Indian tribes and gun regulation: should tribes exercise their sovereign rights to enact gun bans or stand-your-ground laws?

Author:Tweedy, Ann E.
Position:The Right to Keep and Bear Arms in the 21st Century
 
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  1. INTRODUCTION

    In light of the Second Amendment's inapplicability to Indian tribes, tribes appear to have the greatest freedom to experiment with gun laws of any sovereign in the United States. (1) What have they done with that freedom and what sorts of regulations should they pursue? This article attempts to answer both questions.

    As to the first, as discussed in more detail below, tribes have enacted an array of generally fairly modest firearm regulations including permit requirements, limits on concealed weapons, restrictions on having guns in certain places, and regulations as to gun type and barrel length. As to the second question, this article explores two fairly extreme types of possible tribal firearm regulations: gun bans and stand-your-ground laws. Although each may have appeal to some of the nation's 566 federally recognized Indian tribes for different reasons, this article argues that, because of the current limitations on tribal civil and criminal jurisdiction under federal law and related issues, a tribe's enforcement of either would likely be fraught with problems. Thus, despite their unparalleled discretion in the area of firearm regulation, tribes' ability to effectively regulate on this crucial issue is hampered by the arcane framework of tribal civil and criminal jurisdiction under federal law. Moreover, this incongruity contradicts Congress' intent, as manifest in the Indian Civil Rights Act (ICRA). (2)

    This article argues that, in light of the formidable obstacles to successful tribal enforcement of gun restrictions, tribes concerned about the proliferation of guns on their reservations--and who might therefore consider gun bans--may be best served by enacting a comprehensive set of gun regulations that makes extensive use of forfeiture, and probably particularly in rem forfeiture, as a penalty for any violation. Tribes that wish to support gun rights are free to do so (as some have), but enacting an expanded right to self-defense, such as a stand-your-ground law, as a partial solution to on-reservation crime is likely to backfire and harm the very tribal members who would be expected to benefit from such a law.

    This article first outlines some of the history and background that may influence tribes to enact different types of gun laws. It then briefly describes the gun rights provisions and the various types of firearm regulations that currently exist under tribal law. Finally, it discusses tribes' options in regulating firearms and their use in the future, specifically focusing on the potential benefits of, and problems with, two of the more extreme types of regulation: gun bans and stand-your-ground laws.

  2. GUN RIGHTS AND REGULATIONS

    1. History and Background that May Influence Tribal Gun Policies

      Tribes have powerful reasons both to want to protect gun rights and to enact stringent firearm regulations. As sovereigns, they should be able to strike that balance for themselves, according to their differing needs and values, especially given the inapplicability of the Bill of Rights to tribes. Unfortunately, as with many tribal governance functions that ostensibly are preserved under federal law, this promise turns out to be more real in theory than in practice.

      On the one hand, tribes and individual Indians have historically been forcibly disarmed and otherwise denied the right to bear arms (and sometimes literally the right to defend themselves) by the U.S. government, as well as by individual colonies and states. (3) At the same time, most tribes have a long cultural tradition of hunting. Moreover, many tribes not only continue to view hunting as an important cultural practice, but also exercise a treaty right to hunt on reservation, and, in some parts of the country, off reservation as well. (5) Because of the centrality of hunting to many tribal cultures, guns play an important role in some tribes irrespective of their usefulness for self-defense. (6) Finally, many Indian reservations are plagued by violent crime, much of which has historically gone unpunished, although there is evidence that the federal government is finally stepping up its efforts to meaningfully respond to on-reservation crime. (7) One rational response to widespread, historically unpunished violent crime is to advocate for--or, in this case, facilitate--greater armament among the citizenry. (8) Thus, given that Indians' right to bear arms has historically been infringed, that tribal hunters usually rely on guns, and that many reservations are plagued by epidemic levels of violence, tribes have ample reason to want to protect the right to bear arms on their reservations. And, as will be discussed below, several tribes have elected to protect the right to bear arms.

      On the other side of the coin, however, tribes concerned about on-reservation violence may legitimately view extremely high on-reservation crime rates and the difficulty in bringing violent criminals to justice (9) as reasons to enact stringent gun regulations--and even gun bans. Indeed, four out of the nearly four hundred school shooters since 1992 have been Native American high school or middle school students, with the most recent such incident claiming five victims at Marysville-Pilchuck High School in Marysville, Washington in October 2014. (10) At least one of these four incidents, that at Red Lake High School in 2005, occurred on-reservation. (11) While these numbers do not suggest that Native American youth are any more likely to engage in a school shooting than youth of any other race, (12) tribal leaders could legitimately conclude that stringently regulating or banning firearms on reservation could minimize the risk of future tragedies of this type.

      Putting school shootings aside, there is also evidence that a greater prevalence of guns in an area exponentially increases the rates of gun suicides and unintentional firearm deaths, and, although such prevalence is not associated with a higher overall crime rate, it is associated with a greater likelihood that death will result from crime. (13) Given that Native Americans have a higher rate of suicide than any other racial group in the United States, (14) these statistics may motivate tribes to consider banning guns or at least stringently regulating them. As we will see below, many tribes have enacted laws regulating guns, including permit and background check requirements, and at least one tribe has considered enacting a gun ban.

    2. What Types of Gun-Related Laws Have Tribes Enacted?

      1. Right to Bear Arms

        Several tribes protect the right to bear arms. For instance, the Little River Band of Ottawa Indians and the Nottaweseppi Huron Band of the Potawatomi constitutionally protect the right, whereas the Navajo Nation includes the right to bear arms in its statutory Bill of Rights, (15) which functions similarly to a constitutional provision. (16)

        Just as the Supreme Court suggested in District of Columbia v. Heller (17) with respect to the meaning of the right to bear arms under the U.S. Constitution, for tribes, explicitly protecting the right to bear arms does not necessarily mean that the right cannot be regulated. (18) Navajo Nation, for instance, prohibits both the use of firearms and the carrying of loaded firearms in Marble Canyon Navajo Nation Park, (19) and the Nation also generally prohibits the carrying of loaded weapons with exceptions, such as for possession in the home or in a motor vehicle, for hunting, and for engaging in religious practices. (20)

        It is important to note, however, that the right to bear arms is explicitly qualified in the Navajo Bill of Rights. (21) Similarly, the Huron Potawatomi and Little River Band provisions prohibit only unreasonable infringements of the right to bear arms and therefore appear to presumptively allow any reasonable regulation of the right. (22) The apparent prevalence of these qualifications on the right to bear arms among tribes may suggest that tribes are inclined to adopt a relatively moderate view of the right to bear arms.

        Instead of generally protecting the right to bear arms, the Squaxin Island Tribe in Washington takes the more limited approach of codifying the use of firearms in self-defense as an exception to firearms-related offenses, such as the unlawful discharge of a firearm and intimidation by use of a firearm. (23)

      2. Types of Firearm Regulations

        In the course of my research, I learned of one tribe that had considered enacting a gun ban (24) and another that appeared to have had a general gun ban with exceptions in the past. (25) Like Squaxin Island and Navajo Nation, many other tribes have put into place various types of firearm regulations short of gun bans, (26) although I did hear from another researcher that tribes were reluctant to regulate firearms because of the controversial nature of the issue. Tribal laws include prohibitions on certain gun types, like short-barreled shotguns and rifles, (27) which tend to be easier to conceal and less precise, as well as machine guns. (28) Permit requirements, (29) which occasionally include background checks, (30) appear to be fairly prevalent, as are restrictions on carrying concealed firearms (31) and loaded weapons. (32) Additionally, a federal regulation was recently amended to facilitate tribal access to the federal firearm background check system, but it appears that the logistics of facilitating that access are still being worked out. (33)

        Like the Navajo provision relating to Marble Canyon Park, some tribes bar guns from certain places, (34) and others bar or restrict the use of silencers. (35) Finally, some tribes prohibit felons from possessing firearms, (36) as do both the United States (37) and many individual states, (38) and persons with other characteristics, such as mental incompetence, are sometimes barred as well. (39)

      3. Remedies

        Tribes vary in whether they incorporate gun regulations into their criminal or civil codes. (40) In addition to ordinary...

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