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AUGUST 16, 2021

In May, the ATF released a fresh round of rulemaking (see document here) aimed at the entire firearms industry and targeting a plethora of matters, from the firearms classification determination process to the reclassification of common and popular unfinished firearm receivers as regulated firearms themselves. Almost exactly a month thereafter, the ATF further announced yet another round of rulemaking (see document here) targeting millions of law-abiding owners of large-frame handguns equipped with stabilizing braces as well as the wide swath of industry that covers that market space.

Tribal governments have faced flagrant regulatory discrimination since the inception of gun control in the United States. The National Firearms Act ominously excludes Tribal governments from the governmental exceptions from taxation and corresponding NFA transfer processes benefits. See 26 U.S.C. § 5853 (exempting “any State, possession of the United States, [and] any political subdivision thereof” from the NFA taxation provisions). The Gun Control Act likewise has a glaring lack of exceptions for tribal governments. See, e.g., 18 U.S.C. § 922(o)(2)(A) (exempting from the federal machinegun ban “the United States [government] or any department or agency thereof or a State, or a department, agency, or political subdivision thereof”). The reality of this discriminatory statutory scheme is not lost on the ATF, which has gone so far as to reinforce this statutory set up through an open policy letter (found here) outlining the limited circumstances (generally requiring cross-deputization of tribal police with federal government in order to qualify) in which tribal police departments can acquire firearms (including both GCA and NFA firearms) under governmental exception.

The net result of this statutory scheme is that tribes are treated like civilians for NFA and GCA purposes, with profound consequences as a result. The acquisition of NFA firearms is exceedingly difficult and time consuming under the civilian process, and on a large scale (e.g. equipping a tribal police department’s SWAT-type team or unit)—overly expensive and unworkable. Likewise, the difficulty in acquiring of basic Title I (GCA only) patrol rifles and handguns is exacerbated by the lack of interstate transfer (i.e. purchase and acquisition) exceptions otherwise provided to state and local law enforcement but not afforded to the Tribes. The net effect of this disparity is that Tribes—often left with no other choice than to play the ‘cross-sworn BIA agent’ game—must stay in the good graces of the federal government, lest they have their NFA weapons confiscated by the federal government or be unable, as a practical matter, to readily equip their police forces with basic duty weapons through direct OEM purchases.

Executive Order 13175 requires, among other things, that federal agencies consult with the Tribes and provide certain economic offsets to the Tribes for:

[R]egulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

65 FR 67249 (November 9, 2000) available here. The government’s commentary accompanying the proposed rule does not reflect that any meaningful consultation was undertaken with the tribal governments in preparing this proposed rule.

For all intents and purposes, the Tribes and their officers are essentially civilians in the eyes of federal gun control framework. Accordingly, by further conflating the letter determination process for matters such as determining when a firearm or accessory is unregulated, covered by the GCA alone, or covered by both the NFA and GCA, tightening down on the ability of Americans to make their own firearms from incomplete kits, and reclassifying common firearms with stabilizing braces as NFA, these rules will make it even harder for Tribes seeking firearms for lawful purposes. This will likely only exacerbate the strained federal-tribal relationship and expound the longstanding scheme of institutionalized regulatory discrimination when it comes to tribal governments’ access to firearms. More directly, this rule will likely have the effect—whether intended or not—of requiring substantial additional compliance oversight and expenses on the part of tribal governments as they continually seek to equip their respective governmental forces (e.g. tribal police departments). These reasons provide more than enough justification for asserting that this rule should be considered covered by Executive Order 13175.

The ATF’s fresh round of unprecedented attacks on the firearms industry and consumer base is not only an affront to the firearms community but also a full-fledged reinforcement of the U.S. Government’s historical practice of discriminatory gun control practices directed at the Native American Tribes. As with the full history of American arms control, these regulations only further serve to marginalize Native Americans and undermine Tribal sovereignty and self-determination by reinforcing the U.S. Government’s longstanding practice of forcing Tribes into a position of dependency in order to access firearms necessary for their legitimate sovereign tribal government functions.

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