dissenting:
I would remand this case to the Indian Claims Commission for findings as to whether it was necessary, in order to accomplish proper conservation of the halibut, to apply the seasonal fishing restriction to the Makah Indians.
The treaty provision here involved is:
The right of taking fish and of whale or sealing at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the United States.
The Supreme Court, in United States v. Winans, 198 U.S. 371 (1905), held that an 1855 Treaty with the Yakima Indians, which provided that “the right of taking fish at all usual and accustomed places, in common with citizens of the *703Territory” [of Washington] be further secured to the Yaki-mas, conferred upon the Yakimas continuing rights, beyond those which other citizens may enjoy, to fish at their usual and accustomed places.
Tulee v. Washington, 315 U.S. 68 (1942), reaffirmed this principle, but did say that the Yakima treaty “leaves the state with power to impose on Indians, equally with others, such restrictions of a purely regulatory nature concerning the time and manner of fishing outside the reservation as are necessary for the conservation of fish.” The Court held, however, that the state was without power to charge the Yakimas a fee for fishing. Although the Court recognized that the fee was regulatory as well as revenue-producing, it found that the regulatory purpose could have been accomplished otherwise, and the imposition of the fee was not indispensable to the effectiveness of a conservation program.
Here, I think the Government should be required to show that its regulatory purposes could not be accomplished without the restrictions on the Indians. It is clear that the scale of fishing done by the whites was much larger than that done by the Indians, and the Government has not shown that it could not have done an adequate job of conservation by limiting only the activities of the whites, and leaving the Indians to pursue their own smaller-scale operations, which they had a right, under the treaty, to carry on.
The Indian Claims Commission made no finding as to whether or to what extent it was necessary to limit the Indians’ activities as well as those of the whites. For that reason I would remand the case to the Commission to take evidence and make findings on this question, and modify its decision, if the findings made such a modification appropriate.