe does have a right of sovereign immunity that should be respected the State. For these reasons, we hold that the State violated the Tribe's sovereign rights when it enforced the criminal provisions of its cigarette tax laws by executing a search warrant against the Tribal government's Smoke Shop, forcibly entering the Shop and seizing the Tribe's stock of unstamped cigarettes, and arresting tribal officials who were acting in their official capacity.
III. Conclusion
For the foregoing reasons, the district court's grant of summary judgment for the State is affirmed in part and, to the extent that the district court's declaratory judgment regarding the State's enforcement of its criminal statutes against the Tribal government is inconsistent with our holdings, reversed in part.
Affirmed in part, Reversed in part.
Notes
[1] Under the well-pleaded complaint rule, it must be clear from the
plaintiff's complaint that there is a federal question. Louisville
& Nashville R.R. v. Mottley,
[2] The "artful pleading rule" bars a plaintiff from concealing a
necessary federal question by omitting it from the complaint.
Franchise Tax Bd. v. Constr. Laborers Vacation Trust,
[3] Indian country is usually "the benchmark for approaching the
allocation of federal, tribal, and state authority with respect to
Indians and Indian lands." Narragansett Indian Tribe of R.I. v.
Narragansett Elec. Co., 89 F.3d 908, 915 (1996) (quoting Indian
Country, U.S.A. v. Oklahoma Tax Comm'n, 829 F.2d 967, 973 (10th
Cir. 1987)). Indian country is defined by Congress as including:
(a) all land within the limits of any Indian
reservation under the jurisdiction of the
United States Government, . . . (b) all
dependent Indian communities within the
borders of the United States whether within
the original or subsequently acquired
territory thereof, and whether within or
without the limits of a state, and (c) all
Indian allotments . . . .
18 U.S.C. § 1151; see Narragansett Elec. Co.,
[4] Congress has granted the consent of the United States to States
wishing to assume criminal and civil jurisdiction over reservation
Indians, 25 U.S.C. § 1322(a), and 25 U.S.C. § 1324 confers upon the
States the right to disregard enabling acts which limit their
authority over such Indians. However, "the Act expressly provides
that the State must act 'with the consent of the tribe occupying
the particular Indian country,' 25 U.S.C. § 1322(a), and must
'appropriately (amend its) constitution or statutes.' 25 U.S.C.
§ 1324." McClanahan v. State Tax Comm'n of Arizona,
[5] We recognize that the Supreme Court has recently granted
certiorari for a question regarding whether the Court should
abandon the White Mountain Apache interest-balancing test in favor
of a preemption analysis based on the principle that Indian
immunities are dependent upon congressional intent. Prairie Band
Potawatomi Nation v. Richards,