Narragansetts’ lawyer advised shop was legal

By Katie Mulvaney
Providence Journal

PROVIDENCE — A lawyer for the Narragansett Indian tribe testified yesterday he advised the Narragansetts they were entitled to open a tax-free smoke shop.

“I told [Chief Sachem Matthew Thomas] they had the legal right as a sovereign government to open a smoke shop,” John F. Killoy said in Superior Court.

Killoy took the stand on the 15th day of trial for seven Narragansetts accused of resisting and scuffling with state police as they executed a search warrant to stop the tribe from selling tax-free tobacco in July 2003.

Killoy could not recall exactly when he gave his advice, but estimated between April and July 2003. The tribe, he said, had voted at a tribal assembly meeting in April or May to sell untaxed cigarettes.

A series of meetings with Governor Carcieri and his staff followed, as well as correspondence from state tax officials. The tribe opened the shop, over Carcieri’s objections, July 12, 2003.

Killoy and Thomas attended another fruitless session with the governor’s staff the next day in which Carcieri participated by phone. The expectation was, Killoy said, the taxation issue would be litigated in federal court. Thomas directed him to prepare pleadings.

At the governor’s orders, more than 40 state troopers executed a search warrant on tribal land in Charlestown July 14. The raid turned into a violent tussle in which seven adult Narragansetts, including Thomas, were arrested for misdemeanor charges of resisting arrest, disorderly conduct and assault.

Killoy went to the smoke shop upon receiving a call around 1:30 p.m. that the chief had been arrested, he said. He was given a copy of the search warrant by Sgt. Donald F. Devine or Maj. Steven G. O’Donnell after requesting it.

Rodney Champlin, acting police chief for the Narragansett tribe at the time of the raid, also took the stand.
Charged with enforcing federal and tribal laws on the tribe’s 1,800 acres, Champlin’s duties included public safety and traffic control when the shop opened to vigorous business.

State police Lt. David Hayden called him a day later to tell him that the tribe was breaking the law by selling tax-free tobacco. “I told them if they come down with federal papers, I’ll close [the shop] down,” Champlin said. He would honor representatives from the FBI; the federal Bureau of Alcohol, Tobacco, Firearms and Explosives; or a U.S. Marshal, he said, but would not accept a state warrant. Hayden told him they were working on it.
(State District Court Judge Richard A. Gonella had issued the search and seizure warrant to the state police a day earlier.)

The federal government recognized the Narragansetts as sovereign Indian nation in 1983. Their land is held in trust by the U.S. Department of Interior with the stipulation that state civil and criminal laws apply there.

Hayden asked if tribal officers would draw arms — a question Champlin said he found insulting. Tribal officers train at a federal academy in New Mexico.

Around noon the next day, Thomas alerted him state police might be on their way. Champlin instructed the four officers at the scene to stand their ground, but not to use weapons or engage in fisticuffs. They parked vehicles in front of the shop to protect tribal elders and children. The officers included Thawn Harris, a conservation officer facing charges.

Champlin asked state police Lt. David Palmer for a warrant as troopers arrived. Palmer, he said, told him he had state papers and that he should get out of the way or be arrested. Officers came running through the woods. “We tried to stop them from running by us,” he said.

State troopers had Tribal Councilman Hiawatha Brown and Bella Noka, both of whom face charges, on the ground, Champlin said. “I told them ‘you need to get him off the ground. You need to get her off the ground,’” he said. He expressed concern that Noka was pregnant. He and Thomas asked for papers repeatedly to which O’Donnell told him “not right this second.” Champlin said he was never given a copy of the warrant.

Under questioning by Special Assistant Attorney General Pamela Chin, Champlin said tribal police refer non-Indians charged with crimes on Narragansett land to the state police. Selling untaxed cigarettes, he said, is a state crime.

Federal courts have ruled the state police had the authority to execute the search warrant and seize the cigarettes on tribal land. The tribe had argued its sovereign immunity as a federally recognized Indian nation entitled it to sell the tax-free cigarettes.

Champlin said he cried during the raid because it brought back memories of stories he had been told as a child of state’s treatment of Indians. “They just came in to destroy us.”

In addition, jurors heard from Daniel Piccoli, a Warwick man who went to buy cigarettes the day of the raid. Piccoli said he tried to take cover inside the shop, but troopers threw him from the landing. He said he saw an officer with a police dog push Thomas repeatedly.
kmulvane@projo.com