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Hunting, "right" or "privlege?"

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Palmer:
IMO hunting and fishing is very much a part of American tradition and culture enjoyed by many and should be protected.  It worries me when I hear of thousands of our fellow citizens are trying to outlaw hunting.  I'm sure that if they ever succeeded, fishing would be next.  I hope this day never comes.

It would be interesting to hear an attorney's input on "right" and "privilege."  I'll call Prepaid Legal and see what they say. I'll ask them to send me an email.

popeshawnpaul:
Ok, I guess I'll chime in as an attorney.  Palmer was on the right track.  When you deal with the difference between a right and a privilege, you look to see where the right or privilege comes from.  As a general rule, if it comes from the Constitution it is a right...bear arms, freedom, etc.  Hunting is no doubt a privilege.  In fact, the state owns the wildlife that walks on your property.  Hunting is a privilege just like driving a car and the state may regulate it as it sees fit.  I know many of you believe so strongly in hunting and it is engrained in your family to where you believe it is your right to hunt.  If I believed in driving so much and it was engrained in my family so much that it was important to me it would not make it a right.  Our forefathers decided long ago what was a right and a privilege.  I don't think it would make much difference in the grand scheme of things.  If you get a felony the state takes your right to bear arms and vote.  In essence, everything is regulated one way or another. 

A quick look through case law on hunting rights showed a pattern.  Here is an exerpt I find compelling from a case decided by the U.S. Supreme Court:  "There is simply no nexus between the right to hunt for sport and the right to speak, the right to vote, the right to travel, the right to pursue a calling." 417 F. Supp., at 1009

Not to go down this road too far...but under a treaty with the U.S. a member of an indian tribe has a right to hunt.  Current WA case law refuses to distinguish between the right and privilege to hunt for an indian...  However, the right/privilege can be regulated by the tribe.  In Washington v. Miller, the court stated:  "Whatever the legal distinction between "right" and
"privilege" might be in some contexts, there is no persuasive authority to distinguish between these terms when interpreting treaties between Indians and the federal government. In fact, the Byrd court's implication that a treaty "privilege" somehow reserves less to the Indians than a treaty "right" is in direct conflict with the canons of construction applicable to Indian treaties."

ICEMAN:
Man, you really know how to bum me out. Thanks.  :( 

In your opinion, the only way to remove these indian "rights, would be to break the treaties? Also... their "rights" were originally intended to include fishing and hunting on reservation land. Surely the framers of the treaties never intended for indian "rights" to extend across the state, to encompass all other lands, for profit.

popeshawnpaul:
To answer the question is to look at the language of the court.  I found this was common throughout the cases involving indians and the right to fish and privilege to hunt.  Even though the treaty worded it at they have a right to fish and privilege to hunt, they determined that they are one in the same with respect to the treaty and the U.S.  To answer the question Sisu we look at the treaty landguage and they are allowed to hunt in their "usual and accustomed grounds"  So now the questions is...is the Oak Creek Wildlife area their usual and accustomed grounds for hunting elk...  And, if you want to now take the hunting/fishing rights, you have to break the treaty.  Have you ever signed a contract you then regret later because you end up paying in ways you didn't expect?  Read this exerpt from State v. Miller:

Article 4 of the Point No Point Treaty of 1855 provides:

    The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians, in common with all citizens of the United States; and of erecting temporary houses for the purpose of curing; Page 681 together with the privilege of hunting and gathering roots and berries on open and unclaimed lands.

....

In order to determine whether the regulations in this case are valid as applied to petitioners, we must first determine whether the same standards for determining the validity of regulations limiting treaty Indians' "right" to fish applies to their "privilege" to hunt. This question was first raised in Washington courts in State v. Byrd, supra. There the court stated, in
dicta, that

  the treaty by its own terms reserves in the Skokomish
  Indians less than an absolute right to hunt. While
  the treaty provides that the Indians have the right
  to fish at their usual and accustomed grounds, it
  provides that they have only the privilege to hunt
  on open and unclaimed lands. This difference in
  language has been recognized as more than a semantic
  distinction. See United States v. Washington,
  384 F. Supp. 312, 336 (W.D. Wash. 1974),

Palmer:
I've talked with many Coastal Indians and Indians from Colville and Yakama on such issues.  Here are a couple of examples that I remember illustrating their situation.

Example #1:  The land along I-5 entering into Canada and containing the park with the peace arch is owned by a Lummi Indian and charges a lease for the use of the land.  This land is obviously outside the reservation but many lands were not given up when they were forced onto the reservations.  I was told that the coastal Indians North of the Snohomish were told to stay on the reservation until all the American settlers were removed and then the Indians would have all lands North of the Snohomish and west of the Cascades.

Example #2  In Colville I was told that their reservation was 5x larger and then reduced to the current southern border and the east and west border but the Northern border extended to Canada.  When the Northern border was moved South to its current location, they retained their hunting rights to the Canadian border.

Example #3  Most tribal members I've talked to tell me they have hunting right boundaries so its not state wide.

Example #4  If they aren't responsable with their resources they'll lose them.  I've heard of Indians getting busted because they didn't have tribal affiliation with the tribal lands they were hunting or fishing on.

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