dissenting:
I respectfully dissent. The majority opinion quite correctly rejects the conclusion of law that federal recognition is essential to the exercise of treaty rights. As I understand it, the majority opinion states the determinative question to be whether appellants have descended from treaty signatories and have maintained tribal structures reflecting the degree of organization that existed at the time of the treaties, with reasonable allowances for adaptation to changing conditions. Tribal status is preserved “if some defining characteristic of the original tribe persists in an evolving tribal community.” Ante, at pp. 1372-1373. With all of these propositions I agree.
My difference with the majority is that I am unable to say that the findings of the district court resolve the determinative question of tribal continuity or provide us with the means to do so upon review. It is true that the district court found that appellants had not functioned since treaty times as “continuous separate, distinct and cohesive Indian cultural or political communit[ies].” United States v. Washington, *1375476 F.Supp. 1101, 1105, 1106, 1107, 1109, 1110 (W.D.Wash.1979). It also found that none of the appellants had “maintained an organized tribal structure in a political sense.” Id. at 1105, 1106, 1108, 1109, 1110. These findings, however, do not take account of the nature and degree of tribal organization existing at the time of the treaties. They are not addressed to the proper requirement that “some defining characteristic of the original tribes persist in an evolving tribal community.” They appear instead to reflect a more stringent requirement of tribal organization — a requirement based upon the erroneous assumption that federal recognition is essential to the exercise of treaty rights.
Other findings of the district court reflect the degree to which the assumed need for federal recognition permeated the entire factual inquiry. The following finding regarding the Samish Tribe is typical and illustrative:
(25). The Intervenor Samish Tribe exercises no attributes of sovereignty over its members or any territory. It is not recognized by the United ■ States as an Indian governmental or political entity possessing any political powers of government over any individuals or territory. None of its organizational structure, governing documents, membership requirements nor membership roll has been approved or recognized by Congress or the Department of Interior for purposes of administration of Indian affairs.... Id. at 1106.
It seems evident in this finding that the “attributes of sovereignty” found to be lacking in the Samish Tribe are those arising from federal recognition.
The conclusions of law make quite clear what was meant by the district court in its factual findings that the appellants did not maintain continuous cultural or political communities or organized tribal structures in a political sense. The first conclusion of law recites that fishing rights are communal and “are held today for the use and benefit of the persons who continue to maintain a tribal structure exercising governmental or political powers.” Id. at 1110. The second conclusion then lists certain factors for determining “whether a group of persons have maintained Indian tribal relations and a tribal structure sufficient to constitute them an Indian tribe having a continuing special political relationship with the United States ...”1 Id. Two of the six factors — the extent of Indian governmental control over members’ lives and the extent of political control over a specific territory — are largely functions of federal recognition, while the final factor is federal recognition itself: “The extent of express acknowledgement of such political status by . . . federal authorities.” The fourth conclusion of law then states that “[o]nly tribes recognized as Indian political bodies by the United States may possess and exercise the tribal fishing rights secured and protected by the treaties of the United States.” Id. at 1111. This progression clearly has the effect of requiring federal recognition in order for a tribe to have the type of structure enabling it to exercise treaty rights.
If this error were confined to the conclusions of law, then affirmance might nevertheless be in order. But the conclusions of law help to illustrate the deficiencies of the findings of fact upon which the decision of the district court is based. The findings that appellants had not maintained a “continuous separate, distinct and cohesive Indian cultural or political communitpes]” or “organized tribal st.ructure[s] in a political sense” amounted in context to findings that appellants lacked federal recognition or attributes necessarily dependent upon federal recognition. These findings consequently do not resolve the crucial factual issue and cannot support the judgment.
*1376Application of the proper legal standards to this case requires new determinations of fact, and possibly additional evidence relating to the political organization of the relevant tribes at treaty times. I would therefore remand the matter to the district court for determinations whether appellants have maintained tribal structures reflecting the degree of organization that existed at the time of the treaties, with reasonable allowances for adaptation to changing conditions, and whether some defining characteristic of the original tribes persists in appellants as evolving tribal communities.
. To the extent that this conclusion suggests that the existence of a trust relationship with the United States is essential to the exercise of treaty rights, it is erroneous. Menominee Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968); Kimball v. Callahan, 493 F.2d 564 (9th Cir.), cert. denied, 419 U.S. 1019, 95 S.Ct. 491, 42 L.Ed.2d 292 (1974).