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, [**102] 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. [**103] 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. [**104] 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 closed 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 [**105] 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; [**106] 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, [**107] 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 [**108] 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 [**109] 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, [**110] 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; [**111] 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 [**112] their fish closed. In 1934, when fish traps were prohibited in Puget Sound waters, Indian fishermen again had access to former locations. When a new cannery opened in 1939 Lummi Indians and non-Indians began reef netting again on the west coast of Lummi Island. However, non-Indian fishermen using the reef net technique rapidly occupied the more profitable reef net locations. [Ex. USA-30, pp. 26-27; Tr. 2097, l. 21 to 2102, l. 3; Tr. 2812, l. 22 to 2814, l. 10; Ex.PL-2, pp. 169-171, 175; Exs. L-5, p. 4, l. 4-7, l. 26 to p. 5, l. 9; L-6, p. 1, l. 29 to p. 2, l. 24]

49. The Department of Fisheries issues a reef net license to any non-Indian who applies and pays the fee and to any Indian who applies without a fee. The Department does not determine the site where the license is used nor does the license entitle the licensee to any site. The Department does, however, regulate reef net fishermen by time, area and distance between rows of gears. It does not regulate the number of reef nets or the separation between reef nets and reef net boats within a row. [FPTO § 3-608]

50. There are presently 43 reef nets being operated in Legoe Bay off Lummi Island, [**113] arranged in rows arbitrarily numbered from 0 to 9 running north to south. None of these is owned by Lummis. Within each row there are varying numbers of reef net gear at specific positions which are numbered from the shore outward. A number of these rows and some of the positions are vacant and have remained so for many years because the sites are not productive. [Tr. 3674, l. 9 to 3677, l. 6; Tr. 3714, l. 17-19; Tr. 3764, l. 5-20; Exs. RN-7 and RN-8] Many of the reef net operators have been fishing in the same locations for thirty to thirty-five years. Only seven or eight positions of those occupied in 1973 were profitable over a four-year period. [Tr. 3703, l. 2 to 3704, l. 3; Tr. 3714, l. 10-14; Tr. 3744, l. 20 to 3745, l. 5]

51. Present day non-Indian reef net gear at Legoe Bay is located in part directly on the sites traditionally occupied by the Lummis at treaty times and thereafter. [Ex. L-7; Tr. 3743, l. 3-19; Tr. 2928, l. 3 to 2929, l. 11; Tr. 3756, l. 13 to 3757, l. 19; Ex. L-1; Ex. L-3; Tr. 3099, l. 20 to 3108, l. 23; Ex. L-4; Tr. 3113, l. 3 to 3117, l. 1]

52. The location of the reef net is [**114] one of the most critical factors in the success of a reef net operation. [Tr. 3710, l. 15-18; Tr. 3748, l. 22 to 3749, l. 5] Profitable positions are occupied permanently, unprofitable ones abandoned or operated intermittently or experimentally. [Tr. 3702, l. 25 to 3710, l. 14]

53. Since the turn of the century, the heavier volume of fish in the vicinity of Legoe Bay traveled close to shore. This has changed so that now fish must be [*362] taken in deeper water. This has been caused by the installation of traps and the present abundance of other fishing gear in the reef net area. [Tr. 3746, l. 20 to 3748, l. 20] In aboriginal times, Indian fishermen, like all fishermen, shifted to those locales that seemed most productive at any given time, including operation of the reef nets. [Exs. USA-20, p. 22; USA-52, p. 4, l. 25 to p. 5, l. 1]

54. All the reef net boats employ the same basic principal developed and used by the aboriginal Lummis, namely creation of an artificial reef to lead the migrating salmon into a net slung between two boats which is lifted when the fish enter the net. [Ex. USA-30, pp. 13-19] Modern gear incorporates numerous [**115] refinements and improvements including the addition of electric power to pull the nets. [Ex. RN-1, p. 55, l. 6 to p. 67, l. 14; Ex. RN-5, p. 15, l. 21 to p. 17, l. 9]

55. The present reef net operators occupy fixed positions at the reef net grounds in Legoe Bay and maintain a "gentlemen's agreement" among themselves. The agreement is to the effect that an occupant of a location is entitled to maintain that location to the exclusion of all others. It further provides that no location will be yielded unless to one who agrees to purchase the equipment from the occupant. If the occupant does not desire to sell his equipment no change in occupancy of the location can occur. [Tr. 3681, l. 1 to 3682, l. 4; Tr. 3704, l. 4 to 3705, l. 10; Tr. 3717, l. 13-22] Reef netters do not voluntarily give up their locations or rotate to any other location. [Tr. 3771, l. 19-22] Members of the Reefnetters' Association do not recognize Lummi Indians as having any treaty right to occupy a position on the reef net grounds, and these Indians are, as far as these reef-netters are concerned, in no different position than a non-Indian who would seek to acquire a location. [**116] [Tr. 3717, l. 23 to 3719, l. 20]

56. In years past, the few Lummi Indians who operated reef net boats were gradually squeezed out of the reef net fishery by non-Indian pressure and by physical crowding of boats on Indian locations. [Tr. 2936, l. 20 to 2938, l. 17; Tr. 2962, l. 6-21; Tr. 2963, l. 18 to 2964, l. 1; Tr. 2966, l. 7 to 2967, l. 2] No present day Lummis are willing to contest any of the present occupants for possession of a reef net site. [Tr. 3008, l. 13-21] The Lummis are not willing to invest money and gear to occupy locations which are not economically productive. [Tr. 3007, l. 24 to 3008, l. 12] There are Lummi Indians who would be interested in participating in the reef net fishery at Legoe Bay if they could gain access to economically productive locations. [Tr. 2941, l. 13 to 2943, l. 1; Tr. 3009, l. 16 to 3010, l. 2] However, they object to having to purchase a non-Indian's fishing gear in order to occupy a good location. [Tr. 3029, l. 15-24]

57. Over the years the Lummi Tribe and the Department of Fisheries have often worked together to resolve differences, although never reaching [**117] total agreement. [Tr. 3014, l. 4-13] In spite of Lummi objections, the Department of Fisheries has opened Bellingham Bay to a heavy gill net commercial fishery which severely depletes the number of fish reaching the Nooksack River, which is depended upon by the Lummi fishermen for a drift net fishery. [Tr. 2978, l. 25 to 2979, l. 18; Tr. 3019, l. 16-22]

58. At the present time, members of the Lummi Tribe engage in all types of fisheries, including gill netting, purse seining and trolling for salmon on Puget Sound, crab fishing, beach seining for all species, including herring, and drift and set gill netting in the Nooksack River. [Tr. 2974, l. 17 to 2975, l. 13] Eight Lummi fishermen own and operate commercial-size fishing boats and approximately 150 members of the tribe take part in the fishery on the Nooksack River. Fishing is vitally important to the people of the tribe, both for subsistence and a livelihood. [Tr. 2976, l. 7 to 2977, l. 6]

[*363] 59. The Lummi Tribe regulates both its river fishery and offshore fishery and requires its members to carry a tribal identification card and abide by tribal regulations. These fishing regulations [**118] are enforceable in tribal court and the tribe utilizes its police for enforcement. [Tr. 2977, l. 9 to 2978, l. 18] The tribe also imposes and collects a tax on its tribal fishermen. [Tr. 2981, l. 17 to 2982, l. 2] The tribe also operates a hatchery located at Skookum Creek some 15 or 20 miles from the reservation which has planted fish in the Nooksack River which will migrate to the ocean and Puget Sound. [Tr. 3016, l. 5-22]

Makah Tribe

60. The Makah Tribe is a party to the Treaty with the Makah. It is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government on the Makah Reservation. This tribe is organized pursuant to section 16 of the said Indian Reorganization Act of June 18, 1934, and is incorporated under section 17 of that Act. 25 U.S.C. § 477. Its membership is determined in accordance with its Constitution and Bylaws approved by the Secretary of the Interior on May 16, 1936. It does not have a current federally approved membership roll but it presently has approximately 900 members all residing at Neah Bay, Washington. [FPTO §§ 3-1, 3-13; Tr. 2519, l. 15-16; Ex. PL-57]

61. Makah wealth, power [**119] and maintenance of Northwest Coast culture patterns were achieved by and dependent upon a thriving commercial maritime economy which was well established prior to 1855. [Ex. USA-21, p. 30] The Makah Indians, prior to treaty times, were primarily a seafaring people who spent their lives either on the water or close to the shore. Most of their subsistence came from the sea where they fished for salmon, halibut and other fish, and hunted for whale and seal. The excess of what they needed for their own consumption was traded to other tribes for many of the raw materials and some of the finished articles used in the daily and ceremonial life of the village. A special feature of the Makah environment was a rich supply of halibut to which the Makah had access by virtue of ownership of lucrative fishing banks respected by competing tribes, a highly developed technology capable of efficiently harvesting the resource, and intensive processing and marketing of the finished product. [Ex. USA-21, pp. 11-13] At the time of the treaties, the Makahs relied more heavily on halibut than on salmon or steelhead for their diet and trade. [Tr. 1879, l. 3-7; Tr. 1907, l. 2-6] The Makah imported [**120] their basic needs such as housing materials and ocean-going canoes used for sea mammal hunting and ocean fishing because of the peculiarly rich resources available to them in their ocean territories, primarily halibut and whale. In addition to the marine products which the Makahs consumed themselves and sold to other Indians in order to buy native goods, they produced a considerable surplus for sale to whites. [Ex. USA-21, pp. 15, 18; FPTO § 3-47; Ex. PL-9, p. 35]

62. The treaty commissioners were aware of the commercial nature and value of the Makah maritime economy and promised the Makah that the government would assist them in developing their maritime industry. Governor Stevens found the Makah not much concerned about their land, apart from village sites, burial sites, and certain other locations, but greatly concerned about their marine hunting and fishing rights. Much of the official record of the treaty negotiations deal with this. Stevens found it necessary to reassure the Makah that the government did not intend to stop them from marine hunting and fishing but in fact would help them to develop these pursuits. [Ex. USA-21, pp. 36-37] Article 13 of the Treaty with the [**121] Makah, however, did prohibit the tribe from trading at Vancouver Island. [Ex. PL-41, p. 419] By his promises of kettles and fishing apparatus to the [*364] Makah, Governor Stevens clearly indicated that the treaty commissioners had no intention to restrict the Indians to aboriginal equipment or techniques. The Government's intent to aid the Makah in their whaling, sealing and other fisheries continued after the treaty. [FPTO § 3-44; Ex. PL-41, p. 419; Ex. PL-43, p. 417; Ex. USA-21, pp. 33-39]

63. At the time of the treaty, the Makah Indians maintained separate winter and summer villages, such that residents of one winter village (e.g. Baadah) summered at a specific summer village (e.g. Kiddecubbut). The treaty commissioners did not fully understand this network of summer and winter villages. Prior to, during and after the treaty some of the Makah Indians traveled from their summer villages and in the fall moved to camps which provided access to places for taking fish from the salmon runs in the streams and rivers draining into the Strait of Juan de Fuca. [FPTO § 3-46]

64. The Makah could neither read, write nor speak English. Governor Stevens and his party had the assistance [**122] of a Clallam Indian who spoke the Makah language, though Makah is totally different and unrelated to Clallam. The treaty appears to have been translated into Chinook jargon, which has a limited vocabulary and was used primarily for trade purposes, but is inadequate to convey concepts of tenure and tenancy in a legal document. Governor Stevens spoke to the Makah in English which was translated into Chinook by B. F. Shaw, the official interpreter. [Ex. USA-21, pp. 24-25]

65. The Makah's usual and accustomed fishing places prior to treaty time included the waters of the Strait of Juan de Fuca to Port Crescent (near Port Angeles) extending out into the ocean to an area known as Swiftsure and then south along the Pacific Coast to an area intermediate to Ozette Village and the Quileute Reservation, as well as the rivers along the Strait of Juan de Fuca and down the Pacific shore starting at the Elwah River and including the Lyre River, Twin River, Pysht River, Hoko River, Sekiu River, Sooes River, Waatch River, Big River, and Ozette River and Lake Ozette. [Exs. USA-20, p. 30; USA-21, pp. 19-22; Ex. USA-31e, pp. 191-197; Tr. 2521, l. 16 to 2522, l. 3, l. 21 to 2523, l. [**123] 2] In addition to their plentiful catches of halibut, at treaty times the Makah took chinook, sockeye, chum and coho salmon at their usual and accustomed fishing places using fishing techniques which included beach seining, spearing and trolling. [FPTO § 3-48] The Makah Indians have continued to assert their use rights to areas of saltwater and freshwater after the execution and ratification of the treaty. [FPTO § 3-45]

66. In aboriginal times the Makah enjoyed a high standard of living as a result of their marine resources and extensive marine trade. With the advent of non-Indians to the area, new markets developed, Makah marine pursuits were intensified and Makah wealth increased. [Ex. USA-21, p. 29] The Makah not only sustained a Northwest Coast culture, but also were wealthy and powerful as contrasted with most of their neighbors. They maintained from time immemorial a thriving economy based on commerce. [Ex. USA-21, pp. 32-33]

67. At the present time out of a tribal membership of approximately 900, there are approximately 150 persons engaged in fishing either part time or full time. There are approximately 60 Makah who are steady fishermen. [Tr. 2519, l. 15-16; [**124] Tr. 2520, l. 10-21] There are presently eight boats of commercial size fishing on the high seas. Three of these boats are gill netting in the Strait of Juan de Fuca, four are trolling, and one is tuna fishing. The commercial boats are thirty-six feet in length except that the tuna boat is fifty-four feet in length. [Tr. 2523, l. 15 to 2524, l. 13] These boats were obtained by the tribe using its resources to acquire the boats and are managed through a tribal corporation. [Tr. 2524, l. 14-24] These commercial boats go as far as fifty miles out to sea, east to [*365] Puget Sound and south to Westport and the Columbia River. [Tr. 2524, l. 25 to 2525, l. 21] In addition to these larger boats, the remaining Makah fishermen operate small boats ranging in size down to sixteen feet. [Tr. 2524, l. 1-4] The Department of Fisheries, after consultation with the Makah Tribe, has adopted fishing regulations for Washington territorial waters north of Cape Alava and west of the Hoko River for an Indian-only fishery. [Tr. 2554, l. 17 to 2555, l. 8; Ex. JX-2a, App. II, Table 3, pp. 311-312]

68. Salmon is a staple food of the Makah Tribe today and [**125] is used for all ceremonies and potlatches. In addition to personal use, the Makah depend upon their commercial take of salmon, and logging activities, for economic survival. [Tr. 2528, l. 8-19]

69. The Makah Tribe has regulated its fishermen since 1937, and has promulgated written regulations for its reservation and off-reservation fisheries since 1952. [Ex. JX-2b, pp. 10-20; Tr. 2530, l. 24 to 2531, l. 5] These regulations were drafted by a fisheries committee composed of seven fishermen elected by the fishermen of the tribe and enacted by the Tribal Council. [Tr. 2519, l. 25 to 2520, l. 7; Tr. 2554, l. 1-8] These regulations have not been revised on an annual basis. [Tr. 2554, l. 9-16] In setting fishing seasons estimates of predicted run size are not utilized by the fisheries committee. [Tr. 2579, l. 10-14] The regulations are enforced by a tribal patrolman who warns offenders, and if the offender does not cease violation, he will be taken to tribal court and his nets confiscated. The Makah fishermen carry tribal identification cards. [Tr. 2530, l. 24 to 2535, l. 25] In addition, the Makah Tribe has established a formal procedure [**126] by which it seeks advice relating to conservation from state and federal agencies as guidance in drawing up its marine fishery regulations. [Tr. 2537, l. 9 to 2538, l. 7]

70. The Fisheries and Game Departments have from time to time prevented the Makah from exercising their treaty fishing rights at usual and accustomed grounds and stations on rivers along the Strait of Juan de Fuca, [Tr. 2522, l. 4 to 2523, l. 14] and from purse seining off the mouths of the Hoko and Pysht Rivers. [Tr. 2539, l. 25 to 2540, l. 8] In addition, the state allows sport fishermen to fish at the mouth of rivers fished by the Makah. Sport fishermen fishing in Makah usual and accustomed areas are allowed by state law to fish every day of the week and take up to three fish per day per fisherman. The number of sport fishermen is increasing to the point that they seriously impede the efforts of Makah commercial fishermen in marine waters. These fishermen crowd in on Makah fishing boats when they see them taking fish. This seriously hampers the Makah boats' ability to maneuver and to continue their fishing activity. [Tr. 2543, l. 19 to 2546, l. 5] In addition, the Makah [**127] have had their nets cut, have had holes chopped in their boats and have been shot at by non-Indians. [Tr. 2540, l. 19 to 2541, l. 7]

Muckleshoot Tribe

71. The Muckleshoot Tribe is the present day tribal entity which, with respect to the matters that are the subject of this litigation, is the successor to, and is made up principally of descendants of, tribes or bands which were parties to the Treaty of Point Elliott and the Treaty of Medicine Creek. [Ex. USA-27a, pp. i-vi; Exs. PL-23; PL-66; PL-3; PL-4; PL-41, pp. 417-418; PL-42, pp. 387-388, 392; PL-46, p. 39; Exs. USA-41a, pp. 3-672 to 3-679; USA-41b] It is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government on the Muckleshoot Indian Reservation. This tribe is organized pursuant to section 16 of said Indian Reorganization Act of June 18, 1934, and is incorporated under section 17 of that Act. Its membership is determined in accordance with its Constitution and Bylaws approved by the Secretary of the Interior on May 13, 1936, as amended on [*366] June 14, 1961, and March 26, 1969. [Ex. PL-58] Its present membership roll was approved by a representative of [**128] the Secretary of the Interior on December 15, 1969, and a supplemental roll was so approved on November 27, 1970. The tribe presently has approximately 386 members. [FPTO § 3-14; Exs. PL-48; PL-5; Exs. USA-54, p. 10, l. 24 to p. 12, l. 23; USA-46c; USA-46g; USA-47; USA-48; USA-56; USA-57; USA-43, pp. 13, 31; USA-44, pp. 1-2, 36; Tr. 1626, l. 1-16]

72. The Muckleshoot Indian Reservation was established on land ceded under the Treaty of Point Elliott, by Executive Order of the President on January 20, 1857, pursuant to authority under Article 6 of the Treaty of Medicine Creek, which was the only pertinent treaty then in effect. [Ex. USA-27a, p. vi; Ex. PL-21] The reservation drew its name from its location on Muckleshoot Prairie and not from the name of any Indian group that was placed thereon. Pursuant to authority of the Treaty of Medicine Creek and the Treaty of Point Elliott, Indians from the Green and White River areas who constituted bands which were parties to the Treaty of Point Elliott, [see Ex. PL-9, p. 42] and some Indians from the up-river portions of the Puyallup River who were party to the Treaty of Medicine Creek, were removed to and consolidated on [**129] the Muckleshoot Reservation. No aboriginal band or tribe known collectively by the name "Muckleshoot" (however spelled) existed at treaty time. Those Indians who were removed to and consolidated on the Muckleshoot Reservation thereafter became known as the "Muckleshoot Indians" or "Muckleshoot Tribe." On March 30, 1935, the Indians of the Muckleshoot Indian Reservation voted, pursuant to the provisions of the Indian Reorganization Act, 48 Stat. 988, 25 U.S.C. §§ 476 and 479, not to exclude themselves from application from that Act. That Act authorizes "the Indians residing on the same reservation" to organize as a tribal entity under the Act. The Act of June 15, 1935, 49 Stat. 378, 25 U.S.C. § 478b, provides that nothing in the Indian Reorganization Act "shall be construed to abrogate or impair any rights guaranteed under any existing treaty with any Indian tribe, where such tribe voted not to exclude itself from the application of said Act." [FPTO § 3-14]

73. Acting pursuant to instructions from his superiors in the Indian Service to unite small bands of Indians in Washington Territory under a single head, Governor Stevens designated Seattle as head chief of the Dwamish Indians [**130] under which he included the Skopamish, Stkamish, and Smulkamish bands of Indians of the White River and Green River areas. These bands are named in the preamble of the Treaty of Point Elliott. Although none of the Indian signatories to the treaty is identified with any of those three bands, Chief Seattle's signature on the treaty was treated by Stevens and the United States as being on behalf of all of the bands which Stevens had grouped as Dwamish, including the Skopamish, Stkamish, and Smulkamish. [Exs. USA-27a, pp. i-vi; PL-32; PL-66; G-4, p. 179]

74. The United States, acting by and through the Secretary of the Interior and his duly authorized delegatees, has consistently recognized the Muckleshoot Tribe as the political successor in interest to certain of the Indian tribes, bands or villages which were parties to the Treaty of Point Elliott or the Treaty of Medicine Creek. [Exs. PL-48; PL-5; Exs. USA-54, p. 10, l. 24 to p. 12, l. 23; USA-46c; USA-46g; USA-47; USA-48; Tr. 1624, l. 21 to 1625, l. 17]

75. Prior to, during and after treaty times the Indian ancestors of the present day Muckleshoot Indians caught chinook, coho, kokanee, sockeye, chum and pink salmon [**131] and steelhead which they ate fresh and cured for winter consumption and for exchange and trade. They used weirs, funnel snares, grills, set nets and spears for this purpose. They operated their weir sites so as to periodically remove lattice sections of [*367] the weir thus permitting the salmon to escape upstream to spawn. [FPTO § 3-51; Ex. USA-27b, p. 7]

76. Prior to and during treaty times, the Indian ancestors of the present day Muckleshoot Indians had usual and accustomed fishing places primarily at locations on the upper Puyallup, the Carbon, Stuck, White, Green, Cedar and Black Rivers, the tributaries to these rivers (including Soos Creek, Burns Creek and Newaukum Creek) and Lake Washington, and secondarily in the saltwater of Puget Sound. Villages and weir sites were often located together. [FPTO § 3-53; Ex. USA-20, p. 38; Ex. USA-27b, pp. 7-16; Ex. PL-23, pp. 11-12]

77. The State's failure to recognize the Muckleshoot Tribe as a treaty tribe has limited the share of the catch which the Department of Fisheries has tried to make available to that tribe. [Tr. 3629, l. 8-12; Tr. 3794, l. 12 to 3795, l. 18] If it were determined that the Muckleshoot Tribe [**132] has off-reservation treaty fishing rights it would be possible to provide that tribe with a greater share of chinook and coho salmon in Lake Washington than is now allowed. [Tr. 3625, l. 22 to 3626, l. 3]

78. Before the Lake Washington ship canal was constructed in 1916 Lake Washington extended farther south and had its outlet through the Black-Duwamish Rivers. The Cedar River did not empty into the lake, but rather into Black River which no longer exists. At the junction of Cedar and Black Rivers were several winter villages and an important Indian fishery. Black River joined White River to form the Duwamish River and there was another important Indian settlement and fishery at this junction. Farther upstream White River and Green River met and on the land between the forks was the most important and largest up-river settlement and fishery. [Ex. JX-2a, p. 298; Ex. USA-27b, pp. 9-12] The Indians had at least three groups of important weir sites to intercept returning salmon on those rivers. These were destroyed by the changes wrought by the elimination of the Black River and the new flow patterns of the Cedar and White Rivers. The Black River silver salmon run was destroyed, [**133] as were some of the other spawning areas around Lake Washington. [Ex. USA-27b, pp. 10-12]

79. The Muckleshoot Tribe has promulgated regulations for its reservation and off-reservation fisheries. [Ex. JX-2b, pp. 21-23] Although the tribe has received assistance from federal biologists in developing its regulations, the federal biologists have discussed with the tribe, but not provided it, estimates of predicted run size and recommendations of seasons or areas for fishing. [Tr. 1285, l. 12-17, l. 22-25; Tr. 1348, l. 5-11; Tr. 1349, l. 18 to 1350, l. 1] There are presently between thirty-five and fifty Muckleshoot fishermen. [Ex. MS-8, p. 4, l. 5-6]

80. There has been cooperation between the Muckleshoot Tribe and the Department of Fisheries, particularly on water problems in the White River, which is one of the major factors affecting the availability of fish in the Indian fishery. [Tr. 3162, l. 10 to 3163, l. 7; Ex. F-25] Although the Department of Fisheries, pursuant to state court decisions, has not recognized the Muckleshoot Tribe as a treaty tribe, it has provided for a permit fishery for Muckleshoot Indians on Lake Washington and test [**134] fishing on the Green and Carbon Rivers. [Tr. 1093, l. 16 to 1094, l. 6; Tr. 3570, l. 14 to 3571, l. 15; Tr. 3575, l. 23 to 3577, l. 4]

Nisqually Tribe

81. The Nisqually 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 Medicine Creek Treaty. It is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government on the Nisqually Indian Reservation. This tribe is organized pursuant to section 16 of the Indian [*368] Reorganization Act of June 18, 1934. Its membership is presently determined in accordance with its Constitution and Bylaws approved by the Assistant Secretary of the Interior on September 9, 1946. It has a membership roll approved by a representative of the Secretary of the Interior on November 3, 1965. The tribe presently has approximately 48 members. A new constitution was adopted by the tribe on June 9, 1973, to become effective upon approval by the Secretary of the Interior. The matter is currently pending before the Secretary. [FPTO [**135] § 3-15; Tr. 2635, l. 8-14; Ex. PL-59] The Indians who were assigned to the Nisqually Reservation, including those identified in the treaty preamble as Nisqually and Steilacoom, were thereafter known as Nisqually Indians and were dealt with by the United States as a separate and collective entity. [Ex. USA-25, p. 25]

82. During treaty times the Nisqually Indians recognized separately and harvested the following species or races of anadromous fish: a) Tl'hwai (chum or dog salmon); b) Skowitz (coho salmon); c) Huddo (humpback salmon); d) Satsup (chinook salmon), To-walt (king or tyee salmon) were recognized as Satsup, the basis of distinction being size; e) Skwowl (steelhead). Their fishing techniques included trolling in saltwater, and nets, traps, weirs, gaffs, spears and hook and line in freshwater. Such fish were the Nisqually Indians' most important item of food. They were eaten fresh, were smoked and preserved, and were used for nonfood purposes such as glue base by the Nisqually Indians. The Nisqually Indians also identified several constellations of stars by reference to fish and fisheries. [FPTO § 3-58; Ex. USA-25, pp. 10-21a] The unpublished works of George Gibbs [**136] contain at least three notations of a fish trap or fish dam on the Nisqually River involving at least two separate locations. [FPTO § 3-61; Ex. USA-25, p. 22]

83. Dr. George Suckley, who reported information respecting salmon which he recorded from the Indians while he resided at Puget Sound between 1853 and 1856, reported that:


"* * * the salmon known to the Nisquallies as the skwowl, which I consider identical with the Klutchin of the Clallums, * * * arrives in the bays and estuaries of Puget Sound about the middle of autumn, and towards the first of December commences to run up the larger rivers emptying into the sound. Their ascent of these streams continue through December and January. This arrival of the species in fresh water is not as simultaneous, neither do they arrive in such great numbers at any one time or in 'schools,' as is the case with the skourtz and several other species, but the 'run' being somewhat more 'drawn out' affords a steady moderate supply to the Indians during its continuance."


He further recorded that, after the skwowl entered the rivers, they were taken by the Indians in nets, traps, baskets, and also by spearing. [FPTO [**137] §§ 3-55; 3-56; Ex. PL-50, p. 329; Ex. USA-25, pp. 15-16]

84. Dr. George Suckley reported on some of the uses which the Indians made of different species of salmon in 1853 and 1854. Quoting George Gibbs, Suckley reported that the dog salmon is preferred by the Indians for drying because there is but little fat upon it. [FPTO § 3-57; Ex. PL-50; Ex. USA-25, pp. 17-18]

85. At the time of the Medicine Creek Treaty up-river fisheries in the Nisqually area were normally used by the locally resident group. Saltwater fisheries and fisheries at the mouth of the Nisqually River traditionally were used by visitors as well as the local residents. Visitors might use them because they held claims to them by virtue of kin ties with the local people or they might be accorded guest privileges by virtue of friendship. [FPTO § 3-60; Ex. USA-25, p. 26] Use of the lower Nisqually fisheries by non-Nisqually was with the permission of the local people [*369] and would have been accorded automatically to people claiming descent from someone who had come from the local village or who had married into it. People with more distant kin ties to the local village or with none would be accorded fishing [**138] privileges on request if amicable relations obtained. [Ex. USA-25, p. 26]

86. The usual and accustomed fishing places of the Nisqually Indians included at least the saltwater areas at the mouth of the Nisqually River and the surrounding bay, and the freshwater courses of the Nisqually River and its tributaries, McAllister (Medicine or Shenahnam) Creek, Sequalitcu Creek, Chambers Creek and the lakes between Steilacoom and McAllister Creeks. The saltwater fisheries were shared with other Indians. [FPTO § 3-63; Exs. USA-25, p. 25; USA-31e, pp. 200-202; Exs. G-23, pp. II-18-19; G-25, p. II-4]

87. Salmon and steelhead continue to be important to the Nisqually Indians as evidenced by continued fishing activity. [Exs. USA-25, p. 26; USA-69; USA-70] The greatest catch by species from the Nisqually River by Indians is on the chum salmon run. This run is largely unharvested by non-Indian fisheries in Washington waters because it comes through Puget Sound after the commercial fishing has been closed for the season and because chum salmon do not take the sportsmen's lures or bait to any significant degree. The chum run is in the Nisqually River at the same time that steelhead are running [**139] in the river. Because of this the state has allowed no off-reservation Indian net fishery on this run. [Tr. 3633, l. 7 to 3634, l. 18; Tr. 882, l. 16 to 883, l. 25; Exs. F-58; F-59; Ex. JX-2a, App. II, p. 315] The Department of Fisheries' agreement to the prohibition is not based on any concern for preservation of the Nisqually River chum run but upon a request from the Game Department that the prohibition was necessary to preserve the winter steelhead run. [FPTO § 3-607]

88. Pursuant to an understanding between the Department of Fisheries and the Department of Game, the latter Department assumes the lead jurisdictional role over the adoption and enforcement of regulations governing fishing on rivers during the time that steelhead are primarily the anadromous fish in the river. [Tr. 221, l. 21 to 223, l. 12; Tr. 226, l. 11-15] On the Nisqually River the Game Department assumes lead jurisdiction under this understanding on December 1st of each year. The peak of the chum run in the Nisqually River occurs after December 1st and the predominant species in the river during December is chum salmon. [FPTO § 3-607; Tr. 2686, l. 5 to 2687, l. 11; [**140] Ex. JX-2a, Table 49, p. 215 and Table 62, p. 232; Ex. F-6, Table 20, p. 25]

89. The Game Director has testified that his Department would have no objection to the Department of Fisheries allowing the Nisqually Indians an off-reservation gill net season on the Nisqually River for chum salmon during the first weeks of December if the net mesh size is large enough to allow escapement of steelhead through it, and the run size is sufficient. [Tr. 227, l. 2 to 229, l. 115] Subject to those conditions being satisfied, the Game Director testified that it may be possible and feasible to regulate an off-reservation Indian net fishery on the Nisqually River to take chum and at the same time conserve the steelhead run. [Tr. 232, l. 5 to 233, l. 23]

90. The Nisqually Tribe has promulgated fishing regulations for its on and off-reservation fishing areas. [Ex. JX-2b, pp. 24-26; Ex. USA-70, p. 4, l. 10-14] These regulations were drawn up by a fish committee composed of tribal fishermen without assistance from federal biologists. [Tr. 2644, l. 13 to 2646, l. 5; Ex. F-72] The original fishing ordinance was adopted in 1968 and annual regulations have been adopted [**141] only since 1972. [Ex. F-33, p. 3, l. 17-22] In setting seasons the tribe does not use estimates of predicted run size. [Tr. 2646, l. 6-14] There is no formal [*370] enforcement procedure and the regulations are presently not being enforced. Violations are presently handled by the fishermen themselves. [Ex. F-33, p. 17, l. 8-22]

91. Nisqually Indians today fish with drift and set nets. [Tr. 2646, l. 15-20] There are not enough fishing sites on the Nisqually Reservation to accommodate all Nisqually Indian fishermen. [Ex. F-33, p. 8, l. 7-18; Tr. 2689, l. 21 to 2690, l. 14] Most members of the Nisqually Tribe live off the reservation in the near vicinity to the Nisqually valley. [Ex. F-33, p. 7, l. 19 to p. 8, l. 6] A number of set net sites are located throughout the stretch of river downstream from the reservation. [Ex. PL-53; Ex. USA-70, p. 6, l. 11-16] The locations for these cites change because the river course changes. [Tr. 2652, l. 17 to 2653, l. 1]

92. The Department of Fisheries has promulgated off-reservation fishing regulations for Indians on the Nisqually River. [Ex. JX-2a, App. II, Table 6, p. 315] [**142] The Department and the tribe have discussed issues concerning development of off-reservation regulations, but have not reached agreement on fishing seasons, areas, or times. [Ex. F-33, p. 12, l. 23 to p. 13, l. 5]

93. There are presently approximately fifty fishermen fishing in the Nisqually Indian fisheries, about twenty of whom fish year-round. [Ex. USA-70, p. 3, l. 11-14] Included are approximately twenty members of the Nisqually Tribe, seven to ten of whom fish full time. [Ex. F-33, p. 6, l. 14 to p. 7, l. 8] The Nisqually Tribe allows non-enrolled members to fish in its treaty fisheries. [Ex. F-33, p. 15, l. 3-13]

Puyallup Tribe

94. The Puyallup 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 Medicine Creek Treaty. It is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government. This tribe is organized pursuant to section 16 of said Indian Reorganization Act of June 18, 1934. Its membership is determined in accordance with its Constitution [**143] and Bylaws approved by the Secretary of the Interior March 11, 1936, as amended June 1, 1970. It does not have a current federally approved membership roll but it presently has approximately 600 members. [FPTO § 3-16; Ex. PL-60]

95. The reference in the Preamble to the Treaty of Medicine Creek to the Puyallup and S'Homamish Bands of Indians was intended to encompass all those groups of Indians living on the Puyallup River, its tributary creeks, and neighboring Vashon Island. After the treaty these people, as well as any others who removed to the Puyallup Reservation, were all subsumed under the single name "Puyallup". [FPTO § 3-67]

96. At the time of the Medicine Creek Treaty communication among up-river Puyallups, people of the Green River-White River-Stuck River area and the up-river Nisquallies was relatively easy. In addition, there was considerable intermarriage and trade contact with Sahaptin-speaking peoples from east of the Cascades. [FPTO § 3-65]

97. Accounts by settlers and others prior to and contemporaneous with the treaties attest to the abundance of fish in the waters utilized by the Puyallup Indians and to the variety of techniques employed by them in taking [**144] fish. In the rivers the bulk of the salmon and steelhead was taken in nets associated with weirs, but other important taking techniques included gaffing, falls traps, river seines, and spearing. In the marine areas salmon were taken by beach seining and trolling. These fish were important to the Indians as an item of diet and subsistence, an item of trade, a medium of exchange and a base for such manufactured commodities as glue. [FPTO § 3-68; Ex. USA-26, pp. 8-16]

[*371] 98. The principal fishing places of the Puyallup Indians were located in the area ceded by these Indians under the Medicine Creek Treaty as well as the area subsequently set aside pursuant to the treaty for their exclusive use as the Puyallup Indian Reservation. [FPTO § 3-73] The land set apart as the Puyallup Reservation as a result of Governor Stevens' 1856 recommendation for relocation of the reservation also was intended to encompass usual and accustomed freshwater fishing sites, and to provide access to traditional fisheries in Commencement Bay for those Indians who were brought to the reservation. [FPTO § 3-69; Ex. PL-75; Ex. USA-26, p. 21; Ex. PL-42, p. 385]

99. The usual and accustomed fishing [**145] places of the Puyallup Indians included the marine areas around Vashon Island and adjacent portions of Puget Sound, Commencement Bay, the Puyallup River and the tributary rivers and creeks. In addition, smaller creeks adjacent to but not tributaries of the Puyallup River were used. [Exs. USA-20, p. 37; USA-26, p. 21; Ex. G-24, p. II-13] The Puyallup Tribe has enacted regulations applicable to the exercise of its tribal fishing rights. [Ex. JX-2b, pp. 27-34; Tr. 2872, l. 25 to 2873, l. 3] The regulations provide for a year-round four day per week fishery without annual seasons. There are limitations on open areas and amount and size of gear. Presently there are no emergency regulations, but the tribal council is authorized to change fishing times, require catch reports and establish registration fees. Predictions of estimated run size are not used in setting the regulations. [Tr. 2879, l. 4 to 2880, l. 3; Ex. JX-2b, pp. 29-33] Penalties are provided for but there is no formal enforcement procedure. Regulations are enforced by a group of twenty-five to thirty fishermen confronting the wrongdoer and pulling his net out of the water if it is in violation of the regulations. [**146] [Ex. JX-2b, p. 33; Tr. 2874, l. 9-15; Tr. 2883, l. 15-24]

100. Fishing for salmon and steelhead continues to be important to the Puyallup Tribe. [FPTO § 3-74; Tr. 2874, l. 16-23] There are between thirty and forty Puyallup fishermen. [Ex. F-34, p. 35, l. 1-3; Tr. 2885, l. 13-16] These fishermen fish seasonally, mainly between August and January, and earn approximately $5,000 apiece. During the remainder of the year many are otherwise employed. [Tr. 2885, l. 17 to 2886, l. 16; Tr. 2888, l. 17 to 2889, l. 7]

101. An Assistant Director of Fisheries testified that Puyallup Indians fishing on the fall chinook run in the Puyallup River have overfished causing a reduction in run size. [Ex. F-28, p. 58, l. 29 to p. 59, l. 30; Ex. F-4] In 1973 federal biologists concurred with the Department of Fisheries' prediction that the fall chinook run to the Puyallup River would be a low run. The Department of Fisheries closed all commercial fishing under its control on that run including the Puyallup Indian net fishery. The reason for the closure was explained to a federal biologist who agreed that the Department's restriction of fishing on the [**147] Puyallup River fall chinook run was necessary for conservation. [Tr. 1394, l. 20-24; Tr. 3578, l. 18 to 3580, l. 20] Although a member of the Puyallup Tribe's fishery committee discussed the low fall chinook run with the federal biologist, the committee did not close the river to its fishermen. Its fishermen continued to fish in the river contrary to state regulation. [Tr. 2881, l. 1 to 2883, l. 5; Tr. 3580, l. 21 to 3581, l. 2]

102. At least prior to November, 1973, when considering whether to authorize any net fishery for Puyallup Indians the Game Department operated on the premise that, as a result of applicable court decisions, Indian fishing anywhere on the Puyallup River was subject to the regulatory jurisdiction of the State. [Tr. 250, l. 10 to 252, l. 20]

Quileute Tribe

103. The Quileute Tribe is the present day tribal entity which, with respect [*372] 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 [**148] government on the Quileute Reservation. This tribe is organized pursuant to section 16 of the said Indian Reorganization Act of June 18, 1934. Its membership is determined in accordance with its Constitution and Bylaws approved by the Secretary of the Interior on November 11, 1936, as amended March 11, 1949. Its present membership roll was approved by a representative of the Secretary of the Interior on December 26, 1972. The tribe presently has about 450 members. [FPTO § 3-17; Ex. PL-61; Tr. 3192, l. 22-24]

104. At the time of the treaty the Quileute (including the Hoh) relied primarily on salmon and steelhead taken in their long and extensive river systems. These Indians were able to take canoes far up into the foothills country by following the river system, not only to take salmon and steelhead, but also to hunt land game in the foothills. [FPTO § 3-77; Ex. USA-22, pp. 9-16]

105. The Quileute reliance on fish as a food staple is reflected in their calendar. Quileute Indian names for some months are related to fish or fishing activities. Translated into English these names and their approximate period of our calendar include the following: "Beginning of the spawning [**149] of the steelhead salmon", approximately January (32 days); "regular or strong spawning time of salmon", about February (32 days); "time for black (chinook) salmon", September; "time for silver salmon", October. [FPTO § 3-79; Ex. USA-22, pp. 13-14]

106. An account of Quileute fishing given September 1, 1916, by Arthur Howeattle, a Quileute Indian, stated that the Quileutes used to fish in rivers, lakes and the ocean and that the fishing grounds in the river were used by individual families and those in the lakes and ocean were used in common. He stated further that fish were caught with drag nets, scoop nets and fish traps, fish baskets, dip nets, spears, hooks and lines. [FPTO § 3-80; Ex. USA-22, p. 14]

107. Quileute aboriginal fishing gear included a stake trap stretching across a stream with open spaces at intervals in which dip nets were suspended; triangular fish traps which often could catch a canoe-load of fish at a time; and sloping dams across a river along which dip or bag nets were suspended from the downstream side into which the fish would jump in their attempts to get over the dam. [FPTO § 3-81]

108. Before, during and after treaty times, the usual and accustomed [**150] fishing places of the Quileute and Hoh Indians included the Hoh River from the mouth to its uppermost reaches, its tributary creeks, the Quileute River and its tributary creeks, Dickey River, Soleduck River, Bogachiel River, Calawah River, Lake Dickey, Pleasant Lake, Lake Ozette, and the adjacent tidewater and saltwater areas. In aboriginal times the Quileute Indians utilized fishing weirs where salmon were caught along the Quillayute River. In 1861 James G. Swan encountered fish weirs about a mile up from the bend of the Quillayute River near its mouth and about a mile further upstream. Along the adjacent Pacific Coast Quileutes caught smelt, bass, puggy, codfish, halibut, flatfish, bullheads, devilfish shark, herring, sardines, sturgeons, seal, sea lion, porpoise and whale. [FPTO §§ 3-78, 3-83, 3-84; Exs. USA-20, pp. 31-32; USA-22, pp. 11-21, 25-29; USA-31e, pp. 218-232; USA-53, App. I]

109. Pretreaty Quileute villages were located where the conditions of the river were best for catching fish and, consequently, each village obtained its principal supply from a trap located nearby. The traps were built in shallow water although not necessarily at the mouths of small streams. [Exs. [**151] USA-22, p. 18; [*373] USA-31e, pp. 224-225] The fish traps or weirs used by the Quileutes were made of fine maple bows laced by spruce limbs. They entirely closed the streams in which they were built. When the Indians had enough fish for their own immediate needs and to dry for their year's supply, they would remove the weir from the river so that the fish could go up the stream to spawn. [Exs. USA-22, pp. 25-26; USA-31e, p. 222]

110. Fishing is basic to the economic survival of the Quileute people. It is the only resource which the Tribe's members have for making money on the reservation. Fish are distributed freely as gifts and are used in all kinds of ceremonies and celebrations. [Tr. 3193, l. 8 to 3194, l. 16] Because there are limited locations on their reservation and specifically only one or two places suitable for drift netting, it is necessary that the Quileutes go upstream beyond the reservation boundaries to accommodate all the fishermen. [Tr. 3192, l. 10-21]

111. The lowermost 2 1/2 to 3 miles of the Quillayute River are within the Quileute Indian Reservation and the Olympic National Park. The State has no jurisdiction over fishing by Indians in [**152] these areas and has not asserted any such jurisdiction. There is, however, a sizeable state-authorized sports fishery for salmon just outside the mouth of the Quillayute River. Historically, members of the Quileute Tribe have fished with gill nets for salmon and steelhead in the Quillayute River both within and upstream from the above-described area and in the lower portions of the Soleduck and Bogachiel Rivers. There is currently an Indian net fishery for both salmon and steelhead within the reservation and national park area. Several of the locations desirable to Quileute Indians for effective set net fishing on the Quillayute River are located upstream from the Olympic National Park in waters under state jurisdiction. Since the creation of the Game Department the Indians have been permitted to fish in these waters for steelhead only in accordance with state law which totally prohibits fishing for steelhead by means other than angling. [FPTO §§ 3-462, 3-463; Tr. 3199, l. 8 to 3200, l. 16] The Department of Fisheries has opened the upstream area of the Quillayute River, upstream to about the mouth of the Soleduck River, to net fishing by Indians for salmon from September [**153] 1 to November 30. [Ex. JX-2a, Table 17, p. 159; App. II, p. 310; Tr. 3214, l. 21 to 3215, l. 10]

112. The winter steelhead run in the Quillayute River system commences in strength about December 1 and extends in major strength in the lower portion of the system through March. The Quillayute, Soleduck, Calawah and Bogachiel Rivers are open to steelhead angling under the Washington game laws and regulations generally from about the first of December to the end of February. The portions of those rivers west of U.S. Highway 101 are generally open for an additional period until about April 30, and for an additional period during the summer season. The State licenses guides to take parties of sport fishermen (usually consisting of two fishermen per boat) along the Quillayute River system. Operators of these boats generally charge parties $60 per trip. The operators advertise to attract sport fishermen to fish that river system. [FPTO § 3-462]

113. During the period December through February the Indian catch from the Quillayute River system is predominantly, if not entirely, steelhead. During the 1971-72 run approximately twenty or thirty Indian gill net fishermen fished the [**154] Quillayute River but not the entire system. During this time of Indian net fishing, sportsmen have fished the river system both as bank fishermen and as boat fishermen. This sport fishing is mostly upstream from the majority of Indian nets, but at times Indians and sportsmen fish the same stretches of water. Agents of the Game Department have arrested Indians who [*374] have fished for steelhead outside of the reservation and national park area in any time, place, and manner other than that permitted by state law. [FPTO § 3-462]

114. Notwithstanding the Indian commercial net fishing on the Lower Quillayute River, catch statistics from punch card data of the up-river sports fishery show an increase in the sport steelhead catch in recent years. This increase could not have occurred unless increased numbers of steelhead had passed through the lower river Indian net fishery. [FPTO § 3-463]

115. At the present time there are 34 full-time fishermen among members of the Quileute Tribe. [Tr. 3192, l. 25 to 3193, l. 4] These include fishermen who gill net in the rivers and the owners of six boats which engage in off-shore fishing. [Tr. 3191, l. 22 to 3192, l. [**155] 2]

116. The Quileute Tribe has adopted fishing regulations for both on and off-reservation fisheries. [Ex. JX-2b, pp. 42-44; Tr. 3210, l. 11-22] The regulations adopted originally in 1941 and revised in 1973 do not provide for annual seasons and do not take run size into account. Estimates of predicted run size are not utilized in establishing fishing regulations. [Tr. 3210, l. 11-22; Tr. 3212, l. 20 to 3213, l. 7] The tribe does impose a tax on its commercial fishermen, the proceeds of which are for the benefit of the general tribal treasury. [Tr. 3200, l. 17-24]

117. The Game Department has interfered with Quileute fisheries by seizing nets and threatening arrests for any Indian net fishing for steelhead on the Quillayute River system outside of reservation or national park boundaries from December 1st through June. [Tr. 3195, l. 17 to 3197, l. 18] The Game Department has held those nets and retains them indefinitely. The Department makes no effort to bring the matter before a court for declaration of a forfeiture. [Tr. 604, l. 14-22] State authorities have persistently tried to stop Quileutes from shipping their steelhead to market. The [**156] result is that the Quileutes have to ship them by air. [Tr. 3194, l. 17 to 3195, l. 5]

118. Prior to October, 1973, the Game Depart