with whom Mr. Justice Stewart and Mr. Justice Rehnquist join, dissenting in part.
I join Parts I-III of the Court’s opinion. I am not in agreement, however, with the Court’s interpretation of the treaties *697negotiated in 1854 and 1855 with the Indians of the Washington Territory. The Court’s opinion, as I read it, construes the treaties’ provision “of taking fish ... in common” as guaranteeing the Indians a specified percentage of the runs of the anadromous fish passing land upon which the Indians traditionally have fished. Indeed, it takes as a starting point for determining fishing rights an equal division of these fish between Indians and non-Indians. Ante, at 685 et seq. As I do not believe that the language and history of the treaties can be construed to support the Court’s interpretation, I dissent.
I
At issue in these cases is the meaning of language found in six similar Indian treaties negotiated and signed in 1854 and 1855.1 Each of the treaties provides substantially that “[t]he 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.” 2 The question before us is whether this “common” fishing right is a right only of access to usual and accustomed fishing sites for the purpose of fishing there, or includes the greater right to exclude others from taking a particular portion of the fish that pass through the sites. As the Court observes, at the time the treaties were signed there was no need to address this question, for the surfeit of fish made lack of access to fishing areas the only constraint upon supply. Nonetheless, I believe that the compelling inference to be drawn from the language and history of the treaties is that the Indians sought and retained only the right to go to *698their accustomed fishing places and there to fish along with non-Indians. In addition, the Indians retained the exclusive right to take fish on their reservations, a right not involved in this litigation. In short, they have a right of access to fish.
Nothing in the language of the treaties indicates that any party understood that constraints would be placed on the amount of fish that anyone could take, or that the Indians would be guaranteed a percentage of the catch. Quite to the contrary, the language confers upon non-Indians precisely the same right to fish that it confers upon Indians, even in those areas where the Indians traditionally had fished. United States v. Winans, 198 U. S. 371 (1905). As it cannot be argued that Congress intended to guarantee non-Indians any specified percentage of the available fish, there is neither force nor logic to the argument that the same language— the “right of taking fish” — does guarantee such a percentage to Indians.
This conclusion is confirmed by the language used in the treaty negotiated with the Yakima Tribe, which explicitly includes what apparently is implicit in each of the treaties: the Indians’ right to take fish on their reservations is exclusive. Thus, the Yakima Treaty provides that “[t]he exclusive right of taking fish in all the streams, where running through or bordering said reservation, is further secured to said confederated tribes and bands of Indians, as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory . . . .” 12 Stat. 953. There is no reason apparent from the language used in the treaties why the “right of taking fish” should mean one thing for purposes of the exclusive right of reservation fishing and quite another for purposes of the “common” right of fishing at usual and accustomed places. Since the Court interprets the right of taking fish in common to be an entitlement to half of the entire catch taken from fisheries passing the Indians’ traditional fishing grounds, it therefore should follow that the *699Court would interpret the exclusive right of taking fish to be an entitlement to all of the fish taken from fisheries passing the Indians’ reservations. But the Court apparently concedes that this exclusive right is not of such Draconian proportions. Indeed, the Court would reduce the Indians’ 50% portion by those fish caught on the reservation. The more reasonable conclusion, therefore, is that when the Indians and Governor Stevens agreed upon a “right of taking fish,” théy understood this right to be one of access to fish — exclusive access with respect to fishing places on the reservation, and common access with respect to fishing places off the reservation.3
In addition to the language of the treaties, the historical setting in which they were negotiated supports the inference that the fishing rights secured for the Indians were rights of access alone. The primary purpose of the six treaties negotiated by Governor Stevens was to resolve growing disputes between the settlers claiming title to land in the Washington Territory under the Land Donation Act of 1850, 9 Stat. 437, and the Indians who had occupied the land for generations. Under the bargain struck in the treaties, the Indians ceded their claims to vast tracts of land, retaining only certain specified areas as reservations, where they would have exclusive rights of possession and use. In exchange, the Indian tribes were given substantial sums of money and were promised various forms of aid. See, e. g., Treaty of Medicine Creek, 10 Stat. 1132. By thus separating the Indians from the settlers it was hoped that friction could be minimized.
*700The negotiators apparently realized, however, that restricting the Indians to relatively small tracts of land might interfere with their securing food. See letter of George Gibbs to Captain M’Clellan, App. 326 (“[The Indians] require the liberty of motion for the purpose of seeking, in their proper season, roots, berries, and fish”). This necessary “liberty of motion” was jeopardized by the title claims of the settlers whose land abutted — or would abut — the waterways from which fish traditionally had been caught. Thus, in Governor Stevens’ report to the Commissioner of Indian Affairs, he noted the tension between the land rights afforded settlers under the 1850 Land Donation Act and the Indians’ need to have some access to the fisheries. Although he expressed the view that “[i]t never could have been the intention of Congress that Indians should be excluded from their ancient fisheries,” he noted that “no condition to this effect was inserted in the donation act,” and therefore recommended the question “should be set at rest by law.” Report of Governor Stevens to the Commissioner of Indian Affairs, App. 327. Viewed within this historical context, the common fishing right reserved, to the Indians by the treaties of 1854 and 1855 could only have been the right, over and above their exclusive fishing right on their reservations, to roam off the reservations in order to reach fish at the locations traditionally used by the Indians for this purpose. On the other hand, there is no historical indication that any of the parties to the treaties understood that the Indians would be specifically guaranteed some set portion of the fisheries to which they traditionally had had access.
II
Prior decisions of this Court have prevented the dilution of these treaty rights, but none has addressed the issue now before us. I read these decisions as supporting the interpretation set forth above. This is particularly true of United States v. Winans, supra, the case most directly relevant. In *701that case a settler had constructed several fish wheels in the Columbia River. These fish wheels were built at locations where the Indians traditionally had fished, and “ ‘necessitate [d] the exclusive possession of the space occupied by the wheels,’ ” 198 U. S., at 380, thereby interfering with the Indians’ treaty right of access to fish. This Court reviewed in some detail the precise nature of the Indians’ fishing rights under the Yakima Treaty, and concluded:
“[The treaties] reserved rights ... to every individual Indian, as though named therein. They imposed a servitude upon every piece of land as though described therein. There was an exclusive right of fishing reserved within certain boundaries. There was a right outside of those boundaries reserved ‘in common with citizens of the Territory.’ As a mere right, it was not exclusive in the Indians. Citizens might share it, but the Indians were secured in its enjoyment by a special provision of means for its exercise. They were given ‘the right of taking fish at all usual and accustomed places,’ and the right ‘of erecting temporary buildings for curing them.’ The contingency of the future ownership of the lands, therefore, was foreseen and provided for — in other words, the Indians were given a right in the land — the right of crossing it to the river — the right to occupy it to the extent and for the purpose mentioned. No other conclusion would give effect to the treaty.” Id., at 381 (emphasis added).
The Court thus viewed these treaties as intended to “giv[e] a right in the land” — a “servitude” upon all non-Indian land — to enable Indians to fish “in common with citizens of the Territory.” The focus was on access to the traditional fishing areas for the purpose of enjoying the “right of fishing.” Ibid. The Winans Court concluded, on the facts before it, that the right of access to fish in these areas had been abridged. It stated that “[i]n the actual taking of *702fish white men may not be confined to a spear or crude net, but it does not follow that they may construct and use a device which gives them exclusive possession of the fishing places, as it is admitted a fish wheel does.” Id., at 382 (emphasis added). Thus, Winans was decided solely upon the basis of a treaty-secured right of access to fish. Moreover, the Court's analysis of the treaty right at issue in Winans strongly indicates that nothing more than a right of access fairly could be inferred from the treaty.4
Nor do the Puyallup cases interpret the treaties to require that any specified proportion of the catch be reserved for Indians. Indeed, Puyallup Tribe v. Washington Game Dept., 391 U. S. 392 (1968) (Puyallup I), consistently with Winans, described the right of Indians under the treaties as “the right to fish 'at all usual and accustomed places.’ ” 391 U. S., at 398.5 The issue before the Court in Puyallup I was the extent to which the State could regulate fishing. It held:
“[T]he 'right’ to fish outside the reservation was a treaty *703'right' that could not be qualified or conditioned by the State. But 'the time and manner of fishing . . . necessary for the conservation of fish/ not being defined or established by the treaty, were within the reach of state power." Id., at 399.
The Court today finds support for its views in Puyallup I because the Court there recognized that, apart from conservation measures, the State could not impose restrictive regulations on the treaty rights of Indians. But it does not follow from this that an affirmative right to a specified percentage of the catch is guaranteed by the treaties to Indians or to non-Indians, for the Court misapprehends the nature of the basic right sought to be preserved by Congress. This, as noted above, was a right of the Indians to reach their usual and accustomed fishing areas. Put differently, this right, described in Winans as a servitude or right over land not owned by the Indians, entitles the Indians to trespass on any land when necessary to reach their traditional fishing areas, and is a right not enjoyed by non-Indian residents of the area.
In permitting the State to place limitations on the Indians’ access rights when conservation so requires, the Court went further in Puyallup I and suggested that even regulations thus justified would have to satisfy the requirements of ''equal protection implicit in the phrase 'in common with.'" 391 U. S., at 403. Accordingly, in Washington Game Dept. v. Puyallup Tribe, 414 U. S. 44 (1973) (Puyallup II), we considered whether the conservation measures taken by the State had been evenhanded in the treatment of the Indians. At issue was a Washington State ban on all net fishing — by both Indians and non-Indians — for steelhead trout in the Puyallup River. According to testimony before the trial court, the annual run of steelhead trout in the Puyallup River was between 16,000 and 18,000, while unlimited sport fishing would result in the taking of between 12,000 and 14,000 steelhead annually. Because the escape of at least 25% of the entire *704run was required for hatcheries and spawning, the sport fishing totally pre-empted all commercial fishing by Indians. The State therefore imposed a ban on all net fishing. The Indians claimed that this ban amounted to an improper subordination of their treaty rights to the privilege of recreational fishing enjoyed by non-Indians.
We held in Puyallup II that the ban on net fishing, as it applied to Indians covered by treaty, was an infringement of their rights. The State in the name of conservation was discriminating against the Indians “because all Indian net fishing is barred and only hook-and-line fishing entirely preempted by non-Indians, is allowed.” Id., at 48. Because “[o]nly an expert could fairly estimate what degree of net fishing plus fishing by hook and line would allow the escapement of fish necessary for perpetuation of the species,” ibid., we remanded to the Washington courts for a fair apportionment of the steelhead run between Indian net fishing and non-Indian sport fishing.
Relying upon the reference in Puyallup II to “apportionment,” the Court expansively reads the decision in that case as strongly implying, if not holding, that the catch at Indians’ “accustomed” fishing sites must be apportioned between Indian and non-Indian fishermen. This view certainly is not a necessary reading of Puyallup II. Indeed, I view it as a quite unjustified extension of that case. Puyallup II addressed an extremely narrow situation: where there had been “discrimination” by state regulations under which “all Indian net fishing [was] barred and only hook-and-line fishing entirely pre-empted by non-Indians, [was] allowed.” Ibid. In any event, to the extent language in Puyallup II may be read as supporting some general apportionment of the catch, it is dictum that is plainly incompatible with the language and historical understanding of these treaties.6
*705Emerging from our decisions in Winans, Puyallup I, and Puyallup II, therefore, is the proper approach to interpretation of the Indians’ common fishing rights at the present time, when demand outstrips supply. The Indians have the right to go to their traditional fishing grounds to fish. Once there, they cannot be restricted in their methods or in the size of their take, save insofar as restrictions are required for conserving the fisheries from which they draw. Even in situations where such regulations are required, however, the State must be evenhanded in limiting Indian and non-Indian fishing activity. It is not free to make the determination — apparently made by Washington with respect to the ban on net fishing in the Puyallup River — that Indian fishing rights will be totally subordinated to the interests of non-Indians.7
Ill
In my view, the District Court below — and now this Court — has formulated an apportionment doctrine that cannot be squared with the language or history of the treaties, or indeed with the prior decisions of this Court. The application of this doctrine, and particularly the construction of the term “in common” as requiring a basic 50-50 apportionment, is likely to result in an extraordinary economic windfall to *706Indian fishermen in the commercial fish market by giving them a substantial position in the market wholly protected from competition from non-Indian fishermen.8 Indeed, non-Indian fishermen apparently will be required from time to time to stay out of fishing areas completely while Indians catch their court-decreed allotment. In sum, the District Court’s decision will discriminate quite unfairly against non-Indians.9
*707To be sure, if it were necessary to construe the treaties to produce these results, it would be our duty so to construe them. But for the reasons stated above, I think the Court’s construction virtually ignores the historical setting and purposes of the treaties, considerations that bear compellingly upon a proper reading of their language. Nor do the prior decisions of this Court support or justify what seems to me to be a substantial reformation of the bargain struck with the Indians in 1854-1855.
I would hold that the treaties give to the Indians several significant rights that should be respected. As made clear in Winans, the purpose of the treaties was to assure to Indians the right of access over private lands so that they could continue to fish at their usual and accustomed fishing grounds. Indians also have the exclusive right to fish on their reservations, and are guaranteed enough fish to satisfy their ceremonial and subsistence needs. Moreover, as subsequently construed, the treaties exempt Indians from state regulation (including the payment of license fees) except as necessary *708for conservation in the interest of all fishermen. Finally, under Puyallup II, it is settled that even a facially neutral conservation regulation is invalid if its effect is to discriminate against Indian fishermen. These rights, privileges, and exemptions — possessed only by Indians — are quite substantial. I find no basis for according them additional advantages.
Treaty of Medicine Creek, 10 Stat. 1132; Treaty of Point Elliott, 12 Stat. 927; Treaty of Point No Point, 12 Stat. 933; Treaty with the Makahs, 12 Stat. 939; Treaty with the Yakamas, 12 Stat. 951; Treaty of Olympia, 12 Stat. 971.
Treaty of Medicine Creek, 10 Stat. 1133 (emphasis supplied). There were some slight, immaterial variations in the language used. See, e. g., Treaty with the Yakamas, quoted infra, at 698.
Indeed, if the Court’s interpretation of the treaties were correct, then the exclusive right with respect to reservation fishing would be largely superfluous. If the Indians had the right to 50%, and no more, of the fish irrespective of where they are caught, then it hardly would be of any great value to them that they could keep others from taking fish from locations on the reservation. The most reasonable way to interpret the exclusive right of reservation fishing so that it was of value, therefore, is as a special right of access.
The Government’s brief in Winans, cited approvingly by the Court in that case, indicates that the Government also understood the treaty to guarantee nothing more than access rights to traditional fishing locations. In that brief, the Government advocated only “a way of easy access, free ingress and egress to and from the fishing grounds.” Brief for Appellants, O. T. 1904, No. 180, p. 56.
This interpretation of Winans was unequivocally affirmed by the Court a short time later in Seufert Bros. Co. v. United States, 249 U. S. 194 (1919). At issue in that case was whether Indians from the Yakima Nation had the right under their treaty to cross the Columbia River and fish from the south bank, which admittedly had belonged to other tribes at the time of the treaty. The Court viewed Seufert, a case unquestionably involving only the right of access, to be squarely controlled by its earlier decision in Winans. 249 U. S., at 198. Moreover, the Court reaffirmed its view that the effect of the reservation of common fishing rights to the Indians amounted to a servitude. Id., at 199.
The treaty right was repeatedly referred to in Puyallup 7 as a “right to fish.” This phrase was used no less than seven times in the course of the opinion, with no distinction being made between the right “to fish” and the right “of taking fish.” 391 U. S., at 397-399.
Having decided that some regulation was required, but that the treaty forbade the State to choose to regulate only Indian fishing for conservation *705purposes, we remanded for an apportionment between net fishing and sport fishing. Puyallup Tribe v. Washington Game Dept., 433 U. S. 165 (1977) (Puyallup III), is of little assistance in deciding the issue in the present cases. The Court in that case decided only that the regulations permitted in Puyallup I could be applied against Indian fishing on the reservations, as well as off them.
Because it is admitted that the Indians at all times have taken substantial numbers of fish at their traditional fishing places, I do not consider whether a monopolization of all of the fish by the non-Indians would violate the spirit of the Indians’ treaty right of access. Of course, if state conservation regulations were to operate diseriminatorily to deny fish to Indians, the Court’s decision in Puyallup II would apply.
The Court apparently sees this windfall as being necessary for the Indians, for it concludes that “in light of the far superior numbers, capital resources, and technology of the non-Indians, the concept of the Indians’ ‘equal opportunity’ to take advantage of a scarce resource is likely in practice to mean that the Indians' 'right of taking fish’ will net them virtually no catch at all.” Ante, at 677 n. 22. But if the situation of the Indians in the Pacific Northwest requires that special provisions be made for their livelihood, this Court should not enact these provisions by reforming a bargain struck more than 100 years ago. Nor should the cost of compensating for any disadvantage the Indians may suffer, or have suffered, be borne solely by the commercial fishermen of the State of Washington — a fraction of the people who have benefited from the population imbalance. This is a problem for resolution by Congress. It has the basic responsibility for making sure that Indians are not discriminated against, and that their rights are fully protected. In the exercise of this responsibility, Congress could pursue various avenues for relief of any perceived discrimination or disadvantage. It could, for example, provide for Indian fishermen the modern technology and capital resources that they lack, thereby enabling them to compete on an equal basis with non-Indian fishermen. Moreover, a legislation of this problem can protect the interests of Indians without imposing substantially the entire cost upon non-Indian fishermen of the State of Washington.
In addition to the burdens placed upon non-Indian fishermen, the Court’s decision is likely to prove difficult to enforce fairly and effectively. To date, the District Court has had to resort to the outer limits of its equitable powers in order to enforce its decree. This has included taking over supervision of all of the commercial fishing in the Puget Sound area, ordering the creation of a telephone “hot line” that fishermen can use to determine when and where they may legally fish, and ordering United States Marshals to board fishing craft and inspect for violations *707of the court’s preliminary injunction. Indeed, in his response to the petition for certiorari in the present case, the Solicitor General set forth in some detail the extraordinary difficulty the Government has had in enforcing the District Court’s decrees, saying:
“[T]he default of the state government, has required the United States to concentrate a disproportionate amount of its limited fisheries enforcement personnel on what is essentially a local enforcement problem. Agents of the National Marine Fisheries Service, the United States Fish and Wildlife Service, the United States Marshals Service, and the Coast Guard have been diverted from their regular duties to assist the district court in implementing the Indians’ treaty rights. This has resulted in a reduction in the federal fisheries services available for the rest of the country and for the enforcement of the ocean fisheries programs governed by the Fishery Conservation and Management Act of 1976.” Brief for United States on Petition for Certiorari in Nos. 78-119 and 78-139, p. 20.
These problems, it seems to me, will be exacerbated by a formula apportionment such as that ordered by the Court.