“Run to the Res” is one of the codes that people have been known to use to suggest a trip to tribal land to purchase items not available off-reservation. Fireworks are among the booty sought by such day-trippers. But, is it legal for tribes to sell fireworks when it is not legal elsewhere in a state?
The answer depends on the state in which the tribal land is located and the sale is made. Fireworks sales, along with other criminal law issues involving tribes, are governed by laws and decisions that deal with the complex and conflicted relationship between the U.S., its states, and Native American tribes.
This article discusses the legality of fireworks on Native American tribal reservations. For more information about the legality of fireworks in California, see Are Fireworks Legal in California?
State Fireworks Regulation
The regulation of fireworks varies from state to state, although most states have laws restricting the types of fireworks that may be sold, possessed, or discharged; who may sell them, where they may be discharged, and other related issues.
Native American Fireworks Sales
As with other matters of the U.S. or a state government’s authority to legally restrict activities on tribal lands, a state’s ability to restrict the sale of fireworks on reservations depends on two factors: the state in which the tribal lands (and the sale) are located, and the nature and purpose of the laws.
State law applied to Indian lands
Over the course of the sad, duplicitous history of the U.S. government’s dealings with Native American tribes, the government has enacted a number of laws changing the nature of its relationship to the tribes. Tribes are considered (in an oxymoronic sense) to be limited sovereign entities. As a result, state governments do not have an unfettered right to submit tribal lands and actions on them to state laws. But six states have greater authority to extend certain of their laws to activities on tribal lands than the rest of the states.
The legal basis for this exception is Public Law 280, a federal law enacted in 1953 in response to a congressional report about supposed “lawlessness” on reservations and “threats” to non-tribal members in surrounding communities. In Public Law 280, Congress gave six states (Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin) civil and criminal jurisdiction over tribal lands. All of this was done without the consent of the tribes affected.
But Public Law 280 does not give the six states complete jurisdiction over tribal lands, as the Supreme Court has ruled.
Regulatory versus criminal laws
In 1987, the U.S. Supreme Court clarified just how far state governments may go in extending the reach of their laws to tribal lands and members. Not surprisingly, the case involved a tribe’s gambling operation. The Court ruled that a state may prohibit conduct on tribal lands if the prohibition is mainly criminal, rather than regulatory, in nature. (California v. Cbazon Band of Mission Indians, 480 U.S. 202 (1987).)
In general, criminal laws are enacted to protect public safety and similar interests, while regulatory laws serve other interests and often result in revenues to the state. At the time of the case, California allowed gambling in certain places (such as race tracks and card rooms), which it regulated and from which it received revenues. But, when California sought to regulate gambling on tribal lands, the Supreme Court rejected its attempt to extend its regulatory jurisdiction over the Cabazon tribe’s casino.
However, if a state’s fireworks laws are primarily criminal in nature (rather than regulatory), the laws would be enforceable on tribal lands in the six states identified by Public Law 280.
State Law Applies in Public Law 280 States (Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin)
In California and the other five Public Law 280 states, criminal laws restricting fireworks are in force on tribal lands and any fireworks prohibited for sale or discharge off reservation would also be prohibited on reservation lands. The Quechan Indian Tribe challenged the application of California’s laws restricting the sale of fireworks on tribal land but lost its challenge because the court found that the law was was enacted to protect public safety, and thus was criminal in nature and not regulatory. (Quechen Indian Tribe v. McMullen, 984 F.2d 204 (9th Cir. 1993).)
Fireworks Laws in States Not Covered by Public Law 280
In those states not covered by Public Law 280, the sale and discharge of fireworks on tribal lands is not governed by the state law. But, if the fireworks purchased on the reservation are prohibited by state law, they may not be possessed or discharged off of tribal lands. So, for example, in Washington State, tribal reservation stores may legally sell fireworks that are prohibited by state law, but the moment a purchaser takes the fireworks off the tribal lands, he is violating state law and may be cited.
Laws Vary From State to State and May Be Inconsistent
Even a simple pleasure like setting off a few roman candles on the Fourth may implicate state, federal, and tribal laws! If you are not sure what the laws governing fireworks are and/or whether those laws apply on tribal lands, see a lawyer experienced in criminal or tribal law in your state.