The Boldt Decision 

Hon. George H. Boldt
6

Statement of the Case – 9

I. Established Basic Facts and Law – 12

II. Summary of Findings of Fact and Conclusions of Law – 15 

III. State Regulation of Off Reservation Treaty Right Fishing – 17

IV. Rulings on Major Issues – 24

V. Findings of Fact – 36

 Treaty Status of Plaintiff Tribes – 36 

 Pretreaty Fishing Among Northwest Indians – 37 

Treaty Background – 41 

Negotiation and Execution of the Treaties – 43 

 Post Treaty Indian Fishing – 46 

 Historic and Present Status of Each Plaintiff Tribe:

1. Hoh Tribe – 48 

2. Lummi Tribe – 49 

3. Makah Tribe – 53 

4. Muckleshoot Tribe – 56 

5. Nisqually Tribe – 58 

6. Puyallup Tribe – 61 

7. Quileute Tribe – 63 

8. Quinault Tribe – 66 

9. Sauk-Suiattle Tribe – 68 

10. Skokomish Tribe – 68 

11. Squaxin Island Tribe – 70 

12. Stillaguamish Tribe – 71 

13. Upper Skagit River Tribe – 72 

14. Yakima Nation – 72 

 General Fisheries Conservation and Management – 76 

Department of Fisheries Policies and Practices – 83 

 Department of Game Policies and Practices – 98 

VI. Conclusions of Law – 97 

VII. Declaratory Judgment and Decree – 105

IIX. Rulings on Fisheries’ Questions Reconsideration Motion – 110 

IX. Proposed Amendments and Rulings Thereon – 115 

X. Injunction – 117 

XI. Interim Plan and Stay Order Pending Final Decision on Appeal – 126
7

UNITED STATES of America, Plaintiff, Quinault Tribe of Indians on its own behalf and on behalf of the 

Queets Band of Indians, et al., Intervenor-Plaintiffs, v. STATE OF WASHINGTON, Defendant, Thor C. 

Tollefson, Director, Washington State Department of Fisheries, et al., Intervenor-Defendants 

Civ. No. 9213 

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, 

TACOMA DIVISION 

384 F. Supp. 312; 1974 U.S. Dist. LEXIS 12291 

February 12, 1974 

SUBSEQUENT HISTORY: [**1] 

On Question Per Reconsideration Motion March 22, 1974. 

COUNSEL: Stan Pitkin, U.S. Atty., Stuart F. Pierson, Sp. Asst. U.S. Atty., Seattle, Washington, for the 

U.S.; George D. Dysart, Asst. Regional Sol., U.S. Dept. of the Interior, Portland, Oregon, of counsel. 

David H. Getches, Native American Rights Fund, Boulder, Colorado, and John H. Sennhauser, Legal 

Services Center, Seattle, Washington, for Muckleshoot Indian Tribe, Squaxin Island Tribe of Indians, 

Sauk-Suiattle Indian Tribe, Skokomish Indian Tribe, Stillaguamish Indian Tribe. 

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

Indian Tribe, Quileute Indian Tribe. 

Michael Taylor, Taholah, Washington, for Quinault Tribe of Indians. 

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

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

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

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

Washington. 

Joseph Larry Coniff, Jr., Asst. Atty. Gen., Dept. of Game, Olympia, Washington, [**2] for Game 

Defendants & Carl Crouse. 

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

David E. Rhea, Amundson, Rhea & Atwood, Bellingham, Washington, for Washington, Reef Net Owners 

Ass'n. 

Lawrence C. Smith, Smith, Smith & Smith, Spokane, Washington, for amicus curiae The Ass'n of 

Northwest Steelheaders, Inc. 

William N. Moloney, Davis, Wright, Todd, Riese & Jones, Seattle, Washington, for amicus curiae 

Washington, State Sportsmen's Council, Inc. 

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

JUDGES: Boldt, Senior District Judge. 

OPINIONBY: BOLDT 

OPINION: [*326] 
8

Statement of the Case

BOLDT, Senior District Judge. 

In September, 1970 the United States, on its own behalf and as trustee for several 

Western Washington Indian Tribes, n1 later joined as intervenor plaintiffs by additional 

tribes, n2 filed the complaint initiating this action against the State of Washington. 

Shortly later the State Department of Fisheries (Fisheries) and the State Game 

Commission (Game), their respective directors, and the Washington Reef Net Owners 

Association (Reef Net Owners) were included as defendants. By state statute Fisheries is 

charged with exercising regulatory authority over fishing for all anadromous food fish. 

Regulation of anadromous steelhead trout is vested in Game. Plaintiffs seek a declaratory 

judgment pursuant to 28 U.S.C. §§ 2201 and 2202 concerning off reservation treaty right 

fishing within the case area by plaintiff tribes, which long has been and now is in 

controversy, and for injunctive [*328] relief to provide enforcement of those fishing 

rights as they previously have been or herein may be judicially determined. The case area 

is that portion of the State of Washington west of the Cascade Mountains and north of the 

Columbia [**4] River drainage area, and includes the American portion of the Puget 

Sound watershed, the watersheds of the Olympic Peninsula north of the Grays Harbor 

watershed, and the offshore waters adjacent to those areas. 

Plaintiffs also assert claims for relief concerning alleged destruction or impairment of 

treaty right fishing due to state authorization of, or failure to prevent, logging and other 

industrial pollution and obstruction of treaty right fishing streams. Separation of those 

claims for pretrial and trial after trial of the issues determined in this decision was 

stipulated and approved by the court. 

Venue is properly laid in this court under 28 U.S.C. § 1391(b). Jurisdiction is alleged as 

to all tribes under one or more of the following provisions: 28 U.S.C. [**5] §§ 1345, 

1331, 1343(3) and (4) and 1362. n3 All of these allegations were conceded by all 

defendants, subject to their contention that exclusive jurisdiction to hear and determine 

the issues in this case is in the Indian Claims Commission under 25 U.S.C. §§ 70-70v and 

Game's denial of jurisdiction as to the Puyallup Tribe. This court has previously held and 

hereby affirms that both of these contentions are without merit and denied. It is hereby 

found and held that jurisdiction and venue have been established in all particulars as 

detailed in Part One of the Final Pretrial Order. 

Fisheries contends the Muckleshoot, Stillaguamish and Upper Skagit tribes do not hold a 

special treaty status to harvest anadromous fish. Game joins in this contention and makes 

the same contention regarding the Sauk-Suiattle Tribe. These contentions are considered 

and denied in the written Findings of Fact and Conclusions of Law. 

Shortly after appearance in the action by all defendants the first [**6] of a considerable 

number of pretrial conferences was held. Among many preliminary matters considered at 
9

that time were the court's suggestions that so far as possible all tribes, agencies or 

organizations having or claiming direct or indirect justiciable interest in treaty fishing 

rights in this judicial district be brought into the case either as parties or as amicus curiae; 

and that every issue of substantial direct or indirect significance to the contentions of any 

party be raised and adjudicated in this case. Both suggestions were acceptable to all 

parties and to a great extent they have been put into effect. Thus every interested agency 

and organization not joined as a party has had an opportunity to present its views on any 

of the issues in the case. n4 

For more than three years, at the expenditure by many people of great time, effort and 

expense, plaintiffs and defendants have conducted exhaustive research in anthropology, 

biology, fishery management and other fields of expertise, and also have made extreme 

efforts to find and present by witnesses and exhibits as much information as possible that 

pertains directly or indirectly to each issue in the case. As a consequence of this extensive 

pretrial preparation, all parties joined in stipulating to a great many agreed facts which 

are stated in exhibits or included in the Final Pretrial Order. The Joint Biological 

Statement, Exhibit JX-2a, jointly proposed and admitted in evidence as agreed facts 

applicable as indicated therein, was prepared by and agreed to by highly qualified experts 

employed by and representing both plaintiffs and defendants and is of exceptional 

importance [*329] and practical value. It is believed considerable historic and scientific 

information never before presented in a case involving treaty rights is now recorded and 

may prove of value in later proceedings in this case and possibly in others. 

To great advantage, all procedures recommended in the Manual [**8] for Complex 

Litigation have been followed by counsel in the particulars and to the extent found 

applicable and practicable by the court. With approval of court and counsel upon its entry 

the Final Pretrial Order became the final statement of all issues to be heard and 

determined in this decision, and pleadings pertaining to those issues passed out of the 

case, subject only to amendment by the court to prevent manifest injustice. Such 

amendments have been included in the text of the Final Pretrial Order. 

Every attorney in the case has vigorously and effectively presented the particular interests 

and contentions of each client he represents to the maximum extent professional duty 

requires. On the other hand there has been a remarkable degree of highly responsible and 

most commendable cooperation on the part of all counsel throughout trial preparation and 

trial which has greatly expedited discovery and full presentation of the issues and 

evidence in the case. All of the legal issues have been researched in depth and effectively 

presented and argued in the pretrial briefs, and in the final briefs submitted after the 

presentation of evidence was concluded and before final argument, which [**9] also was 

exceptional in professional quality. By direction of the court all parties either individually 

or jointly, as they chose, prepared and submitted proposed findings of fact and 

conclusions of law referenced to the record and also drafts of a proposed decree. Each 

proposed finding, conclusion and decree has been closely examined and considered by 

review of the evidence and the portions of the briefs pertaining to each item. All fact 

findings and legal rulings stated herein and the detailed Findings of Fact, Conclusions of 

Law and Decree signed and entered by the court are hereby made a part of this decision. 
10

On January 11, 1974, when Game filed the final version of its proposed findings, 

conclusions and decree the issues tried were finally submitted for decision. 

This court is confident the vast majority of the residents of this state, whether of Indian 

heritage or otherwise, and regardless of personal interest in fishing, are fair, reasonable 

and law abiding people. They expect that kind of solution to all adjudicated 

controversies, including those pertaining to treaty right fishing, and they will accept and 

abide by those decisions even if adverse to interests of their occupation [**10] or 

recreational activities. 

More than a century of frequent and often violent controversy between Indians and nonIndians over treaty right fishing has resulted in deep distrust and animosity on both sides. 

This has been inflamed by provocative, sometimes illegal, conduct of extremists on both 

sides and by irresponsible demonstrations instigated by non-resident opportunists. 

To this court the evidence clearly shows that, in the past, root causes of treaty right 

dissension have been an almost total lack of meaningful communication on problems of 

treaty right fishing between state, commercial and sport fishing officials and non-Indian 

fishermen on one side and tribal representatives and members on the other side, and the 

failure of many of them to speak to each other and act as fellow citizens of equal standing 

as far as treaty right fishing is concerned. Some commendable improvement in both 

respects has developed in recent years but this court believes high priority should be 

given to further improvement in communication and in the attitude of every Indian and 

non-Indian who as a fisherman or in any capacity has responsibility for treaty right 

fishing practices or regulation. Hopefully [**11] that will be expedited [*330] by some of 

the measures required by this decision. 

The ultimate objective of this decision is to determine every issue of fact and law 

presented and, at long last, thereby finally settle, either in this decision or on appeal 

thereof, as many as possible of the divisive problems of treaty right fishing which for so 

long have plagued all of the citizens of this area, and still do. 
11

I. Established Basic Facts and Law 

(Hereinafter italicize emphasis added unless otherwise indicated) 

The first decision of the United States Supreme Court on Indian treaty rights, Cherokee 

Nation v. Georgia, 5 Pet. 1, 30 U.S. 1, 8 L. Ed. 25, was written by Chief Justice Marshall 

in 1831. Since then decisions on the same subject matter have been rendered in that court, 

other federal courts and state courts in a considerable number to the present time. n5 All 

of the decisions that appear to have direct or indirect application to the present case have 

been closely reviewed and analyzed, individually and in relation to each other. Based 

thereon this court finds and holds that the following statements are now well established 

in fact and law. 

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

The "Constitution . . . of the United States . . . and all Treaties made, or which 

shall be made, under the Authority of the United States, shall be the supreme Law 

of the Land; and the Judges in every State shall be bound thereby, any Thing in 

the Constitution or Laws of any State to the Contrary notwithstanding." 

2. To the great advantage of the people of the United States, not only in property but also 

in saving lives of citizens, and to expedite providing for what at the time were immediate 

and imperative national needs, Congress chose treaties rather than conquest as the means 

to acquire vast Indian lands. It ordered that treaty negotiations with the plaintiff tribes and 

others in the Northwest be conducted as quickly as possible. Isaac I. Stevens, Governor 

of Washington Territory, proved to be ideally suited to that purpose for in less than one 

year during 1854-1855 he negotiated eleven different treaties, each with several different 

tribes, at various places distant from each other in this rugged and then primitive area. 

The treaties were written in English, a language unknown to most of the tribal 

representatives, [**13] and translated for the Indians by an interpreter in the service of 

the United States using Chinook Jargon, which was also unknown to some tribal 

representatives. Having only about three hundred words in its vocabulary, the Jargon was 

capable of conveying only rudimentary concepts, but not the sophisticated or implied 

meaning of treaty provisions about which highly learned jurists and scholars differ. n6 

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

"In construing any treaty between the United States and an Indian tribe, it must 

always (as was pointed out by the counsel for the appellees) be borne in mind that 

the negotiations for the treaty are conducted, on the part of the United States, an 

enlightened and powerful nation, by representatives skilled in diplomacy, masters 

of a written language, understanding the modes and forms of creating the various 

technical estates known to their law, and assisted by an interpreter [**14] 

employed by themselves; that the [*331] treaty is drawn up by them and in their 
12

own language; that the Indians, on the other hand, are a weak and dependent 

people, who have no written language and are wholly unfamiliar with all the 

forms of legal expression, and whose only knowledge of the terms in which the 

treaty is framed is that imparted to them by the interpreter employed by the 

United States; and that the treaty must therefore be construed, not according to the 

technical meaning of its words to learned lawyers, but in the sense in which they 

would naturally be understood by the Indians. Worcester v. Georgia, 31 U.S. 515, 

6 Pet. 515 [8 L. Ed. 483]; The Kansas Indians, 72 U.S. 737, 5 Wall. 737, 760 [18 

L. Ed. 667]; Choctaw Nation v. United States, 119 U.S. 1, 27, 28 [7 S. Ct. 75, 30 

L. Ed. 306, 314, 315] . . . . 'The language used in treaties with the Indians should 

never be construed to their prejudice.' . . . 'How the words of the treaty were 

understood by this unlettered people, rather than their critical meaning, should 

form the rule of construction.'" n7 

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

664): 

"And we have said we will construe a treaty with the Indians as 'that unlettered 

people' understood it, and 'as justice and reason demand, in all cases where power 

is exerted by the strong over those to whom they owe care and protection,' and 

counterpoise the inequality 'by the superior justice which looks only to the 

substance of the right, without regard to technical rules.' [citing Choctaw and 

Jones]" 

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

stated: 

"Valid treaties of course 'are as binding within the territorial limits of the States as 

they are elsewhere throughout the dominion of the United States.' Baldwin v. 

Franks, 120 U.S. 678, 683, 7 S. Ct. 656, 30 L. Ed. 766." 

4. Each of the basic fact and law issues in this case must be considered and decided in 

accordance with the treaty language reserving fishing rights to the plaintiff tribes, 

interpreted in the spirit and manner directed in the above quoted language of the United 

States Supreme Court. Each treaty in this case contains a provision substantially [**16] 

identical to that in the Medicine Creek treaty: "The right of taking fish, at all usual and 

accustomed grounds and stations, is further secured to said Indians, in common with all 

citizens of the territory, and of erecting temporary houses for the purpose of curing, . . ." 

n8 

5. "The right to resort to the [usual and accustomed] fishing places in controversy 

was a part of larger rights possessed by the Indians, upon the exercise of which 

there was not a shadow of impediment, and which were not much less necessary 

to the existence of the Indians than the atmosphere they breathed. . . . [The] treaty 
13

was not a grant of rights to the Indians but a grant of right from them -- a 

reservation of those not granted." n9 

"And surely it was within the competency of the Nation to secure to the Indians 

such a remnant of the great rights they possessed as 'taking fish at all usual and 

accustomed places.'" n10 

6. ". . . [The] [treaty] negotiations were with the tribe. They reserved rights, however, to 

every individual Indian, as though named therein. . . . And the right was intended to be 

continuing against the United States and its grantees as well as against the State and its 

grantees." n11 That those rights are also reserved to the descendants [*332] of treaty 

Indians, without limitation in time, excepting as Congress may determine, has been 

recognized and applied by the United States Supreme Court from the first to the latest 

decision of that court involving Indian treaty fishing rights. 

7. An exclusive right of fishing was reserved by the tribes within the area and boundary 

waters of their reservations, n12 wherein tribal members might make their homes if they 

chose to do so. The tribes also reserved the right to off reservation fishing "at all usual 

and accustomed grounds and stations" and agreed that "all citizens of the territory" might 

fish at the same [**18] places "in common with" tribal members. The tribes and their 

members cannot rescind that agreement or limit non-Indian fishing pursuant to the 

agreement. However, off reservation fishing by other citizens and residents of the state is 

not a right but merely a privilege which may be granted, limited or withdrawn by the 

state as the interests of the state or the exercise of treaty fishing rights may require. 

8. The tribes reserved the right to fish at "all usual and accustomed grounds and stations." 

The words "grounds" and "stations" have substantially different meanings by dictionary 

definition and as deliberately intended by the authors of the treaty. "Stations" indicates 

fixed locations such as the site of a fish wier or a fishing platform or some other narrowly 

limited area; "grounds" indicates larger areas which may contain numerous stations and 

other unspecified locations which in the urgency of treaty negotiations could not then 

have been determined with specific precision and cannot now be so determined. "Usual 

and accustomed," being closely synonymous words, indicate the exclusion of unfamiliar 

locations and those used infrequently or at long intervals and extraordinary occasions. 

Therefore, the court finds and holds that every fishing location where members of a tribe 

customarily fished from time to time at and before treaty times, however distant from the 

then usual habitat of the tribe, and whether or not other tribes then also fished in the same 

waters, is a usual and accustomed ground or station at which the treaty tribe reserved, and 

its members presently have, the [**20] right to take fish. n13 
14

II. Summary of Findings of Fact and Conclusions 

of Law 

This summary of the 253 separate detailed Findings of Fact and 48 Conclusions of Law 

filed herewith is intended as a recital of only the principal categories thereof, several of 

which are discussed elsewhere in this opinion. 

The Findings of Fact set forth the treaties under which each tribe, or its predecessors, 

negotiated with the United States, and in which the Indians expressly reserved the right to 

fish at off reservation usual and accustomed fishing places. The pre-treaty role of fishing 

among Northwest Indians is outlined, emphasizing the universal importance of the 

fishery resource, particularly salmon and steelhead, to Indians in the case area as an 

element of diet and in [*333] religious practices and trade. The Northwest Indians 

developed a wide variety of fishing methods which they utilized to catch many varieties 

of fish at innumerable locations throughout the areas where [**21] they lived and 

traveled. 

In the mid-1850's the United States treated with the unlettered Northwest Tribes to 

acquire great expanses of land. Reluctant to be confined to small reservation bases, the 

Indian negotiators insisted that their people continue to fish as they had beyond the 

reservation boundaries. There is no indication that the Indians intended or understood the 

language "in common with all citizens of the Territory" to limit their right to fish in any 

way. For many years following the treaties the Indians continued to fish in their 

customary manner and places, and although non-Indians also fished, there was no need 

for any restrictions on fishing. 

For each of the plaintiff tribes, the findings set forth information regarding the 

organization and membership of the tribe, and some, but by no means all, of their 

principal usual and accustomed fishing places. Anthropological data are also presented 

for several tribes, as well as information concerning present Indian culture and economy. 

Several tribes are currently involved in fish propagation programs which benefit the 

tribes and the state. 

Fact findings are also presented regarding reef net fishing which show that current [**22] 

non-Indian reef net operations take place at or near the same locations occupied 

historically by Lummi Indian fishermen. 

General fisheries conservation and management data are presented, incorporating the 

Joint Biological Statement which sets forth many significant facts concerning 

anadromous fish. Procedures and objectives are outlined for managing salmon and 

steelhead for commercial, sport and Indian user groups including regulatory schemes 

promulgated by state authorities and by Indian tribes. The means and locations used to 

harvest the resource and the quantity of the harvest are also presented. 
15

The policies and practices of both Fisheries and Game are also presented. Due in part to 

the nature of the species of fish regulated, Fisheries evidences better success in managing 

the salmon than does Game with regard to steelhead. Fisheries has also evidenced an 

attitude of cooperation with the plaintiff tribes that has been lacking from Game, at least 

prior to Puyallup-II. 

The Conclusions of Law, after stating the basis of jurisdiction and venue, establish the 

treaty status of each of the plaintiff tribes, and therefore, the right of their members to fish 

off reservation in common [**23] with the citizens of the state. The fishing right was 

reserved by the Indians and cannot be qualified by the state. The state has police power to 

regulate off reservation fishing only to the extent reasonable and necessary for 

conservation of the resource. For this purpose, conservation is defined to mean 

perpetuation of the fisheries species. Additionally, state regulation must not discriminate 

against the Indians, and must meet appropriate due process standards. 

The Yakima Nation and the Quinault Tribe are presently qualified to self-regulate the off 

reservation fishing of their tribal members. Other tribes may similarly self-regulate 

member fishing if and when they meet the qualifications and conditions set forth in the 

decision. 

Several current state laws and regulations which restrict the time, place, manner and 

volume of off reservation fishing by treaty tribes, and reserve game fish for sport 

interests, have not been established as reasonable and necessary for conservation and the 

application thereof to plaintiff tribes is unlawful. The court will retain continuing 

jurisdiction of this case to grant such further relief as the court may find appropriate. 
16

III. State Regulation of Off 

Reservation Treaty Right Fishing 

There is neither mention nor slightest intimation in the treaties themselves, in any of the 

treaty negotiation records or in any other credible evidence, that the Indians who 

represented the tribes in the making of the treaties, at that time or any time afterward, 

understood or intended that the fishing rights reserved by the tribes as recorded in the 

above quoted language would, or ever could, authorize the "citizens of the territory" or 

their successors, either individually or through their territorial or state government, to 

qualify, restrict or in any way interfere with the full exercise of those rights. All of the 

evidence is overwhelmingly to the contrary, particularly in the vivid showing in the 

record that the treaty Indians pleaded for and insisted upon retaining the exercise of those 

rights as essential to their survival. They were given unqualified assurance of that by 

Governor Stevens himself without any suggestion that the Indians' exercise of those 

rights might some day, without authorization of Congress, be subjected to regulation by 

non-Indian citizens through their territorial or state government. [**25] n14 

For several decades following negotiation and ratification of the treaties all of the tribes 

extensively exercised their treaty rights by fishing as freely in time, place and manner as 

they had at treaty time, totally without regulation or any restraint whatever, excepting 

only by the tribes themselves in strictly enforcing tribal customs and practices which, 

during that period and for innumerable prior generations, had so successfully assured 

perpetuation of all fish species in copious volume. The first other than naturally caused 

threat to volume or species came from non-Indian population growth and non-Indian 

industrial development in the rapid westward advance of civilization. n15 

In the final pretrial order in this case issues were raised therein by the contentions [**26] 

of several tribes later joined by the remaining plaintiff tribes that: (a) the state police 

power dicta followed by the United States Supreme Court are not sound in legal logic or 

principle, and (b) even if so, state regulation of the exercise of Indian off reservation 

treaty fishing rights must be denied in "justice and reason, looking to the substance of the 

rights reserved as understood by the Indians who negotiated the treaties, without regard to 

technical rules," as all American courts for a century or more have been repeatedly 

admonished by the United States Supreme Court in the same or similar language. n16 

In addition to raising the above stated issues in the final pretrial order, the tribes have 

submitted well researched briefs and vigorous oral argument in support thereof. That the 

contentions are not without at least color of merit in judicial and scholarly support is 

shown by a decision of the Supreme Court of Idaho, n17 the judicial views of at least one 

highly respected Washington [**27] State Supreme Court Judge n18 and a scholarly 

article in The University of Washington Law Review written by a Law Professor of that 

University and other similar articles. n19 
17

No federal decision or state decision cited to this court has directly and specifically 

interpreted the clause "in common with all citizens of the Territory" as, in itself, directly 

or impliedly justifying state police power regulation of off reservation treaty right fishing, 

or [*335] has specifically stated or even indicated any federal source of or basis for such 

state power. 

Under these circumstances and the facts hereinabove recited, judicial integrity requires 

that this court must give the [**28] tribes' above stated contentions serious consideration 

and specific determination. 

The first decision of the United States Supreme Court, later cited by the same court as 

authority for state regulation of treaty right fishing, is Ward. On that subject 

unquestionably the decision was obiter dictum because: (a) the Indian hunting rights 

reserved in the treaty in question were limited to specifically designated areas outside of 

which Race Horse hunted, for which he was imprisoned and from which he sought 

enlargement by habeas corpus; and (b) because later in the opinion it was held the treaty 

hunting rights in question had been finally terminated by Congress prior to the allegedly 

criminal hunting by Race Horse. 

The only statement in Ward in either the majority or minority opinions that could 

possibly justify later citation of the decision as applicable to treaty right fishing was the 

single sentence 163 U.S. on page 507, 16 S. Ct. on page 1076: 

"The power of a state to control and regulate the taking of game cannot be 

questioned. Geer v. Connecticut, 161 U.S. 519, [16 S. Ct. 600, 40 L. Ed. 793." 

However, in the next preceding paragraph of the majority opinion [**29] in Ward two 

sentences before the sentence just quoted, the majority opinion stated: 

". . . the sole question which the case presents is whether the treaty made by the 

United States with the Bannock Indians gave them the right to exercise the 

hunting privilege, therein (the treaty) referred to within the limits of the state of 

Wyoming in violation of its laws. If it [the treaty] gave such right, the mere fact 

that the state had created school districts or election districts, and had provided for 

pasturage on the lands, could no more efficaciously operate to destroy the right of 

the Indian to hunt on the lands than could passage of the [state] game law." 

This statement, even if it too be a dictum, is far more sound in treaty law applicable to 

fish and game regulation than the first statement quoted above. 

Thus the second statement in Ward, quoted in the paragraph above to the effect that 

exercise of treaty right hunting cannot be controlled by state regulatory laws would 

appear to be compelling, or at least equal, authority for denying state regulation, not 

authorized by Congress, of Indian fishing off reservation as specified in existing treaties 
18

[**30] which expressly record and recognize reservation of that right by the Indian tribes. 

In Geer, Mr. Justice White, speaking for a 5-2 majority traced in detail principles 

pertaining to the taking of ferae naturae down through the ages from Solon of ancient 

Athens to 1895, but treaty rights were not involved in that case or even mentioned in any 

way whatever in the exhaustive opinion. The only issue decided in Geer was the holding 

that it was not unconstitutional for Connecticut to allow, by regulation, killing of birds 

within the state during a designated open season, and to permit such birds, when so 

killed, to be used, sold and bought for use within the state, but forbid their transportation 

beyond the state. Hence the statement in Geer as well as that in Ward, on the subject of 

off reservation treaty right fishing, were both purest dicta. 

Ward was not cited in Winans, wherein state power to regulate off reservation treaty 

fishing was assumed without any explanation or citation of authority. That subject was 

mentioned only in the concluding clause of a sentence (198 U.S. p. 384, 25 S. Ct. p. 665): 

". . . nor does it [the right to take fish] restrain [**31] the state unreasonably, if at 

all, in the regulation of the right." [*336] 

Geer, Ward, Patsone and Lacoste are cited in footnote #2 of Tulee (315 U.S. p. 683, 62 S. 

Ct. 864, 86 L. Ed. 1115) as supporting the only statement in that opinion referring to the 

state power to regulate off reservation fishing: 

"Relying upon its broad powers to conserve game and fish within its borders, (2) 

however, the state asserts that its right to regulate fishing may be exercised at 

places like the scene of the alleged offense, which, although within the territory 

originally ceded by the Yakimas, is outside of their reservation." 

In Patsone the United States Supreme Court reviewed the conviction of an alien for 

possession of a shotgun in violation of a state criminal statute. One of the two defenses 

presented and determined in the decision was based on provisions of a United States 

treaty with Italy. The treaty provisions and facts in Patsone are totally dissimilar to those 

in the present case and nothing in the holdings or language in the opinion directly or by 

implication would legally authorize state regulation of a federally guaranteed civil right 

which is [**32] expressly stated in a treaty and the exercise of which right could not 

possibly endanger the personal safety of any resident of the State. 

Treaty rights were in no way involved in Lacoste. The only statement in that decision 

(263 U.S. p. 549, 44 S. Ct. 186) concerning state police power to regulate the taking of 

wild animals is supported by citation of Geer, Ward, Kennedy and other decisions having 

only remote applicability in either fact or law to the present case. 

The remaining treaty right fishing decisions of the United States Supreme Court are 

Puyallup-I and Puyallup-II. Thus until Puyallup-I was decided in 1968 there was neither 

judicial analysis nor citation of a non-dictum decision supporting police power state 

regulation of the exercise of Indian off reservation treaty right fishing in any Supreme 
19

Court decision because all previous Supreme Court references to that subject were either 

based solely on the reiterated dicta discussed above or assumed such authority without 

discussion of its basis or indication of its source. 

In support of a statement in Puyallup-I (391 U.S. p. 399, 88 S. Ct. 1725) concerning state 

regulation of treaty fishing outside [**33] of reservations the United States Supreme 

Court cited Winans and Kennedy as forerunners of Tulee and quoted portions of all three. 

As indicated above herein, the Tulee and Winans quotations were dicta. 

In Kennedy, a habeas corpus proceeding, Indian lands were transferred by the Seneca 

Tribe to private ownership in a 1797 treaty containing a provision which permitted the 

Seneca Indians to fish in waters on the lands conveyed "at will, and at all seasons of the 

year, regardless of the provisions of the game laws of the State of New York." Shortly 

after that conveyance the lands were resold and continued in private ownership to the 

time of Kennedy, decided in 1915. That decision cites Geer and Ward as the sole basis for 

its statement (241 U.S. p. 562, 36 S. Ct. p. 707) that "it is not to be doubted that the 

power to preserve fish and game within its borders is inherent in the sovereignty of the 

state . . ." Kennedy paraphrases Winans for more than Winans held and quotes the same 

passing reference to regulation in Winans previously quoted above. n20 Most significant 

of all, it is stated in the very Kennedy language quoted in Puyallup-I [**34] (391 U.S. pp. 

399-400, 88 S. Ct. p. 1729) that the fishing clause in the treaty conveyance "is fully 

satisfied by considering it a reservation of a privilege of fishing . . ." subject to state 

regulation. If at this time anything concerning treaty fishing rights should be beyond 

doubt or question it is the basic principle that the treaty fishing of plaintiff [*337] tribes 

in this case is a reserved right and not a mere privilege. The treaty fishing in Kennedy

was held to be only a privilege under the peculiar facts of that case. Nothing faintly 

comparable to those facts can be found in either Puyallup-I or the present case. 

Another statement in Puyallup-I (391 U.S. p. 398, 88 S. Ct. p. 1728) concerning police 

power regulation, without analysis other than as stated therein, or citation of a nondictum authority, is: 

"Moreover, the right [**35] to fish at those respective [usual and accustomed] 

places is not an exclusive one. Rather it is one 'in common with all citizens of the 

territory.' Certainly the right of the latter may be regulated. And we see no reason 

why the right of the Indians may not also be regulated by an appropriate exercise 

of the police power of the State." 

This statement seems to say that because a state has police power to regulate fishing 

privileges which the state has granted and may limit or entirely withdraw, that is 

somehow a legal reason for state regulation of federal fishing rights which are expressly 

reserved in a treaty which only Congress has authority to limit or modify. If that seeming 

non sequitur be the law it certainly is deserving of more specific legal analysis and 

justification than it has ever had in any United States Supreme Court decision. 

In Puyallup-I it is also stated (391 U.S. p. 398, 88 S. Ct. p. 1728): 
20

"The right to fish 'at all usual and accustomed' places may, of course, not be 

qualified by the State, even though all Indians born in the United States are now 

citizens of the United States. [citations] But the manner of fishing, the size [**36] 

of the take, the restriction of commercial fishing, and the like may be regulated by 

the State in the interest of conservation, provided the regulation meets appropriate 

standards and does not discriminate against the Indians." 

That a treaty right, guaranteed as the supreme law of the land by the Federal Constitution, 

can not be "qualified" (i.e. "in some way limited or modified") n21 by a state but the 

exercise of the right may be limited or modified by state regulation, especially when 

these seemingly conflicting propositions are stated in consecutive sentences, is very 

difficult to comprehend. The practical effect of a difference between having a 

constitutional right but only a limited right to exercise it certainly could not have been 

understood and accepted by the "unlettered" Indians who negotiated the treaties and it 

must be little less impossible for their somewhat more sophisticated present-day 

descendants to comprehend and accept. 

Mindful that treaty fishing is a right, not a mere privilege, the following sentence from 

Murdock, quoted in a footnote (p. 402, 88 S. Ct. p. 1730) of Puyallup-I, seems pertinent: 

"The power to tax the exercise of a privilege is the power to control or suppress 

its enjoyment." 

As stated by the United States Supreme Court in Winans (198 U.S. pp. 381-382, 25 S. Ct. 

662), treaty fishing rights are personal rights held and exercised by individual tribe 

members. Although the exercise of that particular civil treaty right may be limited or 

modified in any particular or to any extent by or with authority of Congress, n22 that the 

exercise of such a right may be limited in any way by the police power of a state, without 

having previously received authority to do so from Congress, seems to be diametrically 

opposed to relevant treaty law and personal civil rights decisions, particularly those of 

recent years. 

In the Puyallup-II [**38] decision, decided less than three months ago, it was stated (414 

U.S. p. 2, 94 S. Ct. p. 332): 

"The sole question tendered in the present cases concerns the regulations [*338] 

of the Department of Game concerning steel head trout." 

Other than by recital or quotations from Puyallup-I and State Supreme Court decisions, in 

Puyallup-II there was no discussion of or ruling upon the basis of state police power to 

regulate off reservation treaty right fishing unless it be derived from the next to the last 

paragraph in the opinion of Justice Douglas (pp. 5-6, 94 S. Ct. p. 333): 
21

"We do not imply that these fishing rights persist down to the very last steel head 

in the river. Rights can be controlled by the need to conserve a species; and the 

time may come when the life of a steel head is so precarious in a particular stream 

that all fishing should be banned until the species regains assurance of survival. 

The police power of the State is adequate to prevent the steel head from following 

the fate of the passenger pigeon; and the Treaty does not give the Indians a federal 

right to pursue the last living steel head until it enters their nets." 

Whatever [**39] the above quoted statement may have added to or taken from the right 

to exercise the off reservation treaty fishing rights of the plaintiff tribes, to the present 

time there never has been either legal analysis or citation of a non-dictum authority in any 

decision of the Supreme Court of the Land in support of its decisions holding that state

police power may be employed to limit or modify the exercise of rights guaranteed by 

national treaties which the federal Constitution mandates must be considered and applied 

as "the supreme Law of the Land." 

From the above summary of the United States Supreme Court decisions it is clear the 

following 1971 comment by the Washington State Supreme Court n23 is not overstated: 

"Surprisingly little judicial attention, we note, has been given to this rather 

standard treaty language [in the fishing rights clause of Indian treaties]." 

It also appears that the United States Supreme Court has exercised [**40] a prerogative 

specifically reserved by and to Congress in the treaties. Congress has never exercised its 

prerogative to either limit or abolish Indian treaty right fishing. In recent years it declined 

to do the latter by three times failing to enact proposed legislation for the termination of 

Indian treaty fishing rights. n24 It may be that the refusal or failure of Congress to 

exercise a specific prerogative, by enactment of legislation, would legally justify judicial 

exercise of that particular prerogative. If so, it has never been stated or indicated in any 

United States Supreme Court decision as the basis or source of authority for the federal 

judicial decisions authorizing state regulation of off reservation treaty fishing rights. 

Since Congress has the power to qualify or revoke any treaty or any provision thereof, 

n25 unquestionable federal [**41] authority is available to provide federal regulation, or 

to authorize state regulation, for the protection of fishery resources against any threatened 

or actual harm that might arise from off reservation treaty right fishing by tribal members 

limited only by tribal regulation. n26 In these circumstances it is unfortunate, to say the 

least, that [*339] state police power regulation of off reservation fishing should be 

authorized or invoked on a legal basis never specifically stated or explained. This is 

particularly true because state regulation of off reservation treaty right fishing is highly 

obnoxious to the Indians and in practical application adds greatly to already complicated 

and difficult problems and may stimulate continuing controversy and litigation long into 

the future. 
22

Having the judicial duty to independently research, consider and fairly appraise the tribes' 

contentions concerning state regulation of off reservation treaty right fishing, this court 

has intended and attempted to do that as conscientiously and thoroughly as possible 

within the personal capabilities of the author of this decision. The results of that effort are 

above stated as directly and briefly as the subject matter appeared to permit. 

In the opinion of this court, judicial integrity also requires this court to hold that the 

tribes' contention that the state does not have legal authority to regulate the exercise of 

their off reservation treaty right fishing must be and hereby is denied by this court. The 

basis of this ruling is the indisputable and unqualified duty of every federal circuit or trial 

judge, despite academic or personal misgivings, to enforce and apply every principle of 

law as it is directly stated in a decision of the United States Supreme Court. Recently the 

United States Supreme Court in Puyallup-I and Puyallup-II directly and specifically held 

that Washington has the power to regulate off reservation treaty right fishing in the 

particulars and to the [**43] extent indicated in those decisions, which holding continues 

in effect unless and until overruled or modified by that court or by Congress. 

Accordingly, each of the rulings on specific issues in this case stated in Section IV of this 

decision has been considered and determined on that basis. 
23

IV. Rulings on Major Issues in This Case 

 

1. In the detailed Findings of Fact and Conclusions of Law on file herein this court has 

found and held and hereby reaffirms that each of plaintiff tribes in this case, including 

each of the tribes whose status as such was challenged by some or all defendants, has 

established its status as an Indian tribe recognized as such by the federal government and 

therefore is entitled to maintain this action for relief based on a treaty of the United States 

negotiated by and for the tribe, its members at that time and their descendants. 

An appeal from a district court decision holding that the Puyallup reservation no longer 

exists has not yet been determined. However, in Menominee (1968) the United States 

Supreme Court held that termination of a tribal reservation established pursuant to a 

treaty did not extinguish hunting and fishing rights, reserved in the [**44] treaty by 

implication, or impair the exercise of such rights within the area of the terminated 

reservation. In the opinion of this court, treaty right fishing within the area of a former 

Indian reservation cannot be exclusive when that reservation no longer exists, but such 

fishing must be "in common with" non-treaty right fishermen. It is so found and held and 

hereby shall be applicable to any plaintiff tribe, the reservation of which has been or 

hereafter may be terminated. 

2. Ever since the first Indian treaties were confirmed by the Senate, Congress has 

recognized that those treaties established self-government by treaty tribes, excepting only 

as limited in the treaties, judicial interpretation thereof or by Congress. This basic 

principle was confirmed in the first [*340] United States Supreme Court decision dealing 

with such a treaty n27 and has always been expressly or impliedly reaffirmed when 

applicable in every succeeding decision of that court. There was a period during which 

Congress enacted legislation limiting the exercise of tribal autonomy in various 

particulars. However, in the last decade Congressional legislation has definitely been in 

the contrary direction, [**45] notably in the so-called "Indian Civil Rights Act." n28 

Among other measures in that Act encouraging the exercise of tribal autonomy are those 

providing for enlarged jurisdiction of tribal courts, pursuant to which special training of 

tribal judges and other court personnel has been in progress for some time and still 

continues. 

These measures and others make plain the intent and philosophy of Congress to increase 

rather than diminish or limit the exercise of tribal self-government. 

The right to fish for all species available in the waters from which, for so many ages, 

their ancestors derived most of their subsistence is the single most highly cherished 

interest and concern of the present members of plaintiff tribes, with rare exceptions even 

among tribal members who personally do not fish or derive therefrom any substantial 

amount of their subsistence. The right to fish, as reserved in the treaties [**46] of 

plaintiff tribes, certainly is the treaty provision most frequently in controversy and 

litigation involving all of the tribes and numerous of their individual members for many 
24

years past. 

The philosophy of Congress referred to above and the evidence in this case as a whole 

clearly indicate to this court that the time has now arrived, and this case presents an 

appropriate opportunity, to take a step toward applying congressional philosophy to 

Indian treaty right fishing in a way that will not be inconsistent with Puyallup-I and 

Puyallup-II and also will provide ample security for the interest and purposes of 

conservation. 

In all the circumstances shown by the evidence, including those briefly sketched above, 

this court hereby finds and holds that any one of plaintiff tribes is entitled to exercise its 

governmental powers by regulating the treaty right fishing of its members without any 

state regulation thereof; PROVIDED, however, the tribe has and maintains the 

qualifications and accepts and abides by the conditions stated below. If, as to any plaintiff 

tribe, any one of such qualifications and conditions is not determined by the court in this 

decision on the evidence in [**47] this case, establishment of the qualifications and 

conditions of each other plaintiff tribe shall be determined either to the satisfaction of 

both Fisheries and Game, or upon hearing by or under direction of the court. When the 

qualifications and conditions of a tribe have been fully established in the manner 

indicated, that tribe shall be relieved of state regulation except to the extent specified in 

the below stated conditions. Failure of a tribe either to maintain its required qualifications 

or to abide by and adhere to prescribed conditions, when established and not promptly 

corrected, shall suspend self-regulation by such tribe until such time as all required 

qualifications and conditions are fully established. 

To qualify for self-regulation of off reservation treaty right fishing as above provided, a 

tribe must establish to the satisfaction of either Fisheries and Game or the court, that the 

tribe has each of the following qualifications and that the tribe will accept and abide by 

each of the following conditions. 

QUALIFICATIONS 

The tribe shall have: 

(a) Competent and responsible leadership. 

[*341] (b) Well organized tribal government reasonably competent [**48] to 

promulgate and apply tribal off reservation fishing regulations that, if strictly 

enforced, will not adversely affect conservation. 

(c) Indian personnel trained for and competent to provide effective enforcement 

of all tribal fishing regulations. 

(d) Well qualified experts in fishery science and management who are either on 

the tribal staff or whose services are arranged for and readily available to the 

tribe. 
25

(e) An officially approved tribal membership roll. 

(f) Provision for tribal membership certification, with individual identification by 

photograph, in a suitable form that shall be carried on the person of each tribal 

member when approaching, fishing in or leaving either on or off reservation 

waters. 

CONDITIONS 

The tribe shall: 

(a) Provide for full and complete tribal fishing regulations which, before adoption, 

have been discussed in their proposed final form with Fisheries and Game, and 

include therein any state regulation which has been established to the satisfaction 

of the tribe, or upon hearing by or under direction of this court, to be reasonable 

and necessary for conservation. 

(b) Permit monitoring of off reservation Indian fishing [**49] by Fisheries and 

Game to the extent reasonable and necessary for conservation. 

(c) Provide fish catch reports, as to both on and off reservation treaty right fishing, 

when requested by Fisheries or Game for the purpose of establishing escapement 

goals and other reasonable and necessary conservation purposes. 

All parties in this case agree that on reservation fishing is not subject to state regulation 

and no issue to the contrary is presented in this case. Indeed, any contention to the 

contrary would be diametrically opposed to the Indian self-government intent and 

philosophy of Congress. However, state regulation of off reservation fishing to the extent 

reasonable and necessary for conservation requires that Fisheries and Game must have all 

information essential to such limited regulation. From the evidence in this case, the court 

hereby finds and holds that recording the number of fish taken in treaty right fishing, both 

on and off reservation, is essential to reliable estimates of future run sizes which are 

necessary for reasonably accurate calculation of spawning escapement requirements and 

for the allocation of harvestable fish as provided in this decision. 

The lack of [**50] adequate, or any, approved identification of treaty right fishermen 

long has and now does seriously interfere with their fishing and hampers enforcement of 

both tribal and state regulations reasonable and necessary for conservation. Therefore, 

each of plaintiff tribes, self-regulated or not, is hereby directed to provide as promptly as 

practicable both (a) certification and identification of its tribal fishermen as specified in 

para. (f) of the above stated Qualifications; and also (b) fish catch returns as specified in 

para. (c) of the above stated conditions. 

The uncontradicted evidence shows that for a considerable time the Quinault and Yakima 

tribes have adopted and effectively enforced tribal fishing regulations which in some 
26

material respects are more restrictive than the regulations of Fisheries and Game. To a 

considerable extent those tribes have consulted and cooperated with Fisheries and Game 

in matters pertaining to responsible regulation of Indian fishing. In the Findings of Fact 

and Conclusions of Law on file herein the court has found, held and hereby confirms that 

the evidence in this case clearly establishes [*342] that both the Quinault and Yakima 

Tribes for [**51] a considerable time have had, and now have, each of the above stated 

Qualifications, other than (f), and have provided or permitted each of the above stated 

Conditions, other than (c). The items excepted can and the court believes will be 

promptly supplied by both tribes; and when accomplished, the Quinault and Yakima 

Tribes shall be entitled to exercise their treaty fishing rights without any state regulation 

thereof, except as hereinabove provided. 

The evidence indicates several other plaintiff tribes have capacity for, and are not far 

from, achievement of the same status, which potentially is within the capability of every 

plaintiff tribe. 

3. Although state police power permits state regulation of the exercise of off reservation 

treaty fishing rights, under all of the United States Supreme Court decisions cited or 

quoted hereinabove there can be no doubt that it is not within the province of state police 

power, however liberally defined, to deny or "qualify" rights which are made the supreme 

law of the land by the federal constitution. Therefore, in each specific particular in which 

the state undertakes to regulate the exercise of treaty right fishing, all state officers 

responsible [**52] therefor must understand that the power to do so must be interpreted 

narrowly and sparingly applied, with constant recognition that any regulation will restrict 

the exercise of a right guaranteed by the United States Constitution. Every regulation of 

treaty right fishing must be strictly limited to specific measures which before becoming 

effective have been established by the state, either to the satisfaction of all affected tribes 

or upon hearing by or under direction of this court, to be reasonable and necessary to 

prevent demonstrable harm to the actual conservation of fish. 

To clearly identify state treaty right fishing regulations and to make them more readily 

understood and usable by plaintiff tribes and others interested therein such regulations 

shall be published either separate and apart from other state fishing regulations or as a 

separate and plainly labeled part thereof readily distinguishable from other fishing 

regulations. 

4. However broadly the word may be used and applied in the theory and practice of 

fisheries science and management, "conservation" as used in Supreme Court decisions 

and herein is limited to those measures which are reasonable and necessary to [**53] the 

perpetuation of a particular run or species of fish. In this context, as well as by dictionary 

definition, "reasonable" means that a specifically identified conservation measure is 

appropriate to its purpose; and "necessary" means that such purpose in addition to being 

reasonable must be essential to conservation. 

5. The state having the burden of proof as above indicated, no regulation applied to off 

reservation treaty fishing can be valid or enforceable unless and until it has been shown 
27

reasonable and necessary to conservation as above defined. The arrest of, or seizure of 

property owned or in permitted custody of, a treaty right fisherman under a regulation not 

previously established to be reasonable and necessary for conservation, is unlawful and 

may be actionable as to any official or private person authorizing or committing such 

unlawful arrest or seizure. 

6. If alternative means and methods of reasonable and necessary conservation regulation 

are available, the state cannot lawfully restrict the exercise of off reservation treaty right 

fishing, even if the only alternatives are restriction of fishing by non-treaty fishermen, 

either commercially or otherwise, to the full [**54] extent necessary for conservation of 

fish. 

7. In Arizona the United States Supreme Court held that irrigation water rights reserved 

by implication in an Indian treaty could only be limited in amount to the total reasonably 

required by the needs of the treaty tribe [*343] as determined from time to time 

indefinitely in the future. That holding cannot be distinguished in principle or application 

from the fishing rights specifically reserved by the plaintiff tribes and recognized by the 

United States in the treaties. Since tribal on reservation treaty right fishing is exclusive, 

fish taken on reservation shall not be included in any allocation of fish between treaty and 

non-treaty fishermen. Therefore, the amount or quantity of any species of fish that may 

be taken off reservation by treaty right fishing during a particular fishing period can only 

be limited by either: 

(a) The number of fish required for spawning escapement and any other 

requirements established to be reasonable and necessary for conservation, and 

(b) The number of harvestable fish non-treaty fishermen may take at the tribes' 

"usual and accustomed grounds and stations" while fishing "in [**55] common 

with" treaty right fishermen. 

As used above, "harvestable" means the number of fish remaining to be taken by any and 

all fishermen, at usual and accustomed grounds and stations, after deducting the number 

of fish required for spawning escapement and tribal needs. 

Arizona was concerned with the amount of water impliedly reserved for the use of the 

treaty tribe and it was held they were entitled to the full amount required to serve their 

needs. In the present case a basic question is the amount of fish the plaintiff tribes may 

take in off reservation fishing under the express reservation of fishing rights recorded in 

their treaties. The evidence shows beyond doubt that at treaty time the opportunity to take 

fish for personal subsistence and religious ceremonies (FF ## 3, 6) was the single matter 

of utmost concern to all treaty tribes and their members. The extent of taking fish by 

tribal members for these purposes is now less than in former times but for a substantial 

number of tribal members at or near poverty level their need in these particulars is little, 

if any, less than it was for their ancestors. For these reasons the court finds that the taking 

of fish for ceremonial [**56] and subsistence purposes has a special treaty significance 

distinct from and superior to the taking of fish for commercial purposes and therefore fish 
28

taken to serve ceremonial and subsistence needs shall not be counted in the share of fish 

that treaty right fishermen have the opportunity to take. Such needs shall be limited to the 

number of fish actually used for: (a) Traditional tribal ceremonies; and (b) Personal 

subsistence consumption by tribal members and their immediate families. 

By dictionary definition and as intended and used in the Indian treaties and in this 

decision "in common with" means sharing equally the opportunity to take fish n29 at 

"usual and accustomed grounds and stations"; therefore, non-treaty fishermen shall have 

the opportunity to take up to 50% of the harvestable number of fish that may be taken by 

all fishermen at usual and accustomed grounds and stations and treaty right fishermen 

shall have the opportunity to take up to the same percentage of harvestable fish, as stated 

above. 

While emphasizing the basic principle of sharing equally in the opportunity to take fish at 

usual and accustomed grounds and stations, the court recognizes that innumerable 

difficulties will arise in the application of this principle to the fisheries resource. For the 

present time, at least, precise mathematical equality must give way to more practical 

means of determining and allocating the harvestable resource, with the methodology of 

allocation to be developed and modified in light of current data and future experience. 

However, it is [*344] necessary at the outset to establish the scope of the anadromous fish 

resource which is subject to being "shared equally." The amount of fish of a particular 

species, from which the harvestable portions allocable to treaty right fishermen and nontreaty right fishermen are to be determined, is not merely the number of harvestable fish 

of that species which pass through the usual and accustomed fishing places of the various 

treaty tribes. 

It is uncontroverted in the evidence that substantial numbers of fish, many of which 

might otherwise reach the usual and accustomed fishing places of the treaty tribes, are 

caught in marine areas closely [**58] adjacent to and within the state of Washington, 

primarily by non-treaty right fishermen. [Ex. F-6, 7; PL-67(b)-(c); JX-2(a), pp. 125-135; 

Figs. 49-54, Tables 34-60]. These catches reduce to a significant but not specifically 

determinable extent the number of fish available for harvest by treaty right fishermen. A 

considerable amount of this harvest is beyond any jurisdiction or control of the State. 

Some of this harvest is subject to limited state control because the landings are made in 

areas of state jurisdiction. A considerable number of fish taken within the territorial 

waters of Washington are under the regulatory authority of the International Pacific 

Salmon Fisheries Commission, an international body established by treaty between the 

United States and Canada. While the defendants cannot determine or control the activities 

of that Commission, the Washington Department of Fisheries does have some input into 

development of the harvest program which is prescribed or permitted by that 

Commission, particularly as it pertains to harvest within Washington waters. The 

Commission is essentially concerned with assuring adequate spawning escapement from 

runs subject to its jurisdiction [**59] and equal division of the harvestable portion 

between the two countries. Its control over times, places and manner of harvest is 

designed to accomplish those results. [Ex. JX-2a, § 2.14, pp. 103-104; and the 

Commission's annual report for 1971]. Consequently, while it must be recognized that 
29

these large harvests by non-treaty fishermen cannot be regulated with any certainty or 

precision by the state defendants, it is incumbent upon such defendants to take all 

appropriate steps within their actual abilities to assure as nearly as possible an equal 

sharing of the opportunity for treaty and non-treaty fishermen to harvest every species of 

fish to which the treaty tribes had access at their usual and accustomed fishing places at 

treaty times. Some additional adjustments in the harvesting scheme under state 

jurisdiction may be necessary to approach more nearly an equal allocation of the 

opportunity to harvest fish at usual and accustomed grounds and stations. 

Therefore, this court finds and holds that the amount of fish of each species from which 

the harvestable portions shall be determined for the purposes of allocation consistent with 

this opinion shall be: 

1. The total number of [**60] fish within the regulatory jurisdiction of the State of 

Washington which, absent harvest en route, would be available for harvest at the treaty 

tribes' usual and accustomed fishing places; plus 

2. An additional equitable adjustment, determined from time to time as circumstances 

may require, to compensate treaty tribes for the substantially disproportionate numbers of 

fish, many of which might otherwise be available to treaty right fishermen for harvest, 

caught by non-treaty fishermen in marine areas closely adjacent to but beyond the 

territorial waters of the State, or outside the jurisdiction of the State, although within 

Washington waters. 

It is suggested in Puyallup-II that a distinction between native and propagated 

steelhead should be made in computing the allocation of fish to off reservation 

treaty right and to non-treaty right fishing. This appears to present many 

difficulties and problems which must be considered and determined with all 

deliberate speed, by [*345] agreement or by judicial decision. Discharge of that 

responsibility appears to be within the jurisdiction of this court by issues all 

parties have submitted to this court in the Final Pretrial Order [**61] in this case. 

However, under the Puyallup-II mandate to the State Supreme Court it appears 

appropriate to this court that the state courts hear and determine the matter 

referred to, at least in the first instance. 

8. Certain issues in this case are specified in the Final Pretrial Order which involve reef 

net fisheries. The only parties in this case directly concerned with these issues are the 

defendant Reef Net Owners and the plaintiff Lummi Tribe, although it may be other 

parties and non-parties have the same or similar interests. In the Findings of Fact and 

Conclusions of Law filed herein, the court has found and held: (a) that there is evidence 

which the court finds reasonable, credible and sufficient to establish that plaintiff Lummi 

Tribe has treaty fishing rights in the reef net fishing areas involved; (b) that members of 

the Lummi Tribe are entitled to and shall have, as a matter of right, the opportunity to 

fish with reef nets in such areas; (c) that while non-treaty fishermen when licensed by the 

State to fish in reef net areas have the privilege of fishing in those areas "in common 

with" Lummi Tribal members, they do not have the right to do so. 
30

The specific [**62] number and location of stations in the reef net areas at which Lummi 

Tribal members shall have the right and opportunity to fish and what, if any, conditions 

shall be applicable thereto, will be determined by or under direction of this court upon 

hearing of those matters at the earliest date reasonably convenient to counsel and the 

court. 

9. Sohappy is a 1969 decision by Judge Robert Belloni of the Oregon United States 

District Court on Indian treaty fishing rights involving a number of law and fact issues 

identical or closely similar to those presented in this case. Much of what was found and 

held in that thoroughly researched, well reasoned and highly practicable decision is 

directly applicable to issues to be determined in the present case. The Sohappy decision 

was not appealed and therefore it is controlling as to all parties to that case which include 

the United States and the Yakima Tribe. The following quotations from that decision, 

changed by this court only as bracketed, are hereby adopted and held by this court to be 

applicable to the issues in the present case. 

302 F. Supp. at page 907: 

". . . [Before] [Washington] may regulate the taking and disposition [**63] of fish 

by treaty Indians at their usual and accustomed fishing places: 

'(a) It must establish preliminary to regulation that the specific proposed 

regulation is both reasonable and necessary for the conservation of the fish 

resource. In order to be necessary, such regulations must be the least 

restrictive which can be imposed consistent with assuring the necessary 

escapement of fish for conservation purposes; the burden of establishing 

such facts is on the state. 

'(b) Its regulatory agencies must deal with the matter of the Indians' treaty 

fishing as a subject separate and distinct from that of fishing by others. As 

one method of accomplishing conservation objectives it may lawfully 

restrict or prohibit non-Indians fishing at the Indians' usual and 

accustomed fishing places without imposing similar restrictions on treaty 

Indians. 

'(c) It must so regulate the taking of fish that the treaty tribes and their 

members will be accorded an opportunity to take, at their usual and 

accustomed fishing places, by reasonable means feasible to them, . . . fish 

[to the extent hereinabove specified.] 

* * * * 

At pages 908-909: 

". . . state restriction on treaty [**64] referenced fishing must be 'necessary for the 
31

conservation of the fish.' [*346] 

. . . It [the Supreme Court] was not endorsing any particular state management 

program which is based not only upon that factor but also upon allocation of fish 

among particular user groups or harvest areas, or classification of fish to 

particular uses or modes of taking. 

The state may regulate fishing by non-Indians to achieve a wide variety of 

management or 'conservation' objectives. Its selection of regulations to achieve 

these objectives is limited only by its own organic law and the standards of 

reasonableness required by the Fourteenth Amendment. But when it is regulating 

the federal right of Indians to take fish at their usual and accustomed places it 

does not have the same latitude in prescribing the management objectives and the 

regulatory means of achieving them. The state may not qualify the federal right by 

subordinating it to some other state objective or policy. It may use its police 

power only to the extent necessary to prevent the exercise of that right in a 

manner that will imperil the continued existence of the fish resource. The measure 

of the legal propriety of a regulation [**65] concerning the time and manner of 

exercising this 'federal right' is, therefore, 'distinct from the federal constitutional 

standard concerning the scope of the police power of the State.' [citations] To 

prove necessity, the state must show there is a need to limit the taking of fish and 

that the particular regulation sought to be imposed upon the exercise of the treaty 

right is necessary to the accomplishment of the needed limitation. This applies to 

regulations restricting the type of gear which Indians may use as much as it does 

to restrictions on the time at which Indians may fish." 

* * * * 

At page 911: 

"The Supreme Court has said that the right to fish at all usual and accustomed 

places may not be qualified by the state. Puyallup Tribe et al. v. Department of 

Game, et al., supra. [citations] I interpret this to mean that the state cannot so 

manage the fishery that little or no harvestable portion of the run remains to reach 

the upper portions of the stream where the historic Indian places are mostly 

located." 

At page 911: 

"There is no reason to believe that a ruling which grants the Indians their full 

treaty rights will affect the necessary escapement of [**66] fish in the least. The 

only effect will be that some of the fish now taken by sportsmen and commercial 

fishermen must be shared with the treaty Indians, as our forefathers promised over 

a hundred years ago." 

* * * * 

At pages 911-912: 
32

"In the case of regulations affecting Indian treaty fishing rights the protection of 

the treaty right to take fish at the Indians' usual and accustomed places must be an 

objective of the state's regulatory policy [at least] coequal with the conservation 

of fish runs for other users. The restrictions on the exercise of the treaty right must 

be expressed with such particularity that the Indian can know in advance of his 

actions precisely the extent of the restriction which the state has [shown] to be 

necessary for conservation. [citations] 

This court cannot prescribe in advance all of the details of appropriate and 

permissible regulation of the Indian fishery, nor do the plaintiffs ask it to. As the 

Government itself acknowledges, 'proper anadromous fishery management in a 

changing environment is not susceptible of rigid predetermination. * * * the 

variables that must be weighed in each given instance make judicial review of 

state action, [**67] through retention of continuing jurisdiction, more appropriate 

than overly-detailed judicial predetermination.' The requirements of fishery 

regulation are such that many of the specific restrictions, particularly [*347] as to 

timing and length of seasons, cannot be made until the fish are actually passing 

through the fishing areas or shortly before such time. Continuing the jurisdiction 

of this court in the present cases may, as a practical matter, be the only way of 

assuring the parties an opportunity for timely and effective judicial review of such 

restrictions should such review become necessary. 

I also do not believe that this court should at this time and on this record attempt 

to prescribe the specific procedures which the state must follow in adopting 

regulations applicable to the Indian fishery. The state must recognize that the 

federal right which the Indians have is distinct from the fishing rights of others 

over which the state has a broader latitude of regulatory control and that the tribal 

entities are interested parties to any regulation affecting the treaty fishing right. 

They, as well as their members to whom the regulations will be directly 

applicable, are entitled [**68] to be heard on the subject and, consistent with the 

need for dealing with emergency or changing situations on short notice, to be 

given appropriate notice and opportunity to participate meaningfully in the rulemaking process. [and to seek prompt judicial review of regulations assertedly 

invalid.] 

This does not mean that tribal consent is required for restrictions on the exercise 

of the treaty rights." 

* * * * 

At page 912: 

". . . the state's authority to prescribe restrictions within the limitations imposed by 

the treaties and directly binding upon the Indians is not dependent upon assent of 

the tribes or of the Secretary of the Interior. But certainly agreements with the 
33

tribes or deference to tribal preference or regulation on specific aspects pertaining 

to the exercise of treaty fishing rights are means which the state [should] adopt in 

the exercise of its jurisdiction over such fishing rights. Both the state and the 

tribes should be encouraged [and directed] to pursue such a cooperative approach 

. . ." 

Thus far, this decision has been confined to discussion and ruling upon major issues, 

mostly because of the great number of secondary, or comparatively less [**69] important, 

issues of fact and law presented in this case. However, fact findings and legal 

conclusions, with comment thereon in most instances, on all of the secondary findings are 

included in the Findings of Fact and Conclusions of Law filed herein. For the most part 

the secondary findings and conclusions provide amplifying and implementing details for 

both major and secondary rulings of the court. Every issue, proposed finding of fact and 

conclusion of law, of whatever importance, has been individually considered and 

determined in the Findings of Fact and Conclusions of Law on file in this case, excepting 

only with a few reservations that are stated and explained in each instance. 

Subject to suggested limitations by some of the parties, all parties have urged that the 

court reserve continuing jurisdiction of this case and have suggested various ways in 

which such jurisdiction might be exercised. Quotations from Sohappy, above quoted and 

adopted by this court, indicate some of the purposes for, and practical importance of, 

continuing jurisdiction in this type of case. From the beginning most, if not all, counsel in 

this case and the court have anticipated that continuing jurisdiction [**70] would be of 

great value to all parties in promptly putting the court's rulings into effect and in 

providing readily available early hearing and determination of factual and legal questions 

that may arise in interpreting and applying such rulings. Accordingly, the court does 

hereby reserve continuing jurisdiction of this case without limitation at this time. 

Most if not all parties have also suggested that the court should appoint a master with 

technical fisheries expertise to assist the court in helping the parties to reach agreed 

solutions of problems [*348] and questions when agreement thereon cannot be reached. 

Questions regarding whether or not a master should be appointed, the suggested and 

perhaps other purposes for appointment of a master, with or without technical fisheries 

expertise; and, if appointed what the master's duties should be and the manner of his 

selection, will be considered and determined at a hearing on the earliest date after the 

entry of the judgment and decree reasonably convenient to all counsel. At that hearing 

counsel are requested to present their views as to whether or not the court should appoint 

an Advisory Committee on Treaty Right Fishing. The [**71] members of such a 

committee should be knowledgeable and responsible citizens inclined to and capable of 

objectively considering, determining and reporting to the court the viewpoint of the 

interested public concerning Indian fishing as to: satisfactory solution of problems; 

means of expediting better communication between Indian and non-Indian officials and 

fishermen and keeping interested citizens in this area more accurately informed on 

matters pertaining to Indian fishing. Other topics to be considered at the conference may 

be suggested by counsel. 

The remaining issues in this case reserved for separate pretrial and trial in the future, 
34

however such issues may be determined, do not have direct or indirect bearing upon any 

issue submitted and heretofore tried by this court. Accordingly, this decision and the 

Declaratory Judgment and Decree based thereon, upon entry in this case, shall become 

unreservedly final and reviewable as provided by 28 U.S.C.A. 2201; subject only to 

determination of any motions that may be appropriately and timely served and filed 

following entry of the Final Judgment and Decree. Each such motion, if any, that may be 

filed shall be supported n30 by a memorandum [**72] of authorities to which counsel for 

adverse parties shall timely serve and file a responsive memorandum of authorities, 

following which such motions, if any, shall be promptly heard and determined by the 

court on the earliest date reasonably convenient to counsel and the court. 
35

Findings of Fact and Conclusions of Law 

This case came on regularly for trial on August 27, 1973, upon the basis of a final pretrial 

order entered August 24, 1973, and the presentation of evidence concluded September 

18, 1973. Counsel for all parties appeared and presented nearly 50 witnesses, whose 

testimony was reported in 4,600 pages of trial transcript, more than 350 exhibits, pretrial 

briefs, final oral argument 12/9-10/73 and post trial briefs. In addition to consideration of 

the above evidence and material by the court, more than 500 proposed findings of fact 

and conclusions of law, submitted by counsel and annotated to the record, have been 

checked to determine the accuracy of every citation [**73] made by any counsel alleged 

to support a proposed finding or conclusion. Many of the proposed findings and 

conclusions were modified and many of the supporting citations were corrected, and 

additional findings and conclusions not proposed by any party were developed. The court 

has also read and examined, individually and in relation to one another, every case cited 

by any party as possible authority concerning any issue in this case, as well as other cases 

not cited by the parties. 

Based upon this exhaustive examination of the controlling law, the briefs and oral 

argument of counsel and upon a preponderance of the evidence found credible and 

inferences reasonably drawn therefrom, the court now makes the following Findings of 

Fact and Conclusions of Law: 

TREATY STATUS 

1. The United States has entered into treaties with each of the following Indian tribes or 

bands (herein collectively [*349] referred to as "Plaintiff tribes" and individually by the 

shorter name set out after each such tribe), or with their predecessors in interest: 

Hoh Indian Tribe (“Hoh Tribe”), Treaty with the Quinaeilt, et al.(Treaty of Olympia), 

July 1, 1855, and January 25, 1856, ratified March 8, 1859, and proclaimed April 11, 

1859, 12 Stat. 971. 

 

Lummi Tribe of Indians (“Lummi Tribe”), Treaty of Point Elliott, January 22, 1855, 

ratified March 8, 1859,and proclaimed April 11, 1859, 12 Stat. 927. 

 

Makah Indian Tribe, Treaty with the Makah (Treaty of Neah Bay), January 31, 1855, 

ratified March 8, 1859, and proclaimed April 18, 1859, 12 Stat.939. 

 

Muckleshoot Indian Tribe (“Muckleshoot Tribe”) Treaty of Point Elliott, supra, and also 

Treaty of Medicine Creek, December 26, 1854, ratified March 3, 1855, and proclaimed 

April 10, 1855, 10 Stat. 1132. 

 

Nisqually Indian Community of the Nisqually Reservation (“Nisqually Tribe”) Treaty of 

Medicine Creek, supra. 

 
36

Puyallup Tribe of the Puyallup Reservation (“Puyallup Tribe”)Treaty of Medicine Creek, 

supra. 

Quileute Tribe of the Quileute Reservation (“Quileute Tribe”)Treaty with the Quinaeilt, 

et al., supra. 

 

Quinault Tribe of Indians (“Quinault Tribe”) Treaty with the Quinaeilt, et al., supra. 

Sauk-Suiattle Indian Tribe (“Sauk-Suiattle Tribe”) Treaty of Point Elliott, supra. 

 

Skokomish Indian Tribe (“Skokomish Tribe”) Treaty of Point No Point, January 26, 

1855, ratified March 8,1859, and proclaimed April 29,1859, 12 Stat. 933. 

 

Squaxin Island Tribe of Indians (“Squaxin Island Tribe”) Treaty of Medicine Creek, 

supra. 

Stillaguamish Indian Tribe (“Stillaguamish Tribe”)Treaty of Point Elliott, supra. 

 

Upper Skagit River Tribe (“Upper Skagit Tribe”) Treaty of Point Elliott, supra. 

Confederated Tribes and Bands (“Yakima Nation”)Treaty with the Yakimas, June 9,of 

the Yakima Indian Nation 1855, ratified March 8, 1859, and proclaimed April 18, 1859, 

12 Stat. 

Each of said treaties contains a provision securing to the Indians certain off-reservation 

fishing rights. The following provision from the Treaty of Medicine Creek is typical of 

these treaty provisions: 

"The right of taking fish, at all usual and accustomed grounds and stations, is 

further secured to said Indians, in common with all citizens of the Territory, and 

of erecting temporary houses for the purpose of curing, * * *." 

[FPTO §§ 1, 3-1; see also references as to each Plaintiff tribe under paragraphs as to such 

tribes, infra.] 

PRE-TREATY ROLE OF FISHING AMONG NORTHWEST INDIANS 

2. The anthropological reports and testimony of both Dr. Barbara Lane and Dr. Carroll 

Riley have been thoroughly studied and considered by the court. In so doing, the court 

has noted the nature, extent and duration of field work in the case area and academic 

research. During trial constant observation was made of the attitude and demeanor of 

both experts while on the stand as witnesses, and the substance of their testimony has 

been carefully evaluated. Allowance for the criticism by defendants that some of Dr. 

Lane's conclusions are "over formulated" has been [**75] made in evaluating her 

testimony in every instance where the criticism might be applicable. Based upon these 

and other factors, the court finds that in specific facts, the reports of Dr. Barbara Lane, 
37

Exhibits USA-20 to 30 and USA-53, have been exceptionally well researched and 

reported and are established by a preponderance of the evidence. They are found to be 

authoritative and reliable summaries of relevant aspects of Indian life in the case area at 

and prior to the time of the treaties, including the treaty councils, Indian groups covered 

by the treaties, the purposes of the treaties and the Indians' understanding of treaty 

provisions. In these particulars, nothing in Dr. Lane's report and testimony was 

controverted by any credible evidence in the case. Dr. Lane's opinions, inferences and 

conclusions based upon the information stated in detail and well documented in her 

reports, appeared to the court to be well taken, sound and reasonable. In summary, the 

court finds that where their testimony differs in any significant particular, the testimony 

of Dr. Lane is more credible and satisfactory than that of Dr. Riley and is accepted as 

such except as otherwise specified. 

3. In pre-treaty [**76] times Indian settlements were widely dispersed throughout 

Western Washington. There was considerable local diversity in the availability and 

importance of specific animal, plant and mineral resources used for food and artifacts. 

[FPTO § 3-32] But one common cultural characteristic among all of these Indians was 

the almost universal and generally paramount dependence upon the products of an 

aquatic economy, especially anadromous fish, to sustain the Indian way of life. [Ex. G17o, pp. 286-287; Exs. USA-20 to 30 and 53; Exs. G-21 to 26] These fish were vital to 

the Indian diet, played an important role in their religious life, and constituted a major 

element of their trade and economy. Throughout most of the area salmon was a staple 

food and steelhead were also taken, both providing essential proteins, fats, vitamins, and 

minerals in the native diet. [FPTO §§ 3-32, 3-33; Ex. USA-20; Ex. PL-40, p. 577; Ex. G4, pp. 193-197] There was considerable fluctuation in abundance and availability of fish 

from year to year. Some causes of fluctuation were regular and predictable, as in the case 

of runs of certain species and races of salmon. Other causes were erratic, such as flooding 

and [**77] alteration in watercourses. [FPTO § 3-32] 

4. The major food sources of the Northwest Indians were the wild fish, animal and 

vegetative resources of the area. It was, therefore, necessary for the people to be on hand 

when the resources were ready for harvest. These seasonal movements were reflected in 

native social organization. In the winter, when weather conditions generally made travel 

and fishing difficult, people [*351] remained in their winter villages and lived more or 

less on stored food. Fresh fish and other foods were harvested during the winter but that 

season was devoted primarily to ceremonies and manufacturing tasks. During this time 

people congregated into the largest assemblages and occupied long, multifamily houses. 

Throughout the rest of the year individual families dispersed in various directions to join 

families from other winter villages in fishing, claim digging, hunting, gathering roots and 

berries, and agricultural pursuits. People moved about to resource areas where they had 

use patterns based on kinship or marriage. Families did not necessarily follow the same 

particular pattern of seasonal movements every year. [FPTO § 3-32; Ex. USA-20; see 

also [**78] Exs. USA-21 to 30 and 53; Exs. G-17a-o; Exs. G-21 to 26; Exs. PL-23 and 

PL-24; Ex. G-4, pp. 193-197] 

5. At the time of the treaties and prior thereto, utilization of the rich fishery resource 
38

required an intimate knowledge of local environments and the locally available species as 

well as the development of a variety of specialized techniques for taking fish. [FPTO § 3-

32; Ex. USA-20; Ex. JX-2a, § 3.1, pp. 108-114, Figs. 44-47, 280-283; Ex. USA-31e, pp. 

17-26; Ex. PL-88a-d; Ex. L-7] The latter involved both group and individual activity and 

equipment. [FPTO § 3-76] Adequate Indian food preservation techniques had been 

developed by the time of the treaties and fish were able to be stored for use throughout 

the year and transported over great distances. [FPTO § 3-32; Ex. USA-20, p. 1; Ex. 

MLQ-1, p. 1] However, the Indians' harvest of fish was subject to the vagaries of nature 

which occasionally imperiled their food supply and caused near starvation. The amounts 

of fish that could be harvested were particularly affected by run-size fluctuations caused 

by natural conditions and water conditions occurring at the time the fish were running, 

e.g., flooding, which limited the [**79] effectiveness of the Indian fishing gear. [Tr. 

2006, l. 17 to 2012, l. 24; Ex. PL-40, p. 577; Ex. F-39; FPTO § 3-32; Ex. USA-20, p. 5] 

6. The first-salmon ceremony, which with local differences in detail was general through 

most of the area, was essentially a religious rite to ensure the continued return of salmon. 

The symbolic acts, attitudes of respect and reverence, and concern for the salmon 

reflected a ritualistic conception of the interdependence and relatedness of all living 

things which was a dominant feature of native Indian world view. Religious attitudes and 

rites insured that salmon were never wantonly wasted and that water pollution was not 

permitted during the salmon season. [FPTO § 3-33; Ex. USA-20, p. 9] 

7. At the time of the treaties, trade was carried on among the Indian groups throughout a 

wide geographic area. Fish was a basic element of the trade. There is some evidence that 

the volume of this intra-tribal trade was substantial, but it is not possible to compare it 

with the volume of present day commercial trading in salmon. Such trading was, 

however, important to the Indians at the time of the treaties. [Ex. USA-20, pp. 2-10; Tr. 

1778, l. [**80] 6 to 1784, l. 13] In addition to potlatching, which is a system of exchange 

between communities in a social context often typified by competitive gifting, there was 

a considerable amount of outright sale and trade beyond the local community and 

sometimes over great distances. [Ex. USA-20, pp. 2-10] In the decade immediately 

preceding the treaties, Indian fishing increased in order to accommodate increased 

demand for local non-Indian consumption and for export, as well as to provide money for 

purchase of introduced commodities and to obtain substitute non-Indian goods for native 

products which were no longer available because of the non-Indian movement into the 

area. [Ex. USA-20, p. 13] Those involved in negotiating the treaties recognized the 

contribution that Indian fishermen made to the territorial economy because Indians 

caught most of the [*352] non-Indians' fish for them, plus clams and oysters. [Ex. PL-11; 

Ex. USA-20, p. 15] 

8. At the time of the treaties, non-Indian commercial fishing enterprises were rudimentary 

and largely unsuccessful. In the 1840's and 50's, salmon was packed and shipped from the 

Columbia River and the case area to such distant places as [**81] New York, San 

Francisco, the Hawaiian Islands, South America and China, but inadequate preservation 

techniques and slow transportation facilities caused the salmon to reach the markets in 

unsatisfactory condition, and it obtained a bad reputation among dealers. [Ex. PL-50, p. 
39

310; Ex. MLQ-1, p. 1] There was no statistically measurable commercial fishery at the 

time the treaties were negotiated. [Ex. MLQ-1, p. 15] At the time of the treaties the 

commercial fisheries in the case area posed no threat to the abundance of the fish 

resources. [Tr. 2006, l. 12-16; Tr. 2382, l. 10-18; Exs. PL-7 and PL-8] The non-Indian 

commercial fishing industry did not fully develop in the case area until after the invention 

and perfection of the canning process. The first salmon cannery in Puget Sound began in 

1877 with a small operation at Mukilteo. Large-scale development of the commercial 

fisheries did not commence in Puget Sound until the mid-1890's. [Ex. MLQ-1, pp. 1-3] 

The large-scale development of the commercial fishing industry in the last decades of the 

Nineteenth Century brought about the need for regulation of fish harvests. [Ex. JX-2a, § 

2.3.1, pp. 60-62] 

9. There was a [**82] sharp decline in Indian population in the case area in the period 

after extensive contact with Europeans and Americans which occurred around 1780. It 

has been estimated that Indian populations in the Puget Sound region declined by 

approximately 50% between 1780 and 1840, but pre-treaty censuses were often 

incomplete and inaccurate. The Gibbs-Stevens census of 1854 shows a total of 7,559 

Indians for all of Western Washington. A decline in population continued during the 

decades following the signing of the treaties, due in large part to diseases introduced by 

non-Indians. [Ex. D-1, pp. 9-12; Ex. G-4, pp. 181-184; Ex. MLQ-1, pp. 14, 16] The nonIndian population at treaty times has been estimated at approximately 2,000 people in 

Western Washington. [Tr. 2475, l. 7 to 2476, l. 8] Because of the great abundance of fish 

resources and these limited populations, there was no need to regulate the taking of fish 

by either Indians or non-Indians at treaty times. [Tr. 1849, l. 18-22; Tr. 2381, l. 25 to 

2382, l. 18] 

10. The Northwest Indians developed and utilized a wide variety of fishing methods 

which enabled them to take fish from nearly every type of location at [**83] which fish 

were present. They harvested fish from the high seas, inland salt waters, rivers and lakes. 

They took fish at river mouths as well as at accessible points or stretches along the rivers 

all the way to the headwaters. Some locations were more heavily utilized than others. 

Like all fishermen, they shifted to those locales which seemed most productive at any 

given time. [Exs. USA-20 to 30 and 53] Fishing methods varied according to the locale 

but generally included trapping, dip netting, gill netting, reef netting, trolling, long-lining, 

jigging, set-lining, impounding, gaffing, spearing, harpooning and raking. [FPTO § 3-33] 

Control and use patterns of fishing gear varied according to the nature of the gear. Certain 

types required cooperative effort in their construction and/or handling. Weirs were 

classed as cooperative property but the component fishing stations on the weir were 

individually controlled. [FPTO § 3-76; Ex. USA-26, pp. 13-14] 

11. Aboriginal Indian fishing was not limited to any species. They took whatever species 

were available at the particular season and location. Many varieties, including salmon and 

steelhead, halibut, cod, flounder, ling cod, rockfish, [**84] herring, smelt, eulachon, 

dogfish and trout, were taken and were important to varying degrees as food and [*353] 

as items of trade. [FPTO § 3-33; Ex. G-4, pp. 194-195] 
40

12. Indian fishing practices at treaty times were largely unrestricted in geographic scope. 

Generally, individual Indians had primary use rights in the territory where they resided 

and permissive use rights in the natal territory (if this was different) or in territories 

where they had consanguineal kin. Subject to such individual claims, most groups 

claimed autumn fishing use rights in the waters near to their winter villages. Spring and 

summer fishing areas were often more distantly located and often were shared with other 

groups from other villages. [FPTO § 3-34] 

13. Each of the Plaintiff tribes had usual and accustomed fishing places within the case 

area. Although there are extensive records and oral history from which many specific 

fishing locations can be pinpointed, it would be impossible to compile a complete 

inventory of any tribe's usual and accustomed grounds and stations. [FPTO § 3-34; Ex. 

USA-20, p. 21; Ex USA-52, p. 4, l. 7 to p. 5, l. 29] Among the reasons for this are the 

following: [**85] 1) Indian fisheries existed at all feasible places along a given drainage 

system. Fishing stations which were the site of weirs or permanent villages are more 

easily documented than riffles where fish were speared; 2) Indian fishermen shifted to 

those locales which seemed most productive at any given time depending upon such 

factors as changes in river flow, turbidity or water course; 3) some important recorded 

fishing sites are no longer extant because of subsequent man-made alterations in 

watersheds and water systems; and, 4) use of some sites has been discontinued because 

appropriate Indian gear for those sites has been outlawed or because competing uses and 

users have made utilization of the sites by Indian fishermen unfeasible. [Ex. USA-20, pp. 

21-23; Ex. USA-27b, pp. 1-3] Documentation as to which Indians used specific fishing 

sites is incomplete. George Gibbs noted that: 

"As regards the fisheries, they are held in common, and no tribe pretends to claim 

from another, or from individuals, seignorage for the right of taking. In fact, such 

a claim would be inconvenient to all parties, as the Indians move about, on the 

sound particularly, from one to another locality, according [**86] to the season." 

[Ex. USA-20, p. 18; Ex. USA-27b, p. 3; Ex. G-4, p. 186] 

14. Although not all tribes fished to a considerable extent in marine areas, the Lummi 

reef net sites in Northern Puget Sound, the Makah halibut banks, Hood Canal and 

Commencement Bay and other bays and estuaries are examples of some Indian usual and 

accustomed fishing grounds and stations in marine waters. Marine waters were also used 

as thoroughfares for travel by Indians who trolled en route. [Ex. PL-75; Tr. 2847, l. 13 to 

2850, l. 23] Such occasional and incidental trolling was not considered to make the 

marine waters traveled thereon the usual and accustomed fishing grounds of the transiting 

Indians. [Tr. 2177, l. 24 to 2180, l. 4] 

TREATY BACKGROUND 

15. The United States claimed the area now embraced within the State of Washington by 

discovery and settlement and by the treaty extinguishment of conflicting claims of Spain 

(Treaty of February 22, 1819, 8 Stat. 252), Russia (Convention of April 17, 1824, 8 Stat. 

302), and Great Britain (Treaty of June 15, 1846, 9 Stat. 869). By the Act of August 14, 
41

1848, 9 Stat. 323, the United States established the Oregon Territory and provided [**87] 

that nothing contained in said act "shall be construed to impair the rights of person or 

property now pertaining to the Indians in said Territory, so long as such rights shall 

remain unextinguished by treaty between the United States and such Indians * * *." 

Section 14 of that act extended to the Oregon Territory the Northwest Ordinance of 1787, 

1 Stat. 51, Note a, which provides that "good faith shall [*354] always be observed 

toward the Indians; their lands and property shall never be taken from them without their 

consent." By an Act of June 5, 1850, 9 Stat. 437, Congress authorized the negotiation of 

treaties with the Indian tribes in the Oregon Territory (which then included the area 

which now comprises the State of Washington) for extinguishing their claims to land 

lying west of the Cascade Mountains. By the Act of March 2, 1853, 10 Stat. 172, 

Congress organized the Washington Territory out of part of the Oregon Territory 

(including all of the present State of Washington) and provided that nothing in said act 

shall affect the authority of the United States to "make any regulations respecting the 

Indians of said Territory, their lands, property, or other rights, by treaty, [**88] law, or 

otherwise," which the Government could make if that act had never been passed. All 

federal laws relating to the Oregon Territory not inconsistent with the 1853 Act were 

expressly continued in force in Washington Territory. Section 2 of the Act provided for 

appointment of a governor who was also to perform the duties of Superintendent of 

Indian Affairs in the Territory. The Appropriation Act of March 3, 1853, 10 Stat. 226, 

238, authorized the President to negotiate with Indian tribes west of Missouri and Iowa 

"for the purpose of securing the assent of said tribes to the settlement of the citizens of 

the United States upon the lands claimed by said Indians, and for the purpose of 

extinguishing the title of said Indian tribes in whole or in part to said lands; * * *." The 

Appropriation Act of July 31, 1854, 10 Stat. 315, 330, authorized the use of 

appropriations for making treaties in several territories, including Washington, prior to 

July 1, 1855. [FPTO § 3-28] 

16. The Act of February 22, 1889, 25 Stat. 676, admitting Washington to statehood, 

provided as a precondition to such statehood, that the people of the state forever disclaim 

all right and title to all lands owned [**89] or held by any Indian or Indian tribes and 

until the title thereto shall have been extinguished by the United States, the same shall be 

and remain subject to the disposition of the United States and shall remain under the 

absolute jurisdiction and control of Congress. Washington accepted this requirement and 

incorporated it into Article XXVI of the State Constitution. Washington was admitted 

into the Union as a state on November 11, 1889. 26 Stat. Proclamations no. 8. [FPTO § 3-

29] 

17. On December 26, 1853, Isaac Stevens, the first Governor and Superintendent of 

Indian Affairs of the Washington Territory, wrote to the Commissioner of Indian Affairs 

suggesting the necessity of making treaties with the Indians west of the Cascade 

Mountains. He pointed out that these tribes lived on different watercourses, bays and 

inlets of Puget Sound, and lands should be set aside for their use. On August 30, 1854, 

the Acting Commissioner of Indian Affairs notified Governor Stevens of his appointment 

to negotiate treaties with all tribes in the Washington Territory. Governor Stevens was 

directed that in making the treaties he should endeavor to unite the "numerous bands and 
42

fragments of tribes [**90] into tribes, * * *" and to furnish the Commissioner of Indian 

Affairs a skeleton map of Washington Territory, showing the location of the different 

tribes and bands, and the boundaries of the regions claimed by each. In carrying out his 

duties as Superintendent of Indian Affairs, Governor Stevens had previously, on March 

22, 1854, appointed Colonel Michael T. Simmons as Indian Agent for the Puget Sound 

District and had directed him to visit the various tribes in his district, to make a census of 

the tribes and bands, ascertaining as nearly as possible the boundaries of the territory 

claimed by each, and at the same time to organize the small bands into tribes and appoint 

chiefs for each. Governor Stevens was assisted in arranging for the treaties also by 

George Gibbs, a lawyer, surveyor and ethnologist, who was one of the sources of 

information relative [*355] to the identity and location of Western Washington tribes and 

who wrote an extensive ethnological report in 1854-55, and by Colonel B. F. Shaw, an 

interpreter. [FPTO § 3-30] 

18. No formal political structure had been created by the Indians living in the Puget 

Sound area at the time of initial contact with the United [**91] States Government. 

Governor Stevens, acting upon instructions from his superiors and recommendations of 

his subordinates, deliberately created political entities for purposes of delegating 

responsibilities and negotiating treaties. In creating these entities Governor Stevens 

named many chiefs and sub-chiefs. [Ex. USA-27a, pp. 14-29; Ex. USA-20, p. 28] 

NEGOTIATION AND EXECUTION OF THE TREATIES 

19. The principal purposes of the treaties were to extinguish Indian claims to the land in 

Washington Territory and provide for peaceful and compatible coexistence of Indians 

and non-Indians in the area. The United States was concerned with forestalling friction 

between Indians and settlers and between settlers and the government. The Indians had 

received constant assurances from settlers and government representatives that they 

would be compensated for lands which were being settled by United States' citizens. 

Settlers had taken up land claims under the Donation Act even though the Indian rights 

had not yet been extinguished by treaties as required by the act creating the Oregon 

Territory. [FPTO § 3-35; Ex. USA-20, p. 24] Governor Stevens and the treaty 

commissioners were not authorized [**92] to grant to the Indians or treat away on behalf 

of the United States any governmental authority of the United States. [Ex. D-1, p. 29, l.

11-18; Tr. 1862, l. 6-13; Tr. 1864, l. 20 to 1865, l. 24] 

20. At the treaty negotiations, a primary concern of the Indians whose way of life was so 

heavily dependent upon harvesting anadromous fish, was that they have freedom to move 

about to gather food, particularly salmon, (which both Indians and non-Indians meant to 

include steelhead), at their usual and accustomed fishing places. [Exs. PL-15, PL-16b, 

PL-17c; Ex. USA-20, pp. 25-26; Ex. MLQ-1, p. 14; Tr. 2172, l. 3-12; Tr. 2352, l. 14 to 

2365, l. 2; Ex. PL-9, pp. 28-29] The Indians were assured by Governor Stevens and the 

treaty commissioners that they would be allowed to fish, but that the white man also 

would be allowed to fish. [Ex. PL-17c, p. 1e] In 1856, it was felt that the development of 

the non-Indian fisheries in the case area would not interfere with the subsistence of the 

Indians. [Exs. PL-7, PL-8] 
43

21. It was the intention of the United States Government, in negotiating treaties with the 

Indians, to make at least non-coastal tribes agriculturists, [**93] although not to restrict 

them to that, to diversify Indian economy, to teach western skills and trades to the Indians 

and to accomplish a transition of the Indians into western culture. There was no intent, 

however, to prevent the Indians from using the fisheries for economic gain. [Ex. D-1, p. 

23, l. 9-25, p. 23, l. 33 to p. 24, l. 25; Ex. USA-20, p. 26; Tr. 1916, l. 25 to 1917, l. 9; 

Treaty of Medicine Creek, art. 10, 10 Stat. 1132; Treaty of Point Elliott, art. 14, 12 Stat. 

927; Treaty of Point No Point, art. 11, 12 Stat. 933; Treaty with the Makahs (Treaty of 

Neah Bay), art. 11, 12 Stat. 939; Treaty of the Yakimas, art. 2, art. 5, 12 Stat. 951; Exs. 

PL-32 and PL-47, pp. 455-456; Tr. 1827, l. 25 to 1828, l. 24; Tr. 2418, l. 4 to 2421, l. 9; 

Tr. 2453, l. 22 to 2454, l. 13] Upon their removal to reservations, the Indians began 

farming, with greater success being experienced by the Puget Sound tribes than by the 

tribes on the ocean coast. [Ex. PL-42] 

22. There is no record of English having been spoken at the treaty councils, but it is 

probable that there were Indians at each council who would have spoken or understood 

some English. [**94] [Ex. D-1, p. 24, l. 31 to p. 25, l. 6; Tr. 2161, l. 2 to 2163, l. 4; Tr. 

2392, l. 2 to [*356] 2394, l. 3] One Snohomish Indian who understood English helped 

translate the Point Elliott treaty. [Ex. PL-12; Tr. 2390, l. 24 to 2391, l. 18] Since, 

however, the vast majority of Indians at the treaty councils did not speak or understand 

English, the treaty provisions and the remarks of the treaty commissioners were 

interpreted by Colonel Shaw to the Indians in the Chinook jargon and then translated into 

native languages by Indian interpreters. Chinook jargon, a trade medium of limited 

vocabulary and simple grammar, was inadequate to express precisely the legal effects of 

the treaties, although the general meaning of treaty language could be explained. Many of 

those present, however, did not understand Chinook jargon. [FPTO § 3-37; Ex. USA-20, 

pp. 28-29; Ex. G-29a; Ex. Y-21; Tr. 1886, l. 11 to 1887, l. 11; Tr. 2403, l. 24 to 2404, l.

6] There is no record of the Chinook jargon phrase that was actually used in the treaty 

negotiations to interpret the provision "The right of taking fish, at all usual and 

accustomed grounds and stations, [**95] is further secured to said Indians, in common 

with all citizens of the Territory." [Ex. USA-20, p. 26; Tr. 2372, l. 15 to 2374, l. 7] A 

dictionary of the Chinook jargon, prepared by George Gibbs, indicates that the jargon 

contains no words or expressions that would describe any limiting interpretation on the 

right of taking fish. [Ex. G-29a; Ex. Y-21; Tr. 2460, l. 10 to 2461, l. 1] 

23. The treaty language "in common with all citizens of the Territory" was probably 

introduced by George Gibbs, who was a lawyer and advisor to Governor Stevens. [Ex. 

USA-20, p. 26; Tr. 1943, l. 24 to 1944, l. 12] There is no discussion of the phrase in the 

minutes of the treaty councils, [Exs. PL-10a, PL-10b, PL-12, PL-14, PL-15, PL-16b, PL17a, PL-17b, PL-17c] in the instructions to Stevens [Exs. PL-1, PL-34] or to the treaty 

negotiators, or in Stevens' letters of transmittal of the treaties. [Exs. PL-11, PL-14] There 

appears to be no phrase in he Chinook jargon that would interpret the term in any exact 

legal sense. [Ex. G-29a; Ex. Y-21] 

24. Although there is no evidence of the precise understanding the Indians had of the 
44

treaty language, the treaty commissioners [**96] probably used the terms "usual and 

accustomed" and "in common with" in their common parlance, and the meaning of them 

as found in a contemporaneous dictionary most likely would be what was intended by the 

government representatives. [Tr. 1946, l. 12-21] The 1828 and 1862 editions of Webster's 

American Dictionary of the English Language define the terms as follows: 

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

common: Belonging equally to more than one, or to many indefinitely . . . 

belonging to the public; having no separate owner . . . general; serving for the use 

of all. 

usual: Customary; common; frequent; such as occurs in ordinary practice or in the 

ordinary course of events. [Ex. PL-86] 

The Indians who negotiated the treaties probably understood the concept of common 

ownership interest which could have been conveyed in Chinook jargon. [Tr. 2024, l. 2 to 

2028, l. 3; Tr. 2048, l. 14 to 2049, l. 3] The clause "usual and accustomed [fishing] 

grounds and stations" was all-inclusive and intended by all parties to the treaty to include 

reservation and off-reservation areas. [Tr. 2851, [**97] l. 5-19] The words "usual and 

accustomed" were probably used in their restrictive sense, not intending to include areas 

where use was occasional or incidental. [Tr. 2176, l. 1-22; Tr. 2177, l. 24 to 2178, l. 5] 

The restrictive sense of the term "usual and accustomed" could have been conveyed in 

Chinook jargon. [Tr. 1951, l. 7 to 1952, l. 10] 

25. In an extensive report on the Indian Tribes of the Territory of Washington, dated 

March 4, 1854, George Gibbs had noted that the right of fishery was a subject 

"concerning which difficulties [*357] may arise" and that the Indians would require 

liberty of motion for the purpose of seeking fish in their proper season. [Ex. PL-9, p. 29] 

Elsewhere he observed that the fisheries "are held in common, and no tribe pretends to 

claim from another, or from individuals, seignorage for the right of taking." [Ex. G-4, p. 

186] This was a generalization, probably subject to certain exceptions. [Ex. USA-20, pp. 

18-19] 

26. There is nothing in the written records of the treaty councils or other accounts of 

discussions with the Indians to indicate that the Indians were told that their existing 

fishing activities or tribal [**98] control over them would in any way be restricted or 

impaired by the treaty. The most that could be implied from the treaty context is that the 

Indians may have been told or understood that non-Indians would be allowed to take fish 

at the Indian fishing locations along with the Indians. [Ex. PL-10a, 8th page.] 

27. Prior to the convening of the treaty councils Governor Stevens sent B. F. Shaw, who 

was later the official interpreter of the councils, to the Indian villages to explain the 

purposes of the councils and urge their attendance. Shaw told the Indians that the 

government wanted them to sell their land for a moderate sum of money and to accept 
45

such reservations and other privileges as could be agreed upon at the council. [Ex. USA45, p. 28] While there is no record of any specific privileges discussed during these 

contacts, the treaty commission's prior awareness of the importance the Indians attached 

to fishing makes it probable that the continuance of the right to take fish was one that 

Shaw had in mind or discussed. [Ex. PL-9, p. 29; Ex. PL-10a, 1st and 3rd pages] 

28. At the time of the treaties Indian control over fishing practices was by customary 

modes of conduct [**99] rather than by formal regulations. Controls were necessary in 

cooperative fishing efforts which required coordination by someone who organized and 

directed the group effort. The construction of a weir was usually a cooperative effort, a 

number of men working under the direction of a leader. The entire community usually 

had access to the weir, the leader regulating the order of use and the times at which the 

weir was opened to allow upstream escapement for spawning and/or supply for up-river 

fishermen. Techniques such as spearing or trolling in salt water which involved 

individual effort were not regulated or controlled by anyone else. [Ex. USA-20, pp. 19, 

20] Apart from one instance when the Makahs prohibited a non-Indian from fishing on 

their reservation, there is no evidence at the time of the treaties that either party intended 

to restrict the other party's fishing because it was not contemplated that they would 

interfere with each other. [Tr. 2032, l. 14 to 2033, l. 6; Ex. PL-8; Ex. USA-20, pp. 20-21] 

POST-TREATY INDIAN FISHING 

29. Fish continue to provide a vital component of many Indians' diet. For others it may 

remain an important food in a symbolic sense -- [**100] analogous to Thanksgiving 

turkey. Few habits are stronger than dietary habits and their persistence is usually a 

matter of emotional preference rather than a nutritional need. For some Indians, fishing is 

also economically important. Fishing is also important for some non-Indians. [FPTO § 3-

38] 

30. Since treaty times, Indians and non-Indians have adopted new fishing techniques and 

gear. Indians no longer fish from dugouts, just as non-Indians no longer fish from 

wooden sailboats. Indians no longer use bark nets and non-Indians no longer use cotton 

or linen nets. [FPTO § 3-38] 

31. Subsequent to the execution of the treaties and in reliance thereon, the members of 

the Plaintiff tribes have continued to fish for subsistence, sport and commercial purposes 

at their usual and accustomed places. Such fishing provided and still provides an 

important part of their livelihood, subsistence and cultural identity. [Exs. PL-44, p. 466; 

[*358] PL-45, p. 467; PL-46, p. 39; Exs. QN-2 and QN-3; Exs. H-1 and H-2; Ex. L-5; 

Exs. MS-2, MS-3, MS-6, MS-7, MS-8, MS-9 and MS-10; Exs. Y-13 and Y-26; USA-68, 

USA-69 and USA-70] The Indian cultural identification with fishing is primarily dietary, 

[**101] related to the subsistence fishery, and secondarily associated with religious 

ceremonies and commercial fishing. Indian commercial fishermen share the same 

economic motivation as non-Indian commercial fishermen to maximize their harvest and 

fishing opportunities. [Ex. F-35, p. 24, l. 12-23; Ex. F-40, p. 8, l. 2-6, p. 118, l. 17 to p. 

19, l. 12; Ex. F-45, p. 17, l. 3 to p. 18, l. 2; Tr. 740, l. 16 to 742, l. 14; Tr. 2566, l. 24 to 
46

2567, l. 4; Tr. 2896, l. 22 to 2897, l. 7; Tr. 3031, l. 24 to 3232, l. 3] Indians allow nonIndians to fish on their reservation in sport fisheries for which Indians serve as guides and 

charge a license fee. [Tr. 2601, l. 10-22; Tr. 3475, l. 5-13; Tr. 3511, l. 23 to 3512, l. 15] 

32. Some members of the Plaintiff tribes presently fish in the regular commercial 

fisheries of this State and the Pacific Coast. These Indians fish with the same gear as 

other fishermen. When fishing in the State commercial seasons, treaty Indians are not 

required to purchase a license or pay a landing tax. [Tr. 721, l. 5-9; Tr. 2489, l. 17-19; Tr. 

2498, l. 12-15; Tr. 3865, l. 16-21; Ex. F-45, [**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 sociopolitical 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. F42, 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. JX2b] 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] 
47

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. USA20, 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. USA31e, 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 
48

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. F30, 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 
49

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. USA20, 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] 
50

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 
51

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 reefnetters 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] 
52

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 
53

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. USA21, 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. 
54

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] 
55

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; PL3; 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; USA47; 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 
56

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, 
57

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 offreservation 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), Towalt (king or tyee salmon) were recognized as Satsup, the basis of distinction being size; 
58

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 
59

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; F59; 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 
60

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 offreservation 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] 
61

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. USA20, 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. F28, 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 
62

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] 
63

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 
64

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 
65

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 Department had never considered a regulation to 

authorize Quileute Indians to maintain an off-reservation net fishery for steelhead, nor 

had the Game Department staff advised the Game Commission of the data or supporting 

facts regarding the Quileute Indian fishery. [Tr. 303, l. 14 to 304, l. 12; Ex. PL-37] 

Quinault Tribe 

119. The Quinault 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 of some of the 

Indian tribes or bands which were parties to the Treaty of Olympia. This tribe is 

recognized by the United States as a currently functioning Indian tribe maintaining a 

tribal government on the Quinault Reservation and is composed of the Quinault and 

Queets Band of Indians, and other fish-eating Indians of the Olympic Peninsula who were 

allotted on the Quinault Reservation. Its membership is determined in accordance with its 

Bylaws adopted by its tribal council on May 22, 1965, and recognized by the Bureau of 

Indian Affairs. It has a membership [**157] roll of 986 approved by a representative of 

the Secretary of the Interior on March 31, 1973. Additional applications for membership 

are pending. [FPTO § 3-18] 

120. The usual and accustomed fishing places of the Quinault people within the case area 

at treaty time included the following rivers and streams: Clearwater, Queets, Salmon, 

Quinault (including Lake Quinault and the Upper Quinault tributaries), Raft, Moclips, 

Copalis, and Joe Creek. Ocean fisheries were utilized in the waters adjacent to their 

territory. [Ex. USA-53, p. 24 and App. 1; USA-31e, pp. 205-214, 233-235A] 

121. The Quinault also have important fisheries which were shared with other tribes to 

the south and east of the [*375] boundaries of the case area, especially Grays Harbor and 

those streams which empty into Grays Harbor. [Ex. USA-53, p. 24 and App. 1 and 2; Tr. 

2817, l. 3 to 2818, l. 19] 

122. At treaty time fishing constituted the principal economic activity of the Quinault. 

Salmon and steelhead served as the principal food and as an important item of trade. [Ex. 
66

USA-53, p. 24] In the immediate post-treaty period (1860) the government Indian agent 

recommended that the Quinault Indians be [**158] encouraged to open a trade in their 

salmon as they could be more profitably employed in that way than in agricultural 

pursuits. [Ex. PL-41, p. 420; Ex. PL-42, p. 391] 

123. The lower portions of the Quinault and Queets Rivers run through the Quinault 

Reservation. There are tribally managed commercial and sports steelhead fisheries within 

the reservation and a non-Indian-managed recreational fishery for steelhead outside and 

above the reservation on these rivers. The steelhead resource on these rivers has been 

maintained without Game Department stocking. The Game Department has not stocked 

the Quinault and Queets systems because of limitations in their hatchery program and 

because of opposition by sportsmen's groups, among other reasons. [FPTO § 3-474; Tr. 

314, l. 20 to 316, l. 15; Tr. 3475, l. 5-21] 

124. The Quinault Tribe has had regulations on its river fisheries since 1916 and tribal 

fish patrolmen since 1925. [Tr. 3438, l. 21 to 3440, l. 5] The tribe has on occasion closed 

its waters to all fishing and prohibited certain types of gear in order to conserve fish runs. 

[Tr. 3440, l. 25 to 3441, l. 14; Tr. 3445, l. 12 to 3446, l. 2] The [**159] Quinault Tribe 

has not had off-reservation fishing regulations because few of its members fish offreservation in the case area. [Tr. 3475, l. 22 to 3476, l. 4] Presently only 30 to 40 per cent 

of the on-reservation fishing sites on the Quinault River are being used. [Tr. 3455, l. 22 to 

3457, l. 17] Any apparent decline in the Quinault sockeye run is probably not due to 

overfishing by the Quinault Tribe. [Tr. 3530, l. 18 to 3532, l. 17; Tr. 3551, l. 25 to 3552, 

l. 21; Exs. QN-4, QN-5, QN-6 and QN-7] 

125. The Quinault Tribe and the tribal technical staff of fisheries scientists and 

technicians are presently engaged in a comprehensive fisheries management and 

enhancement program on the reservation. The program includes the production of 

sockeye, chum, and steelhead from eggs taken by tribal employees, and the cleaning of 

streams damaged by logging to recover spawning grounds on the reservation. [Ex. QN-2 

and Appendices thereto; Ex. QN-3, pp. 1-11] 

126. No special off-reservation fishing season for Quinault Indians has ever been or 

presently is allowed by the State even though such a season was proposed to the State by 

tribal officials. [Tr. [**160] 3476, l. 20 to 3477, l. 22] 

127. The Quinault Tribe successfully manages its river steelhead run such that both a net 

commercial and a hook and line sport fishery operate side by side and these uses are not 

incompatible under the tribal management. [Ex. QN-3, p. 8, l. 17 to p. 9, l. 14; Tr. 315, l.

6 to 316, l. 15] 

128. The Quinault Tribe is, biologically speaking and from an enforcement standpoint, 

effectively managing its fisheries resources on the reservation, and is capable of doing so 

outside of the reservation. [Tr. 3488, l. 9 to 3490, l. 14; Tr. 3553, l. 25 to 3555, l. 5] 
67

Sauk-Suiattle Tribe 

129. The Sauk-Suiattle Tribe is composed primarily of the descendants of the Sakhumehu 

and other Indians who lived on the upper reaches of the Skagit River system in 1855. 

Those Indians were party to the Treaty of Point Elliott. [Ex. USA-29, p. 9; Ex. UPS-2, 

pp. 19-21] A Sakhumehu village was located at the confluence [*376] of the Sauk and 

Skagit Rivers. [Ex. USA-58] The Sakhumehu Indians are named in the preamble to the 

Treaty of Point Elliott; and one of the treaty [**161] signatories is identified as a 

Sakhumehu. At treaty time the Sauk River Indians, who were known variously as Sock-amuke, Sakhumehu or Sock a bute, regarded themselves as a distinct and separate group 

and were so regarded by other Indians and by non-Indians. Their separate identity was 

consistently recognized in reports referring to them before, during and after the Treaty. 

Prior to and during treaty times these Indians intermarried to a considerable extent with 

the Upper Skagit and Stillaguamish Indians. After treaty times some of the Sauk River 

Indians continued to live along the Sauk and Suiattle Rivers where their descendants still 

reside. [FPTO § 3-85; Ex. USA-29] 

130. No separate reservation was established for a Sauk-Suiattle Tribe in their area. They 

were permitted to move to reservations established in the general vicinity; and the 

majority who moved to a reservation moved to the Swinomish Reservation, but most 

remained in their aboriginal area. The Sauk-Suiattle Tribe is organized and incorporated 

under the State of Washington Nonprofit Corporation Act (RCW 24.03) and is not 

organized pursuant to any federal law. [FPTO § 3-19; Ex. PL-64] The Tribe is recognized 

by [**162] the federal government, but its membership roll has not been approved by the 

Secretary of the Interior or his representative. [Exs. USA-43, pp. 19, 41; USA-44, pp. 2, 

36] The Tribe has approximately 250 members. 

131. The usual and accustomed fishing places of the Sauk River Indians at the time of the 

treaty included Sauk River, Cascade River, Suiattle River and the following creeks which 

are tributary to the Suiattle River -- Big Creek, Tenas Creek, Buck Creek, Lime Creek, 

Sulphur Creek, Downey Creek, Straight Creek, and Milk Creek. Bedal Creek, tributary to 

the Sauk River, was also a Sauk fishing ground. 

132. During treaty times the Sauk River Indians took fish with spears, dip nets, traps and 

weirs. They procured salmon and steelhead in their up-river region and also traveled to 

the saltwater to procure marine life unavailable in their own territory. They ate salmon 

and steelhead in both fresh and cured forms. [FPTO § 3-88] In modern times the SaukSuiattle Indian fishermen, numbering only about thirty, have not fished commercially and 

are primarily interested in [**163] a personal use fishery. [Ex. F-42, p. 5, l. 4-11 and l. 21 

to p. 6, l. 4, p. 8, l. 24 to p. 9, l. 2, p. 10, l. 12-17, p. 16, l. 20 to p. 17, l. 2] 

Skokomish Tribe 

133. The Skokomish Tribe is, with respect to the matters that are the subject of this 

litigation, a political successor in interest to some of the Indian tribes or bands which 
68

were parties to the Point No Point Treaty. It also includes descendants from some Indians 

to whom the Medicine Creek Treaty was applicable. It is recognized by the United States 

as a currently functioning Indian tribe maintaining a tribal government on the Skokomish 

Indian Reservation. This tribe is organized pursuant to section 16 of the 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 Assistant Secretary of the Interior on May 3, 1938, as amended January 12, 1966. Its 

present membership roll was approved by a representative of the Secretary of the Interior 

on May 22, 1973. The tribe presently has approximately 416 members. [FPTO § 3-20; 

Ex. PL-62] 

134. The Skokomish Tribe [**164] is composed primarily of descendants of the 

Skokomish and Too-an-ooch who at treaty times lived in the drainage area of Hood 

Canal. Those two groups were [*377] named in the preamble of the Treaty of Point No 

Point. At that time the two names were used to describe the communities of the upper and 

lower portions of Hood Canal respectively. These groups were different segments of the 

Too-an-ooch or Twana group. [FPTO § 3-89; Ex. USA-23, p. 21] After the treaty all 

Indians of the Hood Canal drainage system, except the Port Gamble Reservation of 

Clallam Indians, have been referred to by the United States Government as Skokomish. 

[Ex. USA-23, p. 21] 

135. Fishing was the most important food acquisition technique of the Twana Indians 

during treaty times, and salmonid fish (king, silver, humpback and chum salmon and 

steelhead) were one of their important sources of food. These fish were eaten fresh, were 

dried and were smoked for winter use. [FPTO § 3-90] Prior to and during treaty times the 

Twana Indians accumulated food surpluses with which they supplied feasts for invited 

guests from as far away as Carr Inlet and Vashon Island to the east and Satsop country to 

the southwest. [**165] [FPTO § 3-91; Ex. USA-23, p. 20] 

136. Prior to and during treaty times the Twana Indians located villages for easy access to 

fishing stations. They took salmon and steelhead in saltwater areas by trolling, spearing 

and netting, and in freshwater areas by single dam and double dam weirs and similar 

types of traps. They maintained at least three important weir sites on the Skokomish 

River during the 1850's. The principal signatory of the Treaty of Point No Point for the 

Skokomish was in charge of an important weir on the Skokomish River. During treaty 

times the Twana Indians periodically removed lattice sections of their weirs, thus 

permitting fish to escape upstream to spawn. [FPTO § 3-92; Ex. USA-23, p. 4] 

137. The usual and accustomed fishing places of the Skokomish Indians before, during 

and after treaty times included all the waterways draining into Hood Canal and the Canal 

itself. Saltwater trolling and spearing were less important than river fisheries. [Exs. USA20, p. 33; USA-23, pp. 18-22; Ex. PL-42, pp. 389-390; Ex. USA-31e, pp. 238-244] 

138. The Skokomish Indians, despite the fact that they could increase fishing effort on 

their reservation by utilization of fishing [**166] sites not in use, have not in recent years 

cropped the entire available harvestable portion of the coho run even when asked by the 
69

Department of Fisheries to fish harder. [Tr. 2596, l. 4-19; Ex. F-28, p. 5, l. 8-10; Tr. 3872, 

l. 13-18; Ex. PL-77; Ex. PL-81] It is possible, and in the interest of full use of the 

resource consistently with conservation, to allow a greater Skokomish Indian fishery, offreservation in the saltwater areas, on the Skokomish River coho runs than the State 

presently allows. [Tr. 3872, l. 13 to 3874, l. 12] 

Squaxin Island Tribe 

139. The Squaxin Island 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 Squaxin Island Reservation. This tribe is organized pursuant to 

section 16 of the Indian Reorganization Act of June 18, 1934. Its membership is 

determined in accordance with its Constitution and Bylaws approved by the Secretary of 

[**167] the Interior July 8, 1965. It has a membership roll approved by a representative 

of the Secretary of the Interior on April 24, 1971. Its current membership is 

approximately 175. [FPTO § 3-21; Ex. PL-63] 

140. The Squaxin Island Tribe is composed primarily of descendants of the original 

inhabitants of all the inlets of upper Puget Sound from South Bay on Henderson Inlet 

around the head of the Sound to North Bay on Case Inlet. Included within this area are: 

Henderson, [*378] Budd, Eld, Totten (including Big and Little Skookum), Hammersley, 

and Case Inlets. The Indian inhabitants of these inlets were listed separately by local 

group name in the preamble to the Treaty of Medicine Creek as follows and were 

included in that treaty: Squawksin, Steh-chass, T'Peeksin, Squi-aitl, and Sa-heh-wamish. 

Pursuant to the Treaty these Indians were relocated on the Squaxin Island Reservation 

and thereafter were dealt with by the United States as a separate and collective entity 

under the name "Squaxin" (spelled variously). [FPTO § 3-95; Ex. USA-24, pp. 17-18] 

141. During treaty times the Squaxin Island Indians fished for coho, chum, chinook, and 

sockeye salmon at their usual and accustomed [**168] fishing places in the shallow bays, 

estuaries, inlets and open Sound of Southern Puget Sound and in the freshwater streams 

and creeks draining into those inlets. Customary use patterns varied according to the 

types of water areas, with freshwater fisheries being controlled by the residents while the 

deeper saltwater areas were open to anyone who traveled thereon. Their fishing 

techniques included trolling, stream weirs, spearing and tidal traps. These Indians 

continued to fish these areas following their relocation on the Squaxin Island Reservation 

and to rely in part on fishing for subsistence and monetary income. Salmon fishing and 

the fishing areas used by their predecessor bands continue to be important to members of 

the Squaxin Tribe. [FPTO § 3-98] 

142. Through agreement with the Department of Fisheries, the Squaxin Island Tribe has 

closed fishing on the small streams outside the Squaxin Island Reservation to protect the 

salmon spawning areas and the tribal fishermen have shifted their treaty fishing into 

Puget Sound marine areas under a special Fisheries Department season. [FPTO § 3-603; 
70

Ex. JX-2a, App. II, pp. 316-317] The tribe has adopted fishing regulations similar 

[**169] to the off-reservation regulations of the Department of Fisheries, and the tribe 

feels its own regulations are reasonable and necessary for conservation. [Ex. JX-2b, pp. 

39-41; Tr. 1048, l. 17 to 1049, l. 7; Tr. 2488, l. 7-15] 

143. The Squaxin Island Tribe, with the cooperation of the Department of Fisheries, 

maintains a rearing program for chinook and coho salmon. It has grown in three years 

from four floating pens, each twelve feet square, to ten floating pens, each sixty feet 

square, and from 250,000 to 750,000 fish. The fish, provided in large part by the 

Department of Fisheries, are raised by the tribe and sold commercially. Some are released 

into the Sound for the benefit of all fishermen. [Tr. 2485, l. 18 to 2486, l. 12; Tr. 2493, l.

6 to 2496, l. 11] 

Stillaguamish Tribe 

144. The Stillaguamish Tribe is composed of descendants of the 1855 Stoluch-wa-mish 

of the Stoluch-wa-mish River. The population in 1855 resided on the main branch of the 

river as well as the north and south forks. The Stillaguamish were believed to number 

about 200 people in 1855, but the actual number may have been over double that figure. 

The name Stillaguamish, under [**170] various spellings, has been used since about 1850 

to refer to those Indians who lived along the Stillaguamish River and camped along its 

tributary creeks. [Ex. USA-28, pp. 1, 23] They were a party to the Treaty of Point Elliott 

and are referred to in the preamble of that treaty under the spelling "Stoluck-wha-mish". 

[Ex. USA-28, p. 15; Ex. PL-65; Ex. G-4, p. 179; Tr. 2415, l. 22 to 2416, l. 9] No 

signatory is identified as belonging to that group, but they were designated as subordinate 

to Patkanam who signed the treaty as head chief for the Snoqualmoo and associated 

tribes. [Ex. G-4, p. 179; Ex. USA-28, pp. 15, 23] 

145. No separate reservation was established for the Stoluch-wha-mish Indians. They 

were allowed to move to reservations established in the general area [*379] near them 

and some moved to the Tulalip Reservation, but the majority remained in the aboriginal 

area along the Stillaguamish River. The membership of the Stillaguamish Tribe is 

determined in accordance with the tribal Constitution and Bylaws which have been 

approved by the tribe but have not been approved by a representative of the Secretary of 

the Interior. [FPTO § 3-22; Ex. USA-28, p. 23] [**171] The Stillaguamish Tribe is not 

recognized as an Indian governmental entity by the federal government. Its enrollment 

has not been approved by the Secretary of the Interior or his representative and the tribe 

does not have a reservation. [Exs. USA-43, pp. 21-2, 31; USA-44, pp. 2, 36] The 

Stillaguamish Tribe presently has about 94 members. [Ex. MS-7, p. 4, l. 1-2] 

146. During treaty times and for many years following the Treaty of Point Elliott, fishing 

constituted a means of subsistence for the Indians inhabiting the area embracing the 

Stillaguamish River and its north and south forks, which river system constituted the 

usual and accustomed fishing places of the tribe. Salmon and steelhead were eaten in 

both fresh and cured form. These Indians had names for four or five species of salmon, 

steelhead and other indigenous fish. They took salmon and steelhead by spearing, 
71

harpooning, traps and weirs (with dip nets) at various places in those watercourses. The 

Stillaguamish Indians still consider fishing as a source of food today, and are interested 

primarily in a personal use fishery. [FPTO § 3-100; Exs. USA-20, p. 38; USA-28, p. 23; 

Ex. F-43, p. 7, l. 5-17; Tr. 2714, [**172] l. 2-17] 

Upper Skagit Tribe 

147. The Indian Claims Commission determined, in The Upper Skagit Tribe of Indians v. 

United States of America, Docket No. 92, 8 Ind. Cls. Comm. 475, 476-77, 491, that the 

Upper Skagit Tribe is the successor in interest to the rights of an identifiable group of 

American Indians identified as ten separate villages on the Upper Skagit and Sauk Rivers 

in treaty times and subsequently known as "the Upper Skagit Tribe". These antecedents 

of the Upper Skagit Tribe were signatory parties to the Treaty of Point Elliott. [Ex. G17(l), p. 477; Ex. G-4, p. 180] No separate reservation was established for the Upper 

Skagit Indians in their area. They were permitted to move to reservations established in 

the general vicinity. Most of those who moved to a reservation moved to the Swinomish 

Reservation, but the majority remained in their aboriginal area. The membership of the 

Upper Skagit Tribe is determined in accordance with Articles of Association adopted in 

1962. The tribe is not organized pursuant to any federal law. [FPTO § 3-23; Ex. UPS-2] 

No enrollment has been approved by the Secretary of the Interior or his representative. 

[FPTO § 3-23; Ex. UPS-2; [**173] Exs. USA-43, pp. 24, 31; USA-44, pp. 2, 36] The 

tribe has approximately 500 members. [Tr. 3254, l. 4-7] 

148. At treaty time, the usual and accustomed fishing places of the Upper Skagit Tribe 

included numerous areas along the Skagit River, extending from about Mt. Vernon 

upstream to Gorge Dam. [Tr. 3272, l. 25 to 3276, l. 17] Today the tribe has about thirty 

fishermen, interested primarily in a subsistence fishery. [Tr. 3254, l. 8 to 3255, l. 1] 

Yakima Nation 

149. The historical background information concerning the Yakima Nation, as shown by 

the written testimony (Exhibits Y-13 and Y-26) and oral testimony of Yakima tribal 

members educated in Yakima history and customs by tribal elders, was not controverted 

in the evidence and is found by the court to be reasonable and credible factual data 

regarding relevant aspects of Yakima Indian life at and prior to treaty time, including the 

Yakima treaty council and the intentions and understandings of the Indian representatives 

there present. 

[*380] 150. The Yakima Nation is a party to the Treaty with the Yakimas. [Ex. Y-6] It is 

recognized by the United States as a currently functioning Indian tribe [**174] composed 

of the tribes and bands consolidated into the Yakima Nation by that treaty and 

maintaining a tribal government on the Yakima Indian Reservation, located in South 

Central Washington. Its membership is determined in accordance with the provisions of 

the Act of August 9, 1946, 60 Stat. 968, 25 U.S.C. §§ 601-607 [Ex. Y-7] and its 

membership roll is kept current and is approved by a representative of the Secretary of 

the Interior. It presently has approximately 6,040 enrolled members. [FPTO § 3-24; Ex. 
72

Y-13, p. 2, l. 30 to p. 3, l. 12; Tr. 3292, l. 19 to 3294, l. 2] 

151. In the main, at the time of the treaty, the Indians who were parties to the Yakima 

Treaty lived in a food gathering culture. They existed on game, fish, roots, berries and 

some cultivated vegetables. Of these foods fish was a major food and they landed salmon, 

steelhead, trout, mussels, eel, and other miscellaneous fish. Salmon, however, both fresh 

and cured, was a staple in the food supply of these Indians. It was annually consumed by 

these Indians in the neighborhood of 500 pounds per capita. Circumstances necessitated 

that large quantities of fish, fish oil, roots and berries be cured in [**175] adequate 

quantities to insure a sufficient and balanced diet for those periods of the year when the 

fresh supply of these commodities was not available. Quantities of fish in considerable 

numbers were preserved for future use through smoking and drying. The choice of the 

method depended on the climatic conditions and the availability of firewood. It was 

customary for these Indians to manufacture pemican. This was accomplished by 

pounding the dried strips of fish until quite fine and packing the resultant mass in 

containers lined with fish skin. In this process oil was used where available and the oil 

from male steelhead was used for this purpose. Because of the monotony of this fish diet, 

variety in the kind of salmon and other fish caught was a desired goal. [FPTO § 3-102] 

152. With the exception of the spear, gaff and like gear which to a great extent depended 

on the skill and dexterity of the individual operator, methods used by the Yakima Indians 

to land salmon and steelhead were very efficient. These Indians used traps, weirs, nets, 

gill nets, baskets, and seines to land salmon and steelhead. They were proficient in the 

manufacture of strong twine from native materials. [FPTO [**176] § 3-103] 

153. Indians from the Yakima Nation and particularly those from the Yakima, Klickitat, 

Wenatchee, Columbia, Chelan, Entiat, and Kittitas aboriginal groups communicated 

continually with the tribes on Puget Sound by the use of the Snoqualmie, Naches and 

Stevens Passes as weather permitted. This continual communication created bilingualism, 

custom interchange, intermarriage, and utilization of the natural resources in the Puget 

Sound area. In the main this communication and intermarriage was with the tribes now 

considered Nisqually, Puyallup, Muckleshoot and Snoqualmie. [FPTO § 3-104] The 

Yakimas in the Puget Sound area were intermarried as far north as the Skokomish and 

controlled them to a certain extent. Gibbs in his treaty time census placed approximately 

400 Yakimas in the case area. [Exs. Y-15a and Y-15b; Tr. 2132, l. 10 to 2133, l. 10] 

154. At the time of the treaties the Indians of the Yakima Nation used fisheries located in 

the Puget Sound area for the purpose of obtaining salmon and steelhead primarily for 

their use. [Ex. F-35, p. 9, l. 10 to p. 10, l. 14; p. 11, l. 15-19; p. 13, l. 3-7] Some of these 

fish taken by Yakimas were consumed [**177] by them and some were traded to other 

Indians. [Ex. Y-13, p. 9, l. 7-9; Tr. 3299, l. 4-7] They took these fish there by the consent 

of the tribes in that region. Since there was more intermarriage and communication with 

those Indians now called Nisqually, Puyallup, Muckleshoot, and Snoqualmie, [*381] 

fisheries in their area of residence were more commonly used by members of the Yakima 

Indian Nation. These fisheries in the area of this case's inquiry included the waters of the 

Snoqualmie, Snohomish, Green, Puyallup, Nisqually, Stuck, Duwamish, White, Carbon, 
73

and Black Rivers and their tributaries. [FPTO § 3-105] 

155. There had been little non-Indian contact with the Yakimas prior to the treaty 

negotiations. [Ex. Y-26, p. 7, l. 4 to p. 8, l. 24] The Indians who were subsumed into the 

Yakima Nation spoke three different languages, Sahaptin, Salish and Chinookan and had 

many dialects within the two principal language groups. [Ex. Y-26, p. 7, l. 9-13] The 

treaty negotiations were translated from English or one of these three groups or numerous 

dialects into Chinook jargon [Ex. Y-26, p. 9, l. 9-10; Ex. D-1, p. 24, l. 26-30] which has a 

limited [**178] vocabulary and contained none of the words "citizens", "territory", 

"state", "regulations", "commercial", and "usual and accustomed". [Ex. Y-21; Ex. G29(a); Tr. 3393, l. 11 to 3394, l. 1] This jargon was used principally for trade purposes 

and was inadequate to convey the legal concepts involved. [FPTO § 3-37] 

156. At the treaty council the United States negotiators promised, and the Indians 

understood, that the Yakimas would forever be able to continue the same off-reservation 

food gathering and fishing practices as to time, place, method, species and extent as they 

had or were exercising. [Ex. Y-13, p. 8, l. 6-15; Ex. Y-26, p. 8, l. 29 to p. 9, l. 8; Tr. 3295, 

l. 16 to 3297, l. 8] The Yakimas relied on these promises and they formed a material and 

basic part of the treaty and of the Indians' understanding of the meaning of the treaty. 

[Ex. Y-13, p. 8, l. 16-23] 

157. After the treaty was concluded, the Yakima Indians continued to fish as they had. 

During territorial times officials of the United States and Washington Territory took the 

position that the off-reservation fisheries were those the Yakima Indians had exercised at 

treaty or pre-treaty [**179] times. These officials took the position that the words of the 

treaty reserved to the Yakima Indians "the right to enjoy all of these fisheries as they had 

heretofore." [Ex. Y-23, p. 10] The Supreme Court of Washington Territory not only 

sustained this interpretation of the treaty but took notice as a matter of common 

knowledge that the Yakima Indians were "tenacious" in adhering to these past customs 

and traditions. [Ex. Y-23, p. 10] 

158. The Yakima Indians have continued to assert their off-reservation fishing rights, [Tr. 

611, l. 21 to 612, l. 4 and l. 14 to 615, l. 15] including fisheries in the case area. [Tr. 

3321, l. 10-18] The salmon and steelhead landed were consumed or sold commercially. 

[Ex. Y-13, p. 9, l. 13-16] Arrests of Yakima Indians in the case area since 1966 have 

caused Yakima fishermen to decrease their fishing effort in that area. The Yakima Nation 

has not encouraged its fishermen to fish in the case area as time and money limitations 

would not allow the tribe to protect its fishermen from conviction though the tribe's 

efforts had been successful as regarded other state arrests. [Ex. Y-13, p. 9, l. 15 to p. 10, l.

7] [**180] 

159. The Yakima Nation has promulgated fishing regulations for its members in areas 

east of the Cascade Mountains but has no fishing regulations within the case area. [Ex. 

JX-2b, pp. 54-61; Tr. 3302, l. 22-24] The Yakima off-reservation fisheries in the 

Columbia River area are regulated. Prior to 1953, and thereafter in areas where the 

fishing was not intensive, regulation was by Indian leaders at the site. [Ex. Y-13, p. 10, l.
74

12 to p. 11, l. 1; Tr. 3307, l. 12 to 3308, l. 19] Since 1953 the Yakima Nation has 

regulated by written regulations. [Ex. Y-13, p. 11, l. 4-12] These regulations provide for 

annual review, emergency closures, off-reservation enforcement and identification cards. 

[Tr. 610, l. 6 to 611, l. 18; Tr. 3291, l. 15 to 3292, l. 22] Untended fishing gear is 

identified by tags issued by the Yakima Nation. [Tr. 3328, l. 25 [*382] to 3329, l. 6] The 

Yakima Nation, through its Tribal Council and its Fish, Wildlife, Law and Order 

Committee, which has an annual budget currently exceeding $400,000.00, gathers 

biological and other information with assistance from federal biologists, and holds 

meetings with its fishermen [**181] and others interested before setting seasons or 

passing other conservation regulations. [Ex. Y-13, p. 2, l. 5-24, p. 11, l. 13-16; Tr. 1618, 

l. 3 to 1619, l. 6; Tr. 3300, l. 8 to 3301, l. 10] The tribal regulations are enforced by a 

large law and order department. [Ex. Y-26, p. 2, l. 10-29] 

160. The Yakima Nation expects its fishermen to respect the regulations of the tribes in 

the case area. [Ex. Y-13, p. 11, l. 19-24] Should further regulation be necessary the 

Yakima Nation has expressed its intent to confer with other tribes in the area for the 

purpose of joint regulation, but if the latter did not protect the fishery then the Yakima 

Nation's expressed intention is to enact conservation regulations of its own covering the 

case area. [Tr. 3303, l. 18 to 3305, l. 5] It is likewise the expressed policy of the Yakima 

Nation in its scheme of regulation to provide for commercial, subsistence and ceremonial 

landings of salmon and steelhead by net where the fishery will sustain the pressure. 

Where in the tribe's opinion the fishery will not sustain the pressure, it is the announced 

policy of the tribe to provide for the following priorities: [**182] 1) ceremonial landings; 

2) subsistence landings; and 3) commercial landings. [Tr. 956, l. 1 to 957, l. 17] The 

Yakima Nation has had successful experiences in joint tribal regulation on the Columbia 

River [Tr. 3329, l. 7-23] and joint regulation with the state and federal government on the 

Klickitat River. [Ex. Y-13, p. 11, l. 25 to p. 12, l. 4] 

161. Yakima landings for at least ceremonial and personal use in the case area can take 

place without jeopardizing the continued existence of the fish resource. [Tr. 957, l. 25 to 

958, l. 12; Tr. 959, l. 13 to 960, l. 5] Yakima tribal regulation of Yakima fishermen at 

usual and accustomed places in the case area is a matter of genuine interest to the tribe. 

[Tr. 295, l. 1-9; Tr. 960, l. 6-23] 

162. The Yakimas continue as a religious rite not only the first salmon ceremony but the 

basic, undying salmon culture existing in this northwest area, and this religious concept 

of the interdependence and relatedness of all living things is a dominant feature of their 

life-style. [Ex. Y-13, p. 7, l. 1-23; Tr. 3297, l. 9-15; Tr. 3352, l. 17 to 3353, l. 2; Tr. 3402, 

l. 7-10] [**183] 

163. The Yakima Indians have been and continue to be very dependent on anadromous 

fish to sustain their way of life. [Ex. Y-13, p. 13, l. 25 to p. 14, l. 2; Ex. Y-10, pp. 31-36; 

Ex. Y-12, pp. 12-16] They live close to the poverty level and have not reached economic 

or social parity with non-Indian citizens of the State of Washington. [Ex. Y-13, p. 4, l. 13 

to p. 5, l. 20; Ex. Y-10, pp. 16-26; Ex. Y-9, pp. 2-8; Ex. Y-8, pp. 1-4] Anadromous fish 

are vital to the Indians' diet with approximately 2,000 of the enrolled members fishing for 
75

personal consumption. Approximately four hundred tribal members fish commercially for 

the most part in the Columbia River area, with only about five Yakima commercial 

fishermen in the case area. [Tr. 3340, l. 5-11] 

GENERAL FISHERIES CONSERVATION AND MANAGEMENT 

164. A great many of the biological, fisheries management, and fisheries harvest facts 

relevant to the issues in this case are set out in Exhibits JX-2a and JX-2b, which are an 

extensive Joint Statement Regarding the Biology, Status, Management, and Harvest of 

the Salmon and Steelhead Resources of the Puget Sound and Olympic Peninsular 

Drainage Areas of Western Washington [**184] dated May 14, 1973, prepared for this 

case by staff biologists of the Washington Department of Fisheries, the United States Fish 

and Wildlife Service, and the Washington Department of Game. The contents of said 

report are hereby [*383] incorporated by reference as Findings of Fact herein. [FPTO § 

3-400] 

165. On June 16, 1973, the United States exercised its right to terminate the recognition 

given to Canadian fishermen to fish in the contiguous zone (established by 16 U.S.C. §§ 

1091-1094) off the coast of Washington south of Carroll Island located at approximately 

48 degree north latitude. (Cf. Ex. JX-2a, § 2.12, pp. 100-101) [FPTO § 3-401] 

166. The principal river systems, marine waters and Indian reservations in the case area 

are depicted on the base map (Exhibits JX-1a and 1b and JX-2a, p. ii). There are 

numerous lesser streams that are important producers of salmon and steelhead. Many of 

these are depicted on Exhibit F-71. [FPTO § 3-400; Ex. JX-2a, § 1.2, pp. 9-12; Tr. 749, l.

24 to 774, l. 18; Tr. 3592, l. 11 to 3593, l. 8] 

167. Under Washington State law the protection and management of those fish which the 

State has classified as food fish [**185] is under the jurisdiction of the Department of 

Fisheries headed by a director who is appointed by and serves at the pleasure of the 

Governor. Salmon are classified as food fish under current Washington law. The 

Defendant Thor C. Tollefson is the Director of the Fisheries Department, and as such is 

vested with the authority to exercise all of the powers and duties of that department, 

including the authority to issue regulations pursuant to state laws and to enforce said laws 

and regulations. [FPTO § 3-25; Ex. JX-2a, § 2.5, p. 67] 

168. Under Washington law, the protection and management of those species of fish 

which the state has classified as game fish is under the jurisdiction of the Department of 

Game which consists of the State Game Commission and the Director of Game. [FPTO § 

3-26; Ex. USA-39, p. 1; RCW 77.04.020] The Game Commission is the entity which has 

the authority to adopt rules and regulations governing the time, place and manner of 

taking game fish. [Ex. USA-39, p. 8; RCW 77.12.040] The Game Commission consists 

of six part-time commissioners having the qualifications prescribed by RCW 77.04.040 

appointed for staggered six-year terms by the Governor. Three commissioners [**186] 

must come from west of the Cascade Mountain summit and three from the east of that 

summit. The director is appointed by and serves at the pleasure of the Commission. 
76

Defendant Carl Crouse is the Director of the Department of Game. Steelhead are 

classified as game fish under current Washington law. [FPTO § 3-26] In 1925 the state 

legislature declared steelhead a game fish when taken in fresh water. Previously state 

fisheries legislation had defined "salmon" as including steelhead. After 1925 the State 

imposed progressively greater restrictions on the commercial dealings in steelhead and in 

1933 steelhead came under the full protection of the State Game fish regulations. [Ex. 

JX-2a §§ 2.3.1 and 2.3.2, pp. 60-63; Ex. PL-2, pp. 164, 168; Ex. G-15, p. 3, l. 25-32] 

169. Fisheries management takes into consideration both the resource itself and the 

objectives and needs of the societies which control and seek to utilize it. The commercial, 

sport and Indian fisheries are managed for different use objectives and user interests. 

Accordingly, the objectives of fisheries management vary in accordance with the 

purposes and constituency for which the particular fishery is being managed. [**187] 

Commercial fisheries are managed to achieve a maximum sustained yield in terms of 

food and economic profit, whereas sport fisheries are managed to obtain a maximum 

sustained recreational experience and a high yield of personal use food and "trophy" 

product. The Indian tribes have as their primary use objectives the fostering of Indian 

economic well-being, the preservation of Indian cultural heritage and way of life, and the 

provision of a significant element of Indian diet. [Ex. JX-2a, § 2.1.0, pp. 47-48] 

170. Although the need for management of the fisheries resource, and the [*384] methods 

used, depend upon biological analyses, the actual techniques, like the ultimate objectives, 

involve political and economic considerations. [Ex. JX-2a, § 2.2.5.3, p. 58] Similarly, 

economic and political considerations are also used to determine who will harvest 

varying portions of the resource. The Department of Fisheries recognizes that Indians are 

a user group with legitimate interests in the fisheries. [Tr. 799, l. 2 to 801, l. 6; Ex. PL89] One method, which is favored by some fisheries biologists, of providing an 

acceptable measure of balance between resource users is [**188] to limit entry into the 

commercial salmon fisheries. However, the Washington legislature has not authorized 

this. [Ex. PL-89] 

171. The anadromous fishery resource is both perishable and renewable. Thus, while an 

over-harvest would impair its renewability, an under-harvest during a limited time it is 

available would result in an irreplaceable waste of the resource. [Ex. JX-2a, § 2.1.0, p. 

47] In addition to being wasteful, over-escapement of fish on the spawning ground can 

impair the renewability of the resource by causing a condition called "superdeposition" 

where the last fish that comes in and spawns either spawns directly over the first brood of 

eggs that were in the redds, or digs them up. Superdeposition can destroy eggs outright 

and also increase the susceptibility to disease of the eggs remaining. [Tr. 859, l. 21 to 

860, l. 15] Salmon and steelhead frequently spawn in the same areas of the various river 

systems. [FPTO § 3-453] 

172. Managing the commercial fishery for maximum sustained profit requires, among 

other things, that the harvest occurs near the time when the available "crop" has obtained 

maximum bulk and quality. These do not necessarily coincide [**189] in time and place. 

Thus the proper time for commercial harvest corresponds most nearly to the relatively 
77

brief period of time when the fish are full grown and returning to or entering their natal 

stream to spawn. Net fishery seasons permit the efficient taking of mature or nearly 

mature fish for commercial purposes during this time period only. [Ex. JX-2a, § 2.1.1, p. 

48] 

173. Managing sport fisheries for maximum sustained recreation requires providing 

ample opportunities for fishing. Long seasons, economically and geographically 

accessible waters, and high catches per individual effort all increase recreational yield. 

Feeding and growing salmon in the ocean and Puget Sound are of greatest recreational 

value because they are vulnerable to sport gear over long periods. On the spawning 

migration route from their saltwater feeding areas, full-grown salmon are available to 

anglers for only a short period of time. Feeding activity of these latter fish diminishes or 

ceases as they complete their saltwater migration period. The efficiency of angling gear is 

then measurably decreased. In some Puget Sound areas where salmon are in or 

approaching their natal estuary, the catch rate is commonly [**190] one-tenth that of the 

ocean fishery. In contrast to salmon, steelhead actively feed throughout their entire 

migration route and are readily available to sport gear in freshwater areas. They are not 

generally taken by sport gear in saltwater. [Ex. JX-2a, § 2.1.2, pp. 48-49] 

174. Management for Indian objectives is closer to commercial management than to sport 

inasmuch as pursuit of an economic livelihood and the efficient procurement of a food 

supply are major purposes. In addition, salmon and steelhead have special significance in 

the religious and cultural mores of the Indian people. Because of traditions, treaty 

provisions, and location of Indian communities, the Indian fisheries are largely placeoriented. Management for Indian fishery objectives must consider this factor. [Ex. JX-2a, 

§ 2.1.3, pp. 49-50] 

175. The Department of Fisheries has not regarded the salmon sport fishery in Puget 

Sound and on the ocean as a major regulatory concern, because, as compared with the 

commercial net fisheries, [*385] the sport fisheries do not need to be managed on a dayto-day basis. [FPTO § 3-581] 

176. Among the plaintiff Indian tribes only a few today are active in marine fisheries. 

[**191] The Makahs and Quileutes have troll fisheries off the coast. The Makahs also 

pursue both troll and gill net fishing in the Strait of Juan de Fuca. The Lummi Indians use 

gill nets in Puget Sound. The Squaxin Island Indians conduct gill net fisheries in the 

saltwater inlets of the mainland near their reservation. [Ex. JX-2a, § 3.3.6, p. 128] Indian 

river fisheries are currently exercised at the mouths and varying distances upstream from 

the mouths of coastal and Puget Sound rivers. Among the rivers so utilized are the 

following: Nooksack, Skagit, Stillaguamish, Green, Puyallup, White, Nisqually, 

Skokomish, Sekiu, Hoko, Sooes, Waatch, Ozette, Quillayute, Hoh, Queets and Quinault 

Rivers. [Ex. JX-2a, § 3.3.7, p. 129] Indian river fisheries take place in confined areas 

where there are concentrated passages of fish which may require careful regulation to 

protect the run. [Ex. F-28, p. 8, l. 10-15] Where escapement requirements thought 

necessary by the Department of Fisheries have been achieved, it has been by stringent 

control of harvest near or in the parent streams. [Ex. JX-2a, § 2.6.2.0, p. 73] 
78

177. From a broad biological and managerial standpoint, conservation of fish [**192] 

resources means to protect and improve the habitat that produces the resource, to 

manipulate stocks of fish to achieve necessary spawning escapement so as to maintain, 

perpetuate and enhance the resource, and to put the harvestable portion of the resource to 

beneficial use. [Tr. 1049, l. 12-19; Tr. 1472, l. 1-9] This concept of conservation must be 

considered in the light of the entire regulatory pattern because all harvesting regulations 

that restrict time, place and manner of taking fish are interrelated in their application to 

competing user groups. [Tr. 1055, l. 4 to 1056, l. 8; Tr. 1480, l. 6-12; Ex. F-27, p. 4, l. 30 

to p. 5, l. 1; Tr. 1476, l. 9-16] 

178. Assuring proper spawning escapement is the basic element of conservation involved 

in restricting the harvest of salmon and steelhead. Once that has been achieved, the 

regulations on time and manner of fishing are designed to facilitate the harvest of the 

excess and distribute it among users in a manner consistent with meeting use objectives 

of the people who are going to harvest. [Tr. 1160, l. 17 to 1165, l. 3; Ex. F-28, p. 35, l. 30 

to p. 36, l. 8] 

179. Under the present [**193] complex harvest scheme used by the State to manage the 

fish resource, regulation has three main purposes: 1) to preserve the fish stocks; 2) to 

attain the maximum sustained yield; and 3) to provide an orderly fishery. To accomplish 

these purposes, all the runs and races of fish that spawn in the various streams of the 

Puget Sound and coastal areas should be recognized. In order to regulate effectively, the 

State finds it desirable to have: 1) accurate catch and escapement statistics on all races; 2) 

a forecast of run size; 3) estimates of the number of spawners that can be accommodated 

in the streams used for spawning; and, 4) information on the number of units of gear, 

their efficiency, and the fishing time needed to make the catch. [Ex. JX-2a, § 2.2.5.0, pp. 

54-55] 

180. Regulations designed to preserve fish stocks by limiting the harvest to ensure run 

survival can be grouped into two major categories: 1) those designed to protect selected 

portions of a stock of fish, and 2) those designed to limit the size of the take. Net 

restrictions, closed areas, closed seasons and size and weight limits are examples of 

regulations designed to protect selected portions of a fish stock. Limitation [**194] by 

quota in a very few special situations, limitation of the number of fishing units, and 

limitation of gear efficiency are examples of regulations designed to limit the size of 

catch. [Ex. JX-2a, §§ 2.2.5.0, 2.2.5.1, 2.2.5.2, pp. 55-57] 

[*386] 181. It is necessary for the fishing activity of Indians and non-Indians to be 

regulated in order to assure that conservation of the fishery resource is achieved. [Ex. F28, p. 4, l. 14-23; Ex. F-35, p. 24, l. 12-26; Tr. 3465, l. 22 to 3466, l. 9] Observance of 

fishery regulations is important to the achievement of conservation of the resource. A 

regulation is more likely to be observed if it is simple to understand, reduces conflicts 

between interest groups, appears fair to, and wins the confidence of, the fishermen. For 

this reason, regulations which have as their purpose the attainment of an orderly fishery 

can be helpful in achieving conservation. [Tr. 1092, l. 17 to 1093, l. 15] 
79

182. Salmon run sizes fluctuate from year to year, and it is generally necessary for the 

conservation of a particular salmon run that the regulation of the harvest on that run take 

into account the run's size. Catch fluctuations [**195] generally correspond with run size 

fluctuations. [Ex. F-28, p. 17, l. 3 to p. 18, l. 2; Tr. 1067, l. 10-19; Tr. 1373, l. 13 to 1374, 

l. 2; Tr. 3583, l. 6 to 3585, l. 6] In order to take run size into account, regulations will be 

more effective if they are based on estimates of predicted run size, adopted annually, and 

provide for emergency clauses so that as the runs return the regulations can be made to 

reflect their actual condition. [Tr. 1374, l. 10-16] Conversely, spawning escapement 

should be a fixed number of fish and should not fluctuate with varying run sizes. [Tr. 

1070, l. 5-23; Tr. 1419, l. 25 to 1420, l. 6; Tr. 1446, l. 19-25] 

183. The State does not limit the number of sport fishermen, either resident or 

nonresident, who may fish for either salmon or steelhead or the number of commercial 

fishermen who may fish for salmon in waters under its jurisdiction. [Ex. JX-2a, § 2.2.5.2, 

p. 57; Tr. 172, l. 14-19] In 1971 nearly four times as many persons obtained Washington 

punch cards to sport fish for salmon as obtained them to sport fish for steelhead. [Ex. JX2a, § 3.2.7, p. 125, § 3.5.4, p. 137] 

184. The State [**196] of Washington, by statute and regulation, has set aside the 

steelhead for the use and benefit of a special interest category of persons. Its limitations 

on the means by which, the purpose for which, and the numbers which any person can 

take of this species are designed to promote the use of this fish solely as a recreational 

attraction for residents of the state and nonresident tourists. [FPTO §§ 3-428, 3-436, 3-

469; Tr. 112, l. 11-23; Tr. 1652, l. 3-13] 

185. At the present time, the Department of Fisheries cannot completely control the 

ocean harvest of chinook and coho salmon because most of these fish are caught in 

waters beyond the state's jurisdictional three-mile limit. [Tr. 1144, l. 18-25; Tr. 3208, l.

11-13; Tr. 3505, l. 11 to 3506, l. 5; Tr. 3941, l. 21 to 3942, l. 2; Ex. F-32, p. 20, l. 9-13] A 

restriction on the ocean troll fishery in Washington waters probably would not greatly 

increase the number of chinook salmon returning to Puget Sound, because Puget Sound 

chinook salmon migrate north out of the Strait of Juan de Fuca. [Ex. JX-2a, Fig. 7, p. 

241] Canadian fishermen, fishing outside Washington territorial waters, are harvesting 

[**197] an estimated 65 per cent of Puget Sound-origin chinook and over 50 per cent of 

Puget Sound-origin coho salmon. [Ex. F-28, p. 13, l. 7-15; Ex. F-32, p. 11, l. 4 to p. 12, l.

1; Tr. 3603, l. 1 to 3604, l. 2] Seventy-five per cent of the ocean catch of Olympic 

Peninsula-origin chinook salmon occurs off the coast of British Columbia and 

southeastern Alaska. [Ex. JX-2a, § 1.6.2, p. 29] Ninety per cent of the ocean catch of 

Puget Sound-origin chinook salmon occurs off the coast of British Columbia and 

southeastern Alaska. [Ex. JX-2a, § 1.6.3, p. 29-30] Fifty per cent of the ocean catch of 

Olympic Peninsula-origin coho salmon occurs off the coast of British Columbia. [Ex. JX2a, § 1.6.7, p. 33] 

[*387] 186. Exhibits F-7 through F-17 show the average annual distribution of catch in 

all waters of salmon from rivers on which there are Indian fisheries in the case area, 
80

excepting the Quinault and Queets Rivers, for all species in the period 1965-1970 and for 

pink salmon in the odd years from 1959 to 1969. [Exs. F-7 through F-17; Ex. F-28, p. 32, 

l. 3 to p. 33, l. 9; Tr. 1180, l. 20-23] On an average the following percentages of harvest 

from the [**198] respective stocks in these rivers during this period occurred in waters 

outside the territorial jurisdiction of the State of Washington: chinook, 58.9%; coho, 

55.3%; pink, 29.4%; chum, 2.6%. [Ex. F-7] Other than control over fish landings in the 

State, there are no fish management regulations or practices which the State of 

Washington can unilaterally employ to effectively control fishing beyond its territorial 

waters. [Exs. F-32, p. 20, l. 9-13; F-28, p. 12, l. 19 to p. 13, l. 6] 

187. Gill net fishing of the type and operation utilized by the Plaintiff tribes is not an 

inherently destructive means of harvesting salmonids (including steelhead), and it may be 

regulated and controlled sufficiently to prevent over-harvesting. [FPTO § 3-472; Ex. 

USA-36, p. 5, l. 18 to p. 6, l. 13] The amount of fish taken in nets may be regulated by 

regulation of net length, the type of the net, mesh size, the place of fishing and periods for 

taking. Net fisheries and hook-and-line fisheries can be regulated, from total prohibition 

to total permission, with all degrees of restrictions in between. [FPTO § 3-438] 

188. From a biological standpoint one of the standards for determining [**199] the 

amount of fishing time to allow an Indian tribe is the anticipated impact of the tribe's 

fishery on the run. This is influenced by the number of fishermen and amount of gear that 

will participate. [Tr. 3840, l. 15 to 3841, l. 10] It is estimated by the Department of 

Fisheries that the following numbers of fishermen fish in the Indian, sport and 

commercial fisheries in the case area: Indian 794; sport 283,650; commercial 6,600. [Tr. 

3645, l. 2 to 3649, l. 17] 

189. Because Indian tribes sometimes sell their fish directly to out-of-state buyers, state 

catch records of Indian catch obtained from fish buyers in the State of Washington will 

not necessarily show the entire commercial catch taken by Indian fishermen. [Tr. 3478, l.

17 to 3479, l. 5; Tr. 3502, l. 19 to 3504, l. 2] 

190. Historically, limitations on the Indians' catch were controlled by: 1) the needs of the 

relatively small human population; 2) the efficiency of the Indians' fishery as affected by 

natural phenomena; and, 3) tribal custom and religious commandments. More recently, 

individual Indian tribes have established written regulations controlling the taking of fish 

by their members. [**200] Others have practiced limitations without formal written 

regulations. [Ex. JX-2a, § 2.10.4, p. 97] From time to time each of the Plaintiff 

reservation tribes has enacted written fishing regulations. These regulations deal with the 

times, places and manner of fishing. Examples of current tribal regulations are included 

in Exhibit JX-2b. [FPTO § 3-651] Other examples are contained in Exhibits L-9 and QN1. [Ex. JX-2a, § 2.10.4, p. 97; Tr. 2997, l. 2-15; Tr. 3487, l. 18-22] 

191. Since 1967 the United States Bureau of Indian Affairs has issued identification 

cards, or approved the issuance of tribal identification cards, co-signed by an authorized 

Bureau official and tribal chairman, to persons who establish to the satisfaction of both 

the Bureau official and the tribe that they are members of a BIA-recognized Indian tribe 
81

which the Bureau recognizes as having off-reservation fishing rights pursuant to any of 

the treaties listed in Paragraph 1 above. [FPTO § 3-650; Exs. USA-46c, 46d, 46e, 46f, 

46g, 47 and 48; Exs. PL-5 and 48; Ex. USA-54, p. 4, l. 18 to p. 9, l. 23] Regulations 

issued by the Secretary of the Interior and published in the Code of Federal Regulations 

[**201] [*388] (at 25 CFR Part 256) require that such cards be carried, and be shown on 

demand to state, federal or tribal enforcement officers, by any Indian exercising treaty 

fishing rights outside of Indian reservations. The regulations provide that such cards will 

be prima-facie evidence that the authorized holder is entitled to exercise the treaty fishing 

rights specified thereon. In 1967 the Bureau of Indian Affairs notified state authorities, 

including the Department of Fisheries and the Department of Game, of the procedures 

concerning the issuance of such cards and has furnished them facsimiles of the BIA 

cards. The Bureau of Indian Affairs maintains lists of all persons to whom such BIA 

cards have been issued. Upon specific request from state authorities concerning the 

Indian status or tribal membership of specific individuals, the Bureau has advised state 

authorities of the information it has on such status. [Exs. USA-46c, 47, 48 and 54, p. 4, l.

18 to p. 9, l. 23; Tr. 1585, l. 20 to 1586, l. 15; Tr. 1588, l. 1-14; Tr. 1601, l. 2-9] 

192. Tribal fishing regulations are not technically reviewed for their content in terms of 

conservation goals prior to [**202] the time of or as a condition for their approval by the 

Bureau of Indian Affairs. However, the Bureau has asked the federal Bureau of Sport 

Fisheries and Wildlife to work with Bureau of Indian Affairs' staff and with the tribes in 

the review of tribal regulations before they become effective, so that there is some 

biological input. [Tr. 1607, l. 3 to 1611, l. 2] 

193. Enforcement of state fishing laws and regulations against treaty Indians fishing at 

their usual and accustomed fishing places has been in part responsible for prevention of 

the full exercise of Indian treaty fishing rights, loss of income to the Indians, inhibition of 

cultural practices, confiscation and damage to fishing equipment, and arrest and criminal 

prosecution of Indians. [Tr. 2623, l. 6 to 2633, l. 22; Tr. 2694, l. 12-23; Tr. 2854, l. 24 to 

2865, l. 6; Tr. 2876, l. 21 to 2878, l. 4; Tr. 3004, l. 25 to 3012, l. 8; Tr. 3014, l. 4-13; Tr. 

3017, l. 9 to 3022, l. 3] 

194. In dealing with fishing by members of the Plaintiff tribes in a manner different from 

that expressly provided in their respective regulations, both the Game Department and 

Department of [**203] Fisheries have seized nets and other property of those members 

and have released, confiscated and attempted to prevent the sale and transportation of 

anadromous fish which are under their respective regulatory jurisdictions and which have 

been caught by those members. [FPTO §§ 3-5, 3-7] 

195. Both the Fisheries and Game Departments have, on several occasions, disposed of or 

retained for unreasonably long periods of time (often extending over longer periods than 

one year) boats, nets, whether attended or unattended, or other property of members of 

the Plaintiff tribes and fish taken from the nets of such members. The tribal members 

have not been notified of the institution of any proceedings for, or acquisition of, judicial 

confiscations or forfeitures of said items by the State. [Tr. 604, l. 14 to 605, l. 18; Tr. 625, 

l. 4 to 627, l. 5; Tr. 2623, l. 6 to 2633, l. 22; Tr. 2657, l. 14 to 2659, l. 10; Tr. 2687, l. 12 
82

to 2688, l. 16; Tr. 2876, l. 21 to 2878, l. 4; Tr. 3195, l. 17 to 3198, l. 16; Tr. 3204, l. 9 to 

3205, l. 19] 

196. (This Finding of Fact also may be, in part, a Conclusion of Law.) As applied to 

Plaintiff [**204] tribes and their members, the restrictions imposed by each of the 

following state statutes and regulations are broader than are necessary for the 

preservation of the fishery resource: 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. 

197. The court has fully considered defendant Department of Fisheries' proposed 

Findings of Fact 111-115, 118-122, 125, 126, 129, 133 and 137, joined in [*389] by 

defendant Department of Game. These proposed Findings of Fact, which to some extent 

connote Conclusions of Law, generally reflect opinions, conclusions and judgments of 

Fisheries' officials regarding the requirements and procedures of an efficient management 

program for anadromous fish. While most of these proposals appear to be reasonable, 

general policies or goals, in many instances their factual or legal validity cannot be 

determined in vacuo, but must await specific factual situations for application. On the 

present record, this court is not satisfied that these proposed Findings of Fact either are or 

are not established. [**205] Therefore, subject to the continuing jurisdiction retained in 

this case, the court reserves ruling on the above-specified proposed Findings of Fact at 

this time. 

DEPARTMENT OF FISHERIES POLICIES AND PRACTICES 

198. The Fisheries Department has broadly summarized its objectives as follows: 

"1. To conserve and, where possible, expand the primary fishery resources; 

"2. To promote optimum use of the fisheries resource by fishermen (commercial, 

sport, and Indian), the fishing industry, and general public; 

"3. To encourage harvesting of the sustainable yield of fish in a manner that 

provides the greatest return to the economy; 

"4. To develop public understanding of the fishery resource, its environment, and 

the philosophy governing exploitation of the resource, and to maintain public 

respect for the law." 

The Department manages and regulates the harvest of the salmon resource for each of the 

three distinctive fisheries which it recognizes, i.e., commercial, sport and Indian. The 

differences in use objectives of these three fisheries dictate that separate management 

policies be applied to each. [Ex. JX-2a, § 2.5 pp. 67-68] Typically, the special treaty 

[**206] Indian fisheries are the last of the user groups to take from the run. [FPTO § 3-
83

601] 

199. In regulating the various salmon fisheries, the Department of Fisheries compiles and 

examines daily catch reports, and compares those reports with reports in previous years. 

If the comparison and other indicia of run size should indicate that the particular run is 

larger than the Department's predicted run size, the Department generally extends its 

seasons; if the comparison shows a smaller run, the department takes emergency action to 

restrict the length of its seasons. [FPTO § 3-580] 

200. The Department of Fisheries begins planning its commercial salmon regulations in 

December preceding the season which opens the following summer. Regulation 

proposals are prepared in January and it is at that time that it is desirable to have 

information on the Indian fishery to be undertaken in the forthcoming season. [Tr. 1079, 

l. 7 to 1082, l. 18; Tr. 1088, l. 19 to 1089, l. 2; Ex. F-5] 

201. A principal method of limiting the commercial take from the salmon runs is 

limitation on the number of days when fishing is permitted. The Department attempts to 

provide that the number of [**207] days permitted is at the same point in a run, relative 

to its peaks and low points, such that, if the commercial fishermen in the North Sound are 

given their days during the time when the run is at its peak in those areas, the Indian 

fishermen in the rivers are being given their days during the run's peak in the rivers. 

[FPTO § 3-585] The Department of Fisheries feels it can regulate both commercial and 

sport fisheries to increase returns to Indian river fisheries to some extent. [Tr. 894, l. 24 to 

895, l. 25] For example, the Department of Fisheries has closed East Pass at Vashon 

Island to commercial fishing. The result of this action has been to increase the salmon run 

available to treaty Indians [*390] in the Puyallup River by further restricting commercial 

fishing in the Sound. [FPTO §§ 3-583; 3-599] 

202. It is the policy of the Department of Fisheries where there are mixed stocks of fish, 

one stock of which is in abundance, that it is sometimes in the interest of proper 

utilization of the total fishery resource to allow a harvest on the mixed stocks in order to 

prevent waste or overescapement of the abundant stock, even though this harvest may 

take some fish [**208] from a stock which has no harvestable surplus. In such case a 

value judgment must be made as to the proper regulatory balance to be stricken. [Tr. 863, 

l. 16 to 865, l. 16] Puget Sound, and the Columbia River to the extent fish are bound for 

different tributaries, both have fisheries on mixed stocks. [Tr. 846, l. 23 to 847, l. 7] 

203. Wastage of fish and potential harm to other species and to the spawning stock of the 

same species may occur as a result of overescapement of salmon at spawning grounds. 

The Department of Fisheries believes that it is not properly managing the salmon 

resource if fish in excess of the number needed for spawning escape to the spawning 

grounds. The Department has some capability to utilize the treaty Indian River net 

fisheries so as to harvest fish which would be surplus to spawning needs. It has utilized 

this capability in conjunction with the Muckleshoot, Nisqually and Skokomish Tribes. 

Weather and the physical conditions of the stream limit this capability. [FPTO § 3-605] 
84

204. The Department of Fisheries has authority to impose limitations on the time, place 

and manner of sport and commercial fishing for salmon in the offshore [**209] areas 

within the three-mile limit, the Strait of Juan de Fuca and Puget Sound which will 

effectively increase the size of salmon runs through the usual and accustomed fishing 

places of the Plaintiff tribes. [FPTO § 3-615] 

205. The Department of Fisheries recently has been given power to authorize the moving 

of fishing gear to places where the Department wants to harvest surplus fish in the rivers 

and to limit the entry into the fishery so authorized. [FPTO § 3-611] 

206. Within the last few years the Washington Department of Fisheries has authorized 

special limited gill net fisheries for chinook salmon and limited entry purse seine 

fisheries for coho salmon in marine waters of Carr Inlet, including the milling area off the 

mouth of Minter Creek, to crop surplus chinook and coho salmon returning to the 

Department's Minter Creek Hatchery. The extent of the surplus is influenced by 

limitations imposed on prior marine fisheries to assure adequate escapement to other 

south Sound streams and is evaluated when it appears at the Minter Creek mouth area. 

The authorized fishery is then monitored daily to determine its proper duration. 

Participation in the Minter Creek purse seine fishery [**210] is determined by a drawing 

open to any licensed purse seiner who applies. The Department of Fisheries has neither 

requested any of the Plaintiff tribes to join in that fishery nor considered the question of 

whether unlicensed treaty Indians should be allowed to participate in the fishery. At least 

one of the Plaintiff tribes has members who operate in a marine fishery closer to Minter 

Creek than many of the non-Indian applicants for the drawing. [Tr. 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-
85

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 onreservation 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] 
86

[*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. USA37, 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] 
87

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. JX2a, § 2.2.5.5, p. 59] The Game Department views its responsibilities as a state agency 
88

[**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 nonIndian 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; 
89

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 
90

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 offreservation 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 
91

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 
92

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. 
93

[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] 
94

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 onreservation 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] 
95

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] 
96

Conclusions of Law 

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 
97

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, 
98

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, 
99

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. 
100

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. 
101

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. 
102

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 
103

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 treatysecured 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. 
104

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 
105

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; 
106

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 
107

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 those boundaries reserved for exercise "in common with citizens of the 

Territory." 

16. The Stevens' treaties do not reserve to the Treaty Tribes any specific manner, method 

or purpose of taking fish; nor do the treaties prohibit any specific manner, method or 

purpose. Just as non-Indians may continue to take advantage of improvements in fishing 

techniques, the Treaty Tribes may, in exercising their rights to take anadromous fish, 

utilize improvements in traditional fishing methods, such for example as nylon nets and 

steel hooks. 

17. The exercise of a Treaty Tribe's right to take anadromous fish outside of reservation 

boundaries is limited only by geographical extent of the usual and accustomed places, the 

limits of the harvestable stock and the number of fish which non-treaty [**264] 

fishermen shall have an opportunity to catch, as provided in the Decision of the Court. 

18. Because the right of each Treaty Tribe to take anadromous fish arises from a treaty 

with the United States, that right is preserved 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. 

19. The treaty phrase "in common with" does not secure any treaty right or privilege to 

anyone other than the Treaty Tribes, nor does that phrase qualify any Indian's treaty right 

to fish, except as provided in the Decision of the Court. 

20. Except for tribes now or hereafter entitled to self-regulation of tribal fishing, as 

provided in the Decision of the Court, the right of a Treaty Tribe to take anadromous fish 

may be regulated by an appropriate exercise of State power. To be appropriate, such 

regulation must: 

a. Not discriminate against the Treaty Tribe's reserved right to fish; 
108

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

c. Be shown by the State to be both reasonable and necessary to preserve and maintain 

the resource. When State law or [**265] regulations affect the volume of anadromous 

fish available for harvest by a Treaty Tribe at usual and accustomed places, such 

regulations must be designed [*408] so as to carry out the purposes of the treaty 

provision securing to the Tribe the right to take fish. 

21. If any person shows identification, as provided in the Decision of the Court, 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 which affects 

the time, place, manner, purpose or volume of his harvest of anadromous fish, unless the 

State has previously established that such action is an appropriate exercise of its power. 

22. The application of currently effective laws and regulations of the State of Washington 

specified in the Conclusions of Law which affect the time, place, manner and volume of 

off-reservation harvest of anadromous fish by Treaty Tribes is unlawful for the reasons 

also stated in the Conclusions of Law. 

23. All Findings of Fact and Conclusions of Law pertinent to the nature, scope and effect 

of the fishing rights of the Treaty Tribes are specifically incorporated by reference 

[**266] herein. 

24. The court retains jurisdiction of this case for the life of this decree to take evidence, to 

make rulings and to issue such orders as may be just and proper upon the facts and law 

and in implementation of this decree. 

25. Appointment of a Master, technical experts and an Advisory Committee on Treaty 

Right Fishing will be considered and determined as provided in the Decision of the court. 

26. Plaintiffs' application for an injunction will be considered and determined upon 

hearing thereof at the earliest practicable date following entry of this judgment and 

decree. 
109

Rulings on Fisheries’ Questions Per 

Reconsideration Motion 

1. Is the state or its officers authorized to arrest a member of one of plaintiff tribes fishing 

in contravention of state law outside the area of his tribe's usual and accustomed fishing 

grounds, enumerated in this Court's Findings of Fact or as determined in a subsequent 

proceeding in this Court, even though such individual may prove, in his defense in any 

criminal proceeding resulting from his arrest, that such area in which he was fishing is a 

usual and accustomed fishing ground of his tribe? 

A. Yes. In the hearings of March 5 and 6, 1974, [**267] the court directed each plaintiff 

tribe to determine and report to Fisheries and Game, in advance of a particular run or 

season, the names of tribal members who expect to fish in the period in question, the 

amount and type of gear to be used, and the usual and accustomed locations where such 

fishing will be conducted. After a reasonable time for compliance, any tribal member 

fishing in a location other than as reported by his tribe, is acting in violation of the orders 

and decision of this court. If such tribal member is also fishing in violation of state law, 

he or she is subject to state arrest and criminal prosecution; provided, that if the defendant 

proves he was fishing at a usual and accustomed ground or station of his tribe, although 

not previously designated as such, it shall be a defense to any such prosecution. 

2. Can the state meet its burden of proving the necessity for a state regulation of an offreservation Indian treaty fishery by showing that: 

(a) The off-reservation catch, other than fish needed for personal food or 

ceremonies, of the tribe or tribes for which regulation is sought is in excess of 

50% of the harvest taking place by all fishermen in the area [**268] of the tribe's 

or tribes' usual and accustomed fishing grounds; and 

(b) such regulation is necessary for conservation? 

A. No. While the showing specified in the question might be sufficient on a particular run 

of fish in a particular stream or area, it would be necessary to [*409] further show how 

the particular take affected the total take of all treaty right fishermen at all usual and 

accustomed grounds and stations. The State must regulate non-Indian fishing in marine 

areas to assure, as far as possible, that an adequate number of harvestable fish reach the 

Indian fisheries. 

3. What is the status of a tribe pending its compliance with the Court's requirements to 

identify and certify its fishermen and to provide the state with fish catch statistics? 

A. During the period pending compliance with the identification and certification 

requirements regarding the fishermen and tribal catch statistics reports, each tribe shall 

provide its fishermen with such credentials as are reasonably practicable, and a tribe, if 
110

otherwise qualified, will be entitled to self-regulation status. 

4. Is the state or its officers authorized to arrest a member of one of plaintiff tribes fishing 

[**269] in contravention of state law without identification as required by the Court's 

opinion, even though such individual may prove, in his defense in any criminal 

proceeding resulting from his arrest, that he is a member of one of the plaintiff tribes? 

A. The answer to this question is similar to the answer to question No. 1 above. In its 

Final Decision # I, the court required each tribe to provide its members with proper 

identification. Failure of an individual tribal fisherman to have such identification on his 

person when fishing, or when going to or from a fishing site, will cause him to be subject 

to state authority. 

5. In proving regulations to the Court or in establishing findings before a special master: 

(a) What specific elements must the state show to satisfy the requirement that the 

state prove in advance that its regulations are necessary for conservation? 

(b) What specific elements must a tribe show to satisfy the qualifications that its 

fishing regulations will not adversely affect conservation? 

A. (a) Final Decision # I prescribes the applicable standards and elements required for the 

state to show a specific regulation is necessary for conservation. These [**270] include 

requirements that the state utilize run size predictions, valid escapement goals, the least 

restrictive regulation of tribal fishermen and that the state view the entire run as a 

divisible resource. Experience with actual proposed regulations may disclose other 

specific elements which must be shown in advance of enforcement of state regulations 

against treaty right fishermen. 

(b) Tribes shall promptly prepare regulations and submit them to Fisheries and Game, 

who will examine the proposed regulations for alleged inadequacies. The parties will 

confer with a view toward agreement; failing that, proposed regulations will be 

reviewable by the court on application of either party. 

6. If the state can show that it is necessary for conservation to restrict off-reservation 

treaty fishing on a threatened run of a species destined for one river, but that other runs of 

the same species destined for other rivers are abundant enough to permit harvesting by 

treaty and non-treaty fishermen in accordance with the opinion of the court, may the state 

restrict the treaty off-reservation fishery on the threatened run even though non-treaty 

fishermen fishing on mixed runs will incidentally impact [**271] the threatened run? 

(See F.F. 202) 

A. The state would not necessarily be allowed to operate in the manner set forth in the 

question. Various other factors may be involved. The state must explore alternatives to 

fishing on mixed stocks, consistent with the goal of full harvest of the resource. 
111

7. Do fish caught by a member of one of the plaintiff tribes in the all citizen fishery count 

toward the off-reservation [*410] 50% share of his tribe? (See F.F. 32) 

A. Fish caught by a member of one of the treaty tribes while fishing in the all-citizen 

fishery, at a usual and accustomed fishing place of the tribe, will be included in the tribe's 

off reservation share of the harvest. If a tribal member fishes in the all-citizen fishery at a 

location which is not a usual and accustomed ground or station of his tribe, that 

individual's catch will not count toward the tribal off-reservation share. 

8. If a plaintiff tribe meets the qualifications and conditions for self regulation, may the 

state adopt that tribe's off-reservation fishing regulations, or other regulations approved 

by the Court, and enforce the same, i.e., is there pre-emption or concurrent jurisdiction 

between the state and [**272] the tribe? (See C.L. # 37) 

A. As stated in Conclusion of Law No. 37, the state and treaty tribes have concurrent 

jurisdiction with regard to regulation of the fishery resource. If, however, the treaty tribe 

is self-regulating, the state has only limited jurisdiction with regard to such tribe. The 

state can adopt regulations of a self-regulating tribe, but only if state promulgation is 

consistent with requisite administrative procedures. Furthermore, before any particular 

state regulations can be enforced against any treaty right fisherman, the state must 

additionally satisfy the requirement of showing the specific regulation is reasonable and 

necessary for conservation. Upon satisfaction of these requirements, self-regulating tribes 

must adopt state regulations found reasonable and necessary for conservation, as directed 

in Condition (a) at page 32 of FD#I. Also the state has authority to monitor the fishing 

activities of self-regulated tribes and to report alleged violations of valid state regulations 

to tribal authorities and, if appropriate action is not taken by the tribe, to the court for 

determination. 

9 and 10 -- There are no questions so numbered. 

11. May the state adopt [**273] and enforce, as its own regulation the regulation of a 

plaintiff tribe, which has not qualified to be self-regulating, without independently 

proving to the Court that such regulations are necessary for conservation? 

A. The answer to this question is similar to the answer to question 8 above, except that 

with respect to non self-regulating tribes, the state may enforce properly promulgated 

regulations which have been established to be reasonable and necessary for conservation. 

12. Where two or more Indian tribes have treaty rights to fish in the same off-reservation 

area, how is the off-reservation 50% treaty share to be calculated? 

A. The division among tribes of the Indian off-reservation share of the harvest shall be 

determined by the tribes fishing in the same usual and accustomed places. The only 

concern of the state would be to determine (a) whether the total harvest by all tribes 

exceeds 50%, and (b) whether any tribe or group of tribes will cut into escapement when 

fishing as the tribes had planned. 
112

13. Where two or more Indian tribes have treaty rights to fish in the same off-reservation 

area and the state, being unable to prove in advance the necessity of its regulations 

[**274] for conservation, adopts the regulations of one of the treaty tribes entitled to fish 

there, may the state enforce its regulation as to all treaty fishermen entitled to fish there? 

A. State enforcement of fishing regulations adopted from either self-regulating or non 

self-regulating tribes is covered by the answers to questions 8 and 11 above. 

14. Does a plaintiff tribe, which qualifies as a self-regulating tribe, have authority to 

enforce its off-reservation fishing regulations against persons who are not members of 

such tribe? 

A. No. A self-regulating tribe has authority only over its own members. [*411] However, 

the tribes should report apparent misuse of the fishery to the state if a non-Indian is 

involved or to the tribe of a treaty right fisherman, and if appropriate action is not taken, 

such report should be brought to the court for such action as the court finds appropriate. 

15. If a tribe does not qualify as a self-regulating tribe and the state is unable to prove in 

advance the necessity of its regulations for conservation, does it necessarily follow that 

treaty fishing in the tribe's off-reservation usual and accustomed fishing area must be 

unregulated? 

A. If a [**275] member of a non self-regulating tribe is alleged to be guilty of misuse of 

the fishery, such incident shall be reported to his tribe for adjudication, and failing 

prompt and appropriate action there, the matter should be brought to court for such action 

as the court finds appropriate. 

16. How does the "alternative means" requirement in paragraph number 6 on page 36 of 

the Court's Opinion relate to the percentage share plan for off-reservation fisheries in 

paragraph 7 on pages 36-37 of the same? 

A. The precise answer to this question is difficult because paragraph 6 on page 36 has 

been taken out of context and contrasted with the "sharing equally" concept. Taken 

together, in context, this language means that the state may not allow an overharvest by 

non-treaty fishermen, and then justify restriction of treaty right fishing by the 

requirements for spawning escapement necessary for conservation. Because of the 

locations of their usual and accustomed fishing places, treaty Indians are usually the last 

user group to harvest the resource. Because also the number of non-treaty right fishermen 

greatly exceeds the number of treaty right fishermen, the state must generally regulate the 

harvest [**276] by non-treaty right fishermen in order to assure, insofar as possible, that 

an adequate number of fish reach usual and accustomed fishing grounds to provide both 

the Indian tribal share of the harvest and the necessary spawning escapement. 

17. For the purpose of exercising treaty fishing rights, may an Indian only be enrolled in 

one tribe? 
113

A. Yes. The practicalities of regulatory enforcement require that any treaty right Indian, 

eligible for enrollment in more than one tribe, may be certified and identified for fishing 

purposes by only one tribe. 

18. Does the 1937 Convention between the United States and Canada (50 Stat. 1355), 

which establishes the International Pacific Salmon Fisheries Commission with 

jurisdiction to regulate the harvest of pink and sockeye salmon in the Strait of Juan de 

Fuca and northern Puget Sound, modify the Stevens treaties, so that plaintiff tribes which 

have usual and accustomed fishing grounds within the convention waters must fish in 

conformity with the regulations promulgated by the Commission and enforced, pursuant 

to 16 U.S.C. § 766d, by the State of Washington? (See F.F. 214) 

A. In the opinion of this court, the 1937 convention does not explicitly [**277] or 

implicitly modify the Stevens' treaties. However, this court believes that treaty right 

tribes fishing in waters under the jurisdiction of the International Pacific Salmon 

Fisheries Commission must comply with regulations of the Commission. 

19. Are salmon runs, e.g., Deschutes River and Minter Creek, which are entirely 

artificially propagated, as distinguished from wild salmon runs which are artificially 

augmented, excluded from any calculation of the treaty fishermen's off-reservation 50% 

share as defined in the Court's opinion? 

A. No. However, this ruling is subject to further consideration of the artificial 

propagation issue during pretrial and trial of the environmental issues. 

[*412] 20. Can a person who is not an enrolled member of a particular treaty tribe 

exercise, or assist in the exercise of, the treaty fishing right of, or on behalf of, a member 

of such tribe? 

A. A treaty right fisherman may secure the assistance of other tribal fishermen with off 

reservation treaty fishing rights in the same usual and accustomed places, whether or not 

such fishermen are members of the same tribe or another treaty tribe. A treaty right 

fisherman may also be assisted by his or [**278] her spouse (whether or not possessing 

individual treaty rights), forebears, children, grandchildren and siblings. 
114

Proposed Amendments and Rulings Thereon 

21. The Court's Opinion, Judgment and Decree be amended to require that the 

identification cards issued by the tribes, as required in the Court's Opinion, contain 

thereon the holder's tribal enrollment number. 

A. There being no objection by plaintiffs, the amendment is adopted. 

22. The Court's Opinion, Judgment and Decree be amended to require unattended gear to 

be marked by an identification tag issued by the tribe, as is required by the Yakima Tribe. 

(See F.F. 159) 

A. The principle that unattended gear be marked by an identification tag is adopted; 

however, the specific type of tag to be used will be later determined by the court unless 

the parties can agree thereon. 

23. Finding of Fact No. 101 be amended to include: Hatchery returns of fall chinook 

salmon to the Department of Fisheries Puyallup Hatchery were 22 fish as of the week of 

September 15, 1973. At a corresponding time in 1972, there was a return of 115 fall 

chinook salmon. The projected return of Puyallup River fall chinook salmon to the 

Puyallup Hatchery for [**279] the 1973 run was 132 fish, which compares with the 

previous all time low of 241 fish during a twenty year period commencing in 1953. (Tr. 

4213, l. 21 to 4214, l. 23) 

A. Denied. The data specified in the first two sentences are correct, but incomplete and 

out of context and therefore misleading. The first figure in the last sentence is a 

speculative estimate rather than established fact and therefore contrast to an actual prior 

year figure is also misleading. 

24. Finding of Fact No. 96 and Conclusion of Law No. 41 be amended to delete RCW 

75.08.260 from the list of specific statutes and regulations declared to be unlawful [Note: 

This statute makes violation of fishery statutes and regulations a gross misdemeanor. If it 

cannot be applied to treaty fishermen in instances where fishery regulations have received 

prior approval by the Court, Fisheries is without any enforcement of its valid regulations. 

Fisheries has no authority of its own to make violation of its regulations unlawful. That 

power rests with the legislature.] 

A. Denied, subject to modification as set forth in paragraph 6 of the injunction entered 

March 22, 1974. 

25. Findings of Fact Nos. 153 and 158 be amended [**280] to delete references to the 

fact therein stated that the Yakimas sold commercially fish taken by them in the case 

area, and to add the following: 
115

At the time of the treaties the Indians of the Yakima Tribe used fisheries located in the 

Puget Sound area for the purpose of obtaining salmon and steelhead for their subsistence 

and trade with other Indians. [Tr. 3299, l. 4-7; Ex. F-35, p. 11, l. 15-19, p. 13, l. 3-7; Ex. 

Y-13, p. 9, l. 8-14]. 

A. After consideration in context of FD#I and the record, denied. 

26. Conclusions of Law be amended to add the following Conclusion: 

The Yakima Tribe's treaty right to fish within the case area is subject to the consent of 

other treaty tribes in whose usual and accustomed fishing places the Yakima Tribe also 

fished at treaty times. (See F.F. 153) 

[*413] A. After consideration in context of FD#I and the record, denied. 

27. The Court's Opinion, Judgment and Decree be amended to indicate that the Quinault 

and Yakima Tribes do not meet Condition (a) [tribal off-reservation fishing regulations] 

of the Qualifications and Conditions established by the Court in its opinion to enable 

these tribes to be self-regulating, and, therefore, [**281] said tribes may not self-regulate 

their members' off-reservation fishing until such time as all the conditions established by 

the Court are met. [See F.F. 124 and 159]. 

A. Denied as to the Quinault Tribe; the required regulation was filed with the Court 

March 18, 1974. Denied as to the Yakima Nation, effective when that tribe adopts a 

regulation comparable to that filed by the Quinault Tribe. 

28. The Court's Opinion, Judgment and Decree be amended to provide a method for the 

state to enact emergency regulations necessary for conservation. [See F.F. 199]. Such 

provision should recognize the provisions of the Washington Administrative Procedures 

Act for enactment of emergency regulations and provide a prompt method for judicial 

review, specifying the requisite notice and hearing requirements. Such procedure should 

enable the state to act within a twenty-four hour period. 

A. Denied, except as the subject is now covered by paragraph 19 of the Injunction 

entered March 22, 1974. 
116

Injunction 

 

Plaintiffs have moved the court for an injunction against defendants. The court has 

already determined that plaintiffs are entitled to injunctive relief against the continuation 

and repetition [**282] of acts and omissions which are in violation of the treaty-secured 

rights of the plaintiff tribes and their members. Defendants and plaintiffs have all 

submitted motions, memoranda, and have made oral argument to the court concerning 

general and specific questions and problems which will or may arise as the court's Final 

Decision #I is implemented. The court is of the firm opinion that the decision must be 

implemented as rapidly and as orderly as is practicable and consistent with conservation 

and protection of the anadromous fish resource, the rights of the Indian tribes, and the 

lawful exercise of state police power. In order to facilitate that implementation, it is 

necessary and desirable to define with specificity the obligations of the parties under the 

decision, making allowance for special practical problems and circumstances which a 

court of equity must heed. 

Of utmost and immediate importance for protection of the fishery resource is the 

fashioning of an interim program for the lawful exercise of state police power over 

persons within state jurisdiction. The facts before this court indicate no reason for 

delaying an implementation of the rights of the plaintiff tribes to [**283] take fish as 

guaranteed to them in their treaties with the federal government, and assuring an 

equitable apportionment of the state's fish harvest between treaty Indian and non-treaty 

fishermen. By adopting a flexible interim program, these goals all can be met. The court 

recognizes, of course, that such an incipient program must be flexible enough to 

accommodate the needs of all parties and the practical realities which exist as a new 

approach to fisheries management is effectuated. 

The parties have raised a number of issues and questions concerning details and timing of 

the decision's implementation. Many such inquiries can be answered only as situations 

arise. Others are answered by defining the obligations of the parties in this injunction. 

The court has already appointed a special master to assist it in resolving future matters 

which arise under the decision and in implementing it. 

Without attempting to anticipate each and every problem or question which may arise, 

the basic obligations of the parties, together with means for resolving future matters, can 

be set forth to guide the conduct of all parties, plaintiff [*414] and defendant. 

Accordingly, the court recognizes [**284] that successful performance of many duties 

imposed upon defendants by this injunction will depend upon plaintiffs' cooperation, 

good faith efforts, and compliance with requirements set forth in Final Decision #I. 

It is not intended that anything in this injunction shall be construed to limit or qualify in 

any manner Final Decision #I or the right of the parties as set forth in that decision. All 

terms used in this injunction shall have the meanings set out in Final Decision #I. As used 

herein, the term "Final Decision #I" means the Final Decision in this cause entered on 
117

February 12, 1974, as modified by the Orders entered March 22, 1974, including the 

Findings of Fact, Conclusions of Law and Decree entered February 12, 1974 which were 

made a part of said Final Decision #I. 

Therefore, it is hereby 

Ordered, adjudged and decreed that the State of Washington; Thor C. Tollefson, Director, 

Washington State Department of Fisheries; Carl Crouse, Director, Washington 

Department of Game; The Washington State Game Commission; the Washington Reef 

Net Owners Association, their agents, officers, employees, successors in interest; and all 

persons acting in concert or participation with any of [**285] them ("defendants") are 

permanently enjoined and restrained to obey, to respect and to comply with all rulings of 

this court in its Final Decision #I and with each provision of this injunction, subject only 

to such modifications as may be approved as a part of an interim program. 

1. Defendants shall: 

a. fully and fairly recognize each of the plaintiff tribes as a tribe holding all rights 

described and declared as to it in Final Decision #I and accord to each the tribal 

rights and powers recognized as to it in that decision; 

b. fully observe and to the best of their ability carry out the provisions and 

purposes of the treaties cited in paragraph 1 of the Findings of Fact; 

c. conform their regulatory action and enforcement to each and all of the 

standards set forth in Final Decision #I; 

d. recognize the fishing rights in the case area of any treaty tribe not a party to this 

case to the full extent declared in Final Decision #I as to the plaintiff tribes and 

perform all acts and duties set forth in this injunction with respect to such 

additional treaty tribe upon the agreement of defendants or determination by the 

court that the tribe is a treaty tribe. [**286] 

2. Defendants shall not interfere with or regulate or attempt to regulate the treaty right 

fishing of members of the Yakima Indian Nation or Quinault Tribe or any other treaty 

tribe during any period for which said tribe has been or is hereafter determined pursuant 

to Final Decision #I to be entitled to self-regulate such fishing by its members without 

any state regulation thereof; provided however that monitoring by the state as stated as a 

condition for self-regulation may be exercised by the state and in case of a threat to the 

resource, the defendants may apply to the court for the exercise of regulatory authority; 

3. Defendants shall not interfere with or regulate or attempt to regulate the treaty right 

fishing of members of any treaty tribe during any period not covered by paragraph 2 

above as to such tribe unless the state first shows to the satisfaction of such tribe or this 
118

court that such regulation conforms to the requirements of Final Decision #I and this 

injunction. 

Provided that notwithstanding any other provisions hereof the state may adopt and 

enforce provisions contained in a duly enacted off-reservation fishing regulation of any 

tribe when: 

a. the [**287] tribe or tribes affected or this court determines that state assistance 

[*415] in the enforcement of such provisions is necessary for conservation; or 

b. the tribe has entered into an agreement under which the state may apply the 

provisions contained in such tribal regulation against the persons exercising the 

treaty fishing rights of such tribe. 

4. Except as otherwise provided in this injunction, defendants shall not enforce any state 

statute or regulation not conforming to the above against any individual fishing at his 

tribe's usual and accustomed fishing place who identifies himself by a tribal membership 

certification carried on his person. Any person exercising a treaty fishing right must have 

his identification as specified in paragraph 5 of this injunction on his person or risk 

lawful arrest by defendants, although it may later be determined or asserted as a 

successful defense in a criminal prosecution that such person was exercising a federally 

protected Indian treaty right to fish. 

5. Identification sufficient to require application of paragraph 4 above shall be: 

a. until June 1, 1974, for plaintiff tribes other than the Sauk-Suiattle, Upper Skagit 

[**288] and Stillaguamish Tribes, any identification which has been issued or 

authorized pursuant to the provisions of 25 C.F.R. § 256.3; 

b. for any of the Sauk-Suiattle, Upper Skagit or Stillaguamish Tribes until the 

membership roll and organizational structure of said tribe is approved by the 

Secretary of the Interior or his delegate, but not beyond one year from the date of 

this injunction, any identification card signed by the tribe's tribal chairman 

certifying the person's membership in the tribe; and 

c. in all the cases after the dates specified in a and b above, only identification 

which includes the name, tribal affiliation, enrollment number (where applicable), 

and a photograph of the holder and is certified by an authorized representative of 

the tribe or the Bureau of Indian Affairs. 

6. Except as otherwise provided in this injunction, defendants shall not apply or enforce 

any of the following statutes or regulations to regulate, limit or restrict the exercise of the 

fishing rights of a treaty tribe as declared in Final Decision # I: 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, [**289] RCW 77.16.040, RCW 77.16.060, 

WAC 220-20-010, WAC 220-015(2), WAC 220-47-020. Defendants may apply RCW 
119

75.08.260 and RCW 77.16.240 with respect to those statutes and regulations which meet 

the requirements of paragraph 3 of this injunction. 

7. In order for this court to determine that a state statute or regulation is reasonable and 

necessary for conservation, defendants must demonstrate that: 

a. the specific statute or regulation is required to prevent demonstrable harm to the 

actual conservation of fish, i.e., it is essential to the perpetuation of a particular 

run or species of fish; 

b. the measure is appropriate to its purpose; 

c. existing tribal regulation or enforcement is inadequate to prevent demonstrable 

harm to the actual conservation of fish; 

d. the conservation required cannot be achieved to the full extent necessary, 

consistent with the principle of equal sharing between treaty and non-treaty 

fishermen expressed in paragraph 14 of this injunction, by restriction of fishing by 

non-treaty fishermen or by other less restrictive alternative means or methods. 

8. The court finds that the state has the responsibility for conserving the resources and 

[**290] accordingly, the state defendants shall diligently and vigorously, [*416] as far as 

circumstances permit, enforce their applicable statutes and regulations in order to 

safeguard the fish resources in the state from depletion or destruction due to unlawful 

fishing by persons subject to the state's jurisdiction. 

9. The state defendants shall begin immediately, and shall continue expeditiously, to 

revise and to reorganize their regulatory action and enforcement so as to conform the 

same to all requirements of Final Decision # I and this injunction. 

10. The state defendants shall publish any state treaty right fishing regulations which may 

be adopted after being shown to be in conformity with the requirements of Final Decision 

# I and this injunction, separate and apart from other state fishing regulations or as a 

separate and plainly labeled part thereof readily distinguishable from other fishing 

regulations. 

11. The state defendants shall not adopt regulations or enforce any statutes or regulations 

affecting the volume of anadromous fish available for harvest by a treaty tribe at usual 

and accustomed places unless such regulations are designed so as to carry out the 

purposes [**291] of the treaty provisions securing to the tribe the right to take fish. 

12. Except as otherwise provided by paragraph 19 hereof, the state defendants shall not 

adopt or enforce any regulations that affect the harvest by the tribe on future runs unless 

there first has been a full, fair and public consideration and determination in accordance 

with the requirements of the Washington Administrative Procedures Act and regulations 

under it. 
120

13. The state defendants shall not regulate or restrain the exercise of treaty fishing rights 

of plaintiff tribes and their members by use of a state statute or regulation of broad 

applicability instead of one specific as to time, place, species and gear. 

14. The state defendants shall not adopt or enforce any regulation which effectively limits 

the harvest by treaty tribes on future runs unless the state's regulatory scheme provides an 

opportunity for treaty tribes and their members to take, at their off-reservation usual and 

accustomed fishing places, by reasonable means feasible to them, an equal share of the 

harvestable number of each species of fish that may be taken by all fishermen; provided

that for the present time defendants shall not [**292] be required to achieve mathematical 

precision in so allocating the fish; 

Provided further that in order to approach more nearly the principle of equal sharing, the 

fish which Indian treaty fishermen shall have an opportunity to catch shall include not 

only an equal share of the total number of fish of any species which are within the 

regulatory jurisdiction of the State of Washington but shall also include an additional 

amount or quantity of fish which shall be determined by agreement of the parties or by 

approval of this court, to reflect the substantially disproportionate numbers of fish, many 

of which might otherwise be available for harvest by Indian treaty right fishermen, caught 

by non-treaty fishermen in marine areas closely adjacent to, but beyond the territorial 

waters of the state, or outside the jurisdiction of the state although within Washington 

waters; 

And provided further that additional adjustments to permit the opportunity for treaty or 

non-treaty fishermen to harvest more or less than an equal share of any species of fish in 

the same or a subsequent year may be made by agreement of the parties, or by application 

by any party to the court for its direction [**293] or approval to compensate or allow for: 

a. unexpected conditions or circumstances; 

b. run size predictions, which, in spite of defendants' best efforts to achieve 

accuracy, were incorrect; 

c. emergency regulations adopted in accordance with the provisions of this 

injunction; 

d. historical fisheries of particular importance to Indians; 

[*417] e. alteration or destruction of usual and accustomed fishing places, or 

environmental conditions, which limit the present day opportunity of treaty 

fishermen to take fish at such places; 

f. measures shown by the state to be reasonable and necessary to assure as nearly 

as possible that there is as full a harvest as possible consistent with Final Decision 

# I. 
121

15. Where the fish allocated to Indian treaty fishermen must be divided among two or 

more tribes having usual and accustomed fishing places through which the fish will pass, 

responsibility for such division shall rest with the tribes involved. 

16. The state defendants shall immediately and expeditiously, consistent with availability 

of funds, begin to gather data and otherwise increase their technical capability to make 

run size predictions, establish [**294] escapement goals, and otherwise to increase their 

ability to manage the fisheries under their jurisdiction and control in a manner fully 

consistent with Final Decision #I. 

17. The state defendants shall, as soon as practicable in advance of every fishing season, 

determine on the basis of the most current and reliable information available to them 

from their own technical staffs, other sources such as the treaty tribes and the United 

States Fish and Wildlife Service, as accurately as possible the number of harvestable fish 

that may be taken during a particular fishing period which amount or quantity shall 

exclude such fish as are required for adequate production escapement and the estimated 

number of fish which will be needed by the tribes for traditional tribal ceremonies and 

personal subsistence consumption by tribal members and their immediate families. In 

carrying out this duty defendants may request treaty tribes to submit to the Departments 

of Fisheries or Game reasonably accurate estimates of (1) the type, location and amount 

of fishing gear expected to be used and the anticipated time for its use; (2) the number or 

quantity of fish they intend and expect to take at their usual [**295] and accustomed 

fishing grounds for traditional ceremonial needs and for consumption by tribal members 

and their families; (3) the number or quantity of fish they intend and expect to take on 

their reservations; and (4) reports of catches of fish by tribal members as to both on and 

off-reservation treaty fishery for the purpose of establishing escapement goals and other 

purposes which are reasonable and necessary conservation purposes. 

18. The state defendants shall make available to a treaty tribe upon its request at the 

earliest practical time, such raw or processed data as they have available from time to 

time relative to the expected size, timing and condition of fish runs in the case area and 

the current level of harvest and escapement. 

19. In order to accommodate unforeseen circumstances as readily as possible, consistent 

with conservation necessity, defendants may utilize procedures for making emergency 

regulations affecting taking of fish under their jurisdiction and control; provided that they 

shall adhere in every respect to the requirements of the Washington State Administrative 

Procedures Act and the regulations under it, and that the approval of such emergency 

regulations [**296] by this court where otherwise required by Final Decision #I and this 

injunction or the consent of all affected tribes has been obtained; provided, however, that 

emergency regulations are enforceable by the state upon filing with the court and service 

upon the tribes affected (or their counsel of record, if any) a copy of such regulations and 

a statement of facts and circumstances of the emergency on which the regulation is based. 

Any such tribe may respond and seek immediate court review. Requests for emergency 

consideration by this court will be given priority and determined speedily. 
122

20. Plaintiffs and defendants shall submit, either jointly or separately, on or before July 

15, 1974, for the court's [*418] approval, a program to implement the interim plan for 

state regulation to be effective until defendants have an opportunity to implement fully all 

aspects of Final Decision #I, but no longer than one year from the date of submission or 

any extensions granted by leave of this court for good cause, and such regulations shall 

be, to the extent possible and practicable, consistent with the spirit of Final Decision #I, 

provided that all parties will be expected to adopt a [**297] flexible, reasonable approach 

in recognition of the special problems of defendants in implementing a new regulatory 

scheme and the fact that many of the tribes are only beginning to develop and exercise 

their full regulatory capabilities. Accordingly, the court will not expect or insist upon 

absolute compliance with the letter of Final Decision #I in reviewing and approving the 

interim plan. 

21. Defendants shall in no manner limit, restrict or inhibit the time, place, manner, 

volume or purpose of the disposition by a member of a plaintiff tribe of fish harvested 

according to his rights and the rights and powers of his tribe, as declared and adjudged in 

Final Decision #I, or interfere with any person purchasing, attempting to purchase, 

transporting, receiving for shipment, processing or reselling, fish taken pursuant to the 

exercise of such rights. 

22. Game defendants may submit to this court a plan for determining the identity and 

origin of fish classified by state law as game fish which are purchased by fish buyers 

within the State of Washington and for monitoring and obtaining statistics and records 

from such fish buyers in order that trafficking in game fish not lawfully taken [**298] by 

treaty Indian fishermen consistent with Final Decision #I in this case, and in violation of 

state law, can be detected promptly and appropriate action taken. 

23. With respect to any item of fishing gear which has been seized or damaged or (as 

provided below) has been claimed to have been seized or damaged, by any of the 

defendants pursuant to statutes, regulations, orders, practices, procedures, or actions 

declared and adjudged unlawful in Final Decision #I and which had not been judicially 

ordered forfeited or confiscated prior to February 12, 1974, the defendant having control, 

or who has been claimed to have control, of such gear shall: 

a. provide all plaintiff tribes a complete list of gear so seized; 

b. return such gear to the owner or his delegate on or before July 1, 1974; or if the 

ownership is unknown or in dispute as of July 1, 1974, return such gear to the 

tribe whose reservation is nearest the place of seizure or as otherwise directed by 

order of the court; and 

c. on or before July 1, 1974, provide this court and all plaintiffs a full accounting 

as to each such item of gear and the disposition thereof. 

24. Any member of any plaintiff tribe shall [**299] be entitled to invoke the continuing 

jurisdiction of this court as provided in paragraph 25 to make a claim to the return of gear 
123

allegedly seized or damaged by any one of the defendants, or of its fair market value, or 

diminution of value of gear returned under paragraph 23 which is not substantially in the 

same condition as immediately prior to seizure, if: 

a. the claim arises from an act of the defendants after September 18, 1967; 

b. he notifies the state Attorney General in writing of his claim on or before May 

31, 1974 or within 30 days after the return of gear under paragraph 23 for claims 

for diminution of value; and 

c. his notice describes in such detail as is possible under the circumstances, the 

time, place and manner of seizure or damage, the identity of the offending persons 

and the size, character and value of the gear. 

As to any such notice, the state Attorney General shall provide a response to [*419] the 

claimant and shall report its contents with his accounting of July 1, 1974. If the response 

disputes the claim of seizure or damage by the defendants, the state shall accord the 

member an opportunity to be heard on his claim and to inspect [**300] any fishing gear 

or other property of the type claimed that is in its possession, for purposes of attempting 

to identify it as claimant's property. Any dispute over the fact of such seizure or damage 

or over the value of such property which is unresolved sixty days after the notification 

submitted pursuant to a above, may be referred to either party to the court as provided in 

paragraph 25. 

25. The parties or any of them may invoke the continuing jurisdiction of this court in 

order to determine: 

a. whether or not the actions, intended or effected by any party (including the 

party seeking a determination) are in conformity with Final Decision #I or this 

injunction; 

b. whether a proposed state regulation is reasonable and necessary for 

conservation; 

c. whether a tribe is entitled to exercise powers of self-regulation; 

d. disputes concerning the subject matter of this case which the parties have been 

unable to resolve among themselves; 

e. claims to returns of seized or damaged fishing gear or its value, as provided for 

in this injunction; 

f. the location of any of a tribe's usual and accustomed fishing grounds not 

specifically determined by Final Decision [**301] #I; and 
124

g. such other matters as the court may deem appropriate. 

In order to invoke such jurisdiction, the party shall file with the clerk of this court and 

serve upon all other parties (through their counsel of record, if any) a "Request for 

Determination" setting forth the factual nature of the request and any legal authorities and 

argument which may assist the court, along with a statement that unsuccessful efforts 

have been made by the parties to resolve the matter, whether a hearing is required, and 

any factors which bear on the urgency of the request. Any party shall have an opportunity 

to respond to, join in, or supplement the request within seven days of its service or such 

other time as may be directed by the court. The court may then decide the matter, hold a 

hearing, or refer the request to the special master to hear evidence and legal argument, as 

soon as is practicable. If the matter is referred to the special master, he shall have 

authority to summon witnesses, issue subpoenas, hold hearings, and take such evidence 

as may be introduced and such as he may deem necessary to call for. The master shall, 

with all convenient speed, submit to the court, with copies [**302] to all parties (through 

their counsel of record, if any), a report of his factual findings, conclusions of law based 

upon them where necessary, along with his recommended disposition and reasons in 

support of it. The parties may submit to the court exceptions to the master's report. The 

master's report shall be subject in whole or in part to consideration, revision or approval 

by the court and in every case the court shall make the final determination. This 

injunction shall not alter or deprive the parties of any right to bring motions and other 

matters before this court as provided in the Federal Rules of Civil Procedure. 

26. Defendants shall submit to the court and all parties on July 1, 1974 and each three 

months thereafter until further order of this court a progress report concerning those 

matters which they are ordered to perform by this injunction, stating in reasonable detail 

the actions taken to carry out the provisions of paragraphs 9 and 16 of this injunction and 

any other pertinent matters affecting fulfillment of the terms of this injunction and/or 

Final Decision #I. 
125

Interim Plan and Stay Order Pending 

Final Decision on Appeal 

The court having considered [**303] the need for an interim plan and having considered 

the interim proposal, now hereby orders that the following interim plan shall be in effect 

and shall be binding upon all parties to this litigation except as to tribes determined to be 

self-regulating. In making this order the court does so reserving jurisdiction to make 

further modifications if the court deems them necessary and further orders a stay of 

portions of the injunction, final decision No. 1 and the decree of February 12, 1974. 

The court now, therefore, orders, adjudges and decrees: 

(1) Effective June 1, 1974, all off-reservation fishing areas in the case area are closed to 

Indian treaty fishing except to the extent that tribes adopt and file with the court and the 

defendants tribal regulations for the fishing activities of their members and specifying the 

areas to be opened to fishing by tribal members. Indians who engage in fishing activities 

not in accordance with those tribal regulations shall be subject to the same provisions of 

the state law as non-Indians engaging in fishing activities. 

(2) The biologists of the defendants and biologists for the tribes shall meet to formulate 

general principles to be utilized as [**304] guidelines to be flexibly applied in the 

adoption of specific fishing regulations. 

(3) The tribes, prior to filing with the court tribal fishing regulations, shall give the 

defendants an opportunity to meet with and confer with tribal representatives on the 

subject of such fishing regulations. 

(4) The defendants are authorized to adopt and enforce with the tribes' approval tribal 

regulations as state regulations as to members of the tribe in question without the 

necessity of proving the need for conservation under the provisions of the decision. 

(5) The defendants will make significant reductions in the non-Indian fishery, as are 

necessary to achieve the ultimate objectives of the Court's decision without requiring 

mathematical precision, but in making such reductions will do so consistent with the 

concept of permitting the full harvest of fish. 

(6) The defendants will monitor the fish catch and the results and statistics from such 

monitoring shall be used in considering the regulatory pattern for the following year. 

(7) The parties shall exchange all available data concerning size, timing and condition of 

fish runs in the case area and the current level of harvest and escapement [**305] in 

response to reasonable requests for the same to assist the parties in carrying out their 

responsibilities. 
126

The court further orders, adjudges and decrees that any portion of Final Decision No. 1, 

the Decree of February 12, 1974, and the Injunction of March 22, 1974, which is in 

conflict with the Interim plan is hereby stayed subject to subsequent orders of this court. 

n1 

[*421] APPENDIX 

TABLE OF CASES 

Alaska Pacific Fisheries v. United States, 248 U.S. 78, 39 S. Ct. 40, 63 L. Ed. 138 (1918) 

Arizona v. California, 373 U.S. 546, 83 S. Ct. 1468, 10 L. Ed. 2d 542 (1962) 

Carpenter v. Shaw, 280 U.S. 363, 50 S. Ct. 121, 74 L. Ed. 478 (1930) 

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L. Ed. 25 (1831) 

Choctaw Nation v. Oklahoma, 397 U.S. 620, 90 S. Ct. 1328, 25 L. Ed. 2d 615 (1970) 

Choctaw Nation of Indians v. United States, 318 U.S. 423, 63 S. Ct. 672, 87 L. Ed. 877 

(1943) 

Confederated Bands of Ute Indians v. United States, 330 U.S. 169, 67 S. Ct. 650, 91 L. 

Ed. 823 (1947) 

Daniel, Attorney General et al. v. Family Security Life Insurance Co., et al, 336 U.S. 220, 

69 S. Ct. 550, 93 L. Ed. 632 (1949) 

Dept. of Game v. Puyallup Tribe (Game-I), 70 Wash.2d 245, 422 P.2d 754 (1967) 

Dept of Game v. Puyallup Tribe (Game-II), 80 Wash.2d 561, 497 P.2d 171 (1972) 

Dick v. United States, 208 U.S. 340, 28 S. Ct. 399, 52 L. Ed. 520 (1908) 

Duwamish, et al., Indians v. United States, 79 Ct.Cl. 530 (1934) cert. denied, 295 U.S. 

755, 55 S. Ct. 913, 79 L. Ed. 1698 (1935) 

Ex Parte Crow [**307] Dog, 109 U.S. 556, 3 S. Ct. 396, 27 L. Ed. 1030 (1883) 

Ferguson, Attorney General of Kansas, et al v. Skrupa d/b/a Credit Advisors, 372 U.S. 

726, 83 S. Ct. 1028, 10 L. Ed. 2d 93 (1963) 

Geer v. Connecticut, 161 U.S. 519, 16 S. Ct. 600, 40 L. Ed. 793 (1896) 

Green v. County School Board, 391 U.S. 430, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968) 
127

Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971) 

Holcomb v. Confederated Tribes of Umatilla Reservation, 382 F.2d 1013 (9th Cir. 1967) 

Johnson v. Gearlds, 234 U.S. 422, 34 S. Ct. 794, 58 L. Ed. 1383 (1914) 

Jones v. Meehan, 175 U.S. 1, 20 S. Ct. 1, 44 L. Ed. 49 (1899) 

Kennedy v. Becker, 241 U.S. 556, 36 S. Ct. 705, 60 L. Ed. 1166 (1916) 

Kennerly v. District Court of Montana, 400 U.S. 423, 91 S. Ct. 480, 27 L. Ed. 2d 507 

(1971) 

Lacoste v. Dept. of Conservation, 263 U.S. 545, 44 S. Ct. 186, 68 L. Ed. 437 (1924) 

Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S. Ct. 216, 47 L. Ed. 299 (1903) 

Maison v. Confederated Tribes of Umatilla Indian Reservation, 314 F.2d 169 (9th Cir. 

1963) 

Makah v. Schoettler, 192 F.2d 224 (9th Cir. 1951) 

Mason [**308] v. Sams, 5 F.2d 255 (D.Wash. 1925) 

Mattz v. Arnett, 412 U.S. 481, 93 S. Ct. 2245, 37 L. Ed. 2d 92 (1973) 

McClanahan v. State Tax Commission of Arizona, 411 U.S. 164, 93 S. Ct. 1257, 36 L. 

Ed. 2d 129 (1973) 

Menominee Tribe v. United States, 391 U.S. 404, 88 S. Ct. 1705, 20 L. Ed. 2d 697 (1968) 

Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S. Ct. 1267, 36 L. Ed. 2d 114 (1973) 

Missouri v. Holland, 252 U.S. 416, 40 S. Ct. 382, 64 L. Ed. 641 (1920) 

Muckleshoot Tribe of Indians v. United States, U.S. Ct.Cl. No. App. 3-64 (Feb. 23, 1966) 

Murdock v. Pennsylvania, 319 U.S. 105, 63 S. Ct. 870, 87 L. Ed. 1292 (1943) 

Olsen, Secretary of Labor of Nebraska v. Nebraska ex rel., 313 U.S. 236, 61 S. Ct. 862, 

85 L. Ed. 1305 (1941) 

Patsone v. Pennsylvania, 232 U.S. 138, 34 S. Ct. 281, 58 L. Ed. 539 (1914) 

People v. Jondreau, 384 Mich. 539, 185 N.W.2d 375 (1971) 
128

[*422] Perrin v. United States, 232 U.S. 478, 34 S. Ct. 387, 58 L. Ed. 691 (1914) 

Puyallup-I -- Puyallup Tribe of Indians v. Dept of Game, 391 U.S. 392, 88 S. Ct. 1725, 

20 L. Ed. 2d 689 (1968) 

Puyallup-II -- Dept. of Game v. Puyallup Tribe, Inc., [**309] 414 U.S. 44, 94 S. Ct. 330, 

38 L. Ed. 2d 254 (1973) 

Rice v. Olson, 324 U.S. 786, 65 S. Ct. 989, 89 L. Ed. 1367 (1945) 

Seufert Bros. Co. v. United States, 249 U.S. 194, 39 S. Ct. 203, 63 L. Ed. 555 (1918) 

Seymour v. Superintendent, 368 U.S. 351, 82 S. Ct. 424, 7 L. Ed. 2d 346 (1962) 

Skiriotes v. Florida, 313 U.S. 69, 61 S. Ct. 924, 85 L. Ed. 1193 (1941) 

Skokomish Indian Tribe v. France, 320 F.2d 205 (9th Cir. 1963) 

Sohappy v. Smith, 302 F. Supp. 899 (D.Or.1969) 

Standing Rock Sioux Tribe v. United States, 182 Ct.Cl. 813 (1968) 

Starr v. Long Jim, 227 U.S. 613, 33 S. Ct. 358, 57 L. Ed. 670 (1913) 

State v. Arthur, 74 Idaho 251, 261 P.2d 135 (1953) 

State v. Gowdy, 1 Or.App. 424, 462 P.2d 461 (1970) 

State v. Gurnoe, 53 Wis.2d 390, 192 N.W.2d 892 (1972) 

State of Wash. v. Joe McCoy, 63 Wash.2d 421, 387 P.2d 942 (1963) 

State v. Moses (Moses-I) 70 Wash.2d 282, 422 P.2d 775 (1967) 

State v. Moses (Moses-II) 79 Wash.2d 104, 483 P.2d 832 (1971) cert. denied, 406 U.S. 

910, 92 S. Ct. 1612, 31 L. Ed. 2d 822 (1972) 

State v. Satiacum, 50 Wash.2d 513, 314 P.2d 400 (1957) 

State v. Tinno, 94 Idaho 759, [**310] 497 P.2d 1386 (1972) 

The Kansas Indians, 72 U.S. (5 Wall.) 737, 18 L. Ed. 667 (1867) 

The New York Indians, 72 U.S. (5 Wall.) 761, 18 L. Ed. 708 (1867) 
129

Tulee v. Washington, 315 U.S. 681, 62 S. Ct. 862, 86 L. Ed. 1115 (1942) 

Udall v. Tallman, 380 U.S. 1, 85 S. Ct. 792, 13 L. Ed. 2d 616, reh. denied, 380 U.S. 989, 

85 S. Ct. 1325, 14 L. Ed. 2d 283 (1965) 

United States v. Agnew, 423 F.2d 513 (9th Cir. 1970) 

United States v. Ahtanum Irrigation District, 236 F.2d 321 (9th Cir. 1956) cert. denied, 

352 U.S. 988, 77 S. Ct. 386, 1 L. Ed. 2d 367 (1956); 330 F.2d 897 (9th Cir. 1956); 338 

F.2d 307 (9th Cir. 1964), cert. denied, 381 U.S. 924, 85 S. Ct. 1558, 14 L. Ed. 2d 683 

(1964) 

United States v. Cutler, 37 F. Supp. 724 (D.Idaho 1941) 

United States v. Fidelity & Guaranty Co., 309 U.S. 506, 60 S. Ct. 653, 84 L. Ed. 894 

(1940) 

United States v. Holliday, 70 U.S. (3 Wall.) 407, 18 L. Ed. 182 (1866) 

United States v. Hosteen, 191 F.2d 518 (10th Cir. 1951) 

Ward v. Race Horse, 163 U.S. 504, 16 S. Ct. 1076, 41 L. Ed. 244, (1895) 

United States v. Kagama, 118 U.S. 375, 6 S. Ct. 1109, 30 L. Ed. 228 (1886) 

United States v. Local 83, et [**311] al., U.S.D.C. W.D. Wash. No. 8618 (June, 1970) 

United States v. 43 Gallons of Whiskey, 93 U.S. (3 Otto.) 188, 23 L. Ed. 846 (1876) 

United States v. Nice, 241 U.S. 591, 36 S. Ct. 696, 60 L. Ed. 1192 (1916) 

United States v. Shoshone Tribe, 304 U.S. 111, 58 S. Ct. 794, 82 L. Ed. 1213 (1938) 

United States v. Walker River Irr. Dist., 104 F.2d 334 (9th Cir. 1939). 

United States v. Winans, 198 U.S. 371, 25 S. Ct. 662, 49 L. Ed. 1089 (1905) 

Village of Kake v. Egan, 369 U.S. 60, 82 S. Ct. 562, 7 L. Ed. 2d 573 (1962) 

Whitefoot v. United States, 293 F.2d 658, 155 Ct.Cl. 127 (Ct.Cl. 1961) 

Williams v. Lee, 358 U.S. 217, 79 S. Ct. 269, 3 L. Ed. 2d 251 (1959) 

[*423] Williamson, Attorney General of Oklahoma et al. v. Lee Optical of Oklahoma, 

Inc. et al., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955) 
130

Winters v. United States, 207 U.S. 564, 28 S. Ct. 207, 52 L. Ed. 340 (1908) 

Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L. Ed. 483 (1832) 

Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886) 

OTHER AUTHORITIES 

Comment, "State Power and the Indian Treaty Right to Fish" 59 U. Calif. L. Rev. 485 

(1971) 

C. [**312] Hobbs, "Indian Hunting and Fishing Rights II", 37 Geo. Wash.L.Rev. 1251 

(1969) 

R. Johnson, "The States Versus Indian Off-Reservation Fishing: A United States 

Supreme Court Error" 47 U. Wash.L.Rev. 207 (1972) 

Webster's Third New International Dictionary of the English Language, 1961 Edition.