. 839, l. 16 to 840, l. 13; Tr. 3780, l. 21 to 3787, l. 3; Ex. JX-2a, Table 31, pp. 192-193; JX-2a, App. II, Table 7, pp. 316-317; JX-2a, App. III, pp. 323, 328] Treaty Indian commercial net fisheries can be and have been authorized in areas which the State has designated as salmon preserves without jeopardizing conservation needs. [Tr. 837, l. 22 to 839, l. 15]

207. Although the Department of Fisheries believes that the approximately 239 smaller streams in the case area which collectively provide a significant part of the salmon production could not sustain an Indian commercial gill net fishery, it has not studied or considered whether it is necessary to prohibit an [*391] Indian spear, gaff, dip net, or [**211] hook and line subsistence or other fishery in those streams or an Indian net or troll fishery in their estuaries. [Tr. 3828, l. 5 to 3832, l. 23]

208. A management plan to meet obligations to provide to treaty Indians in the case area the treaty-secured right to take fish must include other treaty Indians who are not Plaintiffs in this case. [Tr. 3624, l. 4-15]

209. The Department of Fisheries takes the position that the treaty tribes hold a distinct treaty right to fish at usual and accustomed places outside their reservation, the quantum of which has never been adequately defined. [FPTO § 3-6] After the 1968 decision of the United States Supreme Court in Puyallup Tribe v. Department of Game, 391 U.S. 392, 88 S. Ct. 1725, 20 L. Ed. 2d 689, the Department of Fisheries began to set special seasons for various treaty tribes which provide for fishing for salmon by net at some off-reservation usual and accustomed fishing places. Some of the regulations permit Indian set gill nets on rivers, even though State statutes prohibiting use of such gear have not been changed. Fisheries attempts to set these seasons at times when there are significant numbers of fish in the [**212] Indian fisheries. [FPTO § 3-613; Ex. F-27, p. 3, l. 23-32] These regulations cover only seven of the treaty tribes in seven specific areas within the case area. [Ex. JX-2a, App. II, pp. 306-317] Indian net fishing which is confined geographically (similar to the limits provided by reservation boundaries on current on-reservation net fishing) may be regulated and controlled to prevent over-harvesting, assuming that some power of effective regulation exists to limit fishing as to time and amount of gear and enforce the limitation effectively. [FPTO § 3-472]

210. The Department of Fisheries has undertaken to augment the volume of fish available to treaty Indians fishing at the usual and accustomed places outside reservation boundaries by at least the following actions:

a) The Department considers the interest of the Indian fishery when formulating its regulations;

b) The Department attempts to determine how many Indians will fish, what their effort will be, and what the estimated take of the Indian fishery will be;

c) The Department has adjusted the number of days when the commercial fleet can fish;

d) The Department has closed certain areas to non-Indian fishing in the [**213] marine waters, such as in East Pass, and opened certain areas closed to commercial fishing to Indian commercial fishing, such as South Sound Preserve;

e) The Department has increased its planting efforts in those streams where Indian fisheries occur; and,

f) The Department has carried on stream improvement work. [FPTO § 3-599; Ex. JX-2a, § 2.2.5.1, pp. 55-56; Fig. 18, p. 254; App. II, Table 7, Squaxin Regulations, p. 316]

In some areas the Department of Fisheries' hatchery-reared plants of salmon have contributed significantly to Indian catches of salmon. [Ex. JX-2a, Table 29, pp. 181-187; Fig. 43, p. 279; Ex. F-19; Ex. F-28, p. 59, l. 31 to p. 60, l. 15; FPTO § 3-606]

211. The Department of Fisheries' hatchery system usually receives salmon in excess of its propagation needs. It is the Department's policy to provide numbers of these fish which are fit for human consumption to economically-depressed Indian people. Indian tribal representatives are contacted when these fish are available and it is their responsibility to see that these fish are distributed to the respective tribal members. In 1972, 256,194 pounds of salmon which had returned to the Department's [**214] hatcheries were provided to Indian people. [Ex. F-28, p. 39, l. 31 to p. 40, l. 11, p. 65, l. 17-27; Ex. F-20; Tr. 1095, l. 1 to 1096, l. 2]

[*392] 212. For about the past decade, although there have been occasional disagreements about enforcement of Department regulations, the Department of Fisheries has in general had a cooperative relationship with several of the Plaintiff tribes. [Tr. 1006, l. 7-17; Tr. 2536, l. 20-24; Tr. 3014, l. 4-13; Tr. 3163, l. 3-7; Ex. F-33, p. 12, l. 23 to p. 13, l. 5; Ex. F-28, p. 60, l. 30 to p. 66, l. 11; Ex. F-24; Ex. F-25; FPTO §§ 3-603; 3-604] In addition to informal cooperation between the Department of Fisheries and Indian tribes, the Department has taken into account recommendations of Indian tribes through its administrative hearing process. [Tr. 991, l. 18 to 992, l. 5]

213. The Department of Fisheries' enforcement practices are governed by RCW 75.08. As described by the Chief of the Department's Fisheries Patrol, the enforcement policies and practices are to be applied equally to Indians and non-Indians without discrimination. [Ex. USA-37, p. 3, l. 24 to p. 4, l. [**215] 4] Unattended and unidentified fishing gear found fishing in violation of State law will be confiscated. The officer seizing the gear should make out a fact sheet regarding the incident, a description of the gear, and the disposition of the gear. Then the gear is to be held in a warehouse in Seattle until sufficient quantities are on hand to make auction of it practicable. The gear then will be sold at auction after the required statutory notice has been given. The proceeds from the sale will go to the State general fund. [Ex. USA-37, p. 4, l. 5 to p. 5, l. 25] In the case of attended gear, a citation or arrest will be issued. The gear will be seized and held as evidence to be disposed of by the court. [Ex. USA-37, p. 6, l. 22 to p. 7, l. 17] If there are fish in the gear, the fish will be sold to the highest bid of a commercial fish buyer. The fish ticket is then to be held as evidence and if the person is later acquitted, the proceeds of the sale of the confiscated fish are to be turned over to him by court order. [Ex. USA-37, p. 14, l. 20 to p. 15, l. 14]

214. During certain times of the year the taking of pink and sockeye salmon from certain waters [**216] of the State of Washington and of British Columbia, Canada, is regulated in accordance with regulations prescribed by the International Pacific Salmon Fisheries Commission pursuant to treaties between the United States and Canada. The provisions of these regulations are approved by said International Commission and forwarded to the respective governments for adoption as domestic regulations. These regulations as they apply to waters of the State of Washington are usually promulgated and enforced by the Director of the Department of Fisheries as state regulations. However, under the applicable International treaties and statutes of the United States enacted pursuant thereto, the United States has both the authority and the obligation to enact the International Commission's recommendations as domestic federal regulation and directly enforce them if the State of Washington does not do so. The International Commission has no arrest or enforcement jurisdiction. While the Commission's jurisdiction is limited to protection of pink and sockeye salmon, its regulations which limit the types of gear which may be used or the times during which certain types of gear may be used in Convention waters [**217] have a coincidental effect on the taking of coho, chum and chinook salmon which are present during the times that such regulations are in force. The waters to which such internationally prescribed regulations apply include some of the usual and accustomed fishing places of some of the treaty Indian tribes. [FPTO § 3-589; Ex. JX-2a, § 2.13, pp. 101-103; Ex. USA-19]

215. In regulating the American and Canadian net fisheries on pink and sockeye salmon bound for the Fraser River system, the International Pacific Salmon Fisheries Commission has attempted, pursuant to provisions of the applicable treaty, to provide an equal take to the Canadian and the American commercial fishermen in the Strait of Juan de Fuca, [*393] Northern Puget Sound and the Strait of Georgia; such that when it appears that, for example, the Canadians have taken significantly more fish than the Americans, the Commission will adjust its regulations to permit Americans to catch up. All harvesting on Fraser River stocks is intended to take only so much as will not damage the run. While some tributaries to the Fraser River have shown an underescapement as a result of the fishing efforts in the Straits and elsewhere, [**218] the regulation of Fraser River stocks by the International Commission is generally regarded by fisheries biologists as well managed. [FPTO § 3-590; Ex. JX-2a, § 2.13, p. 102]

216. Under guidelines established by the U.S. State Department at the instance of the Department of the Interior, the U.S. Commissioners on the International Pacific Salmon Fisheries Commission have sought recently in their activities on the Commission to protect the treaty fishing rights of one or more of the Plaintiff tribes. As a U.S. Commissioner on that Commission, the Director of the Fisheries Department has attempted unsuccessfully to obtain Canadian agreement to a greater number of fishing days for the Makah Indians on the Fraser River sockeye and pink salmon runs. The Director has taken unilateral action to provide more fishing days for the Makahs. [FPTO § 3-591]

217. The regulations of the Department of Fisheries, as presently framed and enforced, in many instances allow all or a large portion of the harvestable numbers of fish from given runs to be taken by persons with no treaty rights before such runs reach many of the Plaintiff tribes' usual and accustomed fishing places to which the treaties [**219] apply. [See Ex. JX-2a, App. III]

218. The State and the Director of Fisheries have, by statute and regulation, totally closed a substantial number of the usual and accustomed fishing areas of Plaintiff tribes to all forms of net fishing while permitting commercial net fishing for salmon elsewhere on the same runs of fish. [See Ex. JX-2a, App. III]

DEPARTMENT OF GAME POLICIES AND PRACTICES

219. The stated purpose of the Game Department is: "To preserve, protect, perpetuate, and enhance wildlife through regulations and sound continuing programs to provide the maximum amount of wildlife-oriented recreation for the people of the State." [Ex. JX-2a, § 2.7, p. 89; Tr. 111, l. 12 to 114, l. 1] The Department and the Game Commission consider this their ultimate purpose in formulating policy, establishing regulations and managing the fish resources under their jurisdiction. [FPTO § 3-428] The state's steelhead fishery laws and regulations are designed to preserve the resource, provide orderly sport harvest and prevent commercialization of the steelhead. [FPTO §§ 3-430; 5-456; Ex. JX-2a, § 2.2.5.5, p. 59] The Game Department views its responsibilities as a state agency [**220] to be to protect and perpetuate the wildlife resources under its jurisdiction and where the species can be used consistently with such perpetuation, to use them for recreational enjoyment. [Tr. 112, l. 11-23] The Director believes it would be an abdication of his responsibilities to allow any off-reservation net fishing for steelhead by Indians except as may be ordered by a court. [Tr. 264, l. 10-22; Tr. 251, l. 4-10; Tr. 314, l. 5-13]

220. The Game Commission defines "conservation" as "wise or prudent use." In determining what is wise or prudent use of the fish resource, the Game Commission consults experts in the Game Department and the general public. [FPTO § 3-429]

221. The Director of the Game Department believes that an Indian net fishery for steelhead would be detrimental to the recreational fishery but not necessarily detrimental to the resource itself. [Tr. 288, l. 6 to 289, l. 8]

[*394] 222. Prior to the United States Supreme Court decision in Department of Game v. Puyallup Tribe, (Puyallup II), 414 U.S. 44, 94 S. Ct. 330, 38 L. Ed. 2d 254 (1973), when dealing with the claimed treaty fishing rights of Indian tribes, including the [**221] Plaintiff tribes, the Game Department took the position that, except for exemption from license fees when fishing in their ceded area, [FPTO §§ 3-478, 3-489; Ex. G-16, p. 4, l. 1-3] the Indian treaties do not grant to any Indian citizen or tribe any privileges or immunities greater than those which the Department recognized as being held by non-Indian citizens, [FPTO § 3-2] and that under the Constitutions and laws of the United States and of the State of Washington, the Department was required to regulate Indian fishing activities outside federal and Indian reservations to the same extent and in the same manner as it regulated fishing activity by all other classes of citizens. [FPTO § 3-3; Tr. 577, l. 2 to 588, l. 5] The Department had taken the position that state law prohibits it from considering recommendations in favor of Indian net fishing at off-reservation usual and accustomed places. [FPTO § 3-432] On the basis of that law, its own view of conservation, and its belief that as a matter of policy net fishing for Indian subsistence or economic need is not a wise or prudent use of the steelhead resource, [FPTO §§ 3-431, 3-432 the Department had refused [**222] to attempt to regulate fishing in waters subject to its jurisdiction so as to accord members of the Plaintiff tribes any opportunities to take, at their claimed off-reservation usual and accustomed fishing places, by any means other than angling, a fair and equitable portion of the anadromous fish runs that are subject to its regulatory jurisdiction, consistent with adequate escapement for spawning and reproduction. [FPTO § 3-4]

223. The policies and practices of the Game Department with respect to nets, boats and other gear which may be seized by its agents in the course of their law enforcement duties are:

a) When an unattended net is seized and the owner is not immediately identifiable, the net is marked and stored in Game Department facilities, but no specific written record is made of each seized net; the nets themselves and the written summaries constitute records of seized gear;

b) It is within the seizing officer's discretion whether to send the seized gear to Olympia or to keep it in the regional office where it was seized;

c) The only Game Department accounting of seized nets is a periodic check which results in a record of the number of nets which have been seized [**223] and the dates of seizure;

d) When there are only two or three fish seized with the gear, no record of the disposition of those fish is kept;

e) The Department has never asked a court to declare forfeiture of seized, unattended nets;

f) When the Department has seized boats or motors, they have been kept as evidence against an identified defendant;

g) Property is seized for the purpose of introduction as evidence in court;

h) If a person is acquitted of a charge, his gear is returned, but no restitution is made for fish which have been seized with the gear because the fish are rendered valueless due to the passage of time and the delay in court actions. They are disposed of to charitable or public institutions;

i) It is contrary to policy to seize a net which has not been seen engaged in illegal use. [FPTO § 3-479; Ex. USA-38, p. 4, l. 17-30]

224. Prior to February, 1972, a wildlife agent of the Game Department, acting in his official capacity and under color of state law, seized several unattended fishing gill nets from the Quillayute River and its tributaries. The State and the Game Department have been on notice since at least February, 1972, that specifically identified [**224] members of the Quileute Tribe have asserted [*395] under oath that nets belonging to them, descriptions of some of which nets were given, were taken by unknown persons from specifically described locations on the Quillayute River at approximately the times which the wildlife agent says he seized the aforementioned nets. No judicial proceeding to declare a confiscation or forfeiture of these nets has been instituted nor have the nets been returned to the claimed owners thereof. [Tr. 625, l. 4 to 627, l. 5]

225. Prior to Puyallup II, the Game Department took the position that laws enacted by the state legislature need not be shown reasonable and necessary for conservation of the fishery in order to be binding on treaty Indians fishing at off-reservation usual and accustomed places, beyond the fact that said laws must have the same degree of reasonableness to apply to Indians as is constitutionally required to apply them to other citizens in the exercise of state police power. [FPTO § 3-485]

226. Prior to Puyallup II, the Game Department had never given consideration to the claimed treaty fishing rights of any of the Plaintiff tribes as an interest to be promoted [**225] in the Department's regulatory, management and propagation programs. [FPTO § 3-486] It had never considered permitting an off-reservation fishery for steelhead by Indians using any method other than angling, whether solely for Indian dietary consumption, for Indian cultural or ceremonial use, for sale or barter by the individual for his economic well-being, or for tribal economic development, processing, or sale of fish as a tribal enterprise. [FPTO § 3-487]

227. The Game Department has no idea where the Indians' usual and accustomed fishing places are and has never attempted to determine where they are. [Tr. 252, l. 21 to 254, l. 21] The recently retired Chief of Game's Wildlife Management Division testified as to his belief, and Game's policy, that every place in the State was a place where Indians commonly fished. [Tr. 620, l. 5-20]

228. At its meeting on October 2, 1972, the Game Commission considered the question of whether to change its regulations so as to permit net fishing by any Indians at off-reservation usual and accustomed places under claim of treaty rights. The Game Department did not notify any of the Plaintiff tribes or the United States in [**226] advance that it would consider this question at that meeting. The Department did not file with the Washington Code Reviser, pursuant to RCW 34.04.025 and 34.04.010, a notice that it was going to consider the matters regarding Indian off-reservation net fishing which were listed on the agenda for, and were considered at, that meeting. In addition to legal advice from its attorney, the Commission considered only the facts and data presented by the Chief of its Fisheries Management Division, Mr. Clifford Millenbach. [FPTO §§ 3-440, 3-441]

229. Mr. Millenbach's preparation for the October 2, 1972, meeting was heavily predicated on his belief that the Department's consideration of an Indian net fishery was tied specifically to the Puyallup River rather than all rivers of the State. [Tr. 348, l. 5-12; Tr. 354, l. 3-8] Prior to his presentation Mr. Millenbach did not discuss the facts and data or recommendations he presented with any of the Plaintiff tribes and had not consulted with any of those tribes concerning their fishing practices or techniques. He had not estimated how many Indians would fish, how many fish would be in the coming run in the Puyallup River, or what specific [**227] level of escapement would be best for that run. He believed that the Commission was then considering a change in its regulations which at that time absolutely prohibited such fishing. [FPTO § 3-440]

230. Mr. Millenbach's October 2, 1972, recommendation to the Game Commission that it not allow an off-reservation Indian net fishery for steelhead was influenced heavily by his belief that state law prohibited him from recommending an authorization for such a fishery. [Tr. 349, l. 5-10] The Commission, [*396] upon advice from its attorney, considered the facts and data presented by Mr. Millenbach as informative only, since the Commission believed that state law prohibited it from passing a regulation which authorized off-reservation net fishing for steelhead by treaty Indians. [Tr. 1635, l. 12 to 1638, l. 13] In recommending that the Commission not authorize such net fishing by treaty Indians the Game Department, a) did not consider the ultimate use which such Indians would make of the fish taken; and, b) did not know how many Indians or nets would fish if such fishing were allowed, although its Director expected there would be many Indians fishing on many rivers. [**228] [FPTO § 3-440] The result of this consideration was the Commission's determination not to provide a regulation. The Game Commission asserted that this consideration and action by it constituted fulfillment of the following mandate of the Washington State Supreme Court in Department of Game v. Puyallup Tribe, 80 Wash.2d 561, 571, 497 P.2d 171, 178 (1972):


"We hold that it is incumbent upon the Department of Game to provide, annually, regulations for a Puyallup Indian net fishery of steelhead when it is determined by the department, upon supporting facts and data, that an Indian net fishery would not be inconsistent with the necessary conservation of the steelhead fishery." [FPTO § 3-441]

231. The Game Department asserted that the Game Commission's action on October 2, 1972, concerning off-reservation Indian net fishing, was not an "order", "rule", or "regulation" as those terms are used in the Washington Administrative Procedure Act. RCW 34.04.025, RCW 34.04.010, RCW 77.12.040, RCW 77.12.050, or RCW 77.12.060. The Department describes the Commission's action as "an order of policy for conservation" and states:


"What we were considering was whether an Indian [**229] net fishery would be inconsistent with the conservation of steelhead. We determined that Indian net fisheries, the establishment of Indian net fisheries would be inconsistent with conservation." [FPTO § 3-441]


The Director of the Game Department understands the result of the October 2, 1972, and August 20, 1973, meetings of the Game Commission was a "closure" of Indian net fishing outside reservation boundaries. [Tr. 252, l. 7-20]

232. The facts and data submitted to the Game Commission at its meetings on October 2, 1972, and August 20, 1973, by the Game Department staff were inadequate to enable the Commission to determine whether or not an Indian net fishery on the Puyallup River or on any other river in the state would be inconsistent with the necessary conservation of the steelhead resource. [Tr. 349, l. 16 to 361, l. 3; Ex. PL-37; Ex. G-18]

233. The sportsmen's catch of winter steelhead on the Puyallup River for 1969-1970, the season immediately preceding the remand trial in Department of Game v. Puyallup Tribe, was an abnormally low 5,615 fish. [Ex. JX-2a, Table 62, p. 232; Ex. USA-3, p. 3] Although sportsmen's catches of winter steelhead on the [**230] Puyallup River the following year were 10,656, [Ex. JX-2a, Table 62, p. 232; Ex. USA-2, p. 2] the Director of the Game Department believes that the steelhead run has not, in any year since 1970, reached a magnitude that would justify the Commission's allowing any net fishery by treaty Indians on that river, even under his understanding of the Game Department's obligation under the Washington Supreme Court's May 4, 1972, decision in Department of Game v. Puyallup Tribe, 80 Wash.2d 561, 571, 497 P.2d 171 [Tr. 265, l. 11-20; Tr. 340, l. 8-14]

234. At its August 20, 1973, meeting to consider whether to allow an off-reservation net fishery for treaty Indians the Game Commission was informed by the Chief of the Game Department's Fishery Management Division, Mr. Millenbach, that the Puyallup River steelhead run is normally between 16,000-18,000 [*397] fish annually, that the sport catch is usually around 12,000-14,000 annually and that a spawning escapement of 25% to 50% is needed. The Commission was advised by its staff that because of this data the steelhead fishery "cannot withstand a commercial fishery on the Puyallup River." When one Commissioner asked Mr. Millenbach [**231] if he felt the time would ever come when there would be sufficient steelhead for a net fishing season for the Puyallup Indians, the latter replied that it was the staff's view that the recreational fishery was then harvesting the resource and that this generally will hold true. They foresaw a regular yearly increase in sports fishermen. After receiving this data and recommendation the Commission refused to allow any Indian net fishery for steelhead. [Ex. G-18, pp. 4 and 10]

235. The Game Department has very limited data on the total number of fish in steelhead runs. It does not formally estimate or predict the sizes of future steelhead runs, but does make general comments on relative abundance. The large number of factors which influence eventual survival of steelhead currently make the capability of the Game Department to predict the size of steelhead runs extremely difficult. By examining the current water flow and planting records for the steelhead which will be returning in the coming year, and by examining spawning ground counts for the brood year (when available), the Department estimates whether the coming steelhead runs in named rivers will be greater or smaller than in [**232] prior years. [FPTO §§ 3-458, 3-459]

236. The Game Department would be able better to manage the steelhead resource if its facts and data were specific as to individual river systems, but budget limitations of the Game Department preclude the acquisition of this data at this time. [FPTO § 3-473] As its catch statistics and escapement data come to cover longer periods and become more accurate, Game will become better able reliably to protect the steelhead runs and to provide for a more efficient harvest of the resource. [FPTO § 3-433]

237. The Game Department has not determined whether steelhead spawners in excess of the amount a river system could sustain would be harmful to the run. [FPTO § 3-468] The Game Department is aware that planting of pre-smolt size steelhead may create an adverse competition with natural stocks which would not otherwise occur with smolt size plants. [FPTO § 3-444]

238. Steelhead punch cards are used by the Game Department to compile catch data on the time and river in which the fish have been caught. The Department estimates annual steelhead catch by multiplying the catch reported on returned punch cards by a factor designed to compensate [**233] for unreturned cards. The Department requires treaty Indians to have a free steelhead punch card when angling outside reservation boundaries. [FPTO § 3-439]

239. There are considerable fluctuations in the percentages of steelhead runs taken by fishermen from year to year. The Department considers that a generally beneficial escapement percentage for steelhead is 25 to 50%. [FPTO §§ 3-464, 3-458]

240. The Game Department's steelhead planting program has grown from a relatively insignificant contribution in the 1940's to a significant contribution to steelhead fisheries since 1951. The Game Department in early 1973 was producing three million winter steelhead smolts and 1.5-2 million summer steelhead smolts in its hatchery program. The Department plants steelhead in approximately 60 rivers currently, these generally being the major rivers. Mr. Millenbach estimates generally a "five per cent return" from steelhead plants in Washington State rivers. Not all river systems sustaining natural steelhead runs are planted. Not all planted rivers have been subject to marking experiments. In determining where to plant steelhead and how much to plant, the [*398] Game Department considers [**234] the relative size of the river system, the punch card records of sports catch in previous years, the Department's capacity to produce steelhead smolts and the amenability of the river system to sport fishing. The capacity to produce smolts is considered as the most decisive factor. It is a general policy of the Game Department to plant at least 20,000 steelhead smolts in each planted river. This policy is a result of the Department's determination that such a volume of planting is necessary to encourage a sufficient level of sport fishing to utilize the resulting augmented run. [FPTO § 3-445] In the opinion of the Game Department, its steelhead planting program can be used to reestablish decimated runs when other environmental conditions are adequate. [FPTO § 3-470]

241. The Game Department steelhead seasons vary from river system to river system, due to the fact that the spawning period begins earlier in the smaller systems and that steelhead runs in different systems vary in quantity and timing. The Department attempts to protect steelhead spawning areas throughout the river environment, although it does permit fishing in some river areas where steelhead spawn. The Department [**235] has set upstream deadlines, above which no one may fish, in order to provide an undisturbed area for spawning. There is no downstream deadline. The Game Department permits fishing for steelhead in all marine areas within its regulatory jurisdiction. Saltwater steelhead fisheries are insignificant. Most are located on Whidbey Island at Bush Point and Lagoon Point. [FPTO § 3-450]

242. The peak months of the winter steelhead run in Washington are December and January; the peak months for summer steelhead are July and August. [FPTO § 3-455]

243. The Game Department has no recorded statistics indicating whether fishing on spawning grounds by means of drift nets, drag nets, dip nets, set nets, gill nets, or purse seines will cause "pre-spawning mortality" as that term was used in State v. Moses, 79 Wash.2d 104, 117, 483 P.2d 832 (1971); but Game believes, based on observations, that such activities would cause pre-spawning mortality. [FPTO § 3-452]

244. From a conservation standpoint it makes no difference whether a fish is caught by sportsmen on a hook and line or by an Indian in a net. Assuming a regulated fishery in both instances it is possible to rebalance the numbers caught [**236] and maintain conservation. [Tr. 413, l. 1 to 416, l. 6; Tr. 448, l. 11-19]

245. Experience with the Fraser River fisheries demonstrates that with proper regulation of net fisheries salmon and steelhead resources can be preserved despite the existence of a gill net fishery with an asserted capability of 98% efficiency if unregulated. [Tr. 400, l. 18 to 407, l. 8]

246. The steelhead resource has been preserved even with commercial net fisheries for steelhead on Indian reservations which are entirely unregulated by the State. [Tr. 256, l. 19 to 257, l. 8; Tr. 266, l. 15 to 267, l. 19; Tr. 427, l. 24 to 428, l. 10; FPTO § 3-466]

247. The Game Department has not undertaken any studies to determine the effect on steelhead of the Fisheries Department's recent special treaty Indian net fishing seasons for salmon. The Game Department is unaware of any studies which reliably conclude that an on-reservation Indian net fishery for steelhead which is unregulated by the State has caused a decrease in the steelhead run. [FPTO § 3-456]

248. The Game Department, pursuant to state law, has never considered permitting or authorizing any of the [**237] Plaintiff tribes to take part in the management or propagation of any anadromous fisheries under its regulatory jurisdiction. [FPTO § 3-437]

249. According to Game Department reports the statewide Indian catch, including the on-reservation catch, from the 1970-1971 winter steelhead run was [*399] less than 20% of the total catch. [Tr. 393, l. 13 to 394, l. 9]

250. As one basis for its conclusion that a hook and line fishery is the wisest use of the steelhead resource, the Game Department relies on a study which concluded that a steelhead fisherman contributes approximately $60.00 in general benefit to the economy of the State of Washington for each fish caught. [FPTO § 3-469; Ex. G-12]

251. There are presently about 145,000 licensed steelhead fishermen in the State of Washington. The present law and regulations authorize these fishermen to take 30 fish per man per season with sports gear. [Tr. 310, l. 3-13] The actual take totals approximately 250,000 steelhead per year. [Tr. 310, l. 24 to 311, l. 3; Exs. USA-2 through USA-11] Due to the nature of steelhead fishing, one could not maintain a family on a steelhead catch based on a hook and line [**238] fishery. [Tr. 4024, l. 5-14]

252. At the time of the treaties and for many years thereafter neither the Indians nor the non-Indian citizens treated steelhead any differently from salmon in terms of the purpose and means of their harvest. [Ex. USA-20, p. 6; Ex. USA-26, p. 62; Ex. PL-2, p. 164; Ex. JX-2a, §§ 2.3.1 and 2.3.2, pp. 61, 63]

253. The Game Department has received federal financial assistance in the amount of 50% under the Anadromous Fish Conservation Act, 16 U.S.C. §§ 757a-757f for construction and operation of its steelhead hatcheries. [FPTO § 3-442; Tr. 237, l. 8-16]

Based on the foregoing Findings of Fact the Court makes the following:

CONCLUSIONS OF LAW

1. Jurisdiction is vested in this Court by virtue of:

a. 28 U.S.C. § 1345, in that the United States brings this action on its own behalf and on behalf of certain federally-recognized Indian tribes in connection with its administration of Indian affairs;

b. 28 U.S.C. § 1331, in that the matter in controversy involves the fishing rights of each of the Plaintiff tribes which in each case have a value in excess of $10,000, exclusive of interest and costs, and are claimed to exist and to be secured under [**239] the Constitution, laws and treaties of the United States.

c. 28 U.S.C. § 1343(3) and (4), in that the Plaintiff tribes allege that Defendant State of Washington, and its Department of Fisheries and Game have, under color of state law, regulation, custom and usage, deprived them of rights secured to them in the treaties cited in paragraph 1 and under the Constitution of the United States, and those tribes seek equitable relief for that deprivation.

d. 28 U.S.C. § 1362, as to the following Indian tribes each having a governing body duly recognized by the Secretary of the Interior in that this action is brought by each on its own behalf alleging violations of its rights under the Constitution, laws and treaties of the United States: Hoh Tribe, Lummi Tribe, Makah Tribe, Muckleshoot Tribe, Quileute Tribe, Quinault Tribe, Skokomish Tribe, Squaxin Island Tribe, Yakima Nation. [FPTO § 1]

2. Defendant Washington Reef Net Owners Association, an unincorporated association, is a proper party in accordance with Rule 24(b), Federal Rules of Civil Procedure, as the representatives of its members who are individuals engaging in such form of commercial fishing operations at various points in [**240] lower Puget Sound and in the San Juan Islands, claimed by the Plaintiff Lummi Tribe as among its usual and accustomed fishing places. [FPTO § 3-27]

3. Each of the Plaintiffs has standing to maintain the claims asserted in this action. [FPTO § 7]

4. An actual controversy exists between each of the Plaintiffs on [*400] the one hand and each of the Defendants on the other, as to the nature and extent of the claimed treaty fishing rights of the Plaintiff tribes and the attempted regulation thereof by the State Defendants, except that the controversy between the Defendant Reef Net Owners Association and the Plaintiffs is limited to the effect of the treaties on the reef net operations of members of the Association. [FPTO § 3]

5. Declaratory judgments are properly sought pursuant to 28 U.S.C. §§ 2201 and 2202 and this Court may grant such relief. [FPTO § 4]

6. Venue is properly laid in this Court under 28 U.S.C. § 1391(b) in that all Defendants reside within the Western District of Washington. [FPTO § 6]

7. This case is limited to the claimed treaty-secured off-reservation fishing rights of the Plaintiff tribes as they apply to areas of the Western District of Washington [**241] within the watersheds of Puget Sound and the Olympic Peninsula north of Grays Harbor, and in the adjacent offshore waters which are within the jurisdiction of the State of Washington. The subject matter of this case is limited to the application of those rights to the anadromous fish which are in the waters described, including such fish as are native to other areas. [FPTO § 5]

8. Within the jurisdictional limits of the applicable statutes, and the subject matter described above, this case calls upon the Court to exercise the traditional equity powers entrusted to the Federal District Courts in declaring in clear and certain terms the special reserved nature of the treaty tribes' fishing rights and in fashioning just and appropriate relief which is comprehensive enough to protect the tribes' rights and to permit exercise of such of the State's police power as is necessary.

9. The recognition of a tribe as a treaty party or the political successor in interest to a treaty party is a federal political question on which state authorities and federal courts must follow the determination by the legislative or executive branch of the Federal Government.

10. Absent a contrary congressional [**242] determination, the recognition by the executive branch of the Federal Government, acting through the Secretary of the Interior and his delegatees as the official charged by federal statute with the administration of Indian affairs, of the Plaintiff Muckleshoot Tribe as a political successor in interest to tribes or bands which were parties to the Treaty of Point Elliott or the Treaty of Medicine Creek is binding upon the State of Washington and its agencies and officials.

11. By its enactment of legislation (P.L. 90-530, 82 Stat. 882) providing for the disposition of judgment funds awarded to the Muckleshoot Tribe, Plaintiff herein, by the Indian Claims Commission in Indian Claims Commission Docket No. 98, Congress has recognized that tribe as the successor in interest to Indians who were parties to the Treaty of Point Elliott and the Treaty of Medicine Creek.

12. By its enactment of legislation (P.L. 92-30, 85 Stat. 83) providing for the disposition of judgment funds awarded to the Upper Skagit Tribe, including the allied Suiattle-Sauk Band, by the Indian Claims Commission in Indian Claims Commission Docket No. 92, Congress has recognized that that tribe and band were parties to [**243] the Treaty of Point Elliott and has directed the Secretary of the Interior to prepare current rolls of the present-day lineal descendants of members of that tribe and band.

13. By its enactment of legislation (P.L. 93-134 approved October 19, 1973) providing for the future disposition of other judgment awards awarded by the Indian Claims Commission, Congress has authorized the Secretary of the Interior to determine the persons and Indian entities who are the present-day successors in interest to tribes [*401] which the Indian Claims Commission has found ceded lands to the United States pursuant to Indian treaties. Under this legislation the Secretary of the Interior has the authority to determine the present-day representative of the Stillaguamish Tribe which was awarded a judgment in Indian Claims Commission Docket No. 207 for lands ceded pursuant to the Treaty of Point Elliott.

14. The Plaintiff Muckleshoot Tribe is one of the holders of the right of taking fish secured to Indians by the Treaty of Point Elliott and the Treaty of Medicine Creek and it may authorize its members to exercise the right within the limits elsewhere prescribed herein with respect to the scope of the [**244] right.

15. Upon approval of their respective membership rolls and structures of organization by the Secretary of the Interior, the Plaintiff Upper Skagit Tribe, Plaintiff Sauk-Suiattle Tribe and Plaintiff Stillaguamish Tribe are each a holder of the right of taking fish secured to Indians by the Treaty of Point Elliott and each may authorize its members to exercise the right within the limits elsewhere prescribed herein with respect to the scope of the right.

16. Each of the Plaintiff tribes holds a right under one or more of the treaties cited in paragraph 1 of the Findings of Fact herein to fish at usual and accustomed places outside of reservation boundaries.

17. Admission of the State of Washington into the Union upon an equal footing with the original states had no effect upon the treaty rights of the Plaintiff tribes. Such admission imposed upon the State, equally with other states, the obligation to observe and carry out the provisions of treaties of the United States.

18. Treaties with Indian tribes must be construed liberally in accordance with the meaning they were understood to have by the tribal representatives at the treaty council and in a spirit which generously [**245] recognizes the full obligation of this nation to protect the interests of a dependent people.

19. The treaty clauses regarding off-reservation fishing at usual and accustomed grounds and stations in common with other citizens secured to the Indians' rights, privileges and immunities distinct from those of other citizens.

20. The right secured by the treaties to the Plaintiff tribes is a reserved right, which is linked to the marine and freshwater areas where the Indians fished during treaty times, and which exists in part to provide a volume of fish which is sufficient to the fair needs of the tribes. The right is to be exercised in common with non-Indians, who may take a share which is fair by comparison with the share taken by the tribes. Neither the Indians nor the non-Indians may fish in a manner so as to destroy the resource or to preempt it totally.

21. The right secured by the treaties to the Plaintiff tribes is not limited as to species of fish, the origin of fish, the purpose or use, or the time or manner of taking, except to the extent necessary to achieve preservation of the resource and to allow non-Indians an opportunity to fish in common with treaty right fishermen [**246] outside reservation boundaries.

22. The passage of time and the changed conditions affecting the water courses and the fishery resources in the case area have not eroded and cannot erode the right secured by the treaties but have merely affected the limits which may be placed upon its exercise in order to preserve the fish resources which are necessary to the continued and future enjoyment of the right.

23. The State's police power to regulate the off-reservation fishing activities of members of the treaty tribes exists only to the extent necessary to protect the fishery resource. This power does not include the authority to impair or qualify the treaty right by limiting its exercise to State-preferred [*402] times, manners or purposes except as such limitation may be necessary for preservation of the resource and protection of the interests of all those entitled to share it. This power does not include the power to determine for the Indian tribes what is the wisest and best use of their share of the common resource.

24. The Stevens treaties do not prohibit or limit any specific manner, method or purpose of taking fish. The treaty tribes may utilize improvements in traditional [**247] fishing techniques, methods and gear subject only to restrictions necessary to preserve and maintain the resource.

25. The exercise of a treaty tribe's right to take anadromous fish is limited only by the geographical extent of the usual and accustomed fishing places, the limits of the harvestable stock, the tribe's fair need for fish, and the opportunity for non-Indians to fish in common with Indians outside reservation boundaries.

26. The only method providing a fair and comprehensive account of the usual and accustomed fishing places of the Plaintiff tribes is the designation of the freshwater systems and marine areas within which the treaty Indians fished at varying times, places and seasons, on different runs. Changes in water course do not impair the geographical scope of the usual and accustomed fishing places. Although no complete inventory of all the Plaintiff tribes' usual and accustomed fishing sites can be compiled today, the areas identified in the Findings of Fact herein for each of the Plaintiff tribes in general describe some of the freshwater systems and marine areas within which the respective tribes fished at the time of the treaties and wherein those tribes, as [**248] determined above, are entitled to exercise their treaty fishing rights today.

27. Because the right of each treaty tribe to take anadromous fish arises from a treaty with the United States, that right is reserved and protected under the supreme law of the land, does not depend on state law, is distinct from rights or privileges held by others, and may not be qualified by any action of the state.

28. The phrase "in common with" operates only to limit the exercise of the tribes' right to a share of the resource which will be consistent with preservation and maintenance of the resource and with the reasonable harvest by others of such fish as are not reasonably needed by the tribe, as set forth in the Final Decision of the court, pages 342-343.

29. Excepting tribes entitled to self-regulate fishing by their members (See Final Decision, pages 340-342), the right of a treaty tribe to take anadromous fish may be regulated by an appropriate exercise of state police power. To be appropriate, such regulation must:

a) Not discriminate against the treaty tribe's reserved right to fish.

b) Meet appropriate standards of substantive and procedural due process; and

c) Be shown by the [**249] State to be both reasonable and necessary to preserve and maintain the resource. When State laws or regulations affect the volume of anadromous fish available for harvest by a treaty tribe at usual and accustomed places, such regulations must be designed so as to carry out the purposes of the treaty provision securing to the tribe the right to take fish.

30. In order for a regulation to be reasonable and necessary for conservation, it must, when considered in the context of the total regulatory plan, be designed to preserve or maintain the resource.

31. To meet appropriate standards, regulations that affect the harvest by the tribes on future runs must receive a full, fair and public consideration and determination in accordance with the requirements of the Washington Administrative Procedures Act and regulations thereunder.

[*403] 32. In order for regulations not to discriminate against treaty Indians, the Department of Fisheries' harvesting plan must provide for an opportunity for treaty Indians to take, at their off-reservation usual and accustomed fishing places, a share of the harvestable fish as set forth in the Final Decision, pages 342-343.

33. If any person shows [**250] identification (as set forth in the Final Decision, pages 341-342) to establish that he is exercising the fishing rights of a treaty tribe and if he is fishing in a usual and accustomed place, he is protected under federal law against any state action, unless the state has established that such action is an appropriate exercise of its police power.

34. The protection of the treaty rights of the Plaintiff tribes to take fish at their usual and accustomed places must be an objective of the State's regulatory policy co-equal with the preservation and propagation of fish runs for other users. Before it can restrict the treaty rights of the Plaintiff tribes to take fish at their usual and accustomed places, the State and its regulatory agencies must treat such treaty rights as an obligation and interest to be promoted in the State's regulatory, management and propagation programs.

35. In order to accord the treaty rights of the Plaintiff tribes and their members the appropriate protection required by paragraph 34 herein, the State and its regulatory agencies may not restrain the exercise of said rights by:

a) Use of a state statute or regulation of broad applicability instead of [**251] one specific as to time, place, species and gear; and

b) Prohibition of harvest by the tribes on future runs prior to a full, fair and public consideration and determination of specific need conducted in accordance with the requirements of the Washington Administrative Procedure Act and regulations thereunder.

36. The Plaintiff tribes having a federally-recognized tribal government have jurisdiction (in conformity with their tribal constitutions or other applicable tribal rules or federal statutes) to enact and enforce regulations relating to the exercise outside reservation boundaries by their members of fishing rights secured to said tribes by treaty. However, the tribes cannot enlarge the right beyond that secured in the treaty.

37. Regulation of off-reservation Indian treaty fishing by the United States, the State, or the Plaintiff tribes does not preempt the regulation by any of the other two. Jurisdiction of each entity to regulate is unimpaired by the exercise of another entity's regulatory jurisdiction. With respect to matters over which there may be multiple jurisdiction, the extent of exercise or non-exercise of regulatory jurisdiction by the entity having primary interest [**252] in the matter may be relevant to the appropriateness of another entity's exercise of its jurisdiction. Also the exercise of federal or tribal regulatory control may affect the finding of "necessity" which is required for the validity of any state exercise of its police power to preserve the resource.

38. The application of current laws and regulations of the State to restrict the time, place, manner and volume of off-reservation harvest of anadromous fish by treaty tribes is unlawful for the reasons that, a) they have not been established to be necessary to preserve and maintain the resource; b) they operate to discriminate against the tribes' treaty right to fish; c) they have been adopted and enforced in violation of appropriate standards; and, d) they have been adopted and enforced in derogation of the meaning and purposes of the treaty provision at issue in this case.

39. The state laws and regulations pertaining to game fish which reserve the entire harvestable portion of a species of fish for a special interest and [*404] purpose discriminate illegally against the treaty Indians.

40. Regulations of the Director of Fisheries providing for special seasons and limitations [**253] applicable to the taking of fish by the members of certain treaty tribes do not fully protect the treaty fishing rights of the Plaintiff tribes in that they:

a) Do not apply to all of the usual and accustomed fishing places of said tribes;

b) Do not extend recognition of the treaty rights to all of the Plaintiff tribes;

c) Do not provide adequate opportunity for said tribes to take their proper share of the fish.

41. The following State statutes and regulations are specifically found not to meet the standards governing their applicability to the Indian exercise of treaty fishing rights and therefore may not lawfully be applied to restrict members of tribes having such rights from exercising those rights: RCW 75.08.260, RCW 75.12.060, RCW 75.12.070, RCW 75.12.160, RCW 77.08.020, RCW 77.12.100, RCW 77.12.130, RCW 77.16.020, RCW 77.16.030, RCW 77.16.040, RCW 77.16.060, WAC 220-20-010, WAC 220-20-015(2) and WAC 220-47-020.

42. In its consideration on October 2, 1972 and August 20, 1973, of whether an Indian net fishery would be inconsistent with the necessary conservation of the steelhead fishery, the Department of Game and the Game Commission did not accord the Puyallup Tribe or [**254] other treaty tribes a hearing in conformity with due process of law or the Washington Administrative Procedure Act, RCW Chapter 34.04, and applicable provisions of the Washington Administrative Code.

43. The seizure and damage, destruction, disposition or unreasonably long detention of fishing gear and other property of members of the Plaintiff tribes by the Defendants or their officers, employees, or agents without any judicial determination of confiscation or forfeiture is an unlawful deprivation of the rights of said members under the Fourteenth Amendment of the Constitution of the United States and the treaties listed in paragraph 1 of the Findings of Fact herein.

44. The continued retention of fishing gear and other property belonging to the members of the Plaintiff tribes and seized pursuant to the laws and regulations which are herein declared to be in conflict with the treaty rights of said tribes is unlawful and such property or its value must be returned to its owner, if known; otherwise to the tribe whose reservation is nearest to the place of seizure.

45. The Lummi Tribe continues to hold treaty-secured rights to fish with reef net gear in its usual and accustomed places, [**255] including Legoe Bay off Lummi Island, which rights are distinct from, and have priority over, any privilege of use and occupation of such places by members of the Defendant Washington Reef Net Owners Association.

46. The Plaintiffs are unable to be a party to criminal cases brought for the violation of the state statutes and regulations challenged in this action and are without an adequate remedy at law or any remedy at law whatsoever fully to assert and adequately to enforce and protect the fishing rights reserved and secured to the Plaintiff tribes by the treaties involved in this case. The individual members of the Plaintiff tribes are without an adequate remedy at law to redress or prevent unlawful interference with their exercise of fishing rights reserved and secured by said treaties because: a) the treaty rights that are asserted are unique and the damages which have been or will be sustained are not susceptible of definite monetary determination; and, b) in the case of criminal prosecutions said members have no remedy at all except at the risk of suffering arrests, seizure of [*405] property, fines, imprisonment and confiscation of property involving a multiplicity of [**256] legal proceedings.

47. The Plaintiffs are entitled to injunctive relief against the continuation and repetition of acts or omissions declared by these Conclusions of Law to be in violation of the treaty-secured rights of the Plaintiff tribes and their members.

48. This Court should retain continuing jurisdiction of this case to grant such further relief as may be found by the court to be appropriate on motion of any party hereto and to assure compliance with the Judgment Decree entered herein.

DECLARATORY JUDGMENT AND DECREE

This judgment and decree is based upon the Findings of Fact, Agreed Facts, Conclusions of Law and Decision of the Court entered in this case, all of which by this reference are hereby made a part hereof as though set forth in full herein, and close and detailed consideration by the Court. No language herein shall be interpreted as superseding the Decision of the Court, which shall control if in any respect it appears to be in conflict with any Finding herein.

In order clearly to delineate the off-reservation fishing rights held by certain Indian entities in this district under treaties made with the United States, it is hereby

Ordered, adjudged and decreed [**257] that the right of each of the plaintiff tribes in this case to harvest anadromous fish in waters within the Western District of Washington, outside the boundaries of Indian reservations and areas of exclusive federal jurisdiction, is declared to be as follows:

A. Definitions

All definitions contained in the Glossary of Terms of the Joint Biological Statement (Exhibit JX-2a) are hereby incorporated by reference. In addition and specifically for the purposes of interpreting all provisions of this decree, the following definitions shall be controlling:

1. Anadromous fish: Any fish which spawns or is artificially produced in freshwater, reaches mature size while rearing in saltwater and returns to freshwater to reproduce, and which spends any portion of its life cycle in waters within the Western District of Washington.

2. Adequate production escapement: In an approximate number of anadromous fish, that level of escapement from each fishery which will produce viable offspring in numbers to fully utilize all natural spawning grounds and propagation facilities reasonable and necessary for conservation of the resource, as defined in the Decision of the court.

3. Harvestable [**258] stock: The approximate number of anadromous fish which is surplus beyond adequate production escapement and Indian needs as defined in the Decision; that is, the number remaining when the adequate production escapement and Indian needs are subtracted from the run size.

4. To preserve and maintain the resource: Upon a full consideration of (a) the history of State anadromous fish management, (b) the level of catch within the Western District of Washington in recent years, (c) the quality of freshwater and artificial production environments, (d) the most recent facts and data concerning anadromous fish production potential, (e) the potential for interspecific competition, and (f) the prospects for improvement of anadromous fish production, to perpetuate the runs of anadromous fish at least at their current level.

5. Run: A group of anadromous fish on its return migration, identified by species, race and water of origin.

6. State: The State of Washington, its agents, officers, agencies, assigns and subdivisions.

7. Stevens' treaties: Those treaties identified in the Findings of Fact and Conclusions of Law as having been negotiated between Isaac I. Stevens, for the [**259] [*406] United States, and certain Indian tribes and bands who lived in Washington Territory during the 1850's.

8. Treaty Tribe: One of the Indian entities described in paragraph 10 below, or any other entity entitled to exercise treaty fishing rights under the treaties construed herein within the Western District of Washington.

9. Usual and accustomed places: Those areas in, on and around the freshwater and saltwater areas within the Western District of Washington, which were understood by the Indian parties to the Stevens' treaties to be embraced within the treaty terms "usual and accustomed" "grounds," "stations" and "places."

B. Treaty Fishing Rights

10. Each of the plaintiff tribes listed below is a Treaty Tribe. The list given below is a declaration only as to those 14 Indian entities which have been represented on the plaintiff side in this case. A Treaty Tribe occupies the status of a party to one or more of the Stevens' treaties and therefore holds for the benefit of its members a reserved right to harvest anadromous fish at all usual and accustomed places outside reservation boundaries, in common with others:


Hoh Tribe of Indians;

Lummi Indian [**260] Tribe;

Makah Indian Tribe;

Muckleshoot Indian Tribe;

Nisqually Indian Community of the Nisqually Reservation;

Puyallup Tribe of the Puyallup Reservation;

Quileute Indian Tribe;

Quinault Tribe of Indians;

Sauk-Suiattle Indian Tribe;

Skokomish Indian Tribe;

Squaxin Island Tribe of Indians;

Stillaguamish Tribe of Indians;

Upper Skagit River Tribe;

Confederated Tribes and Bands of the Yakima Indian Nation

11. The right of a Treaty Tribe to harvest anadromous fish outside reservation boundaries arises from a provision which appears in each of the Stevens' treaties and which, with immaterial variations, states:


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 . . . .

12. It is the responsibility of all citizens to see that the terms of the Stevens' treaties are carried out, so far as possible, in accordance with the meaning they were understood to have by the tribal representatives at the councils, and in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent [**261] people.

13. From the earliest known times, up to and beyond the time of the Stevens' treaties, the Indians comprising each of the treating tribes and bands were primarily a fishing, hunting and gathering people dependent almost entirely upon the natural animal and vegetative resources of the region for their subsistence and culture. They were heavily dependent upon anadromous fish for their subsistence and for trade with other tribes and later with the settlers. Anadromous fish was the great staple of their diet and livelihood. They cured and dried large quantities for year around use, both for themselves and for others through sale, trade, barter and employment. With the advent of canning technology in the latter half of the 19th Century the commercial exploitation of the anadromous fish resources by non-Indians increased tremendously. Indians, fishing under their treaty-secured rights, also participated in this expanded commercial fishery and sold many fish to non-Indian packers and dealers.

14. The taking of anadromous fish from usual and accustomed places, the right to which was secured to the Treaty Tribes in the Stevens' treaties, [*407] constituted both the means of economic [**262] livelihood and the foundation of native culture. Reservation of the right to gather food in this fashion protected the Indians' right to maintain essential elements of their way of life, as a complement to the life defined by the permanent homes, allotted farm lands, compulsory education, technical assistance and pecuniary rewards offered in the treaties. Settlement of the West and the rise of industrial America have significantly circumscribed the opportunities of members of the Treaty Tribes to fish for subsistence and commerce and to maintain tribal traditions. But the mere passage of time has not eroded, and cannot erode, the rights guaranteed by solemn treaties that both sides pledged on their honor to uphold.

15. The treaty-secured rights to resort to the usual and accustomed places to fish were a part of larger rights possessed by the treating Indians, upon the exercise of which there was not a shadow of impediment, and which were not much less necessary to their existence than the atmosphere they breathed. The treaty was not a grant of rights to the treating Indians, but a grant of rights from them, and a reservation of those not granted. In the Stevens' treaties, such reservations [**263] were not of particular parcels of land, and could not be expressed in deeds, as dealings between private individuals. The reservations were in large areas of territory, and the negotiations were with the tribes. The treaties reserved rights, however, to every individual Indian, as though described therein. There was an exclusive right of fishing reserved within certain boundaries. There was a right outside of t