This matter involves the right of three persons to fish in Willapa Bay commercially by gillnetting without obtaining a gillnet license from the State of Washington, Department of Fisheries. Each of defendants claims the right to fish without a license based upon the rights of the Quinault Indian Tribe under the Treaty of Olympia, dated January 25, 1856.
The facts differ as to each of the defendants who were arrested on different occasions. The essential facts have been substantially agreed upon as follows: (1) Each had been commercially gillnetting just before his arrest; (2) The fishing was in Willapa Bay, which is sometimes called Willapa Harbor and was formerly known as Shoalwater Bay; (3) None of the defendants held commercial gillnet fishing licenses; (4) Each of the defendants is an enrolled member of the Quinault Indian-Tribe.
The only question in dispute is whether Willapa Bay is a part of the "usual and accustomed grounds and stations" where the members of the Quinault Tribe might exercise the "right of taking fish."
Upon the issue of whether Willapa Bay was a "usual and accustomed" fishing place for the Quinault Tribe at the date of the treaty, there is an understandable lack of evidence. The trial court found "[t]hat the evidence in this case does not establish Willapa Bay as one of the accustomed fishing places of the Quinault Indian Tribe." The *269findings of the trial court supported by the record will not be disturbed on appeal. Sylvester v. Imhoff, 81 Wn.2d 637, 503 P.2d 734 (1972).
Article 1 of. the Treaty of Olympia does not establish Willapa Bay as one of the usual and accustomed fishing grounds of the Quinault Tribe, for the treaty deals only with lands north of a ridge between the Quinault and Chehalis Rivers, and, therefore, necessarily far north of Willapa Bay.
The case of United State v. McGowan, 2 F. Supp. 426 (W.D. Wash. 1931) is likewise of no help. Therein it was held that Bakers Bay and the mouth of the Columbia River were not within the usual and accustomed grounds and stations of the Quinault Tribe. The court therein strongly suggested that Shoalwater Bay was not within the tribe's area, but that was dicta.
The more recent case of United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086, 47 L. Ed. 2d 97, 96 S. Ct. 877 (1976), commonly known as the "Boldt decision", describes the area of the Quinault Tribe in terms similar to the treaty; that is, it mentions only Grays Harbor and areas to the north thereof. That opinion, however, makes no claim to a complete listing of all "usual and accustomed grounds and stations."
There is a lack of proof on the question of whether Willapa Bay was a usual and accustomed ground. In such a situation the party having the burden of proof cannot prevail. We held in State v. Moses, 79 Wn.2d 104, 483 P.2d 832 (1971) that treaty rights constitute an affirmative defense which must be proved by the one who asserts it. We said in part at page 110:
An affirmative defense to a criminal charge, therefore, must be proved by one who relies on it. State v. Razey, 54 Wn.2d 422, 341 P.2d 149 (1959); State v. Brown, 97 R.I. 95, 196 A.2d 138 (1963); 29 Am. Jur. 2d Evidence § 156 (1967). If one accused of violating the state's fishing laws and regulations claims a treaty exemption to their *270operation, his claim constitutes an affirmative defense and he has the burden of showing by a preponderance of the evidence the existence of the treaty, that he is a beneficiary of it and that the treaty as a matter of law bars as to him the operation and enforcement of the fishing laws and regulations.
The defendants failed to sustain the burden of proving their affirmative defense. The judgment appealed from is affirmed.
Stafford, C.J., and Rosellini, Hunter, Hamilton, and Brachtenbach, JJ., concur.