Bold gambit By forcing the smoke shop issue, the Narragansett tribe increased the likelihood of casino gambling in Rhode Island BY IAN DONNIS

FREEDOM’S JUST ANOTHER word for nothing left to lose.

Indeed, after being dealt a steady series of dramatic setbacks in their long-running quest to establish a casino in Rhode Island — just as other tribes have successfully done throughout the country — the Narragansett Indians had more than ample reason to cite Kris Kristofferson’s plaintive line from "Me and Bobby McGee."

By opening their tax-free smoke shop in Charlestown on July 12, the Narragansetts rolled the metaphorical dice, boldly setting the stage for a US District Court judge to decide whether tribal commerce is subject to state or federal jurisdiction. But even though it was a smart way of forcing the issue — and talk radio was rife last week with descriptions of this being a Democratic plot to trip up Governor Donald L. Carcieri — few people could have anticipated the jarring July 14 confrontation at the smoke shop between Narragansetts and state troopers.

Certainly, after taking to politics with impressive ease and superior communication skills, the governor fumbled badly in the first two days after the confrontation, and the whole episode marked an abrupt end to his honeymoon. Although it was reasonable to make the case — as Carcieri did — that the Narragansetts were breaking the law by selling tax-free cigarettes, the videotaped images of troopers and tribal members grappling with one another (and a police dog biting a tribal member who was pinned on the ground) quickly drowned out this message. And even though Carcieri exhibited goodwill and initiative by visiting the tribe weeks earlier, the Narragansetts’ history of near-decimation virtually guaranteed their status as sympathetic underdogs.

"No one manufactured this incident," says Darrell West, a political science professor at Brown University. "It happened just because the Narragansetts were pushing their agenda, and the governor was fighting back and ended up in an ugly situation. I don’t see that there was any conspiracy among the Democrats to make Carcieri look bad, because some of them don’t look so good, either. Generally, in a crisis like this, no one wins; everyone looks compromised in some respect."

Responding to years in which the General Assembly has stifled the tribe’s quest for a casino referendum, the smoke shop became Plan B about 10 months ago, says Guy Dufault, a consultant for the Narragansetts. "The thought was that if we were stymied on the casino project again, the tribe would explore their number two alternative," Dufault says. "When the General Assembly failed to act in this session, the thought process of the tribe was, ‘We have to take economic development into our own hands.’ Never in a million years did we think that what happened would happen. We thought the state would trot us into federal court."

Dufault describes selling cigarettes without collecting tax revenue as a low-level violation — less serious than a misdemeanor — that would typically bring a $100 fine. But even though a history of tension between the Indians and the state police made an ugly confrontation almost predictable, Carcieri — with the much-publicized advice from his staff and Attorney General Patrick Lynch — seemed to conclude that going to court without a stronger initial step would be a losing case. As Carcieri spokesman Jeff Neal says, "The governor was advised that seeking and executing a search warrant was a proper step before moving on to seek any other type of court order."

Asked about the wisdom of the raid, Neal says, "The governor was advised that selling cigarettes without the tax stamps was an illegal act, that the state had the right and the obligation to enforce state law with regard to tobacco sales on settlement land — just as it would in any other part of Rhode Island."

The rest, as they say, is history.

Thanks to the startling videotape of the clash — which gave the story flight, attracted national attention, sparked a California congressman’s call for a federal investigation, and inspired an outpouring of sympathy for the Narragansetts from fellow Indians and Caucasians alike — the tribe has achieved a new focal point in public attention. Indeed, news coverage — such as a poignant story in the Providence Sunday Journal of July 20, outlining the history of conquest and exploitation suffered by the Narragansetts — seems to further justify the tribe’s drive for better financial fortunes. (Empathy remains far from universal, however. Judging by the public reaction, many onlookers perceive the tribe’s 2600 Indians as oppressed minorities, although some also see them as soft beneficiaries of about $6 million in annual federal aid.)

At minimum, it seems likely that the ongoing talks between Carcieri and Chief Sachem Matthew Thomas of the Narragansetts will yield some sort of revenue-producing compact for the tribe. The Indians, not surprisingly, are setting their sights higher. As Dufault says, "Quite frankly, I think any compact talks would have to include the referendum going to the ballot."

CARCIERI RAN ON a platform of making Rhode Island into the jewel of New England and, like his predecessor, Lincoln Almond, he’s a fierce opponent of casino gambling — citing it as an adverse influence for the state. As to whether the smoke shop debacle has made casino gambling more likely, "I think it’s far too early to make a judgment on that," says Neal, the governor’s spokesman. "It certainly has not changed Governor Carcieri’s view on casino gambling in Rhode Island."

After the intense drama of the smoke shop raid and its immediate aftermath, Darrell West sees a fair bit of risk in the Narragansetts’ methodology. "The only good thing coming out of this is that the Narragansetts will get a definitive ruling from the federal courts [about whether tribal commerce is regulated by the federal government]. If that’s favorable, that would be a good outcome. But if it’s unfavorable, it essentially kicks them out of the ballgame on virtually everything that they want to do. It’s a high-risk, high-stakes strategy on their part."

Seen another way, however, the Narragansetts may find themselves in the unusual place of holding a winning hand. Although forcing the taxation issue is a high-stakes gambit, it may present a win-win for the tribe. Especially in a tiny place like Rhode Island, it would constitute an economic bonanza — and a significant threat to state revenue — if a federal judge finds that the Indians can conduct commerce without gathering state tax. If the case goes against the Narragansetts, on the other hand, it could strengthen their case about the need for a casino.

The radio banter about a Democratic conspiracy noted that the tribe had the most to gain, Carcieri the most to lose, and a surfeit of emphasis was placed on the links between AG Lynch, his brother, Bill, the chairman of the state Democratic Party, and their father, Dennis, a former five-term Pawtucket mayor, who was ousted in April as chairman of the state Department of Administration’s Properties Committee. Asked about this, Dufault, a former chairman of the Rhode Island Democratic Party, says such talk is "totally ridiculous. This is about the Narragansett Indian tribe and the plight that they’ve had with the state for over 350 years. When you go 14 years and seven election cycles in a row with a change of rules in every one of those election cycles, that is discrimination and [frustration with it] finally boiled over."

Rhode Island politicians have consistently acted against the tribe’s casino quest, even though there are more than 300 Indian casinos across the country — including Mohegan Sun and Foxwoods, established in 1992 by the Mashantucket Pequots, the Narragansetts’ historic rivals, in nearby Connecticut

In one particularly striking development, the tribe was exempted from the Indian Gaming Regulatory Act when the late US Senator John Chafee placed a unusual rider into a 1996 law, meaning the Narragansetts’ casino proposal must pass muster in a statewide referendum. (Interestingly, Chafee’s son, Senator Lincoln Chafee nominated William Smith, the federal judge who will decide the Narragansett’s smoke shop case.) In 1998, a year after the tribe found a willing host community in economically depressed West Warwick, the legislature passed a law, giving itself the right to choose if a casino question should go on the ballot. The tribe’s efforts to move the ball forward since then have essentially come up empty.

In theory, at least, legislators could still effectively tell the Indians to pound sand. But given the very high stakes — the state’s entire system of taxation — Dufault believes the General Assembly will take up the issue in January, if not sooner. And, he asserts, "They’d be committing hari-kari if they didn’t put it [the casino referendum] on the ballot in an election year."

Certainly, the impact of a casino could obviously be huge in Rhode Island, where income from video lottery terminals at Lincoln Greyhound Park and Newport Jai Alai constitute one of the largest sources of state revenue. While the effect on state revenue is a valid consideration, some observers also suspect that links between the gaming centers and the General Assembly — such as the representation of Lincoln by Daniel McKinnon, the law partner of former House Speaker John B. Harwood — have influenced the situation.

Even though the tribe couldn’t have predicted Carcieri’s heavy-handed response to the smoke shop, the real story may be how the Indians have finally trumped the pols at their own game. "This is politics at its most grotesque and effective," says Marc Genest, a political science professor at the University of Rhode Island, who, like several other observers, believes casino gambling is now more likely in the state. "By turning an economics issue into a civil rights issue, [the Narragansetts] were able to gain the high ground and increase their influence over the process."

IF THE NARRAGANSETTS are the potential big winners, the most immediate loser was Carcieri, the affable and avuncular rookie governor, who, in the preceding weeks, was consistently and energetically on-message in tagging the General Assembly’s budget as irresponsible and profligate. But even though a story about the legislature’s override of Carcieri’s veto played over the fold of the ProJo two days into the crisis, the governor’s mastery of the bully pulpit seemed, at least temporarily, to have evaporated.

"He really walked into a situation where he didn’t comprehend the potential political fallout," says Maureen Moakley, chair of the political science department at the University of Rhode Island. "I think he approached this as a business, not understanding that this is realpolitik, Rhode Island-style."

Even with the putative illegality of the Narragansett’s tax-free cigarette business, it was difficult not to perceive the use of the state police (who were said to have been given the quixotic order of withdrawing in the face of resistance) as unnecessarily heavy-handed. In a vague echo of the 2000 shooting death of Providence police officer Cornel Young Jr., the reaction to the Charlestown clash broke along political and racial fault lines: liberals and minorities were, for the most part, appalled, and conservatives lined up behind Carcieri’s matter-of-fact rule-of-law explanation.

The ensuing spat, in which Attorney General Patrick Lynch rapped the governor’s comments about the state police, made for a brief, but bizarre, political circus. Even Carcieri’s predecessor, the normally staid Lincoln Almond, and former AG Sheldon Whitehouse were on the same page in speaking disapprovingly in the ProJo of the wisdom of the state police raid, and observers were divided in divining the impact for the AG.

As Darrell West sees it, "I think the fallout for the attorney general is more profound, because people know a lot less about him [than Carcieri]. The governor has well-established positives with the public and people have been supportive of his job performance, while the attorney general is not very well known and people don’t have the same comfort level with him just because they don’t know him." URI’s Genest, however, believes that Lynch’s criticism of Carcieri was an effective political strategy.

If nothing else, the clash with the Narragansetts was another sharp reminder for Lynch — whose office remains immersed in the aftermath of the Station fire — of the kind of cases that have made the AG’s post a graveyard for political ambitions.

As far as the governor, Genest says, "The Democrats now smell blood in the water and they’re circling. They hope to weaken an otherwise extraordinarily popular governor. This is politics as usual. There are chinks in the governor’s armor and they intend to exploit them. Institutionally, they have all the power in the world to weaken the governor," with the Democrats’ overwhelming control of the legislature.

Yet even though, as the professors note, Carcieri was surprisingly tone-deaf in responding to the smoke shop crisis, he seems likely to regain his political footing in relatively short order. As Moakley says, "This was a mistake and blunder by Carcieri. It’s part of a learning curve. I think it’s going to take a lot more than this to take Carcieri down and they [legislators] know it."

By contrast to Carcieri and Lynch, Superintendent Steven Pare of the state police came off well after the melee simply by steering clear of political sniping. Although some of Pare’s supporters were initially concerned about the ramifications of the crisis, the state police — who are generally exalted in Rhode Island — came through with their mystique largely intact. "Any perceived attack on them, particularly under Pare, who has an impressive reputation, was a huge misstep on the part of Carcieri," Moakley says.

Of course, of all the participants in the Charlestown showdown, the most profound consequences could well be for the Narragansetts. At a time when the presence of state-sponsored gambling in Rhode Island is hard to miss — the ubiquitous lottery tickets sold at countless convenience stores and the video slots in Lincoln and Newport — images still linger of troopers and Indians squaring off over cartons of cigarettes and the decidedly larger issue of state revenue and economic self-determination.

Moakley believes the Narragansetts, because of their newfound public sympathy and waning public opposition to casino gambling, stand a good chance of winning if a casino question makes it to the ballot. The referendum rule of thumb is that the side that spends the most money usually wins, and the Narragansetts have Harrah’s on their side. It’s further evidence of a better bet for the Indians, especially since West Warwick has been supportive, and, Moakley says, "You can be sure that the people in South County don’t want them."

Ian Donnis can be reached at idonnis[a]phx.com