Ask a Lawyer: Tribal Lands and Guns

Cheaper Than Dirt! recently sat down with Kirk Evans, president of Texas Law Shield, LLP (TLS), a 90,000-member licensed legal-services company based in Houston. TLS provides a firearms legal-defense program for legal gun owners. TLS program attorneys have extensive civil and criminal trial experience in representing thousands of legal gun owners including civilian, law enforcement, and military personnel.

Kirk Evans is a graduate with honors from Texas A&M University and attended law school at the University of Houston, where he graduated as editor of the Law Review. He was admitted to the Texas Bar in 1993.

Evans has extensive trial experience in courtrooms all over Texas including Houston, Dallas, San Antonio, Austin, Midland, and communities in between. Prior to joining Texas Law Shield, Evans concentrated most of his work on litigation, including constitutional issues and complex civil litigation. He is an ardent supporter of the right to keep and bear arms and is a proud gun owner. Evans is a frequent speaker on civil liability associated with gun ownership. Evans has also authored a number of firearms legal publications on topics such as Tribal Law and Your Firearms.

We caught up with Evans and asked him some specialized questions about gun laws and enforcement on tribal lands.

CTD: First, what is Texas Law Shield?

Evans: We are a Texas-licensed legal-services company dedicated to preserving all of our 2nd Amendment Rights. We provide legal defense to members who lawfully own and possess firearms.

CTD: Do I have to shoot someone to be covered?

Evans: No. Our program covers you if you “use” your firearm as a weapon. Our members are covered under the Texas Law Shield Firearms Program any time our member displays a firearm for the purpose of using the firearm as a weapon to stop a threat, whether the member or has to pull the trigger and discharge the firearm or not. If you take a gun into a prohibited place—airport secured area, sporting event, bar—this act is not a use of a firearm and is not covered under the program. Also, our programs are designed to protect you in “use of force” scenarios. An accidental discharge is not a “use” and is not covered under the program—that is, if you’re cleaning your gun and it discharges, or you have a hunting accident, to name two examples.

CTD: Are your services available only in Texas?

Evans: No, we have similar programs in Colorado, Florida, Georgia, Oklahoma and Pennsylvania. For our members who travel outside of Texas with a firearm, we offer a multi-state option in which members receive the same legal benefits under the program as those they enjoy in Texas. This includes criminal as well as civil legal defense. The covered states under the multi-state option are Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Louisiana, Michigan, Mississippi, Missouri, New Mexico, Oklahoma, Pennsylvania, Tennessee, Utah and Virginia.

CTD: You’ve written extensively about tribal law and firearms. Some CTD customers have hunted, fished, or camped on tribal lands, or they might partake in gambling at a tribal resort. Is there really something to worry about here?

Evans: We have received a significant number of inquiries from our members about how their Second Amendment rights are affected when they travel through or visit Indian lands. The answer is “Yes,” firearms owners need to be keenly aware of the laws on this subject.

CTD: What are the concerns?

Evans: The questions we receive largely revolve around three general issues: If I hold a valid CHL, do I need to do anything special when traveling across an Indian reservation? Can I lawfully carry my firearm if I stop briefly on a reservation, for example, for gas, lunch or groceries? And what about Indian casinos?

CTD: And the rule of thumb is…?

Evans: As much as we would like to say it, a direct answer is not possible. The laws vary from tribe to tribe and from state to state on this subject. I will attempt to give you the general framework of the law and provide some helpful tips for carrying—or not carrying, as the law may be—your firearms on Indian lands. Also, I should say at the outset that we recognize that many folks prefer the term Native American. Our use of the term “Indian” follows the same terminology as most of the federal statutes, such as the Indian Restoration Act, Indian Civil Rights Act, Bureau of Indian Affairs, and so on. It’s not intended to be offensive to those who prefer otherwise.

CTD: So there’s no general rule?

Evans: Well, 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 its 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. Your best hope is to locate the laws of a particular tribe on the Internet or actually contact tribal law enforcement and obtain an answer, hopefully in writing.

CTD: So, when I enter tribal lands, am I under tribal jurisdiction or authority?

Evans: 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.

The federal courts have made it 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 three days during this process. The court ultimately ruled that this was too long, but this would obviously be of almost no consolation after spending three nights in custody.

CTD: We get that tribal police can stop and detain us. We even understand they can eject us. But can they keep our guns and ammunition if we’re stopped?

That’s a more complicated issue. 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. And 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 that the state has both civil and criminal jurisdiction within the reservation.

CTD: So, as far as getting our guns back when the state has jurisdiction…?

Evans: 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.

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 from tribe to tribe and state to state, so please do your research before attempting to carry your gun on Indian lands.

CTD: Can gun owners sue a tribe to get property returned, or for other matters?

Evans: You cannot sue the police or the tribe, other than for your release, because they have sovereign immunity.

One 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 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.

CTD: Are there ways to prevent problems?

Evans: 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.

CTD: Where can we find out tribal policies?

Evans: Outside direct information from the tribe itself, the best source of information we have found is the Native American Rights Fund website. 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 versus 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.

CTD: If I hold a valid CHL, do I need to do anything special when traveling across an Indian reservation?

Evans: 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, including 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.

CTD: Okay, what about a more specific situation: If I hold a valid CHL, do I need to do anything special when traveling across an Indian reservation?

Evans: We recommend three practical solutions. First, research the tribe at issue on their website. 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.

CTD: Can I lawfully carry my firearm if I stop briefly on a reservation, for example, for gas, lunch or groceries?

Evans: 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 its website and 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.

CTD: What about casinos?

Evans: 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:

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.

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.

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.”

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.

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 notice, 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.

CTD: This seems like a big hassle.

Evans: It’s easy to be frustrated with the uncertainty of the law on this subject.

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 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 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.

Texas Law Shield and U.S. Law Shield will be contributing to the Cheaper Than Dirt! Shooter’s Log on a periodic basis. To ask specific questions about gun laws, click the “Ask the Lawyers” Forum page. Commenting requires setting up a Texas & U.S. Law Shield Forum account, which is free, or simply ask your question in the comment section.