Academic journal article Albany Law Review

Indian Tribes and Gun Regulation: Should Tribes Exercise Their Sovereign Rights to Enact Gun Bans or Stand-Your-Ground Laws?

Academic journal article Albany Law Review

Indian Tribes and Gun Regulation: Should Tribes Exercise Their Sovereign Rights to Enact Gun Bans or Stand-Your-Ground Laws?

Article excerpt

I. 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.

II. GUN RIGHTS AND REGULATIONS

A. 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. …

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