A new ruling published in Thursday will allow Indian reservations who retain their own governmental process to use the National Instant Criminal Background Check System to screen firearms permit applicants.
The new rule, published in the Federal Register, and reported by The Hill amends the regulations for use of the Federal Bureau of Investigation’s NICS system to grant tribal governments access to the index..
“Tribal governments are responsible for law enforcement and the maintenance of good order within their Indian country,” reads the rule, which takes effect in 60 days. “Some tribes have for years issued firearm permits authorizing persons in their territories to possess and to carry concealed firearms. If a tribe chooses to access NICS pursuant to this rule, it will improve that tribe’s ability to prevent and reduce illegal gun possession in its jurisdiction.”
NICS, established in 1994 following the Brady Act mandate, is used whenever a modern gun is transferred through a federal firearms license holder. In the past 16 years, the program has initiated 198,423,441 background checks with a record 21 million performed in 2013 alone.
Gun use and laws on the nation’s more than 800 federally recognized tribal jurisdictions is sometimes a touchy subject. In many instances, tribal councils have very strict firearms policies and their law preempts that of the state in which their land is located. For instance in New Mexico, state law clearly explains that, “A concealed handgun license shall not be valid on tribal land, unless authorized by the governing body of an Indian nation, tribe, or pueblo.”
Some tribes have rigorous requirements for permits to carry on native lands while others accept state-issued permits as a matter of course. However on those reservations that do not accept outside permits, obtaining one from the tribe may be easier said than done.
The Confederated Tribes of the Umatilla Indian Reservation in Oregon stipulate that an applicant for a permit has to show, “compelling business interest or other legitimate need,” as well as be fingerprinted, show applicable training completion, and be photographed. If approved, the applicant would pay a $25 fee for a four-year permit valid only on the reservation.
“This shows that the Obama administration was serious when it promised to do everything it could to reduce gun violence through executive action,” Second Amendment scholar Adam Winkler from the UCLA School of Law told Guns.com Thursday. “Yet it also shows how little the administration can do. The FBI is allowing, but can’t require, tribal governments to use the federal background database.”
The FBI addressed complaints registered during a comment period that allowing tribes to use NICS for background checks would undermine tribal sovereignty.
“This rule does not, in any way, preempt tribal law,” stated the FBI in their reply. “Rather, it extends to federally recognized tribes authorization to access the NICS Index and provides a tool to help tribes exercise their law enforcement responsibilities, including the regulation of firearms, within the territories they oversee. NICS access is wholly discretionary on the part of the tribes. This rule does not in any way mandate tribal government action.”