(dissenting) — Although I must disagree with much of the reasoning and the result reached in the majority opinion, I certainly agree with its comment that the law of Indian treaties has suffered from a most disjointed and enigmatic development in published opinions of the courts on this most important subject. This fact of life makes careful and considered analysis of Indian treaty provisions all the more important when treaty provisions are at issue within the confines of a legal controversy. And, certainly, such an issue is present in the instant case.
The appellants herein stand charged and convicted of violating a criminal statute, i.e., RCW 77.16.060, prohibiting the use of certain devices — including gill nets — in the capture of game fish. Their defense is that the statute is in derogation of their federally-secured treaty fishing rights and, consequently, is void as applied to them. In an effort to answer this defense, it seems to me that the majority becomes involved — if not lost — in a judicial verbalistic exercise or quagmire. The majority never definitively comes to grips with a fundamental task which I think is clearly required in the instant case; viz., the interpretation of those most pertinent federally-secured treaty fishing rights.
Under our constitutional framework, courts of law are assigned the function, albeit difficult or arduous, of interpreting and giving legal effect to duly constituted and le-*120gaily binding treaties. In glossing over or avoiding this crucially important issue, the majority, in my opinion, exacerbates and expands rather than dissipates the “system of judicial vapor trails which obscure more often than elucidate the treaties under consideration.”
In disposing of the instant appeal, the majority states:
[W]e come to the one determinative issue: Did the state have the power to prohibit totally net fishing for steel-head trout in the Green River, regardless of the Treaty of Point Elliott of 1855? Under its sovereign power, we think that total prohibition was demonstrated to be reasonably necessary for the preservation of a state fishery resource.
(Italics mine.) The determination that a given state regulation is “reasonably necessary” for the preservation of a state fishery resource cannot be made in a judicial vacuum. Simply stated, the essence of all resource conservation is the recognition that the given natural resource is not sufficiently abundant to survive unrestricted taking by all competing users. And, thus, it is axiomatic that whenever any scarce resource or commodity must be conserved, its distribution among various competing users must, necessarily, be achieved by some system of allocation.
To judge whether any given conservation regulation is reasonably necessary to preserve the resource, one must additionally ask: “Preserve the resource for what uses?” It is, perhaps, analytically useful to restate an obvious fact: natural resources, unlike many scarce commodities, do not lend themselves to satisfactory allocation through a convenient market mechanism which can be said to be reliable and appropriate. Rather, the allocation of natural resources has traditionally fallen within the ambit of state action. I fully support the majority’s analysis that the state, in the exercise of its sovereign power, has broad authority to regulate its fishery resources, as well as other natural resources within its borders. Indeed, it can normally be said that the state’s power to allocate its resources among competing users is plenary. This statement is, however, too broad in the instant case because of the fundamental differ*121ence presented herein — i.e., limitations or restrictions inherent in the existence of federally-secured treaty fishing rights.4
Article 5 of the Treaty of Point Elliott provides in relevant part:
The right of taking fish at usual and accustomed grounds and stations is further secured to s.aid Indians in common with all citizens of the Territory . . .
(Italics mine.) 12 Stat. 927 (1863). I have indicated agreement with the majority’s statement that the above-quoted treaty language has received “surprisingly little judicial attention.” I cannot agree with either the trial court’s or the majority’s candid refusal to interpret and effectuate that language as a critical element in determining whether, in the instant case, the questioned state regulation is reasonably necessary for the preservation of a state fishery.
The determinative issue in this appeal, as I view it, is: To what extent, if any, do the treaty provisions, insofar as they secure certain Indian fishing rights, conflict with, and thus supersede, RCW 77.16.060? Stated in another light, does article 5 of the Treaty of Point Elliott secure to the appellants, as its beneficiaries, certain fishing rights which the state has failed to recognize in the statutory regulation adopted and applied as to appellants in this criminal case?
Unquestionably, Indian treaties are accorded the same force and effect as treaties with foreign nations. Consequently, such treaties are the supreme law of the land and are binding upon state courts and state legislatures. No state law or regulation may impinge upon rights granted or reserved by such treaties. Cherokee Nation v. Georgia, 30 *122U.S. (5 Pet.) 1, 8 L. Ed. 25 (1831); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L. Ed. 483 (1832); Blue Jacket v. Johnson County Comm’rs (Kansas Indians), 72 U.S. (5 Wall.) 737, 18 L. Ed. 667 (1866); Holden v. Joy, 84 U.S. (17 Wall.) 211, 21 L. Ed. 523 (1872); United States v. Winans, 198 U.S. 371, 49 L. Ed. 1089, 25 S. Ct. 662 (1904); State v. Satiacum, 50 Wn.2d 513, 314 P.2d 400 (1957); State v. James, 72 Wn.2d 746, 435 P.2d 521 (1967).
The applicable principles for construing Indian treaty language have been stated by the United States Supreme Court:
It is our responsibility to see that the terms of the treaty are carried out, so far as possible, in accordance with the meaning they were understood to have by the tribal representatives at the council, and in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people.
(Italics mine.) Tulee v. Washington, 315 U.S. 681, 684, 86 L. Ed. 1115, 62 S. Ct. 862 (1942). But see New York ex rel. Kennedy v. Becker, 241 U.S. 556, 60 L. Ed. 1166, 36 S. Ct. 705 (1916).5
It is therefore necessary, first, to ascertain, insofar as is *123possible, the quantum or nature of rights secured to the beneficiaries of the Treaty of Point Elliott, as those rights were understood by the treaty’s Indian signatories. As previously noted, the treaty right disputed herein is the Indians’ right to take fish at usual and accustomed grounds and stations in common with all citizens of the state. It is reasonable to presume that the Indian signatories of the Treaty of Point Elliott understood that document to preserve their previously unfettered right to take fish in the manner, to the extent, and for the purposes that such fish had been taken by the Indians prior to the settlement of the West by the white man. It seems obvious to me that such rights were retained by the Indian signatories. These rights were not granted to them but “further secured” by the Treaty of Point Elliott “in common with all citizens of the Territory.” While it is true that the Indian signatories to the treaty literally surrendered many rights in exchange for certain benefits, the right to fish was not one of those rights surrendered. See United States v. Winans, supra.
It is relevant to ask the question: What is the probable extent of the Indians’ use of the fishery resource prior to formation of the treaty? The trial court, in the instant case, found that “[t]he steelhead was a food fish taken by the indian prior and subsequent to 1855, . . .” Indeed, the abundance of fish in the rivers of Puget Sound played a strong role in the physical and cultural environment of the Indian. This dependence has been graphically documented:
The basis of the aboriginal economy was fishing. However, salmon was not merely an important part of life— not a recreation and not solely a means of providing food —it was the heart of a whole way of life. It was the staple article of year-round diet, fresh, smoked, or dried, of which a Chinook man in the treaty days said that “if he was three days without [it] his heart failed him.” It was a major commodity in trade between tribes. Above all, it was a blessing for which the Indians always gave thanks.
(Footnote omitted.) Uncommon Controversy: Fishing *124Rights of the Muckleshoót, Puyallup, and Nisqually Indians (A Report Prepared for the American Friends Service Committee 3) (U. W. Press 1970). Speaking of Columbia River Indian tribes, a federal court recently noted:
From the earliest known times, up to and beyond the time of the treaties, the Indians comprising each of the intervenor tribes were primarily a fishing, hunting and gathering people dependent almost entirely upon the natural animal and vegitative resources of the region for their subsistence and culture. They were heavily dependent upon such fish for their subsistence and for trade with other tribes and later with the settlers. . . .
During the negotiations which led to the signing of the treaties the tribal leaders expressed great concern over their right to continue to resort to their fishing places and hunting grounds. They were reluctant to sign the treaties until given assurances that they could continue to go to such places and take fish and game there. . . .
(Footnote omitted. Italics mine.) Sohappy v. Smith, 302 F. Supp. 899, 906 (D. Ore. 1969).
The right to retain access to off-reservation fishing locations was critically significant to the Indians. One scholar, in a definitive study, has noted that:
[t]he right provided for in the Pacific Northwest treaties whereby the Indians were to be permitted to resort to their ancient tribal fishing grounds or stations for the purpose of taking fish . . . was at the time of the treaties probably the most important consideration in the minds of the Indian chiefs and headmen. . . .
It is not difficult to appreciate the universal concern of the Indians with regard to this matter since they were so dependent in varying degrees on fish and especially salmon for their daily food.
E. Swindell, Report on Source, Nature and Extent of the Fishing, Hunting and Miscellaneous Related Rights of Certain Indian Tribes in Washington and Oregon 58, 59-60 (1942).
Having observed the purposes of, and extent to which, fishing was immensely important to the early Puget Sound *125Indian, it is of interest to examine the manner by which these early Indians fished for steelhead and salmon: “Men worked with weirs, canoes, spears, dip nets, and large fiber nets.” Uncommon Controversy, supra, at 5. Although there is no indication that the early Indians utilized gill nets as such, appellants’ anthropologist testified at trial that the Indians’ use of weirs was extensive. She further testified that the early Indians employed dip nets and drift nets, and that the Indians used conservation practices, including the allowing of fish escapement through their extensive weirs. The Pacific Northwest Indian was known to have completely blocked certain streams and to direct incoming fish to a point where they could be easily speared or netted with large dip nets. See E. Swindell, Report on Source, et cetera, supra, at 17-26, for a definitive study of early native fishing gear utilized by Pacific Northwest Indians.
I thus find it reasonable to conclude that the Indian signatories to the Treaty of Point Elliott intended to reserve unlimited rights to fish in the manner, to the extent, and for the purposes previously employed prior to the treaty. Because these rights were reserved in common with all citizens of the Territory [State], it is next necessary to delineate the meaning of the “in common” language. It must be admitted that this language — which appears in almost every Pacific Northwest Indian fishing treaty — has long troubled legal scholars and the courts. There is a certain attractiveness to the majority’s resolution of this difficult problem of interpretation. But, I am convinced the majority does not fairly or adequately resolve the complex issues presented.
It would, perhaps, be an easy answer to adopt the position previously advanced by the state: that the language— to fish “in common with all citizens of the Territory”— means merely that Indians have only the same rights as given to all other citizens. Such a reading of the language is, however, premised upon the rationale that the fishing activities and interest of the Indians and the settlers of the territory were similar, if not identical; that the Indian sig*126natories had no rights prior to the treaty — and that they could only receive rights from the government. As mentioned before, I do not find historical justification for this analysis which would, if adopted, indicate that the treaty-making procedure involved a deceptive exercise on the part of the government. Indeed:
Such a reading would not seem unreasonable if all history, anthropology, biology, prior case law and the intention of the parties to the treaty were to be ignored.
The policy of the United States to extinguish Indian rights in the Oregon Territory by negotiation rather than by conquest was firmly established in the Act of August 14, 1848 (9 Stat. 323) which established the Oregon Territory. That act declared that nothing in it “shall be construed to impair the rights of persons 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, * ■* *.” The act also extended to the Oregon Territory the provisions of the Northwest Ordinance of 1787 which provided, among other things, that “good faith shall always be observed towards the Indians; their land and property shall never be taken from them without their consent.” (1 Stat. 51, Note a)
The treaties with which we are here concerned are parts of the result of that policy. They are not treaties of conquest but were negotiated at arm’s length. The word of the United States was pledged.
(Italics mine.) Sohappy v. Smith, supra at 905. Alternatively, I cannot subscribe to the interpretation assigned to the critical treaty language by Donworth, J., in State v. Satiacum, 50 Wn.2d 513, 523-24, 314 P.2d 400 (1957):
As we interpret the treaty, we believe that the phrase “in common with all citizens of the Territory” merely granted the white settlers and their heirs and/or grantees a right to fish at these places with the Indians, but that the Indians thereby reserved their right to fish at these places irrespective of state regulation, so long as the right shall not have been abrogated by the United States.
(Italics mine.)
*127These conflicting approaches represent two polar extremities. I am convinced that there is a definable and fundamentally more correct position. In my judgment:
[jjudicial recognition of the fundamental purpose of the treaty (i.e., the preservation of Indian fishing rights) and judicial recognition of the facts of life relative to conservation and rehabilitation of fish are not inconsistent. Such judicial action is not in derogation and in violation of the Indian treaty, but is in furtherance thereof.
State v. Satiacum, supra at 538 (Finley, J., concurring in the result). State conservation laws are fundamentally laws of allocation as well as of preservation. Resources are conserved so that they will survive for later use. The particular resource involved in this appeal is the steelhead trout fishery on the Green River. From the earliest times, the steelhead has been a highly prized food source. It is a relatively recent development that this species has become a major recreational attraction to sports fishermen,6 and that the state legislature has now removed the steelhead trout from the commercial fishery.7
I would interpret the “in common with” treaty language to grant its beneficiaries an absolute right to fish at usual and accustomed grounds and stations; with such right subject to the state’s regulatory powers only to the extent *128necessary to prevent the exercise of that right in a manner that would imperil the continued existence of the fishery.
To prevent any misunderstanding which may arise from the immediately preceding statement, it should be stressed that this language is not intended to imply or advocate use of the so-called “indispensible” test for measuring the validity of a state fishery regulation. This court has previously held that:
a requirement that a state regulation must be “indispen-sible” to the conservation of the fishery before it can be enforced against treaty Indians is neither good law nor presently binding upon the State of Washington.
State v. Moses, 70 Wn.2d 282, 288, 422 P.2d 775 (1967). Any question as to the proper test for determining the permissible extent of a state regulation in such circumstances, was resolved in Puyallup Tribe v. Department of Game, 391 U.S. 392, 398, 399, 20 L. Ed. 2d 689, 88 S. Ct. 1725 (1968):8
the right to fish at those respective 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. . . . [T]he manner of fishing, the size 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.
In other words, the “right” to fish outside the reservation was a treaty “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.
The Puyallup case concluded with the following statement:
Since the state court has given us no authoritative answer to the question [whether the prohibition was reasonable and necessary for conservation], we leave it un- ' answered and only add that any ultimate findings on the *129conservation issue must also cover the issue of equal protection implicit in the phrase “in common with.”
(Italics mine.) Puyallup Tribe v. Department of Game, supra, at 403.
Thus, it is clear that the state may sustain its fishery regulations against treaty beneficiaries’ attack when it can show that its regulations are reasonable and necessary to conserve the fishery:
The burden of proof, once the defendant has established that he is a member of a tribe having a treaty right to take fish at all “usual and accustomed grounds and stations,” is on the state to show that its regulations, which limit Indian fishing rights either as to the time or manner of fishing, are reasonable and necessary to conserve the fishery.
(Italics mine.) Department of Game v. Puyallup Tribe, Inc., 70 Wn.2d 245, 257, 422 P.2d 754 (1967).
The question which remained unanswered in the Puyal-lup case, and which remains unanswered in the majority’s disposition of the instant case is: by what means must the state prove the reasonable necessity of the fishing regulation in question?
The resolution of this question is, in my opinion, the fundamental issue presented in the instant appeal. The question may best be answered by delineating an analytical approach rather than by pronouncing an unwavering “black letter” formula. In cases challenging state conservation regulations as allegedly conflicting with Indian treaty rights, I believe the crucial and requisite judicial function should embrace a 2-step analysis: (1) once the court has determined the quantum or nature of rights originally granted or reserved by such treaty, it must then (2) determine that the state regulation in question fully recognizes and preserves those originally granted or reserved rights in proportionate quantum among entitled users.
In the instant case, I do not believe that the state has, by sufficient proof, demonstrated that the rights granted or reserved to the Indian beneficiaries of the Treaty of Point *130Elliott are fully recognized and preserved in proportionate quantum by the regulation in question — RCW 77.16.060. Neither do I believe, for the reasons stated below, that the instant record contains sufficient facts by which this court can measure the reasonable necessity of the statute in light of the treaty fishing rights involved herein.
In determining whether a state regulation affecting the right of Indians to take fish at their usual and accustomed fishing places is demonstrated to be reasonable and necessary for purposes of conservation, I would require the state to comply with the following standard:
[the state] 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, a fair and equitable share of all fish which [the state] permits to be taken from any given run.
(Italics mine.) Sohappy v. Smith, 302 F. Supp. at 907. In short, the state, in regulating its fishery resources, must demonstrate that such regulations produce an equitable allocation as among entitled users giving full recognition to the rights of treaty Indians.9 Conversely, the equitable allo*131cation of any run must give proper recognition to fishery propagation by state efforts. Where, through state efforts and expenditure of state funds a given run has been (1) materially enhanced over its probable natural quantum; or (2) entirely created where no such run previously existed, rights granted by Indian treaties must be measured against the run in its natural, rather than in its enhanced, condition. Thus, of necessity, the reasonableness of any given regulation must depend upon a river-by-river study and evaluation.10
The fundamental necessity and equitable correctness of the above-outlined criteria may be demonstrated by an analysis of conservation policies of this state. The Sohappy court, in describing conservation policies employed by the *132state of Oregon — which closely parallel the policies of our own state — noted:
Oregon’s conservation policies are concerned with allocation and use of the state’s fish resource as well as with their perpetuation. It has divided the regulatory and promotional control between two agencies — one concerned with the protection and promotion of fisheries for sportsmen . . . and the other concerned with protection and promotion of commercial fisheries. . . . The regulations of these agencies, as well as their extensive propagation efforts, are designed not just to preserve the fish but to perpetuate and enhance the supply for their respective user interests.
(Italics mine.) Sohappy v. Smith, supra at 909. I am convinced in the instant case that the state has presented no evidence to indicate its consideration of the treaty rights of appellants as an interest to be recognized or a fishery to be promoted in the state’s regulatory and developmental program. By this statement, I do not mean to ascribe any bad faith to the state’s past or present regulatory actions or policies. Rather, I mean only to imply that such proof was not presented at the trial of the instant case. Absent such proof, I do not believe this court can or should determine whether the questioned state regulation is reasonable and necessary for conservation of the Green River steelhead fishery.
My concern herein is well-summarized by Belloni, J., in the Sohappy opinion:
In determining what is an “appropriate” regulation one must consider the interests to be protected or objective to be served. 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 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 found to be necessary for conservation.
(Italics mine.) Sohappy v. Smith, supra at 911. In the *133instant case, the state produced a large quantity of evidence in support of its contention that the total prohibition of gill net fishing was reasonable and necessary to conserve the steelhead fishery in the Green River. Upon careful review of this evidence, I am convinced that it demonstrates only the necessity of totally prohibiting the use of gill nets to produce optimal preservation of the steel-head for purposes of sports fishing. I am not persuaded that this evidence shows any consideration by the state of the special rights held by treaty Indians.
Testimony of the state’s fishery experts at trial is presented fairly and at length in the majority opinion. It will not be restated here, except as is necessary to indicate those respects in which it seems to me that testimony falls short of the proof which should be required upon rehearing. The testimony of Dr. Lauren R. Donaldson, Professor of Fisheries at the University of Washington, indicated his belief that the total prohibition against gill net fishing was reasonably necessary for conservation. He defined “conservation” in the following manner: “Well, I think conservation means the maximum sustained yield, commensurate with maintaining the run at the optimum level.” Dr. Donaldson’s testimony is, I believe, ambiguous on the critical issue of whether “optimum” conservation as now practiced by the state fairly includes and protects the rights of treaty Indians. Dr. Donaldson did, in fact, admit that there could be a regulated gill net fishery.
The state’s expert witnesses from the departments of fisheries' and game testified more emphatically. Clifford Millenbach, chief of the fisheries management division of the state department of game, testified that prohibition of gill net fishing was reasonably necessary because the nets prevent adequate escapement for spawning. His data, however, was based on Puyallup River experiences. In fact, the appropriate state regulatory agency has apparently made no study of gill net fishing as it might specifically affect the Green River steelhead run.
J. E. Lasater, assistant director of operations for the state *134department of fisheries, testified that gill net fishing, if allowed, would “reduce the stock of both wild and hatchery fish, and also reduce our ability to use the hatchery to its full production potential.” He further testified that partial closures for intervals were ineffective. However, there is no indication of the possible effectiveness of less restrictive regulations short of total prohibition — e.g., restriction of non-Indian gill netting or catch restrictions based on numeric or poundage limitations.
In determining whether the instant regulation (RCW 77.16.060) is reasonable and necessary for conservation of the fishery in view of the rights possessed by treaty Indians, several facts would be of extreme relevance on remand: (1) what is the present and projected run of Green River steelhead?; (2) what percentage of the run will be taken by all fishermen, and what percentage will be allowed to escape and spawn?; (3) what is the minimum required escapement to insure preservation of the fishery?; (4) of the steelhead now permitted to be taken from the annual Green River run, what percentage is taken by treaty Indians, and what percentage is taken by non-Indian sportsfishermen? This list is not exhaustive. Other relevant facts can certainly be developed by our competent state fisheries experts.11
These questions are not answered by the instant record. I would, therefore, remand this case for further determination of the reasonable necessity of RCW 77.16.060, as applied to Indian treaty beneficiaries, in light of the standards described above. Specifically, on remand I would require the state to prove: (1) that the regulation insures treaty Indian beneficiaries the right to take a fair and equitable *135share of all steelhead which the state now permits to he taken from any given Green River run; and (2) that the regulation is demonstrably reasonable and necessary based upon actual run and catch data relating to the Green River.
The above-enumerated factual questions are best resolved by professional fisheries experts. I have the highest respect for, and confidence in, this state’s appropriate regulatory personnel to provide fair and adequate answers to these inquiries. It is proper for this court to recognize the appropriate limitations on its authority and abilities in this complex legal area, requiring the guidance of technological as well as social expertise:
This court cannot prescribe in advance all of the details of appropriate and permissible regulation of the Indian fishery, . . . “[P] roper anadromous fishery management in a changing environment is not susceptible of rigid predetermination. . . .” The requirements of fishery regulation are such that many of the specific restrictions, particularly 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.
Sohappy v. Smith, supra at 911. Although not of record herein, there is some indication that the state is keenly interested in, and is resolved to be guided by, the “wording and spirit” of the Sohappy opinion. See Uncommon Controversy, supra, at 200. Thus, it would appear that the remand of this case for further proof as indicated offers both an equitable and reasonable solution to the complex issues presented herein.
For the purposes of clarity on remand, I would resolve, in the instant opinion, several questions left unanswered by the majority’s resolution of this case. These questions involve (a) whether the Muckleshoot Indians were signatories of the Treaty of Point Elliott; (b) whether a treaty existed at the time of appellants’ arrest herein; and (c) whether the appellants herein are beneficiaries under that treaty. I would sustain the trial court’s finding that the Muckleshoot Tribe was a party to the treaty and that the *136appellants herein were members of that tribe. That finding is supported by substantial evidence.
For the reasons stated, I would remand the instant case for further determination of the issues indicated.
Neill and Stafford, JJ., concur with Finley, J.
See e.g., Graves v. Dunlap, 87 Wash. 648, 651, 152 P. 532 (1915), wherein this court stated: “The state, through its legislature, has the right to control for the common good the killing, taking and use of game, so long as rights guaranteed either by the state or Federal constitution are not encroached upon” (Italics mine.) See also Tulee v. Washington, 315 U.S. 681, 86 L. Ed. 1115, 62 S. Ct. 862 (1942), holding that treaties take precedence over state conservation laws which are void and ineffective insofar as their application would infringe on rights secured by treaty.
Therein, Justice Hughes commented:
It has frequently been said that treaties with the Indians should be construed in the sense in which the Indians understood them. But it is idle to suppose that there was any actual anticipation at the time the treaty was made of the conditions now existing to which the legislation in question was addressed. Adopted when game was plentiful — when the cultivation contemplated by the whites was not expected to interfere with its abundance — it can hardly be supposed that the thought of the Indians was concerned with the necessary exercise of inherent power under modern conditions for the preservation of wild life.
Kennedy, 241 U.S. at 563-64. The statements in Tulee and Kennedy are not irreconcilable. Rather, as is later developed in this dissent, the crucial judicial function required in cases wherein state regulations are alleged to conflict with Indian treaty rights must, of necessity, include a 2-step analysis: (1) determination of the quantum of rights originally granted or reserved by such treaties; and (2) determination that a state regulation, mandated by the exigencies of modern resource conservation, properly recognize and preserve those rights originally granted or reserved, in proportionate quantum.
It is of passing interest to note that the state legislature, in 1969, enacted RCW 1.20.045, as follows:
The species of trout commonly called “steelhead trout” (salmo gairdnerii) is hereby designated as the official fish of the state of Washington.
RCW 77.08.020 defines the steelhead as “game fish.” RCW 77.16.060 (the statute disputed in the instant case) makes unlawful the use of any net to catch game fish. RCW 77.16.040 prohibits the trafficking of game fish “except as authorized by permit or license lawfully issued by the director [of game], or by rule or regulation of the [game] commission.” It is significant and should be noted that the state does not attempt to regulate fishing on reservations by treaty or nontreaty Indians. In Pioneer Packing Co. v. Winslow, 159 Wash. 655, 294 P. 557 (1930), this court held that the Quinault Indians could sell fish caught in reservation streams for transportation into another state. That case further held that the Quinaults “owned” the fish in the Quinault River by the same title and in the same right as they owned them prior to the time of the making of the treaty.
Reported below as Department of Game v. Puyallup Tribe, Inc., 70 Wn.2d 245, 422 P.2d 754 (1967). See Note, Regulation of Treaty Indian Fishing, 43 Wash. L. Rev. 670 (1968).
The complex nature of fisheries management is such that no single judicial pronouncement can prescribe in advance all details of an appropriate regulation. The determination that a given fisheries regulation is reasonable and necessary, as measured against the fishing rights of treaty Indians, must depend upon a case-by-case, and equally importantly, a river-by-river, analysis of each questioned regulation. It is possible, however, to illustrate the central thrust of the above-stated criteria. These criteria may be related to the particular resource involved herein — the Green River steelhead fishery. Existing state regulations prescribe catch limits on the number and size of steelhead which may be taken per person on a daily, summer weekly and annual basis. Additionally, seasonal limits are imposed. The effect of these regulations is to insure adequate conservation of the run through escapement; i.e., that the steelhead will not be overfished and thereby depleted.
We may assume, for purposes of illustration, that the total annual run of steelhead on the Green River is 100. The effect of the aforementioned regulations will be to insure that, for example, 50 steelhead will escape capture and spawn. The critical question posed in light of the above-stated criteria is, Of the remaining 50 steelhead in the run, *131eligible for take, how many are presently caught by treaty Indians and how many are presently caught by non-treaty sportsftshermen?
Because the present controversy centers upon preservation of a steelhead fishery, the competing “takers” include only two groups: treaty Indians fishing at usual and accustomed grounds and stations, and non-Indian sportsfishermen. Since the steelhead is a game fish and is not generally subject to commercial trafficking (see note 7 supra), its conservation centers primarily- — but by no means exclusively — upon the insuring of adequate run escapement. If our analysis is widened to include the salmon fishery, a third competing taker — the commercial fisherman- — -is added. To posit an extreme (but apparently not unlikely) example, assume that the state allows Strait of Juan de Fuea and Puget Sound commercial fishermen to take 99 per cent of a given salmon run prior to its arrival at usual -and accustomed treaty Indian grounds and stations. Of necessity, drastic catch limitations would be imposed on river and stream fishermen. Such restrictions would, most assuredly, be necessary, but they would, de facto, be unreasonable as applied to treaty Indian fishermen.
Two cogent examples may be presented to illustrate this point. Prior to 1945, several falls in the Deschutes River constituted a natural barrier -totally thwarting the efforts of salmon to spawn. Through construction of a fish ladder bypassing the falls and scientific planting and propagation methods, the state literally “created” a run where none had previously existed. After some 25 years, the Deschutes now serves as a spawning ground for fall Chinook, coho and steelhead.
The Puyallup River serves to illustrate run enhancement through state efforts. There, the state department of game has, by hatchery plants, increased the normal run of 5,000 steelhead per year to 12,000 to 18,000 per year. Both examples emphasize the need for a river-by-river analysis of any state regulation in determining its reasonableness as applied to treaty Indians.
Additional data of some relevance might include the number of steelhead trapped by commercial fishermen in the Strait of Juan de Fuca and Puget Sound utilizing both gill net and trawling equipment. Although the steelhead, as a game fish, is not subject to commercial trafficking (see note 7 supra), it is highly probable that a number of these fish are incidentally captured annually by commercial fishermen, and are subsequently “mixed” with the commercial salmon catch or are released in an irreparably injured condition.