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Judge orders lawsuit heard in tribal court

PROVIDENCE — A lawsuit filed in U.S. District Court against the Narragansett Indian tribe seeking $1.1 million in legal fees has been remanded to tribal court by Judge William E. Smith.

The lawsuit, filed by Massachusetts lawyer Douglas J. Luckerman in March, accused the tribe of failing to pay for work on issues related to a federal case stemming from a July 2003 State Police raid on the tribe’s now defunct smoke shop in Charlestown. Luckerman is seeking unpaid legal fees, interest and court costs.

Documents show the tribe made some payments to Luckerman, but he said those were not sufficient to meet its obligations under 2003 and 2007 agreements.

At the heart of the suit is the question of whether the tribe retains the power to compel a nonmember to submit to the civil jurisdiction of a tribal court. The issue of what might constitute a tribal court was not addressed in the judge’s decision, but in many cases the tribal council serves as a court in such cases.

Smith, in his decision, said Luckerman reached out to the reservation “by entering a consensual relationship with the tribe, and accordingly, the tribal court has at least a colorable claim of jurisdiction over suits arising from that relationship.”

The tribe argued the suit should be dismissed on grounds of sovereign immunity, because it is a federally recognized tribe and therefore could not be subject to such claims.

Smith disagreed with the tribe, saying, “By receiving a proposed agreement that unequivocally purported to waive the tribe’s sovereign immunity and treating that agreement as valid, the tribe expressly waived its immunity.”

However, the judge also noted that Luckerman, who is represented by Providence attorney Anthony Muri, had not exhausted his claim in Narragansett tribal court. “Whereas here, the doctrine of tribal exhaustion applies, whether to dismiss the complaint or merely stay the proceedings pending exhaustion is a decision left to the discretion of the trial court,” he said.

Smith added that because Rhode Island has a 10-year statute of limitations on contract disputes, he was enacting the stay in federal court until action in tribal court is completed.

Luckerman, along with John F. Killoy, of Wakefield, a longtime attorney for the tribe, represented the tribe in its federal lawsuit arising from the raid on the smoke shop ordered by former Gov. Donald L. Carcieri.

Forty state troopers converged on the South County Trail property, where they were greeted by tribal members who blocked the entrance of the smoke shop. As the troopers tried to gain entry to the shop, where the Narragansetts were selling tax-free tobacco products, a fight ensued, resulting in injuries, arrests and lawsuits. In a decision dated Dec. 29, 2003, Smith found the tribe must comply with the state’s cigarette tax law and the state did not violate federal laws or the tribe’s sovereign rights when it moved to enforce its criminal statutes by executing a search warrant and making arrests.

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