Concealed carry on indian reservation

[rampantandroid]

Hi all,

I'm going to be visiting the Oylmpic peninsula in WA, and wanted to carry a gun with me; I've got a CPL for WA state. Am I legally allowed to carry/leave my gun in the car at Cape Flattery, on the Makah reservation?

Their regulations are here:
http://www.narf.org/nill/Codes/makahcode/makahlawt10.htm

Any person who, without lawful authority to do so, carried loaded weapon in a vehicle on a public road, has on his person a weapon with intent unlawfully to assault another, discharges any kind of weapon from, upon or across any public highway, carries a weapon concealed upon his person, threatens to use or exhibits a weapon in a dangerous and threatening manner, or uses a weapon in a fight or quarrel, shall be deemed guilty of a Class B offense.

As I have a CPL, do I have lawful authority?

Thanks!

 

[hermannr]

there is a site with all the reservation laws, and which ones have something about firearms. I see you found that...

Easy way to treat reservation land...treat it as private propery...their's...Indian reservation law only effects those with treaty rights, however, as I said, the proper way to treat a reservation is as if it were private property, so, the best thing to do is look up the law of the reservation you are going to be on (SOME) will recognize your CPL as long as you are on the highway, some will recognize your CPL when you are on the reseration proper, but not in buildings, and some say nothing about non-treaty individuals and firearms.

My suggestion is: pose the question to the local reservation council, or CoP. State: who you are, why you will be on the reservation, when you will be there, that you have a CPL, and would like to request permission to carry on THIER property. There will be something in their law that says who can authorize your carry.

 

[brboyer]

Tribal law only applies to Indians.

In 1978 Oliphant v. Suquamish Indian Tribe, and subsequently, the United States Supreme Court has ruled:

Indians do not have criminal jurisdiction over non-Indians absent affirmative delegation of such power by Congress.... Indian tribes are prohibited from exercising both those powers of autonomous states that are expressly terminated by Congress

Indian tribes do not have inherent jurisdiction to try and punish non-Indians for criminal offenses.

By submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress.

The Court concluded that tribal criminal jurisdiction over non-Indians was never included in the concept of inherent tribal sovereignty, and that even if Congress did not intend to take criminal jurisdiction away from Indian tribes, the exercise of that jurisdiction over non-Indians is incompatible and, thus, secondary to the sovereignty of the federal government in ensuring

 

[NavyLCDR]

Tribal law only applies to Indians.

HOWEVER, the reservation does belong to the Indians....if a non-Indian chooses to not obey their tribal law, the Indians can ask you to leave the reservation, and if you do not, you will be guilty of trespassing.

 

[bikemutt]

I have always open carried a handgun on Colville land and never had so much as a glance from tribal members, including those with official capacity. Never have run into tribal LE. From what I can tell, they seem more concerned about hunters, I would not carry a shotgun or rifle there unless I had a permit to hunt on their land. YMMV.

 

[danez71]

Well this say you need permission......

Page 4

http://www.handgunlaw.us/states/washington.pdf

 

[RetiredUSNChief]

My answer is a combination of "I don't know" and "It depends".

First of all, the intersection between Native American nations and the United States is a twisted, convoluted thing that even experts spend entire lifetimes on, and they will tell you that many things are unclear, undefined, or unknown. Complicated doesn't even begin to describe it.

Having said that, let's get it clear that I'm NOT a legal expert on such matters, much less an attorney. However, I have the entire internet at my fingertips, with some other online discussions I've participated in which sparked my interest at the time. So take what I say with a hunka rock salt.

A Native American nation is just that...a nation. They are recognized as such by United States Law and treaties. Which means they are sovereign...to an extent. (Remember I said things are complicated?) This means their laws, whatever they may be, must be followed while you are on their territory, just as if you were to visit any other nation.

The problem here, however, is that many reservations do not have their Tribal Laws codified and accessable as much as you and I might expect them to be. And, not being nearly so comprehensive, complex, and convoluted, some legal aspects you and I are used to simply may not exist under a given reservation's Tribal Laws.

However, the Makah Tribe seems to have fairly clearly codified their laws for weapons with respect to this. And, as a visitor to their nation, you are obligated to follow their laws.

Concealed carry permits issued by any state in the Union are not valid in their nation.

Take a close look at §10.6.03 Civil Exclusion:

Any person who is not subject to the criminal or juvenile jurisdiction of the Makah Tribal Court who shall violate any of the provisions of this Title shall be subject to exclusion from the Makah Reservation pursuant to Title 9 of the Law and Order Code.

Seems to me that if you violate their laws, they have every legal right to kick you off their reservation. And, since they may confiscate your weapon in the process, it is somewhat questionable as to whether or not you would get it back.

BOTTOM LINE:

Treat a visit to ANY Native American reservation as a visit to a foreign country. Don't carry your weapons on the reservation without getting positive verification from reservation officials on if/how you may do so.


Here's another link to read through:

http://www.handgunlaw.us/documents/tribal_law_ccw.pdf

 

[bikemutt]

If I read it right the opinion that permission is needed from a tribal judge comes from the Douglas County Sheriff? Seems an odd source.

 

[NavyLCDR]

Respectfully, Chief, you are mistaken on a couple of point.

This means their laws, whatever they may be, must be followed while you are on their territory, just as if you were to visit any other nation.

Tribal law do not apply to non-Indians. I would direct your attention to page 14-5 of this document:
http://www.courts.wa.gov/content/manuals/domViol/chapter14.pdf

"Tribal courts do not have criminal jurisdiction over non-Indians. Therefore, non-Indians may not be prosecuted and jailed by tribal authorities."

I would also direct you to the footnote reference for this statement:
"Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978)."

While it is certainly a good idea to obey tribal laws while on the reservation, it is NOT a criminal act for a non-Indian to violate a tribal law on the reservation, unless the action ALSO violates Washington State law. In Washington State most tribal police officers are also sworn as Washington State peace officers and, as such, may enforce Washington State law upon non-Indians - both on and off the reservation. They forward citations to the regular Washington State court system.

However, the Makah Tribe seems to have fairly clearly codified their laws for weapons with respect to this. And, as a visitor to their nation, you are obligated to follow their laws.

While a non-Indian may certainly have an obligation to follow tribal laws as a matter of courtesy and respect, there is no LEGAL obligation for a non-Indian to follow tribal laws.

Take a close look at §10.6.03 Civil Exclusion:

Any person who is not subject to the criminal or juvenile jurisdiction of the Makah Tribal Court who shall violate any of the provisions of this Title shall be subject to exclusion from the Makah Reservation pursuant to Title 9 of the Law and Order Code.

Seems to me that if you violate their laws, they have every legal right to kick you off their reservation.

This falls under Washington State trespassing laws. The Indians may remove you from the reservation because they don't like the color of your shirt. And if you refuse to leave, you can be cited for trespassing under Washington State law.

And, since they may confiscate your weapon in the process, it is somewhat questionable as to whether or not you would get it back.

No, they can't UNLESS the weapon is being carried in violation of Washington State law. Let's say that I carry my gun into a store that is posted with a no guns sign. Does the store owner have any legal authority to confiscate my firearm? NO. He has every right to ask me to leave the store. It is EXACTLY the same case with the Indian reservation.

BOTTOM LINE:

Treat a visit to ANY Native American reservation as a visit to a foreign country. Don't carry your weapons on the reservation without getting positive verification from reservation officials on if/how you may do so.

This is certainly sound advice and good practice. However, in Washington State the only LEGAL requirement incumbent upon a non-Indian on an Indian reservation is to carry their firearm in accordance with Washington State law.

 

[RetiredUSNChief]

Respectfully, Chief, you are mistaken on a couple of point.



Tribal law do not apply to non-Indians. I would direct your attention to page 14-5 of this document:
http://www.courts.wa.gov/content/manuals/domViol/chapter14.pdf

"Tribal courts do not have criminal jurisdiction over non-Indians. Therefore, non-Indians may not be prosecuted and jailed by tribal authorities."

I would also direct you to the footnote reference for this statement:
"Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978)."

While it is certainly a good idea to obey tribal laws while on the reservation, it is NOT a criminal act for a non-Indian to violate a tribal law on the reservation, unless the action ALSO violates Washington State law. In Washington State most tribal police officers are also sworn as Washington State peace officers and, as such, may enforce Washington State law upon non-Indians - both on and off the reservation. They forward citations to the regular Washington State court system.




While a non-Indian may certainly have an obligation to follow tribal laws as a matter of courtesy and respect, there is no LEGAL obligation for a non-Indian to follow tribal laws.




This falls under Washington State trespassing laws. The Indians may remove you from the reservation because they don't like the color of your shirt. And if you refuse to leave, you can be cited for trespassing under Washington State law.



No, they can't UNLESS the weapon is being carried in violation of Washington State law. Let's say that I carry my gun into a store that is posted with a no guns sign. Does the store owner have any legal authority to confiscate my firearm? NO. He has every right to ask me to leave the store. It is EXACTLY the same case with the Indian reservation.



This is certainly sound advice and good practice. However, in Washington State the only LEGAL requirement incumbent upon a non-Indian on an Indian reservation is to carry their firearm in accordance with Washington State law.

It would seem that we're going to be somewhat at odds on this matter, then, NavyLCDR.

*sips coffee*

I agree with certain aspects of your comments. However, some of them seem off kilter.

Tribal Law indeed does not apply to non-tribal people. However, this does not mean that such people are free to violate Tribal Laws at will, or simply not follow Tribal Laws at all. If it did, then the tribe would have no authority to do ANYTHING at all with such people.

The fact that they CAN legally evict any person for any reason means they have the defacto power and authority to do so for violations of their Tribal Laws as well.

brboyer cited some important Supreme Court decisions in the 1978 Oliphant v. Suquamish Indian Tribe trial. Note that these decisions have to do with the legality of the indian tribe to try a non-tribe person for criminal offenses in their courts. Not the legality of the indian tribe to confiscate property or evict a person from their territory for violations. Or, perhaps, confine a criminal person for turnover to state or federal authorities.

My answer, just above the "BOTTOM LINE", is entirely correct in that light. "Seems to me that if you violate their laws, they have every legal right to kick you off their reservation. And, since they may confiscate your weapon in the process, it is somewhat questionable as to whether or not you would get it back."

I never said that the tribe could detain and try a person for violations of Tribal Law.

And yes, they CAN confiscate a firearm if they determine that, for whatever reason, it's involved or carried in violation of Chapter 5 Prohibited Acts. As with any law enforcement personnel anywhere else in the United States, they may be wrong or mistaken about their reasoning for it, they may be maliscious about their intent, or they may simply be looking for a reason to give someone the boot off their reservation. But they CAN do it.

If they are wrong about it, for whatever reason, then redress can be attempted through whatever legal means is available for that.


We both are in agreement with the "sound advice and good practice" aspect, however, so I think we're both really squared away on the "common sense" aspect...which is to say that just because you may, in fact, have a legal right to carry concealed on the reservation, this doesn't mean it may be smart to do so under some circumstances.

Since Tribal Laws are, as I've noted before, sometimes pretty complicated, then doing a little research with the appropriate authorities on that specific subject ahead of time is a good idea. Similar to, say, driving from state to state, where it's a good idea to know what laws you need to follow to be in compliance with how you carry your firearms and ammunition in your vehicle and on your person.

 

[brboyer]

As both Navy and I have pointed out. Tribal law is not applicable to non-Indians, period. As it is private property, they have the same rights as any other private property owner does, period.

As for your statement that they 'could' do something, well that is true anywhere. LEO anywhere could arrest your for whatever they want, regardless if they have legal authority to do so. That does not change the fact that it is unlawful.

Your statements about tribal law being complicated, is irrelevant to non-Indians, as they do not apply. It's simple, stay within the confines of state law and treat the reservation as you would any other private property.

 

[Krogen]

Good information guys. Thanks. I've wondered about this because Cabela's just opened a new store >on< the Tulalip reservation in Washington. Surely, they would have researched this ahead of time. Can you imagine the furor should tribal cops start arresting CCW'ers?

Now for the pointed question. Are any of you offering advice attorneys?

 

[NavyLCDR]

Not the legality of the indian tribe to confiscate property or evict a person from their territory for violations. Or, perhaps, confine a criminal person for turnover to state or federal authorities.

Indians have no more legal authority to confiscate a non-Indian's personal property than I have legal authority to confiscate your personal property. I don't know where that idea came from, but it certainly is 100% false, unless it is a Tribal police officer acting under their authority as a sworn Washington State police officer enforcing Washington State laws.

Tribal authorities certainly can detain a non-Indian for committing a violation of Washington State law for turnover to state or federal authorities. In fact, every person, Indian or not, has the authority to do so for violations of Washington State law which are committed in their presence.

 

[Texan Scott]

It would seem that we're going to be somewhat at odds on this matter, then, NavyLCDR.

*sips coffee*

LOL, OMG... a SNCO/FGO 'polite conversations' over bad coffee... informative, thought-provoking, and more tension than than one watch deck can stand.

 

[THe Dove]

I don't know where that idea came from, but it certainly is 100% false, unless it is a Tribal police officer acting under their authority as a sworn Washington State police officer enforcing Washington State laws.

I've been waiting for this while following this thread..... Some, not all but some, tribal LEO's, are cross-trained/deputized in both tribal and adjacent state/county jurisdicitons. This allows them to uphold/enforce the laws on tribal land and non-tribal. And please, make no mistake they can detain you on their property, but, a county deputy will come get you and take you off the reservation to a county jail. Then the lawyers and tribal people will determine how and what they want to do.

Now, before everyone jumps on my back let me say that this is the way it worked in Shiprock, NM back in the early 1990's. I can't speak about today in Washington or anywhere else but that's the way I was told it was in Shiprock in the early 90's. I worked with the Navajo PD and jail for 3.5 years and I have nothing but respect for those LEO's. They definately have a tough job and they do it well.

The Dove

 

[brboyer]

I've been waiting for this while following this thread..... Some, not all but some, tribal LEO's, are cross-trained/deputized in both tribal and adjacent state/county jurisdicitons. This allows them to uphold/enforce the laws on tribal land and non-tribal. And please, make no mistake they can detain you on their property, but, a county deputy will come get you and take you off the reservation to a county jail. Then the lawyers and tribal people will determine how and what they want to do.

Now, before everyone jumps on my back let me say that this is the way it worked in Shiprock, NM back in the early 1990's. I can't speak about today in Washington or anywhere else but that's the way I was told it was in Shiprock in the early 90's. I worked with the Navajo PD and jail for 3.5 years and I have nothing but respect for those LEO's. They definately have a tough job and they do it well.

The Dove

Yes that's pretty typical. Here in Florida the Seminole tribe has entered into interlocal agreements with the County which allows them to arrest Indians and non-Indians for violations of State Laws and County Ordinances. They will arrest and transport to the county jail. Of course this also allows the Sheriff's office to make arrests of both Indians & non-Indians for those same violations, and both groups have authority for arrest of Indians for Tribal law violations.

 

[RetiredUSNChief]

@ Krogen: No, as I said before I am not an attorney. Even if I said I was, you’d have to take anything I say with a grain of salt until you can consult with someone whose credentials you can actually verify.


One of the first things we should do here before continuing this discussion is to quit associating Indian reservations with ‘private property’. This is misleading, if not outright erroneous. Indian reservations are part of Indian sovereign territory, governed by treaties with the U.S. government; therefore saying something like “treat the reservation as you would any other private property” is misleading and/or wrong. Indian territory is NOT "private property".

Let’s take a look at the practicality of the situation. There is no U.S. Constitutional 2nd Amendment protection of the right to keep and bear arms with respect to Native American tribes. This means that ANY of the nearly 600 or so federally recognized tribes are free to enact whatever criminal gun control laws for their tribe as they see fit…including an outright criminalization of any gun ownership at all. And yes, I realize this applies ONLY to tribal members.

HOWEVER, given that anybody can be “evicted” from Indian reservations at the sole discretion of the tribe it belongs to, if they say “get off the reservation”, you MUST leave. It doesn’t matter WHAT the reason is…you have to go.

Even if you’re legally carrying a concealed weapon in full accordance with the state laws for which you are in, if you are asked to leave the reservation, YOU MUST LEAVE. Indian officials can look you straight in the face and even TELL you that they don’t want you on their reservation because you have a gun. You must STILL leave. And it’s entirely legal for them to do so.

They may not be able to charge you with a crime or try you for criminal offense under Tribal Law, but they CAN give you the boot with full authority.

But all this bruhaha about "Tribal law is not applicable to non-Indians, period" is centered around criminal law. I agree that you can't be charged and tried for criminal offenses under Tribal Law if you are not a member of the tribe.

But, a tribe may choose to enact a universal civil gun ban within their territory. This would apply to BOTH tribal AND non-tribal people. This removes the question of criminal law by placing the topic at hand in civil courts instead of criminal courts. Which means that non-tribal members CAN end up in tribal civil courts for a violation of civil laws.

And yes, under such universal civil laws, they CAN confiscate your weapon.

Before anybody goes off in the deep end on this and starts up with the rhetoric that "Tribal Law is not applicable to non-tribal members", take a gander through this link to a Georgetown Law Journal article on Indians and Guns:

http://georgetownlawjournal.org/files/2012/06/Riley.pdf

The whole article is worth reading, but the criminal and civil law aspect is covered near the end starting on page 1725.


BACK ON THE TOPIC FOR THE OP:

This question was posted specifically for the Makah Reservation. In the links previously posted, much of this general discussion would appear to be moot because their own Tribal Laws do not appear to have any such civil laws. If you are in full compliance with the Washington state laws for concealed carry, you are most likely not going to have any issues.

But the SMART person (and surely everybody here agrees that people who carry concealed do things the smart way as a matter of normal procedure) will check with competent authority on this specific matter ahead of time. Just because the links so far posted don't mention civil laws doesn't mean that something relevant does not exist.

*sips coffee*

 

[RetiredUSNChief]

LOL, OMG... a SNCO/FGO 'polite conversations' over bad coffee... informative, thought-provoking, and more tension than than one watch deck can stand.

Just because I occasionally drink coffee doesn't mean I drink bad coffee. I just don't drink frou-frou coffee. Gimme some decent black and bitter without all the frilly stuff and I'm fine.

Starbucks and their $5-plus cups of coffee can bugger off, as far as I'm concerned.

 

[NavyLCDR]

But, a tribe may choose to enact a universal civil gun ban within their territory. This would apply to BOTH tribal AND non-tribal people. This removes the question of criminal law by placing the topic at hand in civil courts instead of criminal courts. Which means that non-tribal members CAN end up in tribal civil courts for a violation of civil laws.

And yes, under such universal civil laws, they CAN confiscate your weapon.

Sure. Then, according to your theory, they could also confiscate your vehicle, jewelry, cell phone or any personal belonging that you brought onto the reservation under "universal civil laws", correct?

 

[RetiredUSNChief]

Sure. Then, according to your theory, they could also confiscate your vehicle, jewelry, cell phone or any personal belonging that you brought onto the reservation under "universal civil laws", correct?

Is this the beginning of a strawman argument?



If there is a CIVIL law banning such, then the answer would be "yes". But somehow, I rather suspect that the possibility of civil laws restricting guns on indian reservations are more likely to be at issue than the possibility of, say, civil laws banning Cabbage Patch dolls or bellybutton jewelry.

But who knows? Perhaps there is a tribe out there with civil laws against such? I'll let you do the research and get back to us on that.

 

[hermannr]

For many years I owned property (acreage) next to the Upper Skagit reservation...actually, I owned that land before there was a upper Skagit Res. so we used to joke, we were there before the Indians.

I have many friend that are treaty members and please...Just treat the res as THEIR private property...and you will get along just fine. It is very simple to request permission from the tribal council, or the local Chief of Police. They will say, sure no problem, just stay out of tribal government building...and they will remember you courtesy in asking...it may pay dividends.

If you are a treaty member, their rules apply to you...if you are not, their rules do not apply, WA state law does. I do know that with the Colvilles, as long as you do not enter any of their tribal buildings, they have no problem with your OC, or licensed CC. If you want to do anything unusual, you need permission from the tribal council...it's that simple.

Treat it as private property and you will get along fine.

 

[RetiredUSNChief]

@ hermannr: I concur.

 

[dprice3844444]

try emailing the local sheriff or call

 

[hermannr]

Good information guys. Thanks. I've wondered about this because Cabela's just opened a new store >on< the Tulalip reservation in Washington. Surely, they would have researched this ahead of time. Can you imagine the furor should tribal cops start arresting CCW'ers?

Now for the pointed question. Are any of you offering advice attorneys?

In that big mall on the Tulalip res, the only place they do not want you to carry is the Casino, otherwise, it is up to the lessee.

 

[NavyLCDR]

try emailing the local sheriff or call

And you will only get the person's opinion who answers the phone and be no further ahead of anything than reading people's opinions here. It is never advised to seek legal advice from a law enforcement officer. Any attorney or judge will tell you that.