Dear Member, Clients and Friends:
We have received a significant number of inquiries from our members about how their Second Amendment rights are impacted when they travel through or visit “Indian lands.” These questions largely revolve around three general issues:
(1) If I hold a valid CHL, do I need to do anything special when traveling across an Indian reservation?
(2) Can I lawfully carry my firearm if I stop briefly on a reservation, for example, for gas, lunch or groceries?
(3) What about Indian casinos?
The most direct answer on these subjects is that, as much as we would like, a direct answer is not possible. The laws vary from tribe to tribe and from state to state on this subject. In this newsletter we will attempt to give you the general framework of the law on this subject and provide some helpful tips for carrying (or not carrying as the law may be) your firearms on Indian lands. We recognize that many folks prefer the term Native American. Our use of the term “Indian” in this newsletter follows the same terminology as most of the federal statutes (Indian Restoration Act, Indian Civil Rights Act, Bureau of Indian Affairs, etc.) and is not intended to be offensive to those who prefer otherwise.
I. The General Rule is There is No General Rule.
Without going into the evolution of tribal courts and constitutions, it is a fair description of Indian firearms law in the United States to state that each and every tribe was permitted over the years to formulate their own unique laws and constitutions, subject to federal oversight. The law can be different for each and every tribe.
Making matters even more complex, some tribes, but by no means all, have granted the individual states jurisdiction over tribal matters on a variety of topics. For example, many tribes have granted the states the power to enforce traffic laws on tribal lands. Along the same lines, some Texas tribes permit the State of Texas to enforce liquor laws on Indian lands, while in other states these issues remain solely with the tribal court.
Blanket statements about Indian gun laws are simply not possible. As we will discuss below, your best hope is to locate the laws of a particular tribe on the Internet (an extraordinary number of these are now available) and/or to actually contact tribal law enforcement and obtain an answer, hopefully in writing.
One general rule that actually does exist should be properly understood by all firearms owners visiting Indian lands. This “general rule” is that, for the most part, Indian tribal courts have no jurisdiction over non-Indians. The U.S. Supreme Court unambiguously reached this conclusion in its 1978 Oliphant decision that remains the law of the land. Unfortunately, it is widely misunderstood and recited on various concealed carry firearms websites.
Many of the blogs and websites omit the crucial exceptions to this general rule. Just because the tribal courts do not have jurisdiction over non-Indians, does not mean you have free reign to carry on their lands. Tribal police can stop, detain and eject you, while keeping your guns and ammunition. Even if they do so incorrectly or unlawfully, your recourse may be extremely limited.
A. Tribal police can stop, detain and eject you, while keeping your guns and ammunition.
The federal courts have made very clear that, although non-Indians cannot be criminally charged in tribal courts, the tribal police can exercise almost all of their law enforcement functions over non-Indians. If you violate Indian gun laws, you can expect to be stopped, detained and questioned. It is also permissible for the tribal law enforcement to eject you from the Indian lands.
This can result in extraordinarily harsh consequences. For example, in United States v. Terry, the tribal police arrested a non-Indian for unlawful possession of a firearm. He was arrested on a number of tribal charges, had his ammunition and firearm seized, spent the night in jail and was then transported 80 miles to a state law enforcement official. No doubt, Mr. Terry found little comfort in the fact that the tribe had “no jurisdiction” over him.
Further, the tribal police can hold you while they investigate your status as a non-Indian to see if they actually have jurisdiction. In U.S. v. Keys, Mr. Keys, a non-Indian, was kept in jail for 3 days during this process. The court ultimately ruled that this was too long, but this would obviously be of almost no consolation after spending 3 nights in custody.
A more complicated issue is the seizure of your weapon and ammunition. The confiscation of your weapon could technically be the wrongful seizure of your property. Unfortunately, your only remedy would be go to the tribal court and ask for its return. For the most part, you cannot go to a state court to ask a judge to release it to you (even if you could, the attorneys’ fees and filing fees could easily exceed the value of the firearm).
However, many tribes have agreed to state jurisdiction over civil and/or criminal matters. For example, the Ysleta Del Sur Pueblo tribe of Texas has agreed as to both:
25 U.S.C. §1300g4:
(f) Civil and criminal jurisdiction within reservation
The State shall exercise civil and criminal jurisdiction within the boundaries of the reservation as if such State had assumed such jurisdiction with the consent of the tribe under sections 1321 and 1322 of this title.
You might be able to get your weapon back if it was the State of Texas exercising jurisdiction to seize your firearm. You might even be able to ask a state judge to order its return, but even then, the tribe has immunity if it simply refuses to comply with the court order.
In addition, in areas where the state has been granted criminal jurisdiction over tribal matters, the Indian police can arrest you and simply turn you over to state law enforcement officials.
The important point here is that the general rule – Indian tribes lack jurisdiction over non-Indians – means very little in the context of carrying a weapon on Indian lands. At most it means you will be spared significant prison time on the reservation. At worst it means your arrest, detention, the loss of your firearm and ammunition, and your eventual transportation to state law enforcement for prosecution. This will vary tribe to tribe and state to state, so please do your research before attempting to carry your gun on Indian lands.
B. You cannot sue the police or the tribe, other than for your release, because they have sovereign immunity.
One other legal point on Indian firearms law appears fairly clear and uniform: Indian tribes have sovereign immunity from lawsuits by non-tribe members. This means that you cannot bring a lawsuit against the tribe if they take your gun, detain you too long or otherwise subject you to harsh treatment due to your possession of the firearm. Even the Ysleta Del Sur Pueblo tribe discussed above, a tribe that has consented to the jurisdiction of Texas, remains immune from normal every day lawsuits.
Tribes do remain subject to habeus corpus, meaning if you are held against your will you can file a federal lawsuit seeking your release. However, you still cannot seek damages for being held, wrongfully arrested, maliciously prosecuted or for a violation of your civil rights, but you can get an enforceable order from a federal judge requiring your release from Indian custody.
III. Some tribes actually permit firearms, so do your research.
There are also significant misconceptions floating around that firearms are never permitted on tribal lands. Based upon our research, that does appear to be the majority rule, but there are a number of tribes that permit firearms. For example, the Navajo tribe of Arizona has a prohibition on firearms but allows them on tribal lands for hunting and for personal protection if they are transported in a glove compartment, closed trunk or luggage in a motor vehicle. The interesting part about this particular Navajo tribe is that their website only lists the general prohibition on firearms, but omits the helpful exceptions.
Outside direct information from the tribe itself, the best source of information we have found is www.narf.org. This is the Native American Rights Fund website and it contains an extensive database of tribal laws and constitutions. This database contains the actual laws as written as opposed to a message board or forum where it is often difficult to determine the actual law vs. the opinion of the person posting. The database can be searched by tribe and by topic.
For example, a general search of “weapons” pulls up 557 results, almost all of which are the weapons related laws for the various tribes. To get more specific, the database is also organized by tribe. A quick search reveals that the Ysleta Del Sur Pueblo tribe referenced above actually permits firearms under a very few, limited circumstances, but generally prohibits the concealed carry of a handgun.
Our best recommendation to you is that you research any tribe that may impact your travel plans. It is our experience that several tribes are not on the database or provide only limited information. If that is the case or the laws do not provide you with a clear, unambiguous answer, we recommend that you contact the tribe and its law enforcement before carrying your gun on tribal lands.
IV. Let’s get back to our three main questions.
We will now attempt to provide some guidance to the three questions at the beginning of the article:
A. If I hold a valid CHL, do I need to do anything special when traveling across an Indian reservation?
The law on this subject is about as complicated as it could be. The answer depends upon each particular tribe’s treaty with the state, the federal laws governing that tribe, and the laws within each tribe. The road or highway may be (1) actual Indian property, (2) Indian property where the tribe granted an easement to the state for the road, or (3) property of the state alone. Note: federal highways are owned by the state, but funded by the federal government.
If the answer is (1) or (2), you will need to do your best to research the laws of the particular tribe and the extent to which that tribe has ceded jurisdiction to the state. If the answer is (3), then make sure you comply with state law. Unfortunately, the vast majority of gun owners (even us lawyers) will not have the time, resources or expertise to first figure out the status of every potential roadway and then the laws of every potential tribe.
We recommend three practical solutions:
First, research the tribe at issue on their website and www.narf.org. Many tribes have specific rules on automobiles. If you can find their rules, check the state law and comply with both.
Second, you can contact the tribe or their law enforcement offices directly. Ask them about traveling across their lands with a firearm and what their procedures are. If you receive a positive response, get it in writing. An email from the chief law enforcement official would be a practical thing to have during your travels, but you may have little or no luck getting one.
Third, if the answer is not obvious from the tribal laws and you cannot get an answer from the tribe or their law enforcement directly, we recommend that you place your firearm in your trunk, unloaded and in a case during travel across the Indian lands. Then rearm yourself in compliance with state law once you exit the reservation. This may not be perfect. You might actually be violating a law that appears nowhere in the public records, or you may run into a tribal system that is highly unfriendly towards gun rights. You cannot technically be prosecuted by the tribe, but run a risk of the hassles described above. If you want zero risk, leave your guns at home.
B. Can I lawfully carry my firearm if I stop briefly on a reservation, for example, for gas, lunch or groceries?
The answer to this question is similar to highways, but without the complexity of figuring out who owns or has jurisdiction over the highway. We recommend three solutions:
First, if you can, figure out if the tribe has granted jurisdiction to the state for criminal matters. Then research the tribe at issue on their website and www.narf.org. Most tribes have specific rules on firearms and “dangerous weapons.” If you can find this easily and the state has jurisdiction, you need to comply with both state and tribal law. Normally, it will be very difficult to find the areas in which each tribe has or has not ceded authority to the state. In this case, we recommend that you comply with both sets of laws.
Second, you can contact the tribe or their law enforcement directly. You should ask them about carrying weapons on their lands. Make sure you know the details. Several tribes permit weapons in a residence, but not elsewhere. If you receive a positive response, get it in writing. An email from the chief law enforcement official would be useful during your travels in the event you run into trouble.
Third, if the answer is not obvious from the tribal laws and you cannot get an answer from the tribe or their law enforcement directly, we recommend, just as with traveling, that you place your firearm in your trunk, unloaded and in a case during all travel across the Indian lands. Do not take the weapon out during stops on the Indian lands. Rearm yourself in compliance with state law once you exit the reservation. Again, this is not perfect. If you want zero risk, leave your guns at home.
C. What about casinos?
One point that should be absolutely clear by now is that there is simply no way to make a blanket statement about carrying your firearm into Indian casinos. The tribe may prohibit guns and/or the tribe may have granted the authority to regulate this issue to the state in which it is located.
Our recommendation is to take the following steps prior to setting foot anywhere close to an Indian casino with a concealed firearm:
1. Contact the casino before getting near the Indian lands. Do not make the mistake of carrying your firearm up to the casino door and then asking a security guard. Many tribes have strong feelings on this subject and you could find your weapon seized right there. Instead, call and email well in advance. If they will permit your carrying a concealed weapon, do your best to get it in writing.
2. If you cannot get an answer from the casino directly, check the laws of that particular tribe. You may get an easy answer. For example, the Coushatta tribe of Louisiana specifically prohibits the carrying of concealed weapons, loaded or unloaded. Their statute also permits forfeiture of your firearms as a penalty. If you get an easy answer like this, do not bring a concealed weapon with you on your trip to the Indian lands or casinos.
3. If you cannot otherwise find the answer, try contacting the tribe or their law enforcement directly. Ask them specifically about the issue of casinos. Do not get a blanket answer that firearms are permitted, as they can be on some tribal lands for hunting. If you receive a positive response, again, get it in writing and make sure it is specific to your issue. A pretty good answer would be from the chief law enforcement official stating that “X tribe allows non-tribe members to carry concealed handguns into X casino.”
4. If you have exhausted your efforts and cannot get a clear answer, we recommend that you not bring a concealed weapon with you on your trip to the Indian lands or casino.
5. Also, make sure you comply with the laws of the state where the Indian casino is located; i.e., if you show up and there is a state law sign at the casino door (such as a 51% alcohol or TPC 30.06), return to your car and secure the firearm before entering the casino. That tribe may have ceded the authority to regulate those issues to that particular state.
If you are understandably frustrated with the uncertainty of the law on this subject, wait until you read the next paragraph.
We contacted several casinos near our Texas members to survey their policies on concealed and open carry. We contacted the Choctaw Casino in Durant, Oklahoma, Kickapoo Casino in Eagle Pass, Texas, Coushatta near Lake Charles, Louisiana, and Inn of the Mountain Gods near Riudoso, New Mexico. All of the representatives stated that firearms were prohibited in casinos. When asked if they could point to a law or tribal policy, that is when things got a little confusing. A representative from Coushatta said that he did not have any law or policy he could point to, but firearms are prohibited in the casino. Coushatta tribal law bans concealed carry but says nothing about open carry. Representatives from the Choctaw Casino and Inn of the Mountain Gods pointed to federal law. One stated that because tribal property is federal property, firearms are not permitted. The other stated that the Indian Gaming Regulatory Act prohibits firearms in casinos on tribal property. We were surprised by both explanations, because this was contrary to all of our research, therefore we contacted the National Indian Gaming Commission. They quickly confirmed that there is no federal regulation prohibiting the carry of firearms in Indian casinos. The federal government has left this decision to the individual tribes or states. One thing is for sure. All of these casinos prohibit the carrying of firearms as a matter of policy. According to each representative, there are signs posted at all entrances of the casino prohibiting the carry of firearms. If you enter with your firearm, you will most likely be considered a criminal trespasser and treated as such.
We know that this area of the law is frustrating to a large number of gun owners. We also know that, even with this newsletter, it may remain frustrating. We hope that, at a minimum, we have given you a background of the important issues and provided some tools for planning your trips to Indian lands.
Kirk W. Evans
Texas Law Shield, LLP