From Where Does the Notion Come that We have a Right to Hunt and Fish?

To begin to understand the notion, we need to go back to the Late Palaeolithic Age (50 000–10 000 BC) when the human race existed as hunter/gatherers. Scientific studies suggest that physiologically, we were imbued with genes that facilitated the heavy exercise required to hunt and consequently, survive.

The right to hunt and fish was considered by civilized man as a divine right. Under Roman law, wild game belonged to no one until harvested. “[W]ild animals were labeled as res nullius - things capable of individual appropriation, but which belonged to no one until a human took possession by occupatio (the natural method of occupation),” according to Michael C. Blumm & Lucus Ritchi, The Pioneer Spirit and the Public Trust: The American Rule of Capture and State Ownership of Wildlife, 35 Envtl. L. 673, 677 (2005).

As populations increased, game resources were no longer limitless, nation/states formed, so the right to hunt and fish was considered as a legal right to be enjoyed by a select portion of the citizenry. The English view had the ownership of wild game belonging to the King. Consequently the taking of such game was the right of the King. One would suspect a part of the natural resentment toward the King found in the colonies can be explained by this view - especially since the new world had abundant and seemingly limitless wildlife.

Inclusion of a right to hunt and fish in the U. S. Constitution was considered but not added to that document or the Bill of Rights. The right to hunt and fish has made it into several state constitutions. An excellent review of hunting and fishing rights in western legal history can be found in the Tennessee Law Review.

The present law of the State of Tennessee concerning the ownership and taking of wildlife is akin to the English view and is codified in Title 70, Chapter Four of Tennessee Code Annotated:

70-4-101. Ownership and title to wildlife vested in the state. — (a) The ownership of and title to all forms of wildlife within the jurisdiction of the state that are not individual property under the laws of the land are hereby declared to be in the state. No wildlife shall be taken or killed in any manner or at any time, except the person or persons so taking or killing the wildlife shall consent that the title to the wildlife shall be and shall remain in the state for the possession, use and transportation of the wildlife after such taking or killing as set forth in this chapter.

(b) The taking or killing of any and all forms of wildlife at any time, in any manner, and by any person, shall be deemed a consent on the part of such person that the title to such wildlife shall be and shall remain in the state for the purpose of regulating the possession, use, sale and transportation of the wildlife for the public welfare.

The language in the proposed amendment to Tennessee's Constitution upon which we may vote on November 2, 2010 will be construed by our Courts one would suspect for years to come. For instance, one may ask this question: “does a constitutional right to hunt and fish include the right to ‘own’ the wildlife so harvested?”

The proposed amendment to Tennessee’s constitution mentions nothing about the “ownership” of wild game but does say: “Traditional manners and means may be used to take non-threatened species.” Reconciling this language and the current section of the Tennessee Code quoted above may be the source of litigation should the amendment pass. I suppose the answer is simply: “we’ll see”. Some court will tell us someday.