Carcassman is correct. NMFS does not, and cannot, divide the ESA incidental take 50/50 due to the differing exploitation rates, which are based on gear type.

Instead, NMFS divides the incidental take such that each side can get roughly 50% of the catch. Since the recreational anglers can fish selectively, they need less incidental take. And since the Tribes don't fish selectively, they need more. Nothing wrong with that, provided each side has the opportunity to catch their share. For example, on the Columbia River, the Tribes need about 75% of the incidental take to reach their 50% allocation.

I'm not sure there is a direct conflict between the ESA and the Treaties. The court rulings have clearly stated that the State can restrict Tribal fishing, but only for the purposes of conservation. The courts are silent on Federal restrictions due to conservation, but if the State can restrict Tribal fishing, so can the Feds.

But it is guaranteed that if the State is going to restrict the Tribes, they would need to place even greater restrictions on State residents, including recreational anglers, commercial fishermen, homeowners, developers, farmers, etc, etc. Those are the painful decisions that the State, and the Feds, don't want to make. Or even discuss.