Other Free Encyclopedias » Law Library - American Law and Legal Information » Free Legal Encyclopedia: National Environmental Policy Act of (1969) to Notice » Native American Rights - Tribal Sovereignty, Treaty Rights, Reserved Rights Doctrine, Federal Power Over Native American Rights, Hunting And Fishing Rights

Native American Rights - Hunting And Fishing Rights

court tribes indian treaties

Hunting and fishing rights are some of the special rights that Native Americans enjoy as a result of the treaties signed between their tribes and the federal government. Historically, hunting and fishing were critically important to Native American tribes. Fish and wildlife were a primary source of food and trade goods, and tribes based their own seasonal movements on fish migrations. In addition, fish and wildlife played a central role in the spiritual and cultural framework of Native American life. As the Court noted, access to fish and wildlife was "not much less necessary to the existence of the Indians than the atmosphere they breathed" (United States v. Winans, 198 U.S. 371, S. Ct. 662, 49 L. Ed. 2d 1089 [1905]).

When Native American tribes signed treaties consenting to give up their lands, the treaties often explicitly guaranteed hunting and fishing rights. When the treaties created reservations, they usually gave tribe members the right to hunt and fish on reservation lands. In many cases, treaties guaranteed Native Americans the continued freedom to hunt and fish in their traditional hunting and fishing locations, even if those areas were outside the reservations. Even when hunting and fishing rights were not specifically mentioned in treaties, the reserved-rights doctrine holds that tribes retain any rights, including the right to hunt and fish, that are not explicitly abrogated by treaty or statute.

Controversy and protest have surrounded Native American hunting and fishing rights, as state governments and non-Indian hunters and fishers have fought to make Native Americans subject to state hunting and fishing regulations. The rights of tribal members to hunt and fish on their own reservations have rarely been questioned, because states generally lack the power to regulate activities on Indian reservations. Tribes themselves have the right to regulate hunting and fishing on their reservations, whether or not they choose to do so. Protests have arisen, however, over the rights of Native Americans to hunt and fish off of their reservations. Such rights can be acquired in one of two ways. In some instances, Congress has reduced the size of a tribe's reservation, or terminated it completely, without removing the tribe's hunting and fishing rights on that land. In other cases, treaties have specifically guaranteed tribes the right to hunt and fish in locations off the reservations. In the Pacific Northwest, for example, treaty provisions commonly guaranteed the right of tribes to fish "at all usual and accustomed grounds and stations," both on and off their reservations. Tribes in the Great Lakes area also reserved their off-reservation fishing rights in the treaties they signed.

These off-reservation rights have led to intense opposition and protests from non-Indian hunters and fishermen and state wildlife agencies. Non-Indian hunters and fishermen resent the fact that Indians are not subject to the same state regulations and limits imposed on them. State agencies have protested the fact that legitimate conservation goals are compromised when Indians can hunt and fish without having to follow state wildlife regulations. The U.S. Supreme Court, however, has consistently upheld the off-reservation hunting and fishing rights of Native Americans. In the 1905 case United States v. Winans, it ruled that treaty language guaranteeing a tribe the right to "tak[e] fish at all usual and accustomed places" indeed guaranteed access to those usual and accustomed places, even if they were on privately owned land.

The most intense opposition to Native American off-reservation hunting and fishing rights has occurred in the Pacific Northwest, where tribal members have fought to defend their right to fish in their traditional locations, unhindered by state regulations. In a series of cases involving the state of Washington and local Native American tribes, the federal courts ruled on aspects of the extent and limits of tribal fishing rights. In a 1942 case, Tulee v. Washington, 315 U.S. 681, 62 S. Ct. 862, 86 L. Ed. 1115, the Court ruled that tribal members could not be forced to purchase fishing licenses because the treaties that their ancestors had signed already reserved the right to fish in the "usual and accustomed places."

That case was followed by a series of cases involving the Puyallup Indian tribe that became known as Puyallup I, Puyallup II, and Puyallup III. In the first of those cases, the Court ruled that the state of Washington has the right, in the interest of conservation, to regulate tribal fishing activities, as long as "the regulation meets appropriate standards and does not discriminate against the Indians" (Puyallup Tribe v. Department of Game, 391 U.S. 392, 88 S. Ct. 1725, 20 L. Ed. 2d 689 [1968]). In the second case, the Court ruled that the state's prohibition on net fishing for steelhead trout was discriminatory because its effect was to reserve the entire harvestable run of steelhead to non-Indian sports fishermen (Department of Game v. Puyallup Tribe, 414 U.S. 44, 94 S. Ct. 330, 38 L. Ed. 2d 254 [1973]). In its ruling, the Court declared that the steelhead "must in some manner be fairly apportioned between Indian net fishing and non-Indian sports fishing." Finally, in Puyallup III, the Court ruled that the fish caught by tribal members on their reservation could be counted against the Indian share of the fish (Puyallup Tribe v. Department of Game, 429 U.S. 976, 97 S. Ct. 483, 50 L. Ed. 2d 583 [1976]).

This notion of a fair APPORTIONMENT of fish was clarified by United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), in which the court determined that treaty language guaranteeing tribes the right to take fish "in common with all citizens of the Territory" guaranteed the Indians not just the right to fish but also the right to a certain percentage of the harvestable run, up to 50 percent. This decision set off a firestorm of controversy throughout the Pacific Northwest. Hundreds of legal disputes erupted over the allocation of individual runs of salmon and steelhead, and state and non-Indian fishing interests attacked the decision. The U.S. Supreme Court ultimately upheld the decision in a collateral case, Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n 443 U.S. 658, 99 S. Ct. 3055, 61 L. Ed. 2d 823 (1979). In that case, the Court upheld the district court's ruling and went on to clarify the details of the way the fish should be apportioned. Writing for the majority, Justice JOHN PAUL STEVENS stated that the treaties guaranteed the tribes "so much as, but no more than, is necessary to provide the Indians with a livelihood—that is to say a moderate living." A "fair apportionment, " he said, would be 50 percent of the fish, emphasizing that 50 percent was the maximum, but not the minimum, amount of fish to which the Indians were entitled.

The Court resolved a decade-old legal dispute in 1999 involving Indian fishing and hunting rights with the decision in Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 119 S. Ct. 1187, 143 L. Ed. 2d 270 (1999). It ruled in favor of the Chippewa Indians' right to fish and hunt in northern Minnesota without state regulation. By a 5-4 vote, the Court upheld an appeals court decision finding that the tribe's rights under an 1837 treaty were still valid. The ruling marked a final victory for the tribe in its long fight to assert its treaty rights and to defend its cultural traditions.

Brought by the tribe in 1990, the lawsuit proved highly controversial in Minnesota, which regarded it as a threat to the $54 million in tourism revenue generated by the Mille Lacs Lake resort industry. But two lower federal courts and the U.S. Supreme Court rejected the state's arguments that the 162-year old treaty had been invalidated by presidential order, later treaties, and even by Minnesota's gaining of statehood. The U.S. Supreme Court's majority opinion, written by Justice SANDRA DAY O'CONNOR, detailed the history of the treaty and subsequent actions that the state, nine counties, and landowners claimed had rendered the treaty invalid. She found nothing in this historical information that had bearing on the continued validity of the treaty.

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about 2 years ago

We are natives. Millions of our ancestors were murdered and there lands just simply taken. It would be only fair that we that have varifiable native blood lines should be able to fish and hunt without paying the ' regulated fees ' - as if our treatment in the past and the intentional genocide commited against our cultures and nations has not paid our way for a simple ' free license ' to hunt and fish - Just the fact that there is opposition to this is Racisim at its core - and should be challenged in the supreme court !! Chief Ef

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almost 3 years ago

If the United States Government will not uphold it's treaties and agreements to it's own people, how can we expect the other world governments to trust our word/agreements/treaties?



A Resident of Poosepatuck, NY

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almost 4 years ago

Hunting and fishing is and has been a way of life for the First Nations of America. The Indians hunt for substance and use all parts of their kill. They were the first to understand the importance of killing for substance and not merely for trophy as is found in our modern society. They deserve these hunting and fishing rights because it makes them who they are as a people, teaching the next generation the respect and more importantly the wisdom of our four fathers. I am not a Native American and even I can see this! The lessons we ignore from our past are to repeat in the future. Failing to recognize the "use only what you need" philosophy of the Indians leads us into the problems of mass species extinction, over consumption and resource depeltion we encounter today. See this is something the Indians already know...what it is to lead a good life. Don't take that from them my friends, remember we have already taken away their history, land, and way of life. The point being that we should finally let them be who they are by allowing them to practice traditions such as hunting and fishing. Which in reality takes nothing from you and me.

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over 2 years ago

To say that we "rightfully give" rights such as fishing rights to Native Americans is to miss the point. Native Americans' rights are their own, and have precedence over the later-established rights of sports-fisherman. These court decisions do not "give" natives rights, nor is their purpose to "say sorry." Rather they serve to keep people from taking rights away from Native Americans that have traditionally been theirs, but which have lately been threatened by our construction of dams. People's perspectives are often skewed because they do not remember that this is only part of a long story which is full of times when U.S. citizens or the government that represents them have taken things from the natives of this land by force. I do not believe the descendants of those people should be blamed for their ancestors' actions, but they must certainly not repeat them. This is why it is important not to violate traditional Native American fishing rights

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almost 3 years ago

If you think the natives only take what they need then your lying to yourself. I've watched rivers over the years that had beautiful salmon and steelhead runs get destroyed. Those rivers have been closed off from fishing to Americans for a long time(they had tons of fish). However natives were still allowed to use gill nets at the mouth of those rivers. Today there are NO fish in those rivers. Its very sad. Natives are destroying our wildlife. There is no excuse.

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over 3 years ago

what happens when we breake the rights to hunting?

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about 2 years ago

Being Native American has NOTHING to do with where you were born. It has everything to do with ancestry and what traditions, beliefs and ways of life have been passed on for generations. Something most here obviously know NOTHING about!!! Free hunting and fishing is the absolute LEAST thing this country can afford to give these people since they were completely overrun, starved, slaughtered and decimated by the diseases of the "Stinky White Man".

So what now? Screw the Natives on yet ANOTHER treaty? Go figure. Nothing has changed in 300 years.

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12 months ago

take away there rights

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over 3 years ago

I watch them butcher salmon every year( more than any family or tribe could possibly ever need). I used to not mind, now I'm at the point where I wish my ancestors had continued killing them instead of signing treaties. Sad part is that I'm not alone. They just closed sections of the Puyallup river mentioned in this article for fights between Americans Citizens and the "special right" Natives. I am seriously considering filming a documentary about how they destroy our Fish and Wildlife. I am fully convinced they do not care if my children or theirs have any fish left to fish for. What a way to treat Mother Earth... like garbage.

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over 1 year ago

if you knew your history you would know that natine americans had fire armes when the treaties were signed so get over yourself. i do beleve that they should not abuse the rights by taking more than enough to feed them self and family.

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over 2 years ago

the us government tells me i cant gill net fish in the gulf to feed my children as my fathers have befor me but alow oil companys to do what ever they want like Bp think im going to name my next net Boat the little big Horn

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almost 3 years ago

The reason the salmon aren't here anymore are not from overfishing. The cause is the way the government made their dams in our waterways. The fish cannot pass through a dam and fish ways are usually not taken into consideration for the fish to return to their natural spawning grounds. Without the fish being able to return causes the fish to die off. Fish return to spawn to lay their eggs and die, which completes the cycle of their life. When the salmon die they leave deposits of nutrients vital to the waterways. These nutrients are carbon, nitrogen, and phosphorous. Have you ever watched the news or documentaries that truck the fish in containers so they can go back to spawn? How unnatural is that? Before playing the blame game, please do your research. I am a Native American and I am struggling to preserve the waterways so when my grandchildren arrive I too may teach them to fish, respect, and preserve the waterways and forests for generations to come. Our earth is not given to us from our forefathers; it is borrowed from our children.

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over 3 years ago

so sad to read about the true americans who's kidding who please save me the BULL we have been ridculled,beaten,murdered,disgraced,robbed,all because we say that we are native,what do you call yourselves my white brothers yes I call you brother because the creator says so,this is all I have left will you not be satisfied until all is gone pray to the creator to help save you before it is too late if not for yourself but for the 7 generations yet to come.

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almost 4 years ago

The Native Americans deserve these rights, although some abuse the privileges given to them by the U.S Government, their original way of life was taken away from them and there is almost no way we could redeem ourselves and give that back to them fully, this is the best option we could choose sadly...

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12 months ago

screw them

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over 1 year ago

I believe that what is being done with the rights of Native Americans are fair. We cannot break treaties that were previously put into place. There is a lot of information out that shows there is no impact on the population of animals because of the the Native Americans. In the end that is what counts. The impact on the enviornment which there is none. Here is a website that has a lot of information if anyone would like to learn more about it.


http://www.michigan.gov/documents/dnr/Proposed_Consent_Decreepages1-50_209964_7.pdf

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about 3 years ago

It really ticks me off when non-tribal people speak about how we need to stop receiving what little rights we have. You act like we totally rape our land.

I fish and crab at the Tulalip Bay and we have to follow regulations as well. Sometimes we have to stop fishing until our fisheries reach their quota or if we are not catching much crab our season is cut short. Plus when tribes reach a certain point we have to stop until state can catch up.

Its our job to ensure that we have plenty of fish. Have any of you anti-tribal visited our fisheries and learn what we do to protect our source of income and our way of life or do you go off by what you read?

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over 3 years ago

we need to get our deer back in to season because it rediculase that we have to wait all 6 months to watch for dear.

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over 3 years ago

kevin your kids won't have any fish to catch because Xwelitem are taking it all and throwing away a good portion that goes bad and doesn't even get a chance to get onto somebodys dinner plate. We only catch what we need and we use every part we dont throw half the fish away. You should really research before you start typing words you don't even understand.

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almost 4 years ago

The US government signed treaties that stated that Native American could retain their hunting and fishing rights in exchange for the cessation of their land. It is not an issue of apologizing, but a treaty that the US Supreme Court deemed binding even today.

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almost 4 years ago

My greatgrandmother was full blooded indian, and I am proud to say this. She gave her rights up as an indian in order to save her life, and I feel this was an injustice to her. Now you want to take away their fishing and hunting rights!!! How much more do they give up to make all you selfish people happy? They only take what they need!! They don't go on glory killings. How many other ethnic groups do you know use all what they kill? Me not many; I cannot think of one right off the top of my head. Why must they fight to keep what little they were given?!?

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about 4 years ago

What happens when Native Americans break these treaties?

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over 2 years ago

My grandfather was pure breed cherroke. Iam part cherrokee as well. how do i get my rights to hunting and fishing rights as well?

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about 2 years ago

I totally agree with all you bitches. We're doing a class project and we need to pretend to be for indian rights. But we're not. What are some ideas you have to help us with this?

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over 2 years ago

This is my JRP topic . Pretty interesting !! NATIVE PRIDE !

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almost 3 years ago

this is what the United States Government is doing to us

Mommy, Mommy, how come Israel has a seat in the UN and the Hopi, Comanche, Apache, Navajo, and all the other Sovereign Nations are not allowed in the United Nations?"
"Oh Billy, Israel is our friend, and we're occupying all the Sovereign Nations Land on this Continent. If we allowed them a voice then we would have to GIVE THEM BACK their LAND and Dignity. Instead we pay them just enough to turn them into alcoholics"

and this is what the white man Government is doing to all of us and you say we take more than we need i can tell you what we need is all your land back that you and your kind took from us and yes im talking to you anonymous

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over 2 years ago

You guys are idiots. I watch them take several ELK a day and have watched them take away decent hunting because they decimate the herds of elk. IF YOU WANT THE SAME RIGHT THAT YOU HAD THEN YOU SHOULD ONLY USE THE SAME TECHNOLOGY YOU HAD. Back then you didnt have guns and cars to drive to your "special" hunting areas. SO WHY SHOULD YOU GET IT NOW?????? If you are going to be apart of America, then you should be living by the same rules we do. Without us you wouldnt have guns and cars so go back to your tee-pees please

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over 2 years ago

I am a high schooler doing a project about Native American rights. I think that the rights that we give the Native American tribes are good. Because it makes the "white people" understand the importence of the Native American life style. What would we be doing right now if the Native American people didn't even help us? Sure we would have kept exploring the area but they all probly would have died. We didn't know this land like they did so yes these rights we give Native Americans are rightfully given and if you can't understand why your judgment is clouded.

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over 3 years ago

for those saying the rights of native americans should be stripped what little they have left is out right bull crap. iam an american myself but think if it wasent for the indians you and i might not be living in this country they fed our starving ancestors when this land was first discovered. not to mention the many massacers impossed on them from the us government. these people have gone through hell and back. they deserve so much more! every other race has gained something in america but not the native americans. you all should be ashamed! for crying out loud we stole land from them and you all are cursing over fish and deer. its been 100s of years and i swear you all still give natives a hard time..

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over 3 years ago

Very well done! I have been looking into NA hunting rights and this has been the most comprehensive write up to date. Thank you for your contribution.

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almost 3 years ago

Quote "i can tell you what we need is all your land back that you and your kind took from us"

Snake Crowdog, I have never taken anything from you. Neither has anyone else. I can not help what happened in History between all of our great, great grandparents. The land you talk of is not yours and never will be. That's reality. Arguing for me to give you back your land is just as loony as arguing for me to give reparations to African Americans descendents. Engaging in that false belief is only going to leave you with bitter disappointment.

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almost 4 years ago

Screw you Chuck Norris!! I am half Native American!

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over 1 year ago

INDIANS have RIGHTS!!!!!!!!!!

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about 3 years ago

yea the people from britain ruined the native american ways. SCREW THE PEOPLE

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over 3 years ago

Anyone will come up with anything to keep what their getting for free. Stop using laws from 200 someodd years ago to diminish these species. You already have your foot in the door with everything I must go earn. Stop separating yourself from us for your own needs. Our kids go to the same schools, and we shop at the same grocery stores. Yet, looks like my kids won't have any fish to catch. I'm not too worried though, no matter how well you pick my statements apart, the time will come where we all have the same laws and live in the same time. At best, it might make for a good debate.

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25 days ago

yolo

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4 months ago

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over 1 year ago

who do i contact in washington d.c. that irepresents the siletz tribe? looking for hunting and fishing soverty rights that are being infrindged on by local state officals. i know that that state can take away a persons state tags but they lack the autority to do so to those protected by our sovernty. do you have any knowledge concerning this consept? or know of someone that dose?

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over 1 year ago

fu

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about 2 years ago

okay so i don't have native american blood or what ever,but here we go.
i am born here in the U.S.A. so i am a native to this land so technically speaking i am also a native american

i feel that this treaty should be revised to say that they need to hunt and fish the way the true natives did,and not with nets and other thinks they get to use.

or just make it equal for all Americans like the way the U.S. was supposed to be

i mean thin about it we killed African Americans for being black and we didn't give anything back to them

basically Indians have over lived something that should be changed

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about 2 years ago

up yous goverment

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over 2 years ago

was up? i like $$$$

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about 4 years ago

Do Native Americans still hunt buffalo anywhere? Are there any "farms" that provide this? Who and where are they?

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about 4 years ago

i think that the native american tribes should not have special rights, if this our way of saying were sorry then we have been saying were sorry for over 150 years,is there a point?!?

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about 1 year ago

Your moms hot

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about 1 year ago

D-Man you an over reacting because that is in the past and we are in the future i think we can actually get along with eachother and these rights were in the past so we cant break the treaties

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over 1 year ago

There are more than several natives that are ABUSING their hunting and fishing treaty rights. When will the government take note of all this, When we have nothing left!

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over 2 years ago

Who wrote this artical?

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over 2 years ago

i swear on hood this nigga is on crack/dro

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im native american from canada can i hunt and fish here...i moved to ohio and really would like to know

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5 months ago

im naative american from canada...mikmaq...i moved to ohio and was told by fish n game that there were no rights for me to hunt or fish here...i wanted to know if any of this is true..or is the fish n game full of it...i love to hunt n fish to provide for others ..its what i do in canada..

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5 months ago

HELLO TO ALL... I AM A NATIVE AMERICAN. I AM OF OSAGE AND CHEROKEE BLOOD. OK SO HERE GOES, THE RIGHTS THAT WE HAVE NOW WAS PART OF OUR AGREEMENT WITH THE NEW GOVERNMENT OF THAT DAY. IT WAS TO INSURE THAT WE NOW CAN STILL HAVE SOME OF OUR CULTURE LEFT. OUR PEOPLE HELPED THE SETTLERS WHO CAME HERE. THEN IN A WAY OF PEACE THEY SIGNED THE LAND OVER UNDER CERTAIN CONDITIONS SO THEIR GRANDCHILDREN AND GREAT GRANDCHILDREN CAN HAVE AN INKLING OF UNDERSTANDING WHAT IT TRULY MEANS TO BE A INDIAN (NATIVE AMERICAN). WE DO NOT GO AND SLAUGHTER A BUNCH OF ANIMALS. WE ONLY TAKE WHAT WE NEED WHEN WE NEED IT. IF YOU DON'T LIKE OUR RIGHTS I AM SORRY, BUT IT WILL NEVER CHANGE. IT IS THE REASON YOU ARE HERE IN THE FIRST PLACE. IF WE COULD NOT HUNT THAN NO TREATY WOULD HAVE BEEN SIGNED. SORRY TO BURST YOUR BUBBLE BUT WE WAS HERE WAY BEFORE YOUR PEOPLE CAME HERE AND WE WILL BE HERE FOREVER. OUR PEOPLE HAS GREETED EVERY RACE WITH OPEN ARMS. THIS LAND DID NOT BELONG TO US IT BELONGS TO EVERYONE. BE MAD AT THE GOVERNMENT FOR HOLDING YOU BACK IF YOU NEED TO BE MAD AT ANYONE. AND THANK YOU TO ALL THE KIND PEOPLE WHO IS NOT NATIVE, BUT STILL STAND UP FOR OUR RIGHTS. YOUR WORDS HAVE NOT FALLEN ON DEAF EARS. MAY YOU HAVE PEACE IN YOUR HEARTS FOREVER. THANK YOU

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about 1 year ago

It seems foggy at the least to know without a doubt that the native american can fish with or without a liscense. If anyone in the united states can clarify what rights the native have or have not would be a lot better. Plain english can native americans fish without a fishing liscense for his on food.which tribes have this right and which tribes do not.

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about 1 year ago

I am of 25% Native American my Grandmother was of Soiux decent from the South Dakaota Area. Are my brothers and I able to use these Treaties to hunt and fish? Is there a speacial license we need to get? I would really appreciate a response to this subject.

Thank you,

Sincerely Carl Muffly

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over 1 year ago

How would it effect the native americans if these rights were taken away?

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over 2 years ago

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