Narragansett Indian v. State of Rhode Islan

United States Court of Appeals
For the First Circuit
No. 04-1155

NARRAGANSETT INDIAN TRIBE OF RHODE ISLAND,
Plaintiff, Appellant,

v.

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS;
DONALD L. CARCIERI, in his official capacity as GOVERNOR;
PATRICK C. LYNCH, in his official capacity as the
ATTORNEY GENERAL; STEVEN M. PARE, in his official capacity
as Colonel of the Rhode Island State Police; JUSTICES OF
RHODE ISLAND DISTRICT AND SUPERIOR COURTS; TOWN OF
CHARLESTOWN; CHARLESTOWN POLICE DEPARTMENT,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]

Before
Torruella and Howard, Circuit Judges,
and DiClerico, Jr.,* District Judge.

Douglas J. Luckerman, with whom John F. Killoy, Jr., were on
brief, for appellant.
Joseph S. Larisa, Jr., Assistant Solicitor, was on brief, for
appellee the Town of Charlestown and Charlestown Police Department.
Claire J. Richards, Special Counsel, was on brief, for
appellee Governor Donald L. Carcieri.
Neil F.X. Kelly, Assistant Attorney General, with whom Patrick
C. Lynch, Attorney General, was on brief, for appellee State of
Rhode Island.

May 12, 2005

*
Of the District of New Hampshire, sitting by designation.
 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.

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 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, 34 F.3d 103, 121 (1st Cir. 2003).

We review the factual findings under the clear-error standard, and

the "ultimate application of the law to those facts" remains

"subject to de novo review." Reich v. John Alden Life Ins., Co.,

126 F.3d 1, 6-7 (1st Cir. 1997).

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. §§

-3-
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., 418 F. Supp. 798 (D.

R.I. 1976); Narragansett Tribe of Indians v. Murphy, 426 F. Supp.

132 (D. R.I. 1976). The Settlement Act implemented the Joint

Memorandum of Understanding ("the JMOU") between the Narragansetts

and the State of Rhode Island, H.R. Rep. No. 95-1453, at 25-28

(1978), reprinted in 1978 U.S.C.C.A.N. 1948, 1962-66, that resolved

these lawsuits. See H.R. Rep. No. 95-1453, at 5.

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.").

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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, 296 F. Supp. 2d 153, 163

(D. R.I. 2003). The excise tax requires that distributors

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, 296 F. Supp. 2d at 163.

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 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."

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Narragansett Indian Tribe, 296 F. Supp. 2d at 158 (referencing the

Joint Stipulations of the parties).

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

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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, 296 F. Supp. 2d at 160 n.5.

Faced with cross motions for summary judgment, the

district court granted summary judgment in favor of the State,

holding that: (1) the legal incidence of the State's Cigarette Tax

falls on the consumer, and not the Tribe; (2) the State did not

violate federal law or the Tribe's sovereign rights when it

enforced its criminal statutes by executing a search warrant, and

making arrests pursuant to that warrant, on tribal land; and (3)

the Tribe must comply with the Cigarette Tax if it wishes to

continue selling cigarette products on the settlement lands.

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 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., 400 F.3d 83, 87

(1st Cir. 2005). We will uphold the grant of summary judgment if

there is no genuine issue of material fact and appellees are

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

A. Jurisdiction over the State's Complaint

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.

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, 211 U.S. 149, 152 (1908).

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 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.

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, 463 U.S. 1,
22 (1983).

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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, 515 U.S. 450, 458-

59 (1995) (citing Moe v. Confederated Salish and Kootenai Tribes of

Flathead Reservation, 425 U.S. 463, 483 (1976)). Such a "tax

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cannot be enforced absent clear congressional authorization."

Chickasaw Nation, 515 U.S. at 459.

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, 421 U.S. 200 (1975), a gasoline retailer claimed

that because the legal incidence of the state's gasoline excise tax

fell on his consumers and he therefore merely collected the tax for

the state, due process entitled him to deduct the state tax from

the amount of his sales which were subject to a state sales tax.

The Mississippi Supreme Court held that the legal incidence of the

excise tax fell on petitioner. In deciding Gurley, the Supreme

Court observed that "a State's highest court is the final judicial

arbiter of the meaning of state statutes," and said that "[w]hen a

state court has made its own definitive determination as to the

operating incidence, . . . [w]e give this finding great weight in

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determining the natural effect of a statute, and if it is

consistent with the statute's reasonable interpretation it will be

deemed conclusive." Id. at 208 (citing American Oil Co. v. Neill,

380 U.S. 451, 455-456 (1965).

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, 114 R.I. 502, 506 (1975), a Rhode

Island State Supreme Court decision regarding the legal incidence

of the cigarette tax. Daniels involves a ruling by the Rhode

Island State Tax Administrator ordering a distributor to pay the

taxes due on cigarettes and tobacco products that were stolen prior

to sale. The distributor appealed the decision in state courts,

arguing that as a distributor he should not be liable for the

imposition of the cigarette tax on the stolen cigarettes because

R.I. Gen. Laws § 44-20-12 does not make a distributor liable for

the cigarette tax, and furthermore, R.I. Gen. Laws § 44-20-53

states that cigarette taxes are a direct tax on the consumer,

precollected for convenience only. Daniels, 114 R.I. at 505. The

Rhode Island State Supreme Court ultimately

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

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 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,

446 F. Supp. 1339 (E.D. Wash. 1978), (quoting First Agric. Bank v.

Tax Comm'n, 392 U.S. 339, 347 (1968), aff'd in part, reversed in

part, 447 U.S. 134, 151 (1980)). Rather, in cases where courts

must determine whether the legal incidence of a tax falls on an

Indian tribe, courts apply federal law. See, e.g., Sac and Fox

Nation v. Pierce, 213 F.3d 566, 578 (10th Cir. 2000) ("For our

purposes, the question of where the legal incidence of the Kansas

motor fuel tax rests is one of federal law."); see also United

States v. Mississippi Tax Comm'n, 421 U.S. 599, 609 n.7 (1974)).

The Narragansett Tribe argues that the district court

should not have applied federal law. Citing Kern-Limerick, Inc. v.

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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

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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, 447 U.S. 134, 142 (1980); California State Bd.

of Equalization et al. v. Chemehuevi Indian Tribe, 474 U.S. 9, 11

(1985)(explicitly reiterating that the Court accepted the district

court's conclusion that the legal incidence of Washington state's

cigarette tax fell on purchasers). In addition, other courts have

consistently applied federal law in deciding whether the legal

incidence of a state tax falls on a sovereign Indian tribe. See,

e.g., Sac and Fox Nation, 213 F.3d at 578 (noting that "the

question of where the legal incidence of the Kansas motor fuel tax

rests is one of federal law" in a case regarding whether the State

of Kansas could impose its tax on fuel distributed to tribally

owned and operated retail stations located on Indian lands within

-16-
the State) (citing United States v. Mississippi Tax Comm'n, 421

U.S. 599, 609 n. 7 (1975)); Kern-Limerick, 347 U.S. at 121-22;

Coeur D'Alene Tribe v. Hammond, 384 F.3d 674, 681 (9th Cir. 2004)

("The incidence of a state tax on a sovereign Indian nation

inescapably is a question of federal law that cannot be

conclusively resolved in and of itself by the state legislature's

mere statement.").

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

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461; Milhelm Attea, 512 U.S. at 64; Chemehuevi, 474 U.S. at 11;

Colville 447 U.S. at 159. Therefore, the holding of Daniels does

not persuade us that the incidence of the Rhode Island cigarette

tax falls on the Narragansetts.

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, 474 U.S. at 11.

The Supreme Court has instructed that the test we should apply in

determining whether the incidence of a state tax falls on an Indian

tribe is to make "a fair interpretation of the taxing statute as

written and applied." Id. In this case, the Rhode Island tax

statute explicitly states that the cigarette taxes are

"conclusively presumed to be a direct tax upon the retail consumer,

precollected for the purpose of convenience and facility only."

R.I. Gen. Laws § 44-20-53. As the Supreme Court held in Moe,

"[t]he State's requirement that the Indian tribal seller collect a

tax validly imposed on non-Indians is a minimal burden designed to

avoid the likelihood that in its absence non-Indians purchasing

from the tribal seller will avoid payment of a concededly lawful

tax." Moe, 425 U.S. at 483. We therefore find that the legal

incidence of the Rhode Island cigarette tax falls on the consumer,

not the Narragansett Tribe, and we find that the State may require

the Tribe to comply with the cigarette tax in order for the State

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to collect the cigarette taxes that are passed on to the Tribe's

non-Indian consumers.

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

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., 89 F.3d at 915. The
Supreme Court has repeatedly applied this definition to issues of
both criminal and civil jurisdiction. Id. at 915; (quoting
California v. Cabazon Band of Mission Indians, 480 U.S. 202, 208
(1987)).

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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, 411 U.S. at 177-78 (laying to

rest any doubt that taxation of Indian reservation lands or Indian

income from activities carried on within the boundaries of

reservation lands is not permissible absent unmistakably clear

congressional consent); see also Montana v. Blackfeet Tribe, 471

U.S. 479, 765 (1985); Brian v. Itasca County, 426 U.S. 373, 376

(1976).

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, 411 U.S. 164,
177-78 (1973).

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 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

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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

-22-
cannot be answered by an all-encompassing solution. State of Rhode

Island v. Narragansett Indian Tribe, 19 F.3d 685, 695 (1994).

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, 436 U.S. 49, 58

(1978) (citations omitted); see also Oklahoma Tax Comm'n v. Citizen

Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 508 (1991);

Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061, 1066 (1st Cir.

1979). This aspect of tribal sovereignty is subject to the

"superior and plenary control of Congress." Santa Clara Pueblo,

436 U.S. at 58. Absent a clear, express waiver of sovereign

immunity by Congress or the Tribe, suits against Indian tribes are

generally barred. Kiowa, 523 U.S. at 755.

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

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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, 984 F.2d 14, 15-16 (1st Cir. 1993). The

State suggests that Maynard stands only for the proposition that

Congress did not abrogate sovereign immunity for tribal conduct

outside the settlement lands. We disagree. There is nothing in

our analysis of the Settlement Act in that case which suggests that

we have drawn a distinction based on where tribal activities occur.

The fact of the matter is that Section 1708 does not expressly

address the issue of sovereign immunity, and it would be

inappropriate for us to infer that the congressional grant of

jurisdiction to the State acts as a wholesale abrogation of the

Tribe's sovereign immunity. It is well settled that "statutes are

to be construed liberally in favor of the Indians with ambiguous

provisions interpreted to their benefit." Chickasaw Nation v.

United States, 534 U.S. 84, 93-94 (2001). In fact, the language of

Section 1708 does not purport to waive any of the Tribe's rights.

[T]he mere fact that the Settlement Act cedes
power to the state does not necessarily mean
. . . that the Tribe lacks similar power and,

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 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, 19 F.3d at 701. The Tribe, therefore,

retains its sovereign immunity despite the grant of jurisdiction to

the State in Section 1708(a).

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, 533 U.S. 353 (2001), and Colville "in conjunction with the

conferral of criminal and civil (which includes regulatory)

jurisdiction contained in section 1708," and found it to be "beyond

doubt that criminal law enforcement, including the seizure of

contraband, on the Settlement Lands is permissible." Narragansett

Indian Tribe, 296 F. Supp. 2d at 171. In Hicks and Colville, the

Supreme Court discusses some allowable enforcement by a state

-25-
concerning activities by an Indian tribe which has sovereignty and

does not necessarily share jurisdiction over its tribal lands with

the State. The Hicks Court recognized that "the principle that

Indians have the right to make their own laws and be governed by

them requires 'an accommodation between the interests of the Tribes

and the Federal Government, on the one hand, and those of the

State, on the other.'" Hicks, 533 U.S. at 362 (citing Colville,

447 U.S. at 156). The Court offered the following guidance:

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, 533 U.S. at 362-63 (2001) (citations omitted). Taking the

Supreme Court's discussion of the enforcement issue in Hicks and

Colville, together with Congress' grant of State jurisdiction over

-26-
the settlement lands, the district court concluded that Rhode

Island may enforce its criminal laws on the settlement lands,

including the seizure of contraband.

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. 291 F.3d 549, 567 n.6 (9th Cir. 2002) ("[T]he

search warrant was executed against the tribes in order to obtain

information as part of a criminal investigation against individual

Indians . . . . [T]he officers had authority to enforce criminal

law against individual Indians under Public Law 280, but did not

have authority to enforce those criminal laws against tribes as

sovereign entities."). However, this decision is not valid

precedent, as the Supreme Court vacated and remanded the decision,

stating:

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

-27-
 for focused consideration and resolution of
that jurisdictional question.

Inyo County v. Paiute-Shoshone Indians, 538 U.S. 701, 702 (2003).

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, 447 U.S. at 162.

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

-28-
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, 447 U.S. at 178 (citing

McClanahan, 411 U.S. at 172). "[T]he [Supreme] Court has held that

retained sovereignty includes the power of Indians to make and

-29-
enforce their own substantive law in internal matters, including

matters such as membership rules, inheritance rules, and the

regulation of domestic relations." Narragansett Indian Tribe, 19

F.3d at 701 (citing Santa Clara Pueblo, 436 U.S. at 56).

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, 19 F.3d at

701, and that "any effort by the state to exercise [its] authority

is hedged in by . . . the Tribe's retained rights of sovereignty

. . ." Id. at 705. Therefore, as the district court stated, "when

the Tribe acts 'qua Tribe,' that is, as the political entity

responsible for governing the Narragansetts, it is not subject to

the State's civil and criminal laws and jurisdiction."

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.

-30-
 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, 436 U.S. at 55-56.

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.

-31-
Bracker, 448 U.S. 136, 145 (1980)).5 In this case, we must balance

the State's interest in enforcing its cigarette laws with the

Tribe's sovereignty interests and related interests in tribal

economic development and self-governance. As we stated previously,

the precedent set in Moe and other cigarette tax cases involving

Indian tribes is that Indian retailers on an Indian reservation may

be required to collect the state cigarette taxes applicable to

sales to non-Indians because the minimal burden imposed by this

requirement is justified by the State's interest in assuring the

payment of these lawful taxes.

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, 296 F. Supp. 2d at 175-77.

We find it inappropriate to apply the Akins test in this instance.

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, 379 F.3d 979 (10th Cir. 2004), cert.
granted, 73 U.S.L.W. 3513 (U.S. Feb. 28, 2005) (No. 04-631).

-32-
 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

-33-
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 . . .

-34-
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, 498 U.S. at 514 ("There is no doubt

that sovereign immunity bars the State from pursuing the most

efficient remedy, but we are not persuaded that it lacks any

adequate alternatives.")). Some of the alternatives referenced in

Potawatomi include holding individual agents or officers of the

tribe liable for damages in actions brought by the State, see Ex

parte Young, 209 U.S. 123 (1908), collecting the sales tax from

cigarette wholesalers, either by seizing unstamped cigarettes off

the reservation, Colville, 447 U.S. at 161-162, or assessing

wholesalers who supplied unstamped cigarettes to the tribal stores,

City Vending of Muskogee, Inc. v. Oklahoma Tax Comm'n, 898 F.2d 122

(10th Cir. 1990). Another option is that the State might enter

into an agreement with the Tribe to adopt a mutually satisfactory

regime for the collection of its cigarette tax.

Today we have held that the State's cigarette tax laws

are applicable to sales to non-Indian customers on the settlement

-35-
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.

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