Shoshone-Bannock Tribes v. Fish & Game Commission, Idaho

The Shoshone-Bannock Tribes (Tribes) challenge an order of the Idaho Fish and Game Commission (Fish and Game) prohibiting all fishing for Spring Chinook Salmon during the summer of 1991 in an area of the Salmon River traditionally fished by the Tribes. The district court dismissed the action as moot and as barred by the Eleventh Amendment. We have jurisdiction, 28 U.S.C. § 1291 , and we reverse and remand in part and affirm in part.

I

The Tribes constitute a single federally recognized Indian tribe residing on the Fort Hall Indian Reservation in Idaho. Pursuant to Article 4 of the Fort Bridger Treaty of 1868 ( 15 Stat. 673 ), the Tribes retain the right to “hunt on the unoccupied lands of the United States.” The parties agree that the term “hunt” encompasses the harvesting of salmon. See State v. Tinno, 94 Idaho 759 , 497 P.2d 1386 (1972). In late June of 1991, the governing body of the Tribes, the Fort Hall Business Council, issued regulations permitting members of the Tribes to harvest a total of 25 salmon between July 3 and July 21, 1991 in the Middle Fork area of the Salmon River Basin. This area of unoccupied lands of the United States is located about one hundred miles…