Do members of Virginia Indian tribes need a hunting or fishing license in Virginia, and do state game laws apply to them?

Plain-English summary

The Virginia Department of Game and Inland Fisheries and the Virginia Marine Resources Commission asked about whether Virginia Indian tribal members had to follow Virginia's hunting, trapping, and fishing rules and whether they needed licenses. The AG answered with a three-part holding.

First, no license to hunt, trap, or fish in inland waters was required for an Indian who habitually resided on an Indian reservation, or for a member of a Virginia-recognized tribe who lived in the Commonwealth. The opinion quoted the licensing exception: "No license to hunt, trap or fish shall be required of any Indian who habitually resides on an Indian reservation or of a member of the Virginia recognized tribes who resides in the Commonwealth."

Second, the tidal-waters question was separate. The opinion explained that the inland-waters license exception was based on Indian heritage and limited to inland waters. But the Treaty of 1677 between Virginia and the signatory tribes had carved out an exception. The treaty stated that "the said Indians have and enjoy theire wonted conveniences of Oystering, fishing, and gathering anything else for their natural Support not usefull to the English." The Commonwealth, as successor to the English Crown under the treaty, still respected that right. Members of the signatory tribes could fish or oyster in Virginia's tidal waters without a license, but only for sustenance, not commercially.

Third, license exemption did not equal exemption from the rest of Virginia's game laws. The opinion stressed that a license simply confers a right one would otherwise lack. The exemption put Virginia Indians on the same footing as other exempt persons, like landowners hunting on their own land. They still had to comply with seasons, moratoria, minimum size limits, possession limits, and method-of-take rules to the same extent as everyone else. The opinion added that the Commonwealth could regulate them through the Department of Game and Inland Fisheries and the Virginia Marine Resources Commission as long as the regulations were not written or applied in a discriminatory manner against Indians.

Finally, the opinion confirmed that Virginia's game laws apply on a reservation just as elsewhere. Virginia Indians have the exclusive right of use and occupancy of reservation land, but the Commonwealth owns the land, and there is nothing limiting state jurisdiction, so the Commonwealth's laws and regulations apply on a reservation.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Who qualifies for the license exemption?
The opinion ties it to two groups: an Indian who habitually resides on an Indian reservation, and a member of the Virginia-recognized tribes who resides in the Commonwealth. The requesting agencies also asked which tribes the Commonwealth formally recognizes; the reproduced text here does not enumerate them, so check the linked PDF or landing page for that list.

Can a Virginia Indian sell fish or oysters they caught under the Treaty of 1677 exception?
The opinion limited the tidal-water carve-out to sustenance harvesting. Commercial sale was not within the treaty exception as the AG read it.

Were Virginia Indians exempt from bag limits or seasons?
No. The license exemption did not exempt them from any other game law. Seasons, moratoria, size limits, possession limits, and method-of-take rules applied to everyone, including license-exempt persons.

What about sovereign immunity on reservation land?
The opinion did not analyze tribal sovereign immunity. It analyzed the reach of state law on the land. The Commonwealth held fee simple title to reservation land, and tribal members had exclusive use and occupancy. The state's laws and regulations applied within those reservations.

Background and statutory framework

Virginia game licensing law makes it generally unlawful to hunt, trap, or fish in the Commonwealth without a license. The licensing law carves out an exception: "No license to hunt, trap or fish shall be required of any Indian who habitually resides on an Indian reservation or of a member of the Virginia recognized tribes who resides in the Commonwealth." The opinion explains that this fishing exception is based on Indian heritage and is limited to Virginia's inland waters.

The Treaty of 1677 between Virginia and the Indians recognized that Indians would continue to enjoy traditional uses, including "Oystering, fishing, and gathering anything else for their natural Support not usefull to the English." Because the Commonwealth stands as the successor to the English Crown in the Treaty, the opinion says it respects the spirit and intent of the treaty and still recognizes the tidal-fishing exception, limited to harvesting for sustenance.

On state regulatory authority, the opinion concludes that Virginia Indians remain subject to regulations of the Department of Game and Inland Fisheries and the Virginia Marine Resources Commission so long as those regulations are not written or applied in a discriminatory manner against Indians. And because the Commonwealth owns reservation land (with Virginia Indians holding the exclusive right of use and occupancy), the opinion finds nothing limiting state jurisdiction, so the Commonwealth's game laws apply on a reservation as elsewhere.

Citations

• Va. Code § 2.2-505 (Attorney General opinions)
• Treaty of 1677 between Virginia and the Indians

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/12-044_DuncanTravelstead.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

July 19, 2013

Robert W. Duncan, Executive Director
Virginia Department of Game & Inland Fisheries
4010 West Broad Street
Post Office Box 11104
Richmond, Virginia 23230-1104

Jack G. Travelstead, Commissioner
Virginia Marine Resources Commission
2600 Washington Avenue, Third Floor
Newport News, Virginia 23607-4333

Dear Messrs. Duncan and Travelstead:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented
You ask whether members of Virginia Indian tribes are subject to Virginia's fish and wildlife laws and regulations with respect to seasons, moratoria, minimum size limits, possession limits, and method of take. If they are, you ask if there are any geographical limits to the application of those laws and whether there is any distinction among subsistence, recreational and commercial hunting, trapping and fishing. You also ask whether members of these tribes are required to obtain a fishing license from the Virginia Marine Resources Commission to fish in tidal waters. Finally, you seek guidance as to which Virginia Indian tribes are formally recognized by the Commonwealth.

Response
It is my opinion that an Indian who habitually resides on an Indian reservation or an Indian that is a member of a Virginia recognized tribe who resides in the Commonwealth is not required to obtain a license to fish in Virginia's inland waters, or to hunt or trap in Virginia. It is also my opinion that members of the Virginia tribes that were parties to the Treaty of 1677 with England are not required to obtain a license to fish or oyster in Virginia's tidal waters provided the activity is limited to harvesting for sustenance. Finally, it is my opinion that Virginia Indians are bound by the trapping, hunting and fishing laws and regulations of the Commonwealth regardless of whether they are on or off a reservation.

Applicable Law and Discussion
Generally, it is unlawful to hunt, trap or fish in the Commonwealth without a license. Nonetheless, there is an exception to the license requirement that provides that "[n]o license to hunt, trap or fish shall be required of any Indian who habitually resides on an Indian reservation or of a member of the Virginia recognized tribes who resides in the Commonwealth." The fishing license exception is based on Indian heritage and is limited to fishing in Virginia's inland waters. Nonetheless, members of any Virginia tribe that was a party to the Treaty of 1677 are not required to have a license to fish or oyster in Virginia's tidal waters provided they are doing so for their sustenance. The Treaty of 1677 states in pertinent part that "the said Indians have and enjoy theire wonted conveniences of Oystering, fishing, and gathering anything else for their natural Support not usefull to the English." Because the Commonwealth stands as the successor to the English Crown in the Treaty of 1677, it respects the spirit and intent of the treaty. Therefore, the Commonwealth still recognizes this exception.

Despite these exceptions, Virginia Indians must follow fish and wildlife laws and regulations with respect to seasons, moratoria, minimum size limits, possession limits, and method of take. The term "'[l]icense' has generally been defined as conferring a right to do something which otherwise one would not have the right to do . . . ." The statutory license exception, based on heritage and the exemption that comes from the Treaty of 1677, places Virginia Indians on equal footing with all others who are exempt from the licensing requirement, such as landowners hunting, fishing and trapping on their own property. Virginia Indians, along with all other exempt hunters, anglers and trappers, must comply with applicable fish and wildlife laws and regulations with respect to seasons, moratoria, minimum size limits, possession limits, and method of take to the same extent as anyone required to obtain a license. Additionally, Virginia Indians are subject to regulations promulgated by the Department of Game and Inland Fisheries and the Virginia Marine Resources Commission provided that the regulations are not written or applied in a discriminatory manner against Indians.

Additionally, the gaming and fishing laws and regulations are as applicable on a reservation as they are elsewhere in the Commonwealth. While Virginia Indians have the exclusive right of use and occupancy of reservation land, the Commonwealth owns the land. There is nothing in place that limits the Commonwealth's jurisdiction. Therefore, the laws and regulations of the Commonwealth apply on a reservation.

Conclusion

Accordingly, it is my opinion that an Indian who habitually resides on an Indian reservation or an Indian that is a member of a Virginia recognized tribe who resides in the Commonwealth is not required to obtain a license to fish in Virginia's inland waters, or to hunt or trap in Virginia. It is also my opinion that members of the Virginia tribes that were parties to the Treaty of 1677 with England are not required to obtain a license to fish or oyster in Virginia's tidal waters provided the activity is limited to harvesting for sustenance. Finally, it is my opinion that Virginia Indians are bound by the trapping, hunting and fishing laws and regulations of the Commonwealth regardless of whether they live on or off a reservation.

With kindest regards,

Kenneth T. Cuccinelli, II
Attorney General