||May 7, 2014
||Special Event: Oklahoma Members, You're Invited
|Oklahoma Members: Come Join Us and Bring A Friend
invited to 99.7 Hank FM�s Pasture Party Friday, May 9th from 6 p.m. to
midnight in Wellston, Oklahoma! U.S. Law Shield will be there (in a
booth located between the two food venues), so bring a friend and join
the fun at this FREE music event.
Click here for more information on Hank FM�s Pasture Party. See you there!
||Firearms Training Course
out to our special U.S. Law Shield Members-only Basic Firearms Skills
Course at the SOR Training Center in Moore, OK on May 15th from 6-10
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Members are asked to bring their U.S. Law Shield
membership cards, as well as appropriate range attire including a
baseball cap, your own weapon with a holster and belt, reloading devices
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ear and eye protection, and full-metal jacket ammunition (brass-cased
There are only 10 slots available, so sign up today by calling SOR Training Center at 405-793-0869.
||In The News
|Tribal Law and Your Firearms
Dear Oklahoma Members 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 Oklahoma SDA license, 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
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 Oklahoma tribes permit the State of Oklahoma 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.
II. Tribal Jurisdiction.
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
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
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 to state jurisdiction over both civil and criminal matters:
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 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. This is the
case in Oklahoma, where properly licensed tribal law enforcement
officers have the power to enforce state law on tribal trust lands.
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,
Tribes do remain subject to habeas 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
For example, a general search of "weapons" pulls up 465 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 Absentee-Shawnee tribe of Oklahoma actually permits
firearms under a very few, limited circumstances, but 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 Oklahoma SDA license, 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
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
Our recommendation is to take the following steps prior to setting foot
anywhere close to an Indian casino with a concealed or unconcealed
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 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 weapon with you on your trip to the Indian lands
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
handguns into X casino."
4. If you have exhausted your efforts and cannot get a clear answer, we
recommend that you not bring a 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 sign displayed pursuant to 21 O.S.
�1272.1 or �1277), 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 Oklahoma 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 Ruidoso, 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
U.S. Law Shield of Oklahoma, L.L.C.
|U.S. Law Shield
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