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Author Topic: Hunting, "right" or "privlege?"  (Read 13987 times)

Offline Ray

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Re: Hunting, "right" or "privlege?"
« Reply #15 on: November 05, 2007, 10:11:39 PM »
I hear what you are saying Palmer. However we also have the 1st and 2nd amendments being "regulated" all the time.

Offline Palmer

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Re: Hunting, "right" or "privlege?"
« Reply #16 on: November 06, 2007, 05:00:00 AM »
Its my understanding that when the legislature gets involved in regulating a constitutional amendment, state or federal, and if you end up in court, you may end up taking it all the way to the supreme court.  The supreme court would then decide if the regulatory measures over an amendment were unconstitutional.  Hopefully,  we have a make up of good justices who studied and believe in the vision of those who founded our country and wrote the constitution.

For instance, I've heard that some states have outlawed the right to own a gun, but has anyone taken this up in the courts and all the way to the supreme court.  I've heard a commentator talk about this recently.  Evidently a similar issue is making its way to the supreme court.  Does anyone have any info?  Kirby Wilbur was talking about it a couple months ago and I was sort of listening and didn't catch the whole story.

Offline Ray

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Re: Hunting, "right" or "privlege?"
« Reply #17 on: November 06, 2007, 08:12:02 AM »
Legislature does not need to be involved in it if the WDFW has been designated the authority to regulate with regular and real input from the citizens. Of course there will always be a corner case here or there as there is with anything we already have on the books today.


Offline Bofire

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Re: Hunting, "right" or "privlege?"
« Reply #18 on: November 06, 2007, 08:37:13 AM »
 ;) I am not sure, but I think this issue comes up as the animals are property of the state, so they grant us the 'privilige' of hunting them.
Then again, if the Govt. of the state is us, as we are the citizens, then we own the animals...??? also we cant use boat ramps and stuff the game dept. owns without a permit...
this is all to confusing we need a Lawyer thats on our side.
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Offline Ray

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Re: Hunting, "right" or "privlege?"
« Reply #19 on: November 06, 2007, 09:18:47 AM »
I don't believe that it would equate to "a hunting right means hunters own the animals"  or even how they are pursued which is seemingly what you are suggesting. That is more complex than most any consitutional right was ever meant to be and there lies more questions and issues. Mostly I hear questions about "regulation" instead of "right" when people have talked about it here.

To me, the idea is...  hunting would be recognized by authorities, their decision making process and that hunting becomes a protected activity in that regard.

To be honest I don't think it will ever happen but that's how I would view it.
« Last Edit: November 06, 2007, 09:27:22 AM by huntwa »

Offline Palmer

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Re: Hunting, "right" or "privlege?"
« Reply #20 on: November 06, 2007, 03:07:24 PM »
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.

Offline popeshawnpaul

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Re: Hunting, "right" or "privlege?"
« Reply #21 on: November 21, 2007, 08:26:28 PM »
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."

Offline ICEMAN

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Re: Hunting, "right" or "privlege?"
« Reply #22 on: November 21, 2007, 09:18:20 PM »
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.
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Offline popeshawnpaul

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Re: Hunting, "right" or "privlege?"
« Reply #23 on: November 22, 2007, 05:16:33 AM »
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),

Offline Palmer

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Re: Hunting, "right" or "privlege?"
« Reply #24 on: November 22, 2007, 08:58:09 AM »
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.



Offline Bofire

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Re: Hunting, "right" or "privlege?"
« Reply #25 on: November 22, 2007, 09:03:40 AM »
Thanks, Popeshaw, I am understanding more and more.
Carl
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Offline MountianMan

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Re: Hunting, "right" or "privlege?"
« Reply #26 on: December 20, 2007, 08:38:58 AM »
Just for everybodie's info:

State Right to Hunt and Fish Laws and Constitutional Amendments
Alabama
Sportsperson’s Bill of Rights
Bill Number: H 359, 1996, Amendment 597
Status: Passed
In 1996, the voters of Alabama amended that state’s constitution to guarantee a “right to hunt and fish.”
For text of the amendment, see: Alabama Considers Constitutional “Right to Fish”

Arkansas
Constitutional Right to Hunt
Bill Number: SJR 1, 2003
Status: Died
Proposes a constitutional amendment, to be known as the Sportsperson’s Bill of Rights, guaranteeing the right to hunt, fish, and harvest game.

California
“The people shall have the right to fish upon and from the public lands of the
State and in the waters thereof, excepting upon lands set aside for fish hatcheries, and no land owned by the State shall ever be sold or transferred without reserving in the people the absolute right to fish thereupon; and no law shall ever be passed making it a crime for the people to enter upon the public lands within this State for the purpose of fishing in any water containing fish that have been planted therein by the State; provided, that the Legislature may by statute, provide for the season when and the conditions under which the different species of fish may be taken.” (California Constitution, Article 1, Section 25, 1910)

Florida
Hunting, Fishing, & Gaming Rights
Bill Number: HJR 453, 2002
Status: Died in Committee
Constitutional amendment establishing the right of the people of the state to hunt, fish, and harvest game, subject to reasonable regulations and restrictions as prescribed by general law and state constitution. Amends s. 26, Art. I.

Georgia
Right to Hunt and Fish
Bill Number: HB 301, 2001
Status: Passed and signed into law 4/18/2001
This bill amends the Georgia Code to declare that Georgia citizens have the right to take fish and wildlife, subject to the laws and regulations adopted by the board for the public good and welfare. In addition, this bill prohibits local governments from regulating hunting, trapping, or fishing by local ordinance.

Constitutional Right to Hunt
Bill Number: SR 563
Status: Senate Passed/Adopted 1/26/04; House Committee Favorably Reported 2/12/04
Proposes an amendment to the Constitution so as to provide that the people have the right to hunt, fish, and harvest game, subject only to reasonable restrictions as the General Assembly may prescribe by general law.

Indiana
Constitutional Right to Hunt
Bill Number: HJR 2, 2004
Status: Referred to Committee on Rules and Legislative Procedures 1/13/04
Amends the Indiana constitution to provide that the people have the right to hunt, fish, and harvest game.

Louisiana
Constitutional Right to Hunt and Trap
Bill Number: SB 47, 2003
Status: In Committee, session ended (no carryover)
Amends the constitution to preserve the right to hunt, fish, and trap.

Michigan
Hunting Rights
Bill Number: HJR L, 2003
Status: In Committee
Establishes hunting, fishing, camping, or taking game as a Constitutional right.

Minnesota
The Hunting and Fishing Amendment
Bill Number: SF 41, 1997-1998
Status: Amendment Passed
A bill for an act proposing an amendment to the Minnesota Constitution, article XIII, by adding a section affirming that hunting and fishing and the taking of game and fish are a valued part of our heritage.

Mississippi
In 1997, the Mississippi legislature considered putting a similar state constitutional amendment before the voters, but the measure did not pass.

Missouri
Constitutional Right to Hunt
Bill Number: SJR 24, 2004
Status
Amends the state constitution to provide for a constitutional right to hunt, fish, and harvest game.

Montana
Constitutional Right to Hunt
Bill Number: HB 306, 2003
Status: Chaptered 4/3/2003
Amends the state constitution forever preserving the right to hunt.

Nebraska
Preserve Hunting Rights
Bill number: LR 4CA, 2003
Status: Carried over to Second Regular Session
Constitutional amendment to preserve the right to fish, trap, and hunt
Attorney General’s Opinion #04003: Whether LR4CA, a proposed amendment to the Nebraska Constitution regarding hunting, fishing, and trapping, will have an affect on the Nebraska Constitution and various existing statutes.

New Hampshire
Codifies the Right to Hunt, Trap, and Fish
Bill Number: HB 273, 2001
Status: Passed
This bill amends the New Hampshire Code by stating that the fish and game department will recognize, preserve, and promote hunting, fishing, and trapping and will provide opportunities to carry out such activities in accordance with title XVIII.

New Mexico
Right to Hunt
Bill Number: SJR 1, 1999
Status: Died
The “right to hunt” resolution would have made it a constitutional right to hunt and fish, placing that use above and beyond all other non-consumptive wildlife uses.

North Dakota
Hunting, Fishing, Trapping for the Public Good/State Heritage
Bill Number: Constitutional Measure 1, 2000
Status: Passed
This constitutional amendment, passed in 2000, provides that hunting, trapping, and fishing are a valued part of residents’ heritage and will be preserved for the people and managed by law and regulation for the public good.

Pennsylvania
Right to Hunt
Bill Number: HB 1512, 2003
Status: Passed House 2/9/04; In Senate Committee
Proposes an amendment to the constitution guaranteeing the right to hunt and fish. Hunting and fishing are already legal in the state.

Rhode Island
“The people shall continue to enjoy and freely exercise all the rights of fishery, and the privileges of the shore, to which they have been heretofore entitled under the charter and usages of this state. But no new right is intended to be granted, nor any existing right impaired, by this declaration.” (Rhode Island Constitution, Article 1, Section 17, 1844)

South Carolina
Declaration of Rights
Bill Number: H 3702, 2003
Status: In Committee, session ended (03-04 carryover)
Proposes an amendment to the State Constitution; relates to the declaration of rights; provides for the right of the people to hunt, fish, and take game.

South Dakota
Bill Number: HJR 1004, 2003
Status: Introduced, session ended (no carryover)
A joint resolution, proposing and submitting to the voters at the next general election an amendment to Article XXI of the Constitution of the State of South Dakota, relating to hunting, fishing, and trapping.

Texas
Right to hunt
Bill Number: HJR 14, 2001
Proposing a constitutional amendment relating to the right to hunt and fish.
Status: Died

Vermont
“The inhabitants of this State shall have the liberty in seasonable times, to hunt and fowl on the lands they hold, and on other lands not inclosed, and in like manner to fish in all boatable and other waters (not private property) under proper regulations, to be made and provided by the General Assembly.” (Vermont Constitution, Chapter 2, part 67, 1777)

Virginia
Right to hunt
Ballot Measure 2, 2000
Status: Passed
This Virginia ballot measure, passed in 2000, provides by constitutional amendment that “the people have a right to hunt, fish, and harvest game, subject to such regulations and restrictions as the General Assembly may prescribe by general law.”

Washington
Right to hunt and fish
Bill Number: HJR 4204, 2001
Status: Died in Committee
Adds the right to hunt and fish to the Constitution of the state of Washington.

Wisconsin
“Right to Hunt”
Bill Number: AJR 1, 2003
Status: Amendment Passed
Calls for a constitutional amendment guaranteeing the right to hunt, fish, and trap.


Offline Dman

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Re: Hunting, "right" or "privlege?"
« Reply #27 on: December 20, 2007, 11:53:54 AM »
 A whole lot of quality info given. It is good to see that many states have passed, or are actively seeking to pass this type of legislation.

Offline Bofire

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Re: Hunting, "right" or "privlege?"
« Reply #28 on: December 20, 2007, 12:32:13 PM »
I agree that is a lot of information. Encouraging!!
Now what other board do you go to that you get a ton of good information and Legal opinion!
Carl
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I do not shop at Amazon

Offline Palmer

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Re: Hunting, "right" or "privlege?"
« Reply #29 on: December 23, 2007, 06:17:55 PM »
Sounds to me like some states have a NOMINAL RIGHT which is no better than what we have in our state.  Perhaps I'm missing something but what is the point of making hunting and fishing a right if the state legislature can still regulate your rights.  That's no right at all.

 


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