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

By Tweedy, Ann E. | Albany Law Review, Winter 2014 | Go to article overview

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


Tweedy, Ann E., Albany Law Review


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.