In the Treaty of 1855 the Tribe reserved the right to fish at usual and accustomed fishing areas. Now those are areas that are both within the Reservation, they are within the areas the Tribe had exclusive occupation over before the treaty, as well as areas outside of that. For example, the Tribe’s usual and accustomed fishing areas extend all the way to Portland. There are important fisheries there for lamprey eels and other fish; all along the Columbia River, throughout the state of Idaho and even into Montana. As opposed the treaty right to hunt, gather and graze that is described as open and unclaimed lands. Open and unclaimed lands have been interpreted by the court as being lands that are not privately held, forest service lands, BLM lands, lands that are owned by the government, by the federal or state government.

The Nez Perce Tribe’s treaty is unique in that at the treaty minutes the chiefs asked, “Could we go to buffalo country and exercise these hunting rights?” Governor Stevens who negotiated the treaty on behalf of the United States said, “Yes, you can go to buffalo country.” Buffalo country was the area around Yellowstone in Montana and Wyoming. So even the hunting rights of the Nez Perce Tribe can extend outside of those areas that the Tribe had exclusive occupation over. But again it would have to be open and unclaimed lands within that are, so federal or state lands within that area.