(Cite as: 384 F.Supp. 312)

U. S. v. State of Wash.,D.C.Wash. 1974.

United States District Court, W.D. Washington

at Tacoma.

UNITED STATES of America, Plaintiff, Quinault Tribe of Indians on its own behalf and on behalf of the Queets Band of Indians, et al., Intervenor-Plaintiffs,

v.

STATE OF WASHINGTON, Defendant, Thor C. Tollefson, Director, Washington StateDepartment of Fisheries, et al., Intervenor-Defendants.

Civ. No. 9213.

Feb. 12, 1974, On Question Per Reconsideration Motion March 22, 1974,Injunction March 22, 1974.

*325 Stan Pitkin, U.S. Atty., Stuart F. Pierson, Sp. Asst. U.S. Atty., Seattle, Wash., for the U.S.; George D. Dysart, Asst. Regional Sol., U.S. Dept. of the Interior, Portland, Or., of counsel.

David H. Getches, Native American Rights Fund, Boulder, Colo., and John H. Sennhauser, Legal Services Center, Seattle, Wash., for Muckleshoot Indian Tribe, Squaxin Island Tribe of Indians, Sauk-Suiattle Indian Tribe, Skokomish Indian Tribe, Stillaguamish Indian Tribe.

Alvin J. Ziontz, Ziontz, Pirtle, Morisset & Ernstoff, Seattle, Wash., for Makah Indian Tribe, Lummi Indian Tribe, Quileute Indian Tribe.

*326 Michael Taylor, Taholah, Wash., for Quinault Tribe of Indians.

James B. Hovis, Hovis, Cockrill & Roy, Yakima, Wash., for Yakima Indian Tribe.

Lester Stritmatter, Stritmatter & Stritmatter, Hoquiam, Wash., for Hoh Tribe of Indians.

William A. Stiles, Jr., Sedro-Woolley, Wash., for Upper Skagit River Tribe.

Slade Gorton, Atty. Gen., Edward B. Mackie, Deputy Atty. Gen., Olympia, Wash., for State of Wash.

Joseph Larry Coniff, Jr., Asst. Atty. Gen., Dept. of Game, Olympia, Wash., for Game Defendants & Carl Crouse.

Earl R. McGimpsey, Asst. Atty. Gen., Dept. of Fisheries, Olympia, Wash., for Thor Tollefson.

David E. Rhea, Amundson, Rhea & Atwood, Bellingham, Wash., for Wash. Reef Net Owners Ass'n.

Lawrence C. Smith, Smith, Smith & Smith, Spokane, Wash., for amicus curiae The Ass'n of Northwest Steelheaders, Inc.

William N. Moloney, Davis, Wright, Todd, Riese & Jones, Seattle, Wash., for amicus curiae Wash. State Sportsmen's Council, Inc.

T. J. Jones, III, Sp. Counsel, Jones & Jones, Boise, Idaho, for amicus curiae Idaho Fish and Game Dept.

(INDEX OMITTED)

*327 STATEMENT OF THE CASE

BOLDT, Senior District Judge.

In September, 1970 the United States, on its own behalf and as trustee for several Western Washington Indian Tribes,^FN1 later joined as intervenor plaintiffs by additional tribes,^FN2 filed the complaint initiating this action against the State of Washington. Shortly later the State Department of Fisheries (Fisheries) and the State Game Commission (Game), their respective directors, and the Washington Reef Net Owners Association (Reef Net Owners) were included as defendants. By state statute Fisheries is charged with exercising regulatory authority over fishing for all anadromous food fish. Regulation of anadromous steelhead trout is vested in Game. Plaintiffs seek a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 concerning off reservation treaty right fishing within the case area by plaintiff tribes, which long has been and now is in controversy, and for injunctive*328 relief to provide enforcement of those fishing rights as they previously have been or herein may be judicially determined. The case area is that portion of the State of Washington west of the Cascade Mountains and north of the Columbia River drainage area, and includes the American portion of the Puget Sound watershed, the watersheds of the Olympic Peninsula north of the Grays Harbor watershed, and the offshore waters adjacent to those areas.

Plaintiffs also assert claims for relief concerning alleged destruction or impairment of treaty right fishing due to state authorization of, or failure to prevent, logging and other industrial pollution and obstruction of treaty right fishing streams. Separation of those claims for pretrial and trial after trial of the issues determined in this decision was stipulated and approved by the court.

Venue is properly laid in this court under 28 U.S.C. § 1391(b). Jurisdiction is alleged as to all tribes under one or more of the following provisions: 28 U.S.C. §§ 1345, 1331, 1343(3) and (4) and 1362. ^FN3 All of these allegations were conceded by all defendants, subject to their contention that exclusive jurisdiction to hear and determine the issues in this case is in the Indian Claims Commission under 25 U.S.C. §§ 70-70v and Game's denial of jurisdiction as to the Puyallup Tribe. This court has previously held and hereby affirms that both of these contentions are without merit and denied. It is hereby found and held that jurisdiction and venue have been established in all particulars as detailed in Part One of the Final Pretrial Order.

Fisheries contends the Muckleshoot, Stillaguamish and Upper Skagit tribes do not hold a special treaty status to harvest anadromous fish. Game joins in this contention and makes the same contention regarding the Sauk-Suiattle Tribe. These contentions are considered and denied in the written Findings of Fact and Conclusions of Law.

Shortly after appearance in the action by all defendants the first of a considerable number of pretrial conferences was held. Among many preliminary matters considered at that time were the court's suggestions that so far as possible all tribes, agencies or organizations having or claiming direct or indirect justiciable interest in treaty fishing rights in this judicial district be brought into the case either as parties or as amicus curiae; and that every issue of substantial direct or indirect significance to the contentions of any party be raised and adjudicated in this case. Both suggestions were acceptable to all parties and to a great extent they have been put into effect. Thus every interested agency and organization not joined as a party has had an opportunity to present its views on any of the issues in the case.^FN4

For more than three years, at the expenditure by many people of great time, effort and expense, plaintiffs and defendants have conducted exhaustive research in anthropology, biology, fishery management and other fields of expertise, and also have made extreme efforts to find and present by witnesses and exhibits as much information as possible that pertains directly or indirectly to each issue in the case. As a consequence of this extensive pretrial preparation, all parties joined in stipulating to a great many agreed facts which are stated in exhibits or included in the Final Pretrial Order. The Joint Biological Statement, Exhibit JX-2a, jointly proposed and admitted in evidence as agreed facts applicable as indicated therein, was prepared by and agreed to by highly qualified experts employed by and representing both plaintiffs and defendants and is of exceptional importance*329 and practical value. It is believed considerable historic and scientific information never before presented in a case involving treaty rights is now recorded and may prove of value in later proceedings in this case and possibly in others.

To great advantage, all procedures recommended in the Manual for Complex Litigation have been followed by counsel in the particulars and to the extent found applicable and practicable by the court. With approval of court and counsel upon its entry the Final Pretrial Order became the final statement of all issues to be heard and determined in this decision, and pleadings pertaining to those issues passed out of the case, subject only to amendment by the court to prevent manifest injustice. Such amendments have been included in the text of the Final Pretrial Order.

Every attorney in the case has vigorously and effectively presented the particular interests and contentions of each client he represents to the maximum extent professional duty requires. On the other hand there has been a remarkable degree of highly responsible and most commendable cooperation on the part of all counsel throughout trial preparation and trial which has greatly expedited discovery and full presentation of the issues and evidence in the case. All of the legal issues have been researched in depth and effectively presented and argued in the pretrial briefs, and in the final briefs submitted after the presentation of evidence was concluded and before final argument, which also was exceptional in professional quality. By direction of the court all parties either individually or jointly, as they chose, prepared and submitted proposed findings of fact and conclusions of law referenced to the record and also drafts of a proposed decree. Each proposed finding, conclusion and decree has been closely examined and considered by review of the evidence and the portions of the briefs pertaining to each item. All fact findings and legal rulings stated herein and the detailed Findings of Fact, Conclusions of Law and Decree signed and entered by the court are hereby made a part of this decision.

On January 11, 1974, when Game filed the final version of its proposed findings, conclusions and decree the issues tried were finally submitted for decision.

This court is confident the vast majority of the residents of this state, whether of Indian heritage or otherwise, and regardless of personal interest in fishing, are fair, reasonable and law abiding people. They expect that kind of solution to all adjudicated controversies, including those pertaining to treaty right fishing, and they will accept and abide by those decisions even if adverse to interests of their occupation or recreational activities.

More than a century of frequent and often violent controversy between Indians and non-Indians over treaty right fishing has resulted in deep distrust and animosity on both sides. This has been inflamed by provocative, sometimes illegal, conduct of extremists on both sides and by irresponsible demonstrations instigated by non-resident opportunists.

To this court the evidence clearly shows that, in the past, root causes of treaty right dissension have been an almost total lack of meaningful communication on problems of treaty right fishing between state, commercial and sport fishing officials and non-Indian fishermen on one side and tribal representatives and members on the other side, and the failure of many of them to speak to each other and act as fellow citizens of equal standing as far as treaty right fishing is concerned. Some commendable improvement in both respects has developed in recent years but this court believes high priority should be given to further improvement in communication and in the attitude of every Indian and non-Indian who as a fisherman or in any capacity has responsibility for treaty right fishing practices or regulation. Hopefully that will be expedited *330 by some of the measures required by this decision.

The ultimate objective of this decision is to determine every issue of fact and law presented and, at long last, thereby finally settle, either in this decision or on appeal thereof, as many as possible of the divisive problems of treaty right fishing which for so long have plagued all of the citizens of this area, and still do.

I. ESTABLISHED BASIC FACTS AND LAW

(Hereinafter italicize emphasis added unless otherwise indicated)

The first decision of the United States Supreme Court on Indian treaty rights, Cherokee Nation v. Georgia, 5 Pet. 1, 30 U.S. 1, 8 L.Ed. 25, was written by Chief Justice Marshall in 1831. Since then decisions on the same subject matter have been rendered in that court, other federal courts and state courts in a considerable number to the present time.^FN5 All of the decisions that appear to have direct or indirect application to the present case have been closely reviewed and analyzed, individually and in relation to each other. Based thereon this court finds and holds that the following statements are now well established in fact and law.

1. Art. VI, cl. 2 of the United States Constitution provides:

The ‘Constitution . . . of the United States . . . and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.'

2. To the great advantage of the people of the United States, not only in property but also in saving lives of citizens, and to expedite providing for what at the time were immediate and imperative national needs, Congress chose treaties rather than conquest as the means to acquire vast Indian lands. It ordered that treaty negotiations with the plaintiff tribes and others in the Northwest be conducted as quickly as possible. Isaac I. Stevens, Governor of Washington Territory, proved to be ideally suited to that purpose for in less than one year during 1854-1855 he negotiated eleven different treaties, each with several different tribes, at various places distant from each other in this rugged and then primitive area. The treaties were written in English, a language unknown to most of the tribal representatives, and translated for the Indians by an interpreter in the service of the United States using Chinook Jargon, which was also unknown to some tribal representatives. Having only about three hundred words in its vocabulary, the Jargon was capable of conveying only rudimentary concepts, but not the sophisticated or implied meaning of treaty provisions about which highly learned jurists and scholars differ.^FN6

In 1899 the United States Supreme Court in considering a similar situation said:

‘In construing any treaty between the United States and an Indian tribe, it must always (as was pointed out by the counsel for the appellees) be borne in mind that the negotiations for the treaty are conducted, on the part of the United States, an enlightened and powerful nation, by representatives skilled in diplomacy, masters of a written language, understanding the modes and forms of creating the various technical estates known to their law, and assisted by an interpreter employed by themselves; that the *331 treaty is drawn up by them and in their own language; that the Indians, on the other hand, are a weak and dependent people, who have no written language and are wholly unfamiliar with all the forms of legal expression, and whose only knowledge of the terms in which the treaty is framed is that imparted to them by the interpreter employed by the United States; and that the treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.   Worcester v. Georgia, 6 Pet. 515 (8 L.Ed. 483); The Kansas Indians, 5 Wall. 737, 760 (18 L.Ed. 667); Choctaw Nation v. United States, 119 U.S. 1, 27, 28 (7 S.Ct. 75, 30 L.Ed. 306, 314, 315) . . ..  ‘The language used in treaties with the Indians should never be construed to their prejudice.’ . . . ‘How the words of the treaty were understood by this unlettered people, rather than their critical meaning, should form the rule of construction.“^FN7

In 1905 the above principles were reiterated in Winans (198 U.S. p. 380, 25 S.Ct. p. 664):

‘And we have said we will construe a treaty with the Indians as ‘that unlettered people’ understood it, and ‘as justice and reason demand, in all cases where power is exerted by the strong over those to whom they owe care and protection,’ and counterpoise the inequality ‘by the superior justice which looks only to the substance of the right, without regard to technical rules.’ (citing Choctaw and Jones)'

3. The United States Supreme Court in Missouri (252 U.S. p. 434, 40 S.Ct. p. 384) stated:

‘Valid treaties of course ‘are as binding within the territorial limits of the States as they are elsewhere throughout the dominion of the United States.’ Baldwin v. Franks, 120 U.S. 678, 683, 7 S.Ct. 656, 32 L.Ed. 766.'

[1] 4. Each of the basic fact and law issues in this case must be considered and decided in accordance with the treaty language reserving fishing rights to the plaintiff tribes, interpreted in the spirit and manner directed in the above quoted language of the United States Supreme Court. Each treaty in this case contains a provision substantially identical to that in the Medicine Creek treaty: ‘The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the territory, and of erecting temporary houses for the purpose of curing, . . .'^FN8

5. ‘The right to resort to the (usual and accustomed) fishing places in controversy was a part of larger rights possessed by the Indians, upon the exercise of which there was not a shadow of impediment, and which were not much less necessary to the existence of the Indians than the atmosphere they breathed . . .. The treaty was not a grant of rights to the Indians but a grant of right from them- a reservation of those not granted.'^FN9 ‘And surely it was within the competency of the Nation to secure to the Indians such a remnant of the great rights they possessed as ‘taking fish at all usual and accustomed places.“^FN10

[2] 6. ‘. . . The (treaty) negotiations were with the tribe. They reserved rights, however, to every individual Indian, as though named therein . . .. And the right was intended to be continuing against the United States and its grantees as well as against the State and its grantees.'^FN11 That those rights are also reserved to the descendants*332 of treaty Indians, without limitation in time, excepting as Congress may determine, has been recognized and applied by the United States Supreme Court from the first to the latest decision of that court involving Indian treaty fishing rights.

[3][4] 7. An exclusive right of fishing was reserved by the tribes within the area and boundary waters of their reservations,^FN12 wherein tribal members might make their homes if they chose to do so. The tribes also reserved the right to off reservation fishing ‘at all usual and accustomed grounds and stations' and agreed that ‘all citizens of the territory’ might fish at the same places ‘in common with’ tribal members. The tribes and their members cannot rescind that agreement or limit non-Indian fishing pursuant to the agreement. However, off reservation fishing by other citizens and residents of the state is not a right but merely a privilege which may be granted, limited or withdrawn by the state as the interests of the state or the exercise of treaty fishing rights may require.

[5][6][7] 8. The tribes reserved the right to fish at ‘all usual and accustomed grounds and stations.’ The words ‘grounds' and ‘stations' have substantially different meanings by dictionary definition and as deliberately intended by the authors of the treaty. ‘Stations' indicates fixed locations such as the site of a fish wier or a fishing platform or some other narrowly limited area; ‘grounds' indicates larger areas which may contain numerous stations and other unspecified locations which in the urgency of treaty negotiations could not then have been determined with specific precision and cannot now be so determined. ‘Usual and accustomed,’ being closely synonymous words, indicate the exclusion of unfamiliar locations and those used infrequently or at long intervals and extraordinary occasions. Therefore, the court finds and holds that every fishing location where members of a tribe customarily fished from time to time at and before treaty times, however distant from the then usual habitat of the tribe, and whether or not other tribes then also fished in the same waters, is a usual and accustomed ground or station at which the treaty tribe reserved, and its members presently have, the right to take fish.^FN13

II. SUMMARY OF FINDINGS OF FACT AND CONCLUSIONS OF LAW

This summary of the 253 separate detailed Findings of Fact and 48 Conclusions of Law filed herewith is intended as a recital of only the principal categories thereof, several of which are discussed elsewhere in this opinion.

The Findings of Fact set forth the treaties under which each tribe, or its predecessors, negotiated with the United States, and in which the Indians expressly reserved the right to fish at off reservation usual and accustomed fishing places. The pretreaty role of fishing among Northwest Indians is outlined, emphasizing the universal importance of the fishery resource, particularly salmon and steelhead, to Indians in the case area as an element of diet and in *333 religious practices and trade. The Northwest Indians developed a wide variety of fishing methods which they utilized to catch many varieties of fish at innumerable locations throughout the areas where they lived and traveled.

In the mid-1850's the United States treated with the unlettered Northwest Tribes to acquire great expanses of land. Reluctant to be confined to small reservation bases, the Indian negotiators insisted that their people continue to fish as they had beyond the reservation boundaries. There is no indication that the Indians intended or understood the language ‘in common with all citizens of the Territory’ to limit their right to fish in any way. For many years following the treaties the Indians continued to fish in their customary manner and places, and although non-Indians also fished, there was no need for any restrictions on fishing.

For each of the plaintiff tribes, the findings set forth information regarding the organization and membership of the tribe, and some, but by no means all, of their principal usual and accustomed fishing places. Anthropological data are also presented for several tribes, as well as information concerning present Indian culture and economy. Several tribes are currently involved in fish propagation programs which benefit the tribes and the state.

Fact findings are also presented regarding reef net fishing which show that current non-Indian reef net operations take place at or near the same locations occupied historically by Lummi Indian fishermen.

General fisheries conservation and management data are presented, incorporating the Joint Biological Statement which sets forth many significant facts concerning anadromous fish. Procedures and objectives are outlined for managing salmon and steelhead for commercial, sport and Indian user groups including regulatory schemes promulgated by state authorities and by Indian tribes. The means and locations used to harvest the resource and the quantity of the harvest are also presented.

The policies and practices of both Fisheries and Game are also presented. Due in part to the nature of the species of fish regulated, Fisheries evidences better success in managing the salmon than does Game with regard to steelhead. Fisheries has also evidenced an attitude of cooperation with the plaintiff tribes that has been lacking from Game, at least prior to Puyallup-II.

[8][9][10][11] The Conclusions of Law, after stating the basis of jurisdiction and venue, establish the treaty status of each of the plaintiff tribes, and therefore, the right of their members to fish off reservation in common with the citizens of the state. The fishing right was reserved by the Indians and cannot be qualified by the state. The state has police power to regulate off reservation fishing only to the extent reasonable and necessary for conservation of the resource. For this purpose, conservation is defined to mean perpetuation of the fisheries species. Additionally, state regulation must not discriminate against the Indians, and must meet appropriate due process standards.

[12] The Yakima Nation and the Quinault Tribe are presently qualified to self-regulate the off reservation fishing of their tribal members. Other tribes may similarly self-regulate member fishing if and when they meet the qualifications and conditions set forth in the decision.

[13] Several current state laws and regulations which restrict the time, place, manner and volume of off reservation fishing by treaty tribes, and reserve game fish for sport interests, have not been established as reasonable and necessary for conservation and the application thereof to plaintiff tribes is unlawful. The court will retain continuing jurisdiction of this case to grant such further relief as the court may find appropriate.

*334 III. STATE REGULATION OF OFF RESERVATION TREATY RIGHT FISHING

[14] There is neither mention nor slightest intimation in the treaties themselves, in any of the treaty negotiation records or in any other credible evidence, that the Indians who represented the tribes in the making of the treaties, at that time or any time afterward, understood or intended that the fishing rights reserved by the tribes as recorded in the above quoted language would, or ever could, authorize the ‘citizens of the territory’ or their successors, either individually or through their territorial or state government, to qualify, restrict or in any way interfere with the full exercise of those rights. All of the evidence is overwhelmingly to the contrary, particularly in the vivid showing in the record that the treaty Indians pleaded for and insisted upon retaining the exercise of those rights as essential to their survival. They were given unqualified assurance of that by Governor Stevens himself without any suggestion that the Indians' exercise of those rights might some day, without authorization of Congress, be subjected to regulation by non-Indian citizens through their territorial or state government.^FN14

For several decades following negotiation and ratification of the treaties all of the tribes extensively exercised their treaty rights by fishing as freely in time, place and manner as they had at treaty time, totally without regulation or any restraint whatever, excepting only by the tribes themselves in strictly enforcing tribal customs and practices which, during that period and for innumerable prior generations, had so successfully assured perpetuation of all fish species in copious volume. The first other than naturally caused threat to volume or species came from non-Indian population growth and non-Indian industrial development in the rapid westward advance of civilization.^FN15

In the final pretrial order in this case issues were raised therein by the contentions of several tribes later joined by the remaining plaintiff tribes that: (a) the state police power dicta followed by the United States Supreme Court are not sound in legal logic or principle, and (b) even if so, state regulation of the exercise of Indian off reservation treaty fishing rights must be denied in ‘justice and reason, looking to the substance of the rights reserved as understood by the Indians who negotiated the treaties, without regard to technical rules,’ as all American courts for a century or more have been repeatedly admonished by the United States Supreme Court in the same or similar language.^FN16

In addition to raising the above stated issues in the final pretrial order, the tribes have submitted well researched briefs and vigorous oral argument in support thereof. That the contentions are not without at least color of merit in judicial and scholarly support is shown by a decision of the Supreme Court of Idaho,^FN17 the judicial views of at least one highly respected Washington State Supreme Court Judge^FN18 and a scholarly article in The University of Washington Law Review written by a Law Professor of that University and other similar articles.^FN19

No federal decision or state decision cited to this court has directly and specifically interpreted the clause ‘in common with all citizens of the Territory’ as, in itself, directly or impliedly justifying state police power regulation of off reservation treaty right fishing, or *335 has specifically stated or even indicated any federal source of or basis for such state power.

Under these circumstances and the facts hereinabove recited, judicial integrity requires that this court must give the tribes' above stated contentions serious consideration and specific determination.

The first decision of the United States Supreme Court, later cited by the same court as authority for state regulation of treaty right fishing, is Ward. On that subject unquestionably the decision was obiter dictum because: (a) the Indian hunting rights reserved in the treaty in question were limited to specifically designated areas outside of which Race Horse hunted, for which he was imprisoned and from which he sought enlargement by habeas corpus; and (b) because later in the opinion it was held the treaty hunting rights in question had been finally terminated by Congress prior to the allegedly criminal hunting by Race Horse.

The only statement in Ward in either the majority or minority opinions that could possibly justify later citation of the decision as applicable to treaty right fishing was the single sentence 163 U.S. on page 507, 16 S.Ct. on page 1076:

‘The power of a state to control and regulate the taking of game cannot be questioned. Geer v. Connecticut, 161 U.S. 519, (16 S.Ct. 600, 40 L.Ed. 793.'

However, in the next preceding paragraph of the majority opinion in Ward two sentences before the sentence just quoted, the majority opinion stated:

‘. . . the sole question which the case presents is whether the treaty made by the United States with the Bannock Indians gave them the right to exercise the hunting privilege, therein (the treaty) referred to within the limits of the state of Wyoming in violation of its laws. If it (the treaty) gave such right, the mere fact that the state had created school districts or election districts, and had provided for pasturage on the lands, could no more efficaciously operate to destroy the right of the Indian to hunt on the lands than could passage of the (state) game law.'

This statement, even if it too be a dictum, is far more sound in treaty law applicable to fish and game regulation than the first statement quoted above.

Thus the second statement in Ward, quoted in the paragraph above to the effect that exercise of treaty right hunting cannot be controlled by state regulatory laws would appear to be compelling, or at least equal, authority for denying state regulation, not authorized by Congress, of Indian fishing off reservation as specified in existing treaties which expressly record and recognize reservation of that right by the Indian tribes.

In Geer, Mr. Justice White, speaking for a 5-2 majority traced in detail principles pertaining to the taking of ferae naturae down through the ages from Solon of ancient Athens to 1895, but treaty rights were not involved in that case or even mentioned in any way whatever in the exhaustive opinion. The only issue decided in Geer was the holding that it was not unconstitutional for Connecticut to allow, by regulation, killing of birds within the state during a designated open season, and to permit such birds, when so killed, to be used, sold and bought for use within the state, but forbid their transportation beyond the state. Hence the statement in Geer as well as that in Ward, on the subject of off reservation treaty right fishing, were both purest dicta.

Ward was not cited in Winans, wherein state power to regulate off reservation treaty fishing was assumed without any explanation or citation of authority. That subject was mentioned only in the concluding clause of a sentence (198 U.S. p. 384, 25 S.Ct. p. 665):

‘. . . nor does it (the right to take fish) restrain the state unreasonably, if at all, in the regulation of the right.'

*336 Geer, Ward, Patsone and Lacoste are cited in footnote #2 of Tulee (315 U.S. p. 683, 62 S.Ct. 864) as supporting the only statement in that opinion referring to the state power to regulate off reservation fishing:

‘Relying upon its broad powers to conserve game and fish within its borders, (2) however, the state asserts that its right to regulate fishing may be exercised at places like the scene of the alleged offense, which, although within the territory originally ceded by the Yakimas, is outside of their reservation.'

In Patsone the United States Supreme Court reviewed the conviction of an alien for possession of a shotgun in violation of a state criminal statute. One of the two defenses presented and determined in the decision was based on provisions of a United States treaty with Italy. The treaty provisions and facts in Patsone are totally dissimilar to those in the present case and nothing in the holdings or language in the opinion directly or by implication would legally authorize state regulation of a federally guaranteed civil right which is expressly stated in a treaty and the exercise of which right could not possibly endanger the personal safety of any resident of the State.

Treaty rights were in no way involved in Lacoste. The only statment in that decision (263 U.S. p. 549, 44 S.Ct. 186) concerning state police power to regulate the taking of wild animals is supported by citation of Geer, Ward, Kennedy and other decisions having only remote applicability in either fact or law to the present case.

The remaining treaty right fishing decisions of the United States Supreme Court are Puyallup-I and Puyallup-II. Thus until Puyallup-I was decided in 1968 there was neither judicial analysis nor citation of a non-dictum decision supporting police power state regulation of the exercise of Indian off reservation treaty right fishing in any Supreme Court decision because all previous Supreme Court references to that subject were either based solely on the reiterated dicta discussed above or assumed such authority without discussion of its basis or indication of its source.

In support of a statement in Puyallup-I (391 U.S. p. 399, 88 S.Ct. 1725) concerning state regulation of treaty fishing outside of reservations the United States Supreme Court cited Winans and Kennedy as forerunners of Tulee and quoted portions of all three. As indicated above herein, the Tulee and Winans quotations were dicta.

[15] In Kennedy, a habeas corpus proceeding, Indian lands were transferred by the Seneca Tribe to private ownership in a 1797 treaty containing a provision which permitted the Seneca Indians to fish in waters on the lands conveyed ‘at will, and at all seasons of the year, regardless of the provisions of the game laws of the State of New York.’ Shortly after that conveyance the lands were resold and continued in private ownership to the time of Kennedy, decided in 1915. That decision cites Geer and Ward as the sole basis for its statement (241 U.S. p. 562, 36 S.Ct. p. 707) that ‘it is not to be doubted that the power to preserve fish and game within its borders is inherent in the sovereignty of the state . . .’ Kennedy paraphrases Winans for more than Winans held and quotes the same passing reference to regulation in Winans previously quoted above. ^FN20 Most significant of all, it is stated in the very Kennedy language quoted in Puyallup-I (391 U.S. pp. 399-400, 88 S.Ct. p. 1729) that the fishing clause in the treaty conveyance ‘is fully satisfied by considering it a reservation of a privilege of fishing . . .’ subject to state regulation. If at this time anything concerning treaty fishing rights should be beyond doubt or question it is the basic principle that the treaty fishing of plaintiff *337 tribes in this case is a reserved right and not a mere privilege. The treaty fishing in Kennedy was held to be only a privilege under the peculiar facts of that case. Nothing faintly comparable to those facts can be found in either Puyallup-I or the present case.

Another statement in Puyallup-I (391 U.S. p. 398, 88 S.Ct. p. 1728) concerning police power regulation, without analysis other than as stated therein, or citation of a non-dictum authority, is:

‘Moreover, the right to fish at those respective (usual and accustomed) places is not an exclusive one. Rather it is one ‘in common with all citizens. of the territory.’ Certainly the right of the latter may be regulated. And we see no reason why the right of the Indians may not also be regulated by an appropriate exercise of the police power of the State.'

This statement seems to say that because a state has police power to regulate fishing privileges which the state has granted and may limit or entirely withdraw, that is somehow a legal reason for state regulation of federal fishing rights which are expressly reserved in a treaty which only Congress has authority to limit or modify. If that seeming non sequitur be the law it certainly is deserving of more specific legal analysis and justification than it has ever had in any United States Supreme Court decision.

In Puyallup-I it is also stated (391 U.S. p. 398, 88 S.Ct. p. 1728):

‘The right to fish ‘at all usual and accustomed’ places may, of course, not be qualified by the State, even though all Indians born in the United States are now citizens of the United States. (citations) But the manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the State in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians.'

That a treaty right, guaranteed as the supreme law of the land by the Federal Constitution, can not be ‘qualified’ (i.e. ‘in some way limited or modified’) ^FN21 by a state but the exercise of the right may be limited or modified by state regulation, especially when these seemingly conflicting propositions are stated in consecutive sentences, is very difficult to comprehend. The practical effect of a difference between having a constitutional right but only a limited right to exercise it certainly could not have been understood and accepted by the ‘unlettered’ Indians who negotiated the treaties and it must be little less impossible for their somewhat more sophisticated present-day descendants to comprehend and accept.

Mindful that treaty fishing is a right, not a mere privilege, the following sentence from Murdock, quoted in a footnote (p. 402, 88 S.Ct. p. 1730) of Puyallup-I, seems pertinent:

‘The power to tax the exercise of a privilege is the power to control or suppress its enjoyment.'

As stated by the United States Supreme Court in Winans (198 U.S. pp. 381-382, 25 S.Ct. 662), treaty fishing rights are personal rights held and exercised by individual tribe members. Although the exercise of that particular civil treaty right may be limited or modified in any particular or to any extent by or with authority of Congress,^FN22 that the exercise of such a right may be limited in any way by the police power of a state, without having previously received authority to do so from Congress, seems to be diametrically opposed to relevant treaty law and personal civil rights decisions, particularly those of recent years.

In the Puyallup-II decision, decided less than three months ago, it was stated (414 U.S. p. 2, 94 S.Ct. p. 332):

‘The sole question tendered in the present cases concerns the regulations *338 of the Department of Game concerning steel head trout.'

Other than by recital or quotations from Puyallup-I and State Supreme Court decisions, in Puyallup-II there was no discussion of or ruling upon the basis of state police power to regulate off reservation treaty right fishing unless it be derived from the next to the last paragraph in the opinion of Justice Douglas (pp. 5-6, 94 S.Ct. p. 333):

‘We do not imply that these fishing rights persist down to the very last steel head in the river. Rights can be controlled by the need to conserve a species; and the time may come when the life of a steel head is so precarious in a particular stream that all fishing should be banned until the species regains assurance of survival. The police power of the State is adequate to prevent the steel head from following the fate of the passenger pigeon; and the Treaty does not give the Indians a federal right to pursue the last living steel head until it enters their nets.'

Whatever the above quoted statement may have added to or taken from the right to exercise the off reservation treaty fishing rights of the plaintiff tribes, to the present time there never has been either legal analysis or citation of a non-dictum authority in any decision of the Supreme Court of the Land in support of its decisions holding that state police power may be employed to limit or modify the exercise of rights guaranteed by national treaties which the federal Constitution mandates must be considered and applied as ‘the supreme Law of the Land.'

From the above summary of the United States Supreme Court decisions it is clear the following 1971 comment by the Washington State Supreme Court ^FN23 is not overstated:

‘Surprisingly little judicial attention, we note, has been given to this rather standard treaty language (in the fishing rights clause of Indian treaties).'

It also appears that the United States Supreme Court has exercised a prerogative specifically reserved by and to Congress in the treaties. Congress has never exercised its prerogative to either limit or abolish Indian treaty right fishing. In recent years it declined to do the latter by three times failing to enact proposed legislation for the termination of Indian treaty fishing rights.^FN24 It may be that the refusal or failure of Congress to exercise a specific prerogative, by enactment of legislation, would legally justify judicial exercise of that particular prerogative. If so, it has never been stated or indicated in any United States Supreme Court decision as the basis or source of authority for the federal judicial decisions authorizing state regulation of off reservation treaty fishing rights.

[16] Since Congress has the power to qualify or revoke any treaty or any provision thereof,^FN25 unquestionable federal authority is available to provide federal regulation, or to authorize state regulation, for the protection of fishery resources against any threatened or actual harm that might arise from off reservation treaty right fishing by tribal members limited only by tribal regulation.^FN26 In these circumstances it is unfortunate, to say the least. that *339 state police power regulation of off reservation fishing should be authorized or invoked on a legal basis never specifically stated or explained. This is particularly true because state regulation of off reservation treaty right fishing is highly obnoxious to the Indians and in practical application adds greatly to already complicated and difficult problems and may stimulate continuing controversy and litigation long into the future.

Having the judicial duty to independently research, consider and fairly appraise the tribes' contentions concerning state regulation of off reservation treaty right fishing, this court has intended and attempted to do that as conscientiously and thoroughly as possible within the personal capabilities of the author of this decision. The results of that effort are above stated as directly and briefly as the subject matter appeared to permit.

[17] In the opinion of this court, judicial integrity also requires this court to hold that the tribes' contention that the state does not have legal authority to regulate the exercise of their off reservation treaty right fishing must be and hereby is denied by this court. The basis of this ruling is the indisputable and unqualified duty of every federal circuit or trial judge, despite academic or personal misgivings, to enforce and apply every principle of law as it is directly stated in a decision of the United States Supreme Court. Recently the United States Supreme Court in Puyallup-I and Puyallup-II directly and specifically held that Washington has the power to regulate off reservation treaty right fishing in the particulars and to the extent indicated in those decisions, which holding continues in effect unless and until overruled or modified by that court or by Congress. Accordingly, each of the rulings on specific issues in this case stated in Section IV of this decision has been considered and determined on that basis.

IV. RULINGS ON MAJOR ISSUES IN THIS CASE

[18] 1. In the detailed Findings of Fact and Conclusions of Law on file herein this court has found and held and hereby reaffirms that each of plaintiff tribes in this case, including each of the tribes whose status as such was challenged by some or all defendants, has established its status as an Indian tribe recognized as such by the federal government and therefore is entitled to maintain this action for relief based on a treaty of the United States negotiated by and for the tribe, its members at that time and their descendants.

[19] An appeal from a district court decision holding that the Puyallup reservation no longer exists has not yet been determined. However, in Menominee (1968) the United States Supreme Court held that termination of a tribal reservation established pursuant to a treaty did not extinguish hunting and fishing rights, reserved in the treaty by implication, or impair the exercise of such rights within the area of the terminated reservation. In the opinion of this court, treaty right fishing within the area of a former Indian reservation cannot be exclusive when that reservation no longer exists, but such fishing must be ‘in common with’ non-treaty right fishermen. It is so found and held and hereby shall be applicable to any plaintiff tribe, the reservation of which has been or hereafter may be terminated.

[20] 2. Ever since the first Indian treaties were confirmed by the Senate, Congress has recognized that those treaties established self-government by treaty tribes, excepting only as limited in the treaties, judicial interpretation thereof or by Congress. This basic principle was confirmed in the first *340 United States Supreme Court decision dealing with such a treaty^FN27 and has always been expressly or impliedly reaffirmed when applicable in every succeeding decision of that court. There was a period during which Congress enacted legislation limiting the exercise of tribal autonomy in various particulars. However, in the last decade Congressional legislation has definitely been in the contrary direction, notably in the so-called ‘Indian Civil Rights Act.'^FN28 Among other measures in that Act encouraging the exercise of tribal autonomy are those providing for enlarged jurisdiction of tribal courts, pursuant to which special training of tribal judges and other court personnel has been in progress for some time and still continues.

[21] These measures and others make plain the intent and philosophy of Congress to increase rather than diminish or limit the exercise of tribal self-government.

The right to fish for all species available in the waters from which, for so many ages, their ancestors derived most of their subsistence is the single most highly cherished interest and concern of the present members of plaintiff tribes, with rare exceptions even among tribal members who personally do not fish or derive therefrom any substantial amount of their subsistence. The right to fish, as reserved in the treaties of plaintiff tribes, certainly is the treaty provision most frequently in controversy and litigation involving all of the tribes and numerous of their individual members for many years past.

The philosophy of Congress referred to above and the evidence in this case as a whole clearly indicate to this court that the time has now arrived, and this case presents an appropriate opportunity, to take a step toward applying congressional philosophy to Indian treaty right fishing in a way that will not be inconsistent with Puyallup-I and Puyallup-II and also will provide ample security for the interest and purposes of conservation.

[22] In all the circumstances shown by the evidence, including those briefly sketched above, this court hereby finds and holds that any one of plaintiff tribes is entitled to exercise its governmental powers by regulating the treaty right fishing of its members without any state regulation thereof; PROVIDED, however, the tribe has and maintains the qualifications and accepts and abides by the conditions stated below. If, as to any plaintiff tribe, any one of such qualifications and conditions is not determined by the court in this decision on the evidence in this case, establishment of the qualifications and conditions of each other plaintiff tribe shall be determined either to the satisfaction of both Fisheries and Game, or upon hearing by or under direction of the court. When the qualifications and conditions of a tribe have been fully established in the manner indicated, that tribe shall be relieved of state regulation except to the extent specified in the below stated conditions. Failure of a tribe either to maintain its required qualifications or to abide by and adhere to prescribed conditions, when established and not promptly corrected, shall suspend self-regulation by such tribe until such time as all required qualifications and conditions are fully established.

To qualify for self-regulation of off reservation treaty right fishing as above provided, a tribe must establish to the satisfaction of either Fisheries and Game or the court, that the tribe has each of the following qualifications and that the tribe will accept and abide by each of the following conditions.

QUALIFICATIONS

The tribe shall have:

(a) Competent and responsible leadership.

*341 (b) Well organized tribal government reasonably competent to promulgate and apply tribal off reservation fishing regulations that, if strictly enforced, will not adversely affect conservation.

(c) Indian personnel trained for and competent to provide effective enforcement of all tribal fishing regulations.

(d) Well qualified experts in fishery science and management who are either on the tribal staff or whose services are arranged for and readily available to the tribe.

(e) An officially approved tribal membership roll.

(f) Provision for tribal membership certification, with individual identification by photograph, in a suitable form that shall be carried on the person of each tribal member when approaching, fishing in or leaving either on or off reservation waters.

CONDITIONS

The tribe shall:

(a) Provide for full and complete tribal fishing regulations which, before adoption, have been discussed in their proposed final form with Fisheries and Game, and include therein any state regulation which has been established to the satisfaction of the tribe, or upon hearing by or under direction of this court, to be reasonable and necessary for conservation.

(b) Permit monitoring of off reservation Indian fishing by Fisheries and Game to the extent reasonable and necessary for conservation.

(c) Provide fish catch reports, as to both on and off reservation treaty right fishing, when requested by Fisheries or Game for the purpose of establishing escapement goals and other reasonable and necessary conservation purposes.

[23][24][25] All parties in this case agree that on reservation fishing is not subject to state regulation and no issue to the contrary is presented in this case. Indeed, any contention to the contrary would be diametrically opposed to the Indian self-government intent and philosophy of Congress. However, state regulation of off reservation fishing to the extent reasonable and necessary for conservation requires that Fisheries and Game must have all information essential to such limited regulation. From the evidence in this case, the court hereby finds and holds that recording the number of fish taken in treaty right fishing, both on and off reservation, is essential to reliable estimates of future run sizes which are necessary for reasonably accurate calculation of spawning escapement requirements and for the allocation of harvestable fish as provided in this decision.

The lack of adequate, or any, approved identification of treaty right fishermen long has and now does seriously interfere with their fishing and hampers enforcement of both tribal and state regulations reasonable and necessary for conservation. Therefore, each of plaintiff tribes, self-regulated or not, is hereby directed to provide as promptly as practicable both (a) certification and identification of its tribal fishermen as specified in P (f) of the above stated Qualifications; and also (b) fish catch returns as specified in P (c) of the above stated conditions.

The uncontradicted evidence shows that for a considerable time the Quinault and Yakima tribes have adopted and effectively enforced tribal fishing regulations which in some material respects are more restrictive than the regulations of Fisheries and Game. To a considerable extent those tribes have consulted and cooperated with Fisheries and Game in matters pertaining to responsible regulation of Indian fishing. In the Findings of Fact and Conclusions of Law on file herein the court has found, held and hereby confirms that the evidence in this case clearly establishes*342 that both the Quinault and Yakima Tribes for a considerable time have had, and now have, each of the above stated Qualifications, other than (f), and have provided or permitted each of the above stated Conditions, other than (c). The items excepted can and the court believes will be promptly supplied by both tribes; and when accomplished, the Quinault and Yakima Tribes shall be entitled to exercise their treaty fishing rights without any state regulation thereof, except as hereinabove provided.

The evidence indicates several other plaintiff tribes have capacity for, and are not far from, achievement of the same status, which potentially is within the capability of every plaintiff tribe.

[26][27][28] 3. Although state police power permits state regulation of the exercise of off reservation treaty fishing rights, under all of the United States Supreme Court decisions cited or quoted hereinabove there can be no doubt that it is not within the province of state police power, however liberally defined, to deny or ‘qualify’ rights which are made the supreme law of the land by the federal constitution. Therefore, in each specific particular in which the state undertakes to regulate the exercise of treaty right fishing, all state officers responsible therefor must understand that the power to do so must be interpreted narrowly and sparingly applied, with constant recognition that any regulation will restrict the exercise of a right guaranteed by the United States Constitution. Every regulation of treaty right fishing must be strictly limited to specific measures which before becoming effective have been established by the state, either to the satisfaction of all affected tribes or upon hearing by or under direction of this court, to be reasonable and necessary to prevent demonstrable harm to the actual conservation of fish.

[29] To clearly identify state treaty right fishing regulations and to make them more readily understood and usable by plaintiff tribes and others interested therein such regulations shall be published either separate and apart from other state fishing regulations or as a separate and plainly labeled part thereof readily distinguishable from other fishing regulations.

4. However broadly the word may be used and applied in the theory and practice of fisheries science and management, ‘conservation’ as used in Supreme Court decisions and herein is limited to those measures which are reasonable and necessary to the perpetuation of a particular run or species of fish. In this context, as well as by dictionary definition, ‘reasonable’ means that a specifically identified conservation measure is appropriate to its purpose; and ‘necessary’ means that such purpose in addition to being reasonable must be essential to conservation.

[30][31] 5. The state having the burden of proof as above indicated, no regulation applied to off reservation treaty fishing can be valid or enforceable unless and until it has been shown reasonable and necessary to conservation as above defined. The arrest of, or seizure of property owned or in permitted custody of, a treaty right fisherman under a regulation not previously established to be reasonable and necessary for conservation, is unlawful and may be actionable as to any official or private person authorizing or committing such unlawful arrest or seizure.

[32] 6. If alternative means and methods of reasonable and necessary conservation regulation are available, the state cannot lawfully restrict the exercise of off reservation treaty right fishing, even if the only alternatives are restriction of fishing by non-treaty fishermen, either commercially or otherwise, to the full extent necessary for conservation of fish.

[33][34] 7. In Arizona the United States Supreme Court held that irrigation water rights reserved by implication in an Indian treaty could only be limited in amount to the total reasonably required by the needs of the treaty tribe *343 as determined from time to time indefinitely in the future. That holding cannot be distinguished in principle or application from the fishing rights specifically reserved by the plaintiff tribes and recognized by the United States in the treaties. Since tribal on reservation treaty right fishing is exclusive, fish taken on reservation shall not be included in any allocation of fish between treaty and non-treaty fishermen. Therefore, the amount or quantity of any species of fish that may be taken off reservation by treaty right fishing during a particular fishing period can only be limited by either:

(a) The number of fish required for spawning escapement and any other requirements established to be reasonable and necessary for conservation, and

(b) The number of harvestable fish non-treaty fishermen may take at the tribes' ‘usual and accustomed grounds and stations' while fishing ‘in common with’ treaty right fishermen.

As used above, ‘harvestable’ means the number of fish remaining to be taken by any and all fishermen, at usual and accustomed grounds and stations, after deducting the number of fish required for spawning escapement and tribal needs.

[35] Arizona was concerned with the amount of water impliedly reserved for the use of the treaty tribe and it was held they were entitled to the full amount required to serve their needs. In the present case a basic question is the amount of fish the plaintiff tribes may take in off reservation fishing under the express reservation of fishing rights recorded in their treaties. The evidence shows beyond doubt that at treaty time the opportunity to take fish for personal subsistence and religious ceremonies (FF 3, 6) was the single matter of utmost concern to all treaty tribes and their members. The extent of taking fish by tribal members for these purposes is now less than in former times but for a substantial number of tribal members at or near poverty level their need in these particulars is little, if any, less than it was for their ancestors. For these reasons the court finds that the taking of fish for ceremonial and subsistence purposes has a special treaty significance distinct from and superior to the taking of fish for commercial purposes and therefore fish taken to serve ceremonial and subsistence needs shall not be counted in the share of fish that treaty right fishermen have the opportunity to take. Such needs shall be limited to the number of fish actually used for: (a) Traditional tribal ceremonies; and (b) Personal subsistence consumption by tribal members and their immediate families.

[36] By dictionary definition and as intended and used in the Indian treaties and in this decision ‘in common with’ means sharing equally the opportunity to take fish^FN29 at ‘usual and accustomed grounds and stations'; therefore, non-treaty fishermen shall have the opportunity to take up to 50% Of the harvestable number of fish that may be taken by all fishermen at usual and accustomed grounds and stations and treaty right fishermen shall have the opportunity to take up to the same percentage of harvestable fish, as stated above.

While emphasizing the basic principle of sharing equally in the opportunity to take fish at usual and accustomed grounds and stations, the court recognizes that innumerable difficulties will arise in the application of this principle to the fisheries resource. For the present time, at least, precise mathematical equality must give way to more practical means of determining and allocating the harvestable resource, with the methodology of allocation to be developed and modified in light of current data and future experience. However, it is *344 necessary at the outset to establish the scope of the anadromous fish resource which is subject to being ‘shared equally.’ The amount of fish of a particular species, from which the harvestable portions allocable to treaty right fishermen and non-treaty right fishermen are to be determined, is not merely the number of harvestable fish of that species which pass through the usual and accustomed fishing places of the various treaty tribes.

[37] It is uncontroverted in the evidence that substantial numbers of fish, many of which might otherwise reach the usual and accustomed fishing places of the treaty tribes, are caught in marine areas closely adjacent to and within the state of Washington, primarily by non-treaty right fishermen. (Ex. F-6, 7; PL-67(b)-(c); JX-2(a), pp. 125-135; Figs. 49-54, Tables 34-60). These catches reduce to a significant but not specifically determinable extent the number of fish available for harvest by treaty right fishermen. A considerable amount of this harvest is beyond any jurisdiction or control of the State. Some of this harvest is subject to limited state control because the landings are made in areas of state jurisdiction. A considerable number of fish taken within the territorial waters of Washington are under the regulatory authority of the International Pacific Salmon Fisheries Commission, an international body established by treaty between the United States and Canada. While the defendants cannot determine or control the activities of that Commission, the Washington Department of Fisheries does have some input into development of the harvest program which is prescribed or permitted by that Commission, particularly as it pertains to harvest within Washington waters. The Commission is essentially concerned with assuring adequate spawning escapement from runs subject to its jurisdiction and equal division of the harvestable portion between the two countries. Its control over times, places and manner of harvest is designed to accomplish those results. (Ex. JX-2a, § 2.-14, pp. 103-104; and the Commission's annual report for 1971). Consequently, while it must be recognized that these large harvests by non-treaty fishermen cannot be regulated with any certainty or precision by the state defendants, it is incumbent upon such defendants to take all appropriate steps within their actual abilities to assure as nearly as possible an equal sharing of the opportunity for treaty and non-treaty fishermen to harvest every species of fish to which the treaty tribes had access at their usual and accustomed fishing places at treaty times. Some additional adjustments in the harvesting scheme under state jurisdiction may be necessary to approach more nearly an equal allocation of the opportunity to harvest fish at usual and accustomed grounds and stations.

[38] Therefore, this court finds and holds that the amount of fish of each species from which the harvestable portions shall be determined for the purposes of allocation consistent with this opinion shall be:

1. The total number of fish within the regulatory jurisdiction of the State of Washington which, absent harvest en route, would be available for harvest at the treaty tribes' usual and accustomed fishing places; plus

2. An additional equitable adjustment, determined from time to time as circumstances may require, to compensate treaty tribes for the substantially disproportionate numbers of fish, many of which might otherwise be available to treaty right fishermen for harvest, caught by non-treaty fishermen in marine areas closely adjacent to but beyond the territorial waters of the State, or outside the jurisdiction of the State, although within Washington waters.

It is suggsted in Puyallup-II that a distinction between native and propagated steelhead should be made in computing the allocation of fish to off reservation treaty right and to non-treaty right fishing. This appears to present many difficulties and problems which must be considered and determined with all deliberate speed, by *345 agreement or by judicial decision. Discharge of that responsibility appears to be within the jurisdiction of this court by issues all parties have submitted to this court in the Final Pretrial Order in this case. However, under the Puyallup-II mandate to the State Supreme Court it appears appropriate to this court that the state courts hear and determine the matter referred to, at least in the first instance.

[39] 8. Certain issues in this case are specified in the Final Pretrial Order which involve reef net fisheries. The only parties in this case directly concerned with these issues are the defendant Reef Net Owners and the plaintiff Lummi Tribe, although it may be other parties and non-parties have the same or similar interests. In the Findings of Fact and Conclusions of Law filed herein, the court has found and held: (a) that there is evidence which the court finds reasonable, credible and sufficient to establish that plaintiff Lummi Tribe has treaty fishing rights in the reef net fishing areas involved; (b) that members of the Lummi Tribe are entitled to and shall have, as a matter of right, the opportunity to fish with reef nets in such areas; (c) that while non-treaty fishermen when licensed by the State to fish in reef net areas have the privilege of fishing in those areas ‘in common with’ Lummi Tribal members, they do not have the right to do so.

The specific number and location of stations in the reef net areas at which Lummi Tribal members shall have the right and opportunity to fish and what, if any, conditions shall be applicable thereto, will be determined by or under direction of this court upon hearing of those matters at the earliest date reasonably convenient to counsel and the court.

9. Sohappy is a 1969 decision by Judge Robert Belloni of the Oregon United States District Court on Indian treaty fishing rights involving a number of law and fact issues identical or closely similar to those presented in this case. Much of what was found and held in that thoroughly researched, well reasoned and highly practicable decision is directly applicable to issues to be determined in the present case. The Sohappy decision was not appealed and therefore it is controlling as to all parties to that case which include the United States and the Yakima Tribe. The following quotations from that decision, changed by this court only as bracketed, are hereby adopted and held by this court to be applicable to the issues in the present case.

302 F.Supp. at page 907: ‘. . . Before (Washington) may regulate the taking and disposition of fish by treaty Indians at their usual and accustomed fishing places: '(a) It must establish preliminary to regulation that the specific proposed regulation is both reasonable and necessary for the conservation of the fish resource. In order to be necessary, such regulations must be the least restrictive which can be imposed consistent with assuring the necessary escapement of fish for conservation purposes; the burden of establishing such facts is on the state. ‘(b) Its regulatory agencies must deal with the matter of the Indians' treaty fishing as a subject separate and distinct from that of fishing by others. As one method of accomplishing conservation objectives it may lawfully restrict or prohibit non-Indians fishing at the Indians' usual and accustomed fishing places without imposing similar restrictions on treaty Indians. '(c) It must so regulate the taking of fish that the treaty tribes and their members will be accorded an opportunity to take, at their usual and accustomed fishing places, by reasonable means feasible to them, . . . fish (to the extent herein-above specified.) At pages 908-909: ‘. . . state restriction on treaty referenced fishing must be ‘necessary for the conservation of the fish.’ *346 . . . It (the Supreme Court) was not endorsing any particular state management program which is based not only upon that factor but also upon allocation of fish among particular user groups or harvest areas, or classification of fish to particular uses or modes of taking.

The state may regulate fishing by non-Indians to achieve a wide variety of management or ‘conservation’ objectives. Its selection of regulations to achieve these objectives is limited only by its own organic law and the standards of reasonableness required by the Fourteenth Amendment. But when it is regulating the federal right of Indians to take fish at their usual and accustomed places it does not have the same latitude in prescribing the management objectives and the regulatory means of achieving them. The state may not qualify the federal right by subordinating it to some other state objective or policy. It may use its police power only to the extent necessary to prevent the exercise of that right in a manner that will imperil the continued existence of the fish resource. The measure of the legal propriety of a regulation concerning the time and manner of exercising this ‘federal right’ is, therefore, ‘distinct from the federal constitutional standard concerning the scope of the police power of the State.’ (citations) To prove necessity, the state must show there is a need to limit the taking of fish and that the particular regulation sought to be imposed upon the exercise of the treaty right is necessary to the accomplishment of the needed limitation. This applies to regulations restricting the type of gear which Indians may use as much as it does to restrictions on the time at which Indians may fish.' At page 911:

‘The Supreme Court has said that the right to fish at all usual and accustomed places may not be qualified by the state. Puyallup Tribe et al. v. Department of Game, et al., supra. (citations) I interpret this to mean that the state cannot so manage the fishery that little or no harvestable portion of the run remains to reach the upper portions of the stream where the historic Indian places are mostly located.’ At page 911: ‘There is no reason to believe that a ruling which grants the Indians their full treaty rights will affect the necessary escapement of fish in the least. The only effect will be that some of the fish now taken by sportsmen and commercial fishermen must be shared with the treaty Indians, as our fore-fathers promised over a hundred years ago.’ At pages 911-912: ‘In the case of regulations affecting Indian treaty fishing rights the protection of the treaty right to take fish at the Indians' usual and accustomed places must be an objective of the state's regulatory policy (at least) coequal with the conservation of fish runs for other users. The restrictions on the exercise of the treaty right must be expressed with such particularity that the Indian can know in advance of his actions precisely the extent of the restriction which the state has (shown) to be necessary for conservation. (citations)

This court cannot prescribe in advance all of the details of appropriate and permissible regulation of the Indian fishery, nor do the plaintiffs ask it to. As the Government itself acknowledges, ‘proper anadromous fishery management in a changing environment is not susceptible of rigid predetermination. * * * the variables that must be weighed in each given instance make judicial review of state action, through retention of continuing jurisdiction, more appropriate than overly-detailed judicial predetermination.’ The requirements of fishery regulation are such that many of the specific restrictions, particularly *347 as to timing and length of seasons, cannot be made until the fish are actually passing through the fishing areas or shortly before such time. Continuing the jurisdiction of this court in the present cases may, as a practical matter, be the only way of assuring the parties an opportunity for timely and effective judicial review of such restrictions should such review become necessary.

I also do not believe that this court should at this time and on this record attempt to prescribe the specific procedures which the state must follow in adopting regulations applicable to the Indian fishery. The state must recognize that the federal right which the Indians have is distinct from the fishing rights of others over which the state has a broader latitude of regulatory control and that the tribal entities are interested parties to any regulation affecting the treaty fishing right. They, as well as their members to whom the regulations will be directly applicable, are entitled to be heard on the subject and, consistent with the need for dealing with emergency or changing situations on short notice, to be given appropriate notice and opportunity to participate meaningfully in the rule-making process. (and to seek prompt judicial review of regulations assertedly invalid.)

This does not mean that tribal consent is required for restrictions on the exercise of the treaty rights.' At page 912: ‘. . . the state's authority to prescribe restrictions within the limitations imposed by the treaties and directly binding upon the Indians is not dependent upon assent of the tribes or of the Secretary of the Interior. But certainly agreements with the tribes or deference to tribal preference or regulation on specific aspects pertaining to the exercise of treaty fishing rights are means which the state (should) adopt in the exercise of its jurisdiction over such fishing rights. Both the state and the tribes should be encouraged (and directed) to pursue such a cooperative approach . . .'

Thus far, this decision has been confined to discussion and ruling upon major issues, mostly because of the great number of secondary, or comparatively less important, issues of fact and law presented in this case. However, fact findings and legal conclusions, with comment thereon in most instances, on all of the secondary findings are included in the Findings of Fact and Conclusions of Law filed herein. For the most part the secondary findings and conclusions provide amplifying and implementing details for both major and secondary rulings of the court. Every issue, proposed finding of fact and conclusion of law, of whatever importance, has been individually considered and determined in the Findings of Fact and Conclusions of Law on file in this case, excepting only with a few reservations that are stated and explained in each instance.

Subject to suggested limitations by some of the parties, all parties have urged that the court reserve continuing jurisdiction of this case and have suggested various ways in which such jurisdiction might be exercised. Quotations from Sohappy, above quoted and adopted by this court, indicate some of the purposes for, and practical importance of, continuing jurisdiction in this type of case. From the beginning most, if not all, counsel in this case and the court have anticipated that continuing jurisdiction would be of great value to all parties in promptly putting the court's rulings into effect and in providing readily available early hearing and determination of factual and legal questions that may arise in interpreting and applying such rulings. Accordingly, the court does hereby reserve continuing jurisdiction of this case without limitation at this time.

Most if not all parties have also suggested that the court should appoint a master with technical fisheries expertise to assist the court in helping the parties to reach agreed solutions of problems *348 and questions when agreement thereon cannot be reached. Questions regarding whether or not a master should be appointed, the suggested and perhaps other purposes for appointment of a master, with or without technical fisheries expertise; and, if appointed what the master's duties should be and the manner of his selection, will be considered and determined at a hearing on the earliest date after the entry of the judgment and decree reasonably convenient to all counsel. At that hearing counsel are requested to present their views as to whether or not the court should appoint an Advisory Committee on Treaty Right Fishing. The members of such a committee should be knowledgeable and responsible citizens inclined to and capable of objectively considering, determining and reporting to the court the viewpoint of the interested public concerning Indian fishing as to: satisfactory solution of problems; means of expediting better communication between Indian and non-Indian officials and fishermen and keeping interested citizens in this area more accurately informed on matters pertaining to Indian fishing. Other topics to be considered at the conference may be suggested by counsel.

The remaining issues in this case reserved for separate pretrial and trial in the future, however such issues may be determined, do not have direct or indirect bearing upon any issue submitted and heretofore tried by this court. Accordingly, this decision and the Declaratory Judgment and Decree based thereon, upon entry in this case, shall become unreservedly final and reviewable as provided by 28 U.S.C.A. 2201; subject only to determination of any motions that may be appropriately and timely served and filed following entry of the Final Judgment and Decree. Each such motion, if any, that may be filed shall be supported^FN30 by a memorandum of authorities to which counsel for adverse parties shall timely serve and file a responsive memorandum of authorities, following which such motions, if any, shall be promptly heard and determined by the court on the earliest date reasonably convenient to counsel and the court.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This case came on regularly for trial on August 27, 1973, upon the basis of a final pretrial order entered August 24, 1973, and the presentation of evidence concluded September 18, 1973. Counsel for all parties appeared and presented nearly 50 witnesses, whose testimony was reported in 4,600 pages of trial transcript, more than 350 exhibits, pretrial briefs, final oral argument 12/9-10/73 and post trial briefs. In addition to consideration of the above evidence and material by the court, more than 500 proposed findings of fact and conclusions of law, submitted by counsel and annotated to the record, have been checked to determine the accuracy of every citation made by any counsel alleged to support a proposed finding or conclusion. Many of the proposed findings and conclusions were modified and many of the supporting citations were corrected, and additional findings and conclusions not proposed by any party were developed. The court has also read and examined, individually and in relation to one another, every case cited by any party as possible authority concerning any issue in this case, as well as other cases not cited by the parties.

Based upon this exhaustive examination of the controlling law, the briefs and oral argument of counsel and upon a preponderance of the evidence found credible and inferences reasonably drawn therefrom, the court now makes the following Findings of Fact and Conclusions of Law:

TREATY STATUS

1. The United States has entered into treaties with each of the following Indian tribes or bands (herein collectively*349 referred to as ‘Plaintiff tribes' and individually by the shorter name set out after each such tribe), or with their predecessors in interest:

(CHART OMITTED)

*350 Each of said treaties contains a provision securing to the Indians certain offreservation fishing rights. The following provision from the Treaty of Medicine Creek is typical of these treaty provisions:

‘The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing,* * *.'

(FPTO §§ 1, 3-1; see also references as to each Plaintiff tribe under paragraphs as to such tribes, infra.)

PRETREATY ROLE OF FISHING AMONG NORTHWEST INDIANS

2. The anthropological reports and testimony of both Dr. Barbara Lane and Dr. Carroll Riley have been thoroughly studied and considered by the court. In so doing, the court has noted the nature, extent and duration of field work in the case area and academic research. During trial constant observation was made of the attitude and demeanor of both experts while on the stand as witnesses, and the substance of their testimony has been carefully evaluated. Allowance for the criticism by defendants that some of Dr. Lane's conclusions are ‘over formulated’ has been made in evaluating her testimony in every instance where the criticism might be applicable. Based upon these and other factors, the court finds that in specific facts, the reports of Dr. Barbara Lane, Exhibits USA-20 to 30 and USA-53, have been exceptionally well researched and reported and are established by a preponderance of the evidence. They are found to be authoritative and reliable summaries of relevant aspects of Indian life in the case area at and prior to the time of the treaties, including the treaty councils, Indian groups covered by the treaties, the purposes of the treaties and the Indians' understanding of treaty provisions. In these particulars, nothing in Dr. Lane's report and testimony was controverted by any credible evidence in the case. Dr. Lane's opinions, inferences and conclusions based upon the information stated in detail and well documented in her reports, appeared to the court to be well taken, sound and reasonable. In summary, the court finds that where their testimony differs in any significant particular, the testimony of Dr. Lane is more credible and satisfactory than that of Dr. Riley and is accepted as such except as otherwise specified.

3. In pretreaty times Indian settlements were widely dispersed throughout Western Washington. There was considerable local diversity in the availability and importance of specific animal, plant and mineral resources used for food and artifacts. (FPTO § 3-32) But one common cultural characteristic among all of these Indians was the almost universal and generally paramount dependence upon the products of an aquatic economy, especially anadromous fish, to sustain the Indian way of life. (Ex. G-17o, pp. 286-287; Exs. USA-20 to 30 and 53; Exs. G-21 to 26) These fish were vital to the Indian diet, played an important role in their religious life, and constituted a major element of their trade and economy. Throughout most of the area salmon was a staple food and steelhead were also taken, both providing essential proteins, fats, vitamins, and minerals in the native diet. (FPTO §§ 3-32, 3-33; Ex. USA-20; Ex. PL-40, p. 577; Ex. G-4, pp. 193-197) There was considerable fluctuation in abundance and availability of fish from year to year. Some causes of fluctuation were regular and predictable, as in the case of runs of certain species and races of salmon. Other causes were erratic, such as flooding and alteration in watercourses. (FPTO § 3-32)

4. The major food sources of the Northwest Indians were the wild fish, animal and vegetative resources of the area. It was, therefore, necessary for the people to be on hand when the resources were ready for harvest. These seasonal movements were reflected in native social organization. In the winter, when weather conditions generally made travel and fishing difficult, people *351 remained in their winter villages and lived more or less on stored food. Fresh fish and other foods were harvested during the winter but that season was devoted primarily to ceremonies and manufacturing tasks. During this time people congregated into the largest assemblages and occupied long, multifamily houses. Throughout the rest of the year individual families dispersed in various directions to join families from other winter villages in fishing, clam digging, hunting, gathering roots and berries, and agricultural pursuits. People moved about to resource areas where they had use patterns based on kinship or marriage. Families did not necessarily follow the same particular pattern of seasonal movements every year. (FPTO § 3-32; Ex. USA-20; see also Exs. USA-21 to 30 and 53; Exs. G-17a-o; Exs. G-21 to 26; Exs. PL-23 and PL-24; Ex. G-4, pp. 193-197)

5. At the time of the treaties and prior thereto, utilization of the rich fishery resource required an intimate knowledge of local environments and the locally available species as well as the development of a variety of specialized techniques for taking fish. (FPTO § 3-32; Ex. USA-20; Ex. JX-2a, § 3.1, pp. 108-114, Figs. 44-47, 280-283; Ex. USA-31e, pp. 17-26; Ex. PL-88a-d; Ex. L-7) The latter involved both group and individual activity and equipment. (FPTO § 3-76) Adequate Indian food preservation techniques had been developed by the time of the treaties and fish were able to be stored for use throughout the year and transported over great distances. (FPTO § 3-32; Ex. USA-20, p. 1; Ex. MLQ-1, p. 1) However, the Indians' harvest of fish was subject to the vagaries of nature which occasionally imperiled their food supply and caused near starvation. The amounts of fish that could be harvested were particularly affected by run-size fluctuations caused by natural conditions and water conditions occurring at the time the fish were running, e. g., flooding, which limited the effectiveness of the Indian fishing gear. (Tr. 2006, l. 17 to 2012, l. 24; Ex. PL-40, p. 577; Ex. F-39; FPTO § 3-32; Ex. USA-20, p. 5)

6. The first-salmon ceremony, which with local differences in detail was general through most of the area, was essentially a religious rite to ensure the continued return of salmon. The symbolic acts, attitudes of respect and reverence, and concern for the salmon reflected a ritualistic conception of the interdependence and relatedness of all living things which was a dominant feature of native Indian world view. Religious attitudes and rites insured that salmon were never wantonly wasted and that water pollution was not permitted during the salmon season. (FPTO § 3-33; Ex. USA-20, p. 9)

7. At the time of the treaties, trade was carried on among the Indian groups throughout a wide geographic area. Fish was a basic element of the trade. There is some evidence that the volume of this intra-tribal trade was substantial, but it is not possible to compare it with the volume of present day commercial trading in salmon. Such trading was, however, important to the Indians at the time of the treaties. (Ex. USA-20, pp. 2-10; Tr. 1778, l. 6 to 1784, l. 13) In addition to potlatching, which is a system of exchange between communities in a social context often typified by competitive gifting, there was a considerable amount of outright sale and trade beyond the local community and sometimes over great distances. (Ex. USA-20, pp. 2-10) In the decade immediately preceding the treaties, Indian fishing increased in order to accommodate increased demand for local non-Indian consumption and for export, as well as to provide money for purchase of introduced commodities and to obtain substitute non-Indian goods for native products which were no longer available because of the non-Indian movement into the area. (Ex. USA-20, p. 13) Those involved in negotiating the treaties recognized the contribution that Indian fishermen made to the territorial economy because Indians caught most of the *352 non-Indians' fish for them, plus clams and oysters. (Ex. PL-11; Ex. USA-20, p. 15)

8.  At the time of the treaties, non-Indian commercial fishing enterprises were rudimentary and largely unsuccessful.  In the 1840's and 50's, salmon was packed and shipped from the Columbia River and the case area to such distant places as New York, San Francisco, the Hawaiian Islands, South America and China, but inadequate preservation techniques and slow transportation facilities caused the salmon to reach the markets in unsatisfactory condition, and it obtained a bad reputation among dealers.  (Ex. PL-50, p. 310; Ex. MLQ-1, p. 1) There was no statistically measurable commercial fishery at the time the treaties were negotiated.  (Ex. MLQ-1, p. 15) At the time of the treaties the commercial fisheries in the case area posed no threat to the abundance of the fish resources.  (Tr. 2006, l. 12-16; Tr. 2382, l. 10-18; Exs. PL-7 and PL-8) The non-Indian commercial fishing industry did not fully develop in the case area until after the invention and perfection of the canning process.  The first salmon cannery in Puget Sound began in 1877 with a small operation at Mukilteo.  Large-scale development of the commercial fisheries did not commence in Puget Sound until the mid-1890's.  (Ex. MLQ-1, pp. 1-3) The large-scale development of the commercial fishing industry in the last decades of the Nineteenth Century brought about the need for regulation of fish harvests.   (Ex. JX-2a, § 2.3.1, pp. 60-62)

9. There was a sharp decline in Indian population in the case area in the period after extensive contact with Europeans and Americans which occurred around 1780. It has been estimated that Indian populations in the Puget Sound region declined by approximately 50% Between 1780 and 1840, but pre-treaty censuses were often incomplete and inaccurate. The Gibbs-Stevens census of 1854 shows a total of 7,559 Indians for all of Western Washington. A decline in population continued during the decades following the signing of the treaties, due in large part to diseases introduced by non-Indians. (Ex. D-1, pp. 9-12; Ex. G-4, pp. 181-184; Ex. MLQ-1, pp. 14, 16) The non-Indian population at treaty times has been estimated at approximately 2,000 people in Western Washington. (Tr. 2475, l. 7 to 2476, l. 8) Because of the great abundance of fish resources and these limited populations, there was no need to regulate the taking of fish by either Indians or non-Indians at treaty times. (Tr. 1849, l. 18-22; Tr. 2381, l. 25 to 2382, l. 18)

10. The Northwest Indians developed and utilized a wide variety of fishing methods which enabled them to take fish from nearly every type of location at which fish were present. They harvested fish from the high seas, inland salt waters, rivers and lakes. They took fish at river mouths as well as at accessible points or stretches along the rivers all the way to the headwaters. Some locations were more heavily utilized than others. Like all fishermen, they shifted to those locales which seemed most productive at any given time. (Exs. USA-20 to 30 and 53) Fishing methods varied according to the locale but generally included trapping, dip netting, gill netting, reef netting, trolling, long-lining, jigging, set-lining, impounding, gaffing, spearing, harpooning and raking. (FPTO § 3-33) Control and use patterns of fishing gear varied according to the nature of the gear. Certain types required cooperative effort in their construction and/or handling. Weirs were classed as cooperative property but the component fishing stations on the weir were individually controlled. (FPTO § 3-76; Ex. USA-26, pp. 13-14)

11. Aboriginal Indian fishing was not limited to any species. They took whatever species were available at the particular season and location. Many varieties, including salmon and steelhead, halibut, cod, flounder, ling cod, rockfish, herring, smelt, eulachon, dogfish and trout, were taken and were important to varying degrees as food and *353 as items of trade. (FPTO § 3-33; Ex. G-4, pp. 194-195)

12. Indian fishing practices at treaty times were largely unrestricted in geographic scope. Generally, individual Indians had primary use rights in the territory where they resided and permissive use rights in the natal territory (if this was different) or in territories where they had consanguineal kin. Subject to such individual claims, most groups claimed autumn fishing use rights in the waters near to their winter villages. Spring and summer fishing areas were often more distantly located and often were shared with other groups from other villages. (FPTO § 3-34)

13. Each of the Plaintiff tribes had usual and accustomed fishing places within the case area. Although there are extensive records and oral history from which many specific fishing locations can be pinpointed, it would be impossible to compile a complete inventory of any tribe's usual and accustomed grounds and stations. (FPTO § 3-34; Ex. USA-20, p. 21; Ex USA-52, p. 4, l. 7 to p. 5, l. 29) Among the reasons for this are the following: 1) Indian fisheries existed at all feasible places along a given drainage system. Fishing stations which were the site of weirs or permanent villages are more easily documented than riffles where fish were speared; 2) Indian fishermen shifted to those locales which seemed most productive at any given time depending upon such factors as changes in river flow, turbidity or water course; 3) some important recorded fishing sites are no longer extant because of subsequent man-made alterations in watersheds and water systems; and, 4) use of some sites has been discontinued because appropriate Indian gear for those sites has been outlawed or because competing uses and users have made utilization of the sites by Indian fishermen unfeasible. (Ex. USA-20, pp. 21-23; Ex. USA-27b, pp. 1-3) Documentation as to which Indians used specific fishing sites is incomplete. George Gibbs noted that:

‘As regards the fisheries, they are held in common, and no tribe pretends to claim from another, or from individuals, seignorage for the right of taking. In fact, such a claim would be inconvenient to all parties, as the Indians move about, on the sound particularly, from one to another locality, according to the season.’ (Ex. USA-20, p. 18; Ex. USA-27b, p. 3; Ex. G-4, p. 186)

14.  Although not all tribes fished to a considerable extent in marine areas, the Lummi reef net sites in Northern Puget Sound, the Makah halibut banks, Hood Canal and Commencement Bay and other bays and estuaries are examples of some Indian usual and accustomed fishing grounds and stations in marine waters.  Marine waters were also used as thoroughfares for travel by Indians who trolled en route.  (Ex. PL-75; Tr. 2847, l. 13 to 2850, l. 23) Such occasional and incidental trolling was not considered to make the marine waters traveled thereon the usual and accustomed fishing grounds of the transiting Indians.   (Tr. 2177, l. 24 to 2180, l. 4)

TREATY BACKGROUND

15. The United States claimed the area now embraced within the State of Washington by discovery and settlement and by the treaty extinguishment of conflicting claims of Spain (Treaty of February 22, 1819, 8 Stat. 252), Russia (Convention of April 17, 1824, 8 Stat. 302), and Great Britain (Treaty of June 15, 1846, 9 Stat. 869). By the Act of August 14, 1848, 9 Stat. 323, the United States established the Oregon Territory and provided that nothing contained in said act ‘shall be construed to impair the rights of person or property now pertaining to the Indians in said Territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians * * *.’ Section 14 of that act extended to the Oregon Territory the Northwest Ordinance of 1787, 1 Stat. 51, Note a, which provides that ‘good faith shall *354 always be observed toward the Indians; their lands and property shall never be taken from them without their consent.’ By an Act of June 5, 1850, 9 Stat. 437, Congress authorized the negotiation of treaties with the Indian tribes in the Oregon Territory (which then included the area which now comprises the State of Washington) for extinguishing their claims to land lying west of the Cascade Mountains. By the Act of March 2, 1853, 10 Stat. 172, Congress organized the Washington Territory out of part of the Oregon Territory (including all of the present State of Washington) and provided that nothing in said act shall affect the authority of the United States to ‘make any regulations respecting the Indians of said Territory, their lands, property, or other rights, by treaty, law, or otherwise,’ which the Government could make if that act had never been passed. All federal laws relating to the Oregon Territory not inconsistent with the 1853 Act were expressly continued in force in Washington Territory. Section 2 of the Act provided for appointment of a governor who was also to perform the duties of Superintendent of Indian Affairs in the Territory. The Appropriation Act of March 3, 1853, 10 Stat. 226, 238, authorized the President to negotiate with Indian tribes west of Missouri and Iowa ‘for the purpose of securing the assent of said tribes to the settlement of the citizens of the United States upon the lands claimed by said Indians, and for the purpose of extinguishing the title of said Indian tribes in whole or in part to said lands; * * *.’  The Appropriation Act of July 31, 1854, 10 Stat. 315, 330, authorized the use of appropriations for making treaties in several territories, including Washington, prior to July 1, 1855.   (FPTO § 3-28)

16. The Act of February 22, 1889, 25 Stat. 676, admitting Washington to statehood, provided as a precondition to such statehood, that the people of the state forever disclaim all right and title to all lands owned or held by any Indian or Indian tribes and until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States and shall remain under the absolute jurisdiction and control of Congress. Washington accepted this requirement and incorporated it into Article XXVI of the State Constitution. Washington was admitted into the Union as a state on November 11, 1889. 26 Stat. Proclamations no. 8. (FPTO § 3-29)

17. On December 26, 1853, Isaac Stevens, the first Governor and Superintendent of Indian Affairs of the Washington Territory, wrote to the Commissioner of Indian Affairs suggesting the necessity of making treaties with the Indians west of the Cascade Mountains. He pointed out that these tribes lived on different watercourses, bays and inlets of Puget Sound, and lands should be set aside for their use. On August 30, 1854, the Acting Commissioner of Indian Affairs notified Governor Stevens of his appointment to negotiate treaties with all tribes in the Washington Territory. Governor Stevens was directed that in making the treaties he should endeavor to unite the ‘numerous bands and fragments of tribes into tribes, * * *’ and to furnish the Commissioner of Indian Affairs a skeleton map of Washington Territory, showing the location of the different tribes and bands, and the boundaries of the regions claimed by each. In carrying out his duties as Superintendent of Indian Affairs, Governor Stevens had previously, on March 22, 1854, appointed Colonel Michael T. Simmons as Indian Agent for the Puget Sound District and had directed him to visit the various tribes in his district, to make a census of the tribes and bands, ascertaining as nearly as possible the boundaries of the territory claimed by each, and at the same time to organize the small bands into tribes and appoint chiefs for each. Governor Stevens was assisted in arranging for the treaties also by George Gibbs, a lawyer, surveyor and ethnologist, who was one of the sources of information relative*355  to the identity and location of Western Washington tribes and who wrote an extensive ethnological report in 1854-55, and by Colonel B.F. Shaw, an interpreter.   (FPTO § 3-30)

18.  No formal political structure had been created by the Indians living in the Puget Sound area at the time of initial contact with the United States Government.  Governor Stevens, acting upon instructions from his superiors and recommendations of his subordinates, deliberately created political entities for purposes of delegating responsibilities and negotiating treaties.  In creating these entities Governor Stevens named many chiefs and sub-chiefs.   (Ex. USA-27a, pp. 14-29; Ex. USA-20, p. 28)

NEGOTIATION AND EXECUTION OF THE TREATIES

19. The principal purposes of the treaties were to extinguish Indian claims to the land in Washington Territory and provide for peaceful and compatible coexistence of Indians and non-Indians in the area. The United States was concerned with forestalling friction between Indians and settlers and between settlers and the government. The Indians had received constant assurances from settlers and government representatives that they would be compensated for land which were being settled by United States' citizens. Settlers had taken up land claims under the Donation Act even though the Indian rights had not yet been extinguished by treaties as required by the act creating the Oregon Territory. (FPTO § 3-35; Ex. USA-20, p. 24) Governor Stevens and the treaty commissioners were not authorized to grant to the Indians or treat away on behalf of the United States any governmental authority of the United States.   (Ex. D-1, p. 29, l. 11-18; Tr. 1862, l. 6-13; Tr. 1864, l. 20 to 1865, l. 24)

20. At the treaty negotiations, a primary concern of the Indians whose way of life was so heavily dependent upon harvesting anadromous fish, was that they have freedom to move about to gather food, particularly salmon, (which both Indians and non-Indians meant to include steelhead), at their usual and accustomed fishing places. (Exs. PL-15, PL-16b, PL-17c; Ex. USA-20, pp. 25-26; Ex. MLQ-1, p. 14; Tr. 2172, l. 3-12; Tr. 2352, l. 14 to 2365, l. 2; Ex. PL-9, pp. 28-29) The Indians were assured by Governor Stevens and the treaty commissioners that they would be allowed to fish, but that the white man also would be allowed to fish. (Ex. PL-17c, p. 1e) In 1856, it was felt that the development of the non-Indian fisheries in the case area would not interfere with the subsistence of the Indians. (Exs. PL-7, PL-8)

21. It was the intention of the United States Government, in negotiating treaties with the Indians, to make at least non-coastal tribes agriculturists, although not to restrict them to that, to diversify Indian economy, to teach western skills and trades to the Indians and to accomplish a transition of the Indians into western culture. There was no intent, however, to prevent the Indians from using the fisheries for economic gain. (Ex. D-1, p. 23, l. 9-25, p. 23, l. 33 to p. 24, l. 25; Ex. USA-20, p. 26; Tr. 1916, l. 25 to 1917, l. 9; Treaty of Medicine Creek, art. 10, 10 Stat. 1132; Treaty of Point Elliott, art. 14, 12 Stat. 927; Treaty of Point No Point, art. 11, 12 Stat. 933; Treaty with the Makahs (Treaty of Neah Bay), art. 11, 12 Stat. 939; Treaty of the Yakimas, art. 2, art. 5, 12 Stat. 951; Exs. PL-32 and PL-47, pp. 455-456; Tr. 1827, l. 25 to 1828, l. 24; Tr. 2418, l. 4 to 2421, l. 9; Tr. 2453, l. 22 to 2454, l. 13) Upon their removal to reservations, the Indians began farming, with greater success being experienced by the Puget Sound tribes than by the tribes on the ocean coast. (Ex. PL-42)

22. There is no record of English having been spoken at the treaty councils, but it is probable that there were Indians at each council who would have spoken or understood some English. (Ex. D-1, p. 24, l. 31 to p. 25, l. 6; Tr. 2161, l. 2 to 2163, l. 4; Tr. 2392, l. 2 to *356 2394, l. 3) One Snohomish Indian who understood English helped translate the Point Elliott treaty. (Ex. PL-12; Tr. 2390, l. 24 to 2391, l. 18) Since, however, the vast majority of Indians at the treaty councils did not speak or understand English, the treaty provisions and the remarks of the treaty commissioners were interpreted by Colonel Shaw to the Indians in the Chinook jargon and then translated into native languages by Indian interpreters. Chinook jargon, a trade medium of limited vocabulary and simple grammar, was inadequate to express precisely the legal effects of the treaties, although the general meaning of treaty language could be explained. Many of those present, however, did not understand Chinook jargon. (FPTO § 3-37; Ex. USA-20, pp. 28-29; Ex. G-29a; Ex. Y-21; Tr. 1886, l. 11 to 1887, l. 11; Tr. 2403, l. 24 to 2404, l. 6) There is no record of the Chinook jargon phrase that was actually used in the treaty negotiations to interpret the provision ‘The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory.’ (Ex. USA-20, p. 26; Tr. 2372, l. 15 to 2374, l. 7) A dictionary of the Chinook jargon, prepared by George Gibbs, indicates that the jargon contains no words or expressions that would describe any limiting interpretation on the right of taking fish. (Ex. G-29a; Ex. Y-21; Tr. 2460, l. 10 to 2461, l. 1)

23. The treaty language ‘in common with all citizens of the Territory’ was probably introduced by George Gibbs, who was a lawyer and advisor to Governor Stevens. (Ex. USA-20, p. 26; Tr. 1943, l. 24 to 1944, l. 12) There is no discussion of the phrase in the minutes of the treaty councils, (Exs. PL-10a, PL-10b, PL-12, PL-14, PL-15, PL-16b, PL-17a, PL-17b, PL-17c) in the instructions to Stevens (Exs. PL-1, PL-34) or to the treaty negotiators, or in Stevens' letters of transmittal of the treaties. (Exs. PL-11, PL-14) There appears to be no phrase in he Chinook jargon that would interpret the term in any exact legal sense. (Ex. G-29a; Ex. Y-21)

24. Although there is no evidence of the precise understanding the Indians had of the treaty language, the treaty commissioners probably used the terms ‘usual and accustomed’ and ‘in common with’ in their common parlance, and the meaning of them as found in a contemporaneous dictionary most likely would be what was intended by the government representatives. (Tr. 1946, l. 12-21) The 1828 and 1862 editions of Webster's American Dictionary of the English Language define the terms as follows:

accustomed: Being familiar by use; habituated; inured . . . usual; often practiced.

common: Belonging equally to more than one, or to many indefinitely . . . belonging to the public; having no separate owner . . . general; serving for the use of all.

usual: Customary; common; frequent; such as occurs in ordinary practice or in the ordinary course of events. (Ex. PL-86)

The Indians who negotiated the treaties probably understood the concept of common ownership interest which could have been conveyed in Chinook jargon.   (Tr. 2024, l. 2 to 2028, l. 3; Tr. 2048, l. 14 to 2049, l. 3) The clause ‘usual and accustomed (fishing) grounds and stations' was all-inclusive and intended by all parties to the treaty to include reservation and off-reservation areas. (Tr. 2851, l. 5-19) The words ‘usual and accustomed’ were probably used in their restrictive sense, not intending to include areas where use was occasional or incidental. (Tr. 2176, l. 1-22; Tr. 2177, l. 24 to 2178, l. 5) The restrictive sense of the term ‘usual and accustomed’ could have been conveyed in Chinook jargon. (Tr. 1951, l. 7 to 1952, l. 10)

25. In an extensive report on the Indian Tribes of the Territory of Washington, dated March 4, 1854, George Gibbs had noted that the right of fishery was a subject ‘concerning which difficulties *357 may arise’ and that the Indians would require liberty of motion for the purpose of seeking fish in their proper season. (Ex. PL-9, p. 29) Elsewhere he observed that the fisheries ‘are held in common, and no tribe pretends to claim from another, or from individuals, seignorage for the right of taking.’ (Ex. G-4, p. 186) This was a generalization, probably subject to certain exceptions. (Ex. USA-20, pp. 18-19)

26. There is nothing in the written records of the treaty councils or other accounts of discussions with the Indians to indicate that the Indians were told that their existing fishing activities or tribal control over them would in any way be restricted or impaired by the treaty. The most that could be implied from the treaty context is that the Indians may have been told or understood that non-Indians would be allowed to take fish at the Indian fishing locations along with the Indians. (Ex. PL-10a, 8th page.)

27. Prior to the convening of the treaty councils Governor Stevens sent B.f. Shaw, who was later the official interpreter of the councils, to the Indian villages to explain the purposes of the councils and urge their attendance. Shaw told the Indians that the government wanted them to sell their land for a moderate sum of money and to accept such reservations and other privileges as could be agreed upon at the council. (Ex. USA-45, p. 28) While there is no record of any specific privileges discussed during these contacts, the treaty commission's prior awareness of the importance the Indians attached to fishing makes it probable that the continuance of the right to take fish was one that Shaw had in mind or discussed. (Ex. PL-9, p. 29; Ex. PL-10a, 1st and 3rd pages)

28. At the time of the treaties Indian control over fishing practices was by customary modes of conduct rather than by formal regulations. Controls were necessary in cooperative fishing efforts which required coordination by someone who organized and directed the group effort. The construction of a weir was usually a cooperative effort, a number of men working under the direction of a leader. The entire community usually had access to the weir, the leader regulating the order of use and the times at which the weir was opened to allow upstream escapement for spawning and/or supply for upriver fishermen. Techniques such as spearing or trolling in salt water which involved individual effort were not regulated or controlled by anyone else. (Ex. USA-20, pp. 19, 20) Apart from one instance when the Makahs prohibited a non-Indian from fishing on their reservation, there is no evidence at the time of the treaties that either party intended to restrict the other party's fishing because it was not contemplated that they would interfere with each other. (Tr. 2032, l. 14 to 2033, l. 6; Ex. PL-8; Ex. USA-20, pp. 20-21)

POST-TREATY INDIAN FISHING

29. Fish continue to provide a vital component of many Indians' diet. For others it may remain an important food in a symbolic sense- analogous to Thanksgiving turkey. Few habits are stronger than dietary habits and their persistence is usually a matter of emotional preference rather than a nutritional need. For some Indians, fishing is also economically important. Fishing is also important for some non-Indians. (FPTO § 3-38)

30. Since treaty times, Indians and non-Indians have adopted new fishing techniques and gear. Indians no longer fish from dugouts, just as non-Indians no longer fish from wooden sailboats. Indians no longer use bark nets and non-Indians no longer use cotton or linen nets. (FPTO § 3-38)

31. Subsequent to the execution of the treaties and in reliance thereon, the members of the Plaintiff tribes have continued to fish for subsistence, sport and commercial purposes at their usual and accustomed places. Such fishing provided and still provides an important part of their livelihood, subsistence and cultural identity. (Exs. PL-44, p. 466; *358 PL-45, p. 467; PL-46, p. 39; Exs. QN-2 and QN-3; Exs. H-1 and H-2; Ex. L-5; Exs. MS-2, MS-3, MS-6, MS-7, MS-8, MS-9 and MS-10; Exs. Y-13 and Y-26; USA-68, USA-69 and USA-70) The Indian cultural identification with fishing is primarily dietary, related to the subsistence fishery, and secondarily associated with religious ceremonies and commercial fishing. Indian commercial fishermen share the same economic motivation as non-Indian commercial fishermen to maximize their harvest and fishing opportunities. (Ex. F-35, p. 24, l. 12-23; Ex. F-40, p. 8, l. 2-6, p. 118, l. 17 to p. 19, l. 12; Ex. F-45, p. 17, l. 3 to p. 18, l. 2; Tr. 740, l. 16 to 742, l. 14; Tr. 2566, l. 24 to 2567, l. 4; Tr. 2896, l. 22 to 2897, l. 7; Tr. 3031, l. 24 to 3232, l. 3) Indians allow non-Indians to fish on their reservation in sport fisheries for which Indians serve as guides and charge a license fee. (Tr. 2601, l. 10-22; Tr. 3475, l. 5-13; Tr. 3511, l. 23 to 3512, l. 15)

32. Some members of the Plaintiff tribes presently fish in the regular commercial fisheries of this State and the Pacific Coast. These Indians fish with the same gear as other fishermen. When fishing in the State commercial seasons, treaty Indians are not required to purchase a license or pay a landing tax. (Tr. 721, l. 5-9; Tr. 2489, l. 17-19; Tr. 2498, l. 12-15; Tr. 3865, l. 16-21; Ex. F-45, p. 14, l. 23 to p. 15, l. 4) With the exception of the full-time Indian commercial fishermen who fish in the all-citizen commercial fisheries of the State, Indian fishermen frequently have other occupations, but fish for food and to supplement their incomes. (Tr. 2600, l. 2-7; Tr. 2602, l. 5-22; Tr. 2886, l. 3-16; Ex. F-45, p. 15, l. 5-12)

33.  Acculturation of Western Washington Indians into western culture began prior to treaty times and has continued to the present day.  Today most Indians wear traditional western clothing, speak English, utilize the western economic system and western technology, share western religious traditions and participate in the western socio-political organization.  Traditional religious rites and ceremonies are no longer widely observed by most tribes.  Modern Indians share similar goals with modern non-Indians to acquire most items of American material culture.  (Tr. 1991, l. 13 to 1992, l. 25; Tr. 2431, l. 9-16; Tr. 2439, l. 9 to 2444, l. 8; Tr. 2448, l. 8 to 2450, l. 4; Tr. 2508, l. 19 to 2509, l. 4; Tr. 2893, l. 7 to 2894, l. 15; Ex. F-35, p. 24, l. 12-23; Ex. D-1, p. 22, l. 9-25; Tr. 2507, l. 17 to 2508, l. 10; Tr. 2608, l. 17 to 2609, l. 4; Ex. F-30, Answer to Question 40 in each set of Interrogatories to Plaintiff tribes; Ex. F-40, p. 11, l. 22 to p. 12, l. 13; Ex. F-42, p. 10, l. 18-22; Ex. F-45, p. 15, l. 13 to p. 16, l. 7) Employment acculturation of Indians has been a major cause of the drastic decline from treaty times of the number of Indians engaged in fishing.  (Tr. 1992, l. 5-10; Tr. 2599, l. 2-13; Tr. 3468, l. 16 to 3469, l. 8; Ex. F-40, p. 12, l. 14 to p. 13, l. 3) Additionally, many years of state enforcement actions against Indians exercising their claimed treaty right to fish have caused many members of Plaintiff tribes to discontinue such fishing activities at several of their usual and accustomed fishing places.   (Exs. USA-20, p. 23; H-1; H-2; L-5; MS-2; MS-3; MS-7; MS-8; MS-9; MS-10)

34. Some of the Plaintiff tribes presently regulate their tribal members' fishing. (Ex. JX-2b) In general, the pattern of the Indian tribal fishing regulations is designed to achieve a certain percentage spawning escapement from their fisheries. (Tr. 1413, l. 12 to 1414, l. 9; Tr. 1415, l. 5 to 1416, l. 1; Tr. 1418, l. 16-19) Tribal regulations generally restrict the harvest of fish in one or more of the following ways: 1) limitation on the number of fishermen; 2) separation between net sites; 3) restriction on the length of drift nets; 4) restriction on net length to certain channel widths; 5) restriction of mesh sizes; 6) weekly colsed periods; 7) season dates which reflect when fish are available. (Tr. 1411, l. 8 to 1413, l. 11)

*359 SPECIFIC TRIBES

Hoh Tribe

35. The Hoh Tribe is the present-day tribal entity which, with respect to the matters that are the subject of this litigation, is a political successor in interest to some of the Indian tribes or bands which were parties to the Treaty of Olympia. It is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government on the Hoh Reservation. This tribe is organized pursuant to section 16 of the Indian Reorganization Act of June 18, 1934, 48 Stat. 987, 25 U.S.C. § 476. Its membership is determined in accordance with its Constitution and Bylaws approved by the Assistant Secretary of the Interior on February 28, 1969. Its present membership roll was approved by a representative of the Secretary of the Interior on December 15, 1972. The tribe presently has approximately 62 members. (FPTO § 3-11; Ex. PL-55)

36. One of the earliest documentations of Hoh Indian fisheries is an 1853 account by a Russian survivor of an 1808 shipwreck. He wrote of his party's travels up the Hoh River during which they obtained salmon and fish roe from the Indians at various points along the river. At one location about 13 miles upstream the Indians refused to sell them any fish, explaining that high water had covered their fish traps. At the upper part of the river the Russians lived well on stored winter salmon which they found in the houses of Indians who withdrew from their settlements when the Russians arrived. (Ex. USA-22, pp. 5, 9-11)

37.  Prior to the treaties the Hoh Indians had devised fish taking techniques adaptable for a variety of water and weather conditions. They constructed artificial falls by placing hemlock logs across the smaller streams.  During periods of high water they would catch salmon below the falls with special falls nets.  They observed certain rituals to assure continued fish runs.   (FPTO § 3-82; Ex. USA-22, pp. 15-16)

38. Linguistically, culturally and historically the Quileute and Hoh Indians were one people who in 1855 lived along the Quillayute and Hoh river systems. Their identification as two separate tribes is a relatively recent artifact of government administration. (Ex. USA-22, p. 1)

39. In treaty times the usual and accustomed fishing places of the Quileute and Hoh Indians included the entire Hoh river system and the Quillayute, Dickey, Bogachiel, Calawah, Soleduck, Queets and Quinault river systems. (FPTO §§ 3-83, 3-84; Exs. USA-20, p. 32; USA-22, p. 17; Exs. H-1, p. 1, l. 17-22; H-2, p. 1, l. 24 to p. 2, l. 5; Ex. USA-31e, pp. 185-188)

40. There are presently fifteen Hoh fishermen, five of whom fish full time and earn on an average $7,000 a year from fishing and ten part-time fishermen who are otherwise employed as loggers and who earn approximately $5,000 a year from fishing. (Tr. 3124, l. 23 to 3125, l. 19) With the exception of two fishermen, all Hoh fishermen fish on the reservation at permanent set net sites. Two fishermen fish off the reservation because they do not have permanent set net sites on the reservation. (Tr. 3121, l. 24 to 3122, l. 14; Tr. 3123, l. 20 to 3124, l. 9)

41. The only portion of the Hoh River that is within the Hoh Reservation is the south half of the river extending one mile upstream from the mouth. (Tr. 3121, l. 21-23) The Department of Fisheries has promulgated off-reservation Indian-only fishing regulations for the Hoh River. With the exception of weekly closed periods, the regulations allow fishing down stream of the upper mouth of Nolan Creek to the Hoh Indian Reservation boundary from July 1 to November 30 annually. (Exs. JX-2a, Table 16, p. 158, App. II, p. 309; JX-2b, pp. 2-3)

42. The Hoh tribal council has adopted a fishing ordinance designating set net sites, limiting the number and length of nets, requiring daily removal of fish, regulating sales, and providing *360 penalties for violations.  (Ex. JX-2b, pp. 2-3; Tr. 3129, l. 7-12) Annual regulations are not adopted and estimates of predicted run size are not utilized in regulating the fishery.   (Tr. 3136, l. 13-20; Ex. F-30, Hoh Tribe's Answer to Interrogatory No. 15) The Hoh ordinance does not make provision for emergency regulations.  (Ex. F-30, Hoh Tribe's Answer to Interrogatory No. 11)

Lummi Tribe

43. The Lummi Tribe is the present day tribal entity which, with respect to the matters that are the subject of this litigation, is a political successor in interest to some of the Indian tribes or bands which were parties to the Point Elliott Treaty. This tribe is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government on the Lummi Indian Reservation. Its membership is determined in accordance with its Constitution and Bylaws approved by the Assistant Commissioner of Indian Affairs on April 2, 1948, as amended April 10, 1970. It does not have a current federally approved membership roll but it presently has approximately 1,500 members. (FPTO § 3-12; Ex. PL-56)

44. The Lummi Tribe is composed primarily of descendants of Indians who in 1855 were known as Lummi or Nook-Lummi and who lived in the area of Bellingham Bay and near the mouth of the river emptying into it. The present Lummi Tribe also includes descendants of the Semiahmoo and Samish Indians of 1855. The Lummi Indians, and the Semiahmoo and Samish Indians who were subsumed under the Lummi designation, were party to the Treaty of Point Elliott. Fourteen of the signatories to that treaty were identified as Lummi Indians. (FPTO § 3-39; Ex. USA-30, pp. 1-5)

45. Prior to the Treaty of Point Elliott, the Lummi, Semiahmoo and Samish Indians had been engaged in trade in salmon, halibut and shellfish both with other Indians and with non-Indians. (FPTO § 3-42) This trade continued after the treaty. (Ex. USA-30, p. 6) At the time of the treaty they maintained prosperous communities by virtue of their ownership of lucrative saltwater fisheries. The single most valuable fish resource was undoubtedly the sockeye, which the Lummis were able to intercept in the Straits on the annual migration of the sockeye from the ocean to the Fraser River. (Ex. USA-30, p. 11) Lummi Indians developed a highly efficient technique, known as reef netting, for taking large quantities of salmon in salt water. (Ex. USA-30, p. 11) Aboriginal Indian ‘reef netting’ differs from present methods and techniques described by the same term. (FPTO § 3-40) The Lummis had reef net sites on Orcas Island, San Juan Island, Lummi Island and Fidalgo Island, and near Point Roberts and Sandy Point.  (Ex. USA-30, p. 23; Exs. USA-62, USA-63; Tr. 1699, l. 2 to 1701, l. 21) When nature did not provide optimum reef conditions the Indians artificially created them.  (Ex. USA-30, p. 17) Reef netting was one of the two most important economic activities engaged in by these Indians, the other being the sale of dog fish oil.  These Indians also took spring, silver and humpback salmon and steelhead by gill nets and harpoons near the mouth of the Nooksack River, and steelhead by harpoons and basketry traps on Whatcom Creek.  They trolled the waters of the San Juan Islands for various species of salmon.   (FPTO § 3-42; Ex. USA-30, pp. 6-25; Ex. G-21, pp. I-19-I-21)

46. In addition to the reef net locations listed above, the usual and accustomed fishing places of the Lummi Indians at treaty times included the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle, and particularly Bellingham Bay. Freshwater fisheries included the river drainage systems, especially the Nooksack, emptying into the bays from Boundary Bay south to Fidalgo Bay. (Exs. USA-20, p. 39; USA-30, pp. 23-26; Exs. PL-94a, b, c, d, e, t, u, v, *361 w, x; Ex. G-26, pp. II-9 to II-13; Exs. USA-60, USA-61, USA-62, USA-63, USA-64; Tr. 1665, l. 4-11, l. 23-24)

47. Reef net locations were owned by individuals who claimed proprietary rights by virtue of inheritance in the male line. These locations constituted very valuable properties to their native owners. (Ex. USA-30, pp. 6, 20, 21; Tr. 2036, l. 10-16; Tr. 2039, l. 19 to 2041, l. 20) Some of the Lummi signers of the treaty were owners of reef net locations. Lummi Indians who were present at the Point Elliott Treaty Council later asserted that the Lummi signers had received assurances there that they would continue to hold the rights to their fishing grounds and stations, including their reef net locations. (Ex. USA-30, pp. 6-10; Tr. 2054, l. 2 to 2055, l. 1)

48. After the treaty the Lummi Indians continued to use their reef net locations until about 1894, when fish traps owned by non-Indians were located so as to render valueless many of the Lummi reef net locations. Some Lummis continued to use locations in the San Juan Islands from the turn of the century to the early 1920's. In approximately 1924 Lummi Indians stopped reef netting at their sites off the west coast of Lummi Island when the cannery to which they had been selling their fish closed. In 1934, when fish traps were prohibited in Puget Sound waters, Indian fishermen again