(concurring in part and dissenting in part) — I concur in the result reached in the majority opinion in so far as it holds that appellants in this case do have treaty rights and have standing to assert those rights in this suit, but I do not agree that the test of their right to fish is dependent on the existence or nonexistence of a state statute or regulation which has been held by the trial court to be reasonable and necessary for the conservation of fish.
I would reverse the trial court’s degree of permanent injunction with directions to dismiss the action for any one or all of the three reasons stated below.
*263I.
I am of the opinion that:
(1) The provisions of article 3 of the Treaty of Medicine Creek are presently the supreme law of the land and are superior to the exercise of the state’s police power respecting the regulation of fishing by Indians at places where the treaty is applicable.
(2) If the Secretary of the Interior and the Commissioner of Indian Affairs have adopted the proposed rules relating to off-reservation fishing by treaty Indians, the Federal Government has assumed control of the matters in controversy in this case, and state courts may not enjoin appellants from fishing in the Puyallup River. See 30 Fed. Reg. 8969.
(3) Assuming, arguendo, that the trial court had power to enjoin such fishing, the findings of fact do not support the conclusions of law or the permanent injunction entered by it. In my opinion, this statement is correct regardless of whether the “indispensable” test or the “reasonable and necessary” test be applied.
My views on the rights of treaty Indians to fish “at all usual and accustomed grounds and stations” are stated at some length in the first opinion (signed by four judges) in State v. Satiacum, 50 Wn.2d 513, 314 P.2d 400 (1957), and in my dissenting opinion in State v. McCoy, 63 Wn.2d 421, 387 P.2d 942 (1963). See the decisions of the courts of last resort quoted and discussed therein.
In the interest of brevity, I incorporate those two opinions herein by reference as a part of this opinion. In those opinions, it was stated that, under the federal constitution, the treaty was the supreme law of the land and would continue to be until:
(1) the treaty is modified or abrogated by act of Congress, or
(2) the treaty is voluntarily abandoned by the Puyallup tribe, or
(3) the supreme court of the United States reverses or modifies our decision in this case, (at 529)
*264In the last 9 years since the two Satiacum decisions were filed none of these events have taken place. Nor have respondents sought a final solution of the problem through any branch of the United States Government — legislative, executive, or the Supreme Court.
II.
In the case at bar, the United States has for the first time appeared in this court and filed a brief as amicus curiae. Its counsel participated in the oral argument.
The United States contends in its brief that the trial court’s permanent injunction fails to give any recognition to the rights secured to the Indians by article 3 of the Treaty of Medicine Creek. After citing cases relating to this contention, the government’s brief states:
. . . It is enough at this point to note that the permanent injunction against fishing in the instant case, except in accordance with the regulations applicable to all, absolutely ignores the treaty-reserved rights of these Indians. Conclusion of Law IV, supra, is plainly contrary to Tulee. For this reason alone, the judgment and decree must be reversed.
It is further argued therein that the scope of the treaty-reserved rights of the Indians may best be determined by a federal authority. The reasons supporting this argument are stated as follows:
We must start with the established principle that interpretation of a treaty with an Indian tribe, like a treaty with a foreign nation, presents a federal question. Worcester v. Georgia, 6 Pet. 515 (1832). Had the Treaty itself, or Congress in contemporary or subsequent legislation, more specifically defined the right reserved or regulated how it was to be exercised (which would be another way of defining its scope), there would be no problem today. For, clearly, the federal statute would prevail, and no state law or regulation could impinge upon the Indians’ exercise of the right as defined or regulated. See Missouri v. Holland, 252 U. S. 416 (1920), where the Supreme Court rejected the argument that implementing legislation pursuant to a treaty interfered with exercise of state regulatory provisions as to wildlife.
*265The brief then states that, pursuant to congressional action, the Secretary of the Interior and the Commissioner of Indian Affairs have proposed the adoption of certain rules relating to off-reservation treaty fishing which have been published in 30 Fed. Reg. 8969. The proposed rules were signed by the Under Secretary of the Interior on July 5, 1965. Whether they have yet been officially adopted, we are not advised.
I mention the government’s amicus curiae brief at some length because this is the first indication we have had of what the government’s legal or administrative position is in regard to the status of the Treaty of Medicine Creek or to a departmental solution of the problems heretofore presented to this court concerning the off-reservation fishing rights of treaty Indians.
Thus, we now have official information that the legal representatives of the government take the position that an Indian treaty is the same as a treaty with a foreign nation. I presume that this means that an Indian treaty under the Supremacy Clause of the United States Constitution is the supreme law of the land. Cf. first opinion in State v. Satiacum, supra, and cases cited therein. We are also assured that the Interior Department is proposing to take some action regarding the regulation of off-reservation fishing by treaty Indians.
III.
I desire to point out that I disagree with the majority’s discussion of the holding of the Court of Appeals in Maison v. Confederated Tribes of Umatilla Indian Reservation, 314 F.2d 169 (9th Cir. 1963), where that court said, at 172:
Thus, in both the Tulee and Makah cases it was held that the Indians’ right to fish is qualified by the state’s right to regulate such fishing when necessary for conservation. But, to establish necessity the state must prove two facts: first, that there is a need to limit the taking of fish, second, that the particular regulation sought to be imposed is “indispensable” to the accomplishment of the needed limitation.
*266Before discussing whether the defendants have sustained their burden of proof it will be helpful to briefly explain the life cycle of the salmon and steelhead fish. Such fish are anadromous; that is to say, they are born in fresh water streams, migrate to and live the greater part of their lives in the ocean and, just before dying, return to the place of their birth to spawn. The fish bom in a particular stream are delicately adjusted to its peculiar characteristics and instinctively return to it at the time of the year when successful spawning can occur. Attempts at stocking barren streams have been costly and only sporadically successful, and severe decimation of a run of fish in a particular stream can result in the permanent destruction of its population. In traveling upstream to spawn many debilitating hardships are encountered, including natural predators, disease and water pollution. By the time they reach the spawning ground, the body oils of the fish are practically used up, and they are often cut, bruised, diseased, and afflicted with fungus growths.
Defendants contend that “conservation through wise use, the keynote of modern fisheries management,” dictates that the plaintiffs’ fishing on the spawning grounds be restricted because the value of the fish there is highest as seed stock but lowest as food.
After discussing certain testimony presented by the Oregon officials, the Court of Appeals concluded:
However, the treaty dealt only with the rights of the plaintiffs’ ancestors, and did not secure rights to any other group or class. Therefore, while a restriction of the fishing activities of the plaintiffs must be indispensable, as required by the treaty [Tulee v. Washington, supra.], a restriction of the fishing activities of other citizens of a state is valid if merely reasonable, as required by the Fourteenth Amendment to the United States Constitution. Thomson v. Dana, 52 F.2d 759 (D. Ore. 1931), aff’d. 285 U.S. 529, 52 S.Ct. 409, 76 L.Ed. 925 (1932). The complete exclusion of sports fishermen from the spawning grounds as an alternative does not amount to arbitrary discrimination against them, because the state possesses broader power to regulate sports fishing than it does to regulate fishing by the Indians. This one of the alternatives listed by the court being available, we need not discuss the others.
*267The word “indispensable” is said by the majority not to be supported by the two cases cited by the Court of Appeals, to wit, Tulee v. Washington, 315 U. S. 681, 86 L. Ed. 1115, 62 Sup. Ct. 862, and Makah Indian Tribe v. Schoettler, 192 F.2d 224 (9th Cir. 1951). However, the United States Supreme Court denied the state of Oregon’s petition for certiorari in the Maison case (375 U. S. 829, 11 L. Ed. 2d 60, 84 Sup. Ct. 73).
While the denial of certiorari is not to be considered as an expression of approval of the lower court’s decision, the Maison case involved the interpretation of a treaty which under the Supremacy Clause of the United States Constitution is the supreme law of the land, and hence could be authoritatively interpreted only by the United States Supreme Court. If the word “indispensable,” in the context in which the court of appeals used it in the Maison case, substantially changed the meaning of the treaty as to the state’s power of regulation of Indian fishing rights, one would suppose that, in view of the many conflicting decisions of various state and federal courts on this vital subject, the Supreme Court would have granted certiorari.7
The Maison decision was followed by Judge Solomon sitting in the United States District Court for the District of Oregon in Confederated Tribes of the Umatilla Indian Reservation v. Maison, 262 F. Supp. 871 (decided August 8, 1966). This case involved the right of treaty Indians to hunt game. The language of the treaty involved was similar to the treaty in the case now before us. In upholding the Indians’ right under the treaty to hunt game, Judge Solomon said:
In Confederated Tribes of the Umatilla Indian Reservation v. Maison, et al., D.C. 186 F. Supp. 519, 520, I construed this article to mean that the State may not restrict the off-reservation fishing rights set forth in the treaty *268without showing that such restriction was necessary for conservation of the fish. The Court of Appeals in affirming this decision laid down the test to be applied to State-imposed restrictions of treaty rights:
“ * * * while a restriction of the fishing activities of the plaintiffs must be indispensable, * * * a restriction of the fishing activities of other citizens is valid if merely reasonable * * * ” (9 Cir., 314 F.2d 169, 174 emphasis in original).
In other words, defendants here contend that in spite of the provisions of the treaty, the Indians have no greater rights to fish and hunt off their reservation than any other Oregon citizen. This contention was made and rejected in United States v. Winans, 198 U. S. 371, 25 S. Ct. 662, 49 L. Ed. 1089 (1905); Tulee v. State of Washington, 315 U. S. 681, 62 S. Ct. 862, 86 L. Ed. 115 (1942); and Makah Indian Tribe v. Schoettler, 192 F.2d 224 (9th Cir. 1951).
No one disagrees with the defendants’ argument that regulation of fish and game resources is necessary and desirable, and that an intolerable situation would arise if all citizens were permitted to fish or hunt without restriction. However, the issue here is whether a State is permitted to proscribe or limit the treaty rights of Indians without showing that such restriction is indispensable. Confederated Tribes, supra.
Until the Supreme Court holds that the term “indispensable” is not the correct test to be used in determining the validity of state laws and regulations vis-a-vis the fishing rights of treaty Indians, I think that this court should not read the word out of the Maison decision and substitute “reasonable and necessary” therefor.
Even if the rule approved by the majority decision in the case at bar is followed (i.e. that the state has the burden of proving that its regulations are reasonable and necessary to conserve the fishery), I see no need for a further hearing.
The trial court stated in its memorandum decision that the total amount of salmon caught by Indians in the entire state in 1964 was only between 3 per cent and 5 per cent of the total number taken by Indians and non-Indians.
*269The trial court found the facts as to the fishing activities of appellants to be:
XIII. That the individual defendants began openly fishing the Puyallup River in 1953 contrary to the laws, rules and regulations of the State of Washington. Since that time, the defendants have gradually increased the intensity of their drift net and set net fisheries, using modern nylon monofilament nets, to the point that the anadromous fish runs of the Puyallup River are presently unable to maintain themselves in an abundant supply without supplemental plantings by the state.
XIV. The Puyallup River from Commencement Bay to its upper tributaries constitutes and is a prime spawning and rearing area for anadromous fish.
XV. The defendants have indicated that unless restrained from so doing, they will continue to fish in the Puyallup River and Commencement Bay in the manner in which their fishing activities have taken place since 1953.
XVI. That the place, time, and manner of fishing by the defendants was and is in violation of the rules, and regulations of the State of Washington. That the fishing activities of the defendants, if allowed to proceed unrestrained could result in the destruction or serious impairment of the anadromous fish runs of the Puyallup River.
XVII. That once anadromous fish runs in a river system have been destroyed, it is generally impossible to reestablish them.
XVIII. It is reasonable and necessary that state conservation, rules and regulations be uniformly applied to all citizens on an equal basis including the defendants.
The ultimate finding of fact is that the fishing activities of appellants, if not restrained, could result in the destruction or serious impairment of the anadromous fish runs on the Puyallup River.
The above quoted findings do not, in my opinion, support the conclusion that:
It is reasonable and necessary that state conservation, rules and regulations be uniformly applied to all citizens on an equal basis including the defendants.
*270Neither do they justify the entry of the trial court’s judgment and decree which contained the following injunctive provision:
It is hereby Ordered, Adjudged, and Decreed That:
The individual defendants and all members of the federal organization known as the “Puyallup Tribe” are hereby permanently enjoined from fishing in the Puyallup River watershed and Commencement Bay in any manner that is contrary to the laws of the State of Washington or contrary to the rules and regulations of the Department of Fisheries of the State of Washington and the Department of Game of the State of Washington.
I agree with the following statement made in the brief of the amici curiae Association on American Indian Affairs, Inc., as to the effect of the trial court’s permanent injunction quoted above wherein it is said:
The decision below concerning the purported nonexistence of the Puyallup Tribe today is novel, wholly contrary to well-established principles of Indian law, and completely at odds with sound public policy. In the first place, only Congress, and clearly not the State courts, has power to effect the termination of tribal status. Creek County v. Seber, 318 U.S. 705, 718 (1943); United States v. McGowan, 302 U. S. 535, 538 (1938); United States v. Nice, 241 U. S. 591, 598 (1916); United States v. Sandoval, 231 U. S. 28 (1913). Indeed, the rule that sole responsibility for declaring when tribal existence has ended is vested in Congress has particular pertinence in this case where withdrawl of recognition from the Puyallup Tribe (at least in the view of the lower court) effectively would abrogate a solemn treaty commitment of the United States.
As indicated above, I likewise agree with the closing statement in the brief of the amicus curiae Association of Indian Affairs, Inc., which states:
The Superior Court’s Findings of Fact and Conclusions of Law clearly fail to measure up to this standard. Neither the findings nor the memorandum deal with the critical question — i.e., whether the State could accomplish its conservation objectives through more rigorous regulation of non-Indian fishing or by other means not having an impact upon appellants. Similarly, the court *271below appears not to have considered whether preservation of the Puyallup River fishery, assuming the need for regulation, requires so severe a curtailment of Indian fishing as the respondents here seek to impose. Such disregard for the applicable law, particularly as enunciated by the United States Court of Appeals for this Circuit, cannot be allowed to stand.
In summary, unlike their non-Indian fellow-citizens, enrolled members of the Puyallup Tribe have a vested property right under the Treaty of Medicine Creek to fish at all usual and accustomed places outside their reservation. This off-reservation right to take fish, so essential to the Indians’ very existence, is protected under Federal law, and, at the very least, may be limited by State law only under extraordinary circumstances. As a matter of law, the Washington conservation statutes and regulations may not be enforced against Indian treaty fishing rights in the same manner as they are against the bare fishing privileges of other persons. In the former situation, unlike the latter, the State of Washington has the burden of proving affirmatively that application to appellants of the attempted regulations is indispensable to the conservation of the fish resource and the task of further proving that the desired conservation goals cannot be achieved in some other fashion. Respondents made no such showing in the lower court.
Unless it be held that Indian treaties are not treaties within the meaning of the Supremacy Clause of the United States Constitution and hence are not the supreme law of the land and do not override the police power of the states (contrary to the holding of the Supreme Court, cited below)8, I can only reach the conclusion that the judgment and decree of the trial court should be reversed with directions to dismiss the action.
*272I am further of the opinion that respondents have failed to pi ove either that the state laws and regulations here involved are either indispensable or reasonably necessary to the conservation of salmon fishery on the Puyallup River and hence would reverse and dismiss for that reason.
This is the second time that the United States Supreme Court has failed to grant a petition for certiorari which sought an authoritative ruling on the status of an Indian treaty with respect to state police power. See discussion of State v. Arthur, 74 Ida. 251, 261 P.2d 135 (1953), found in State v. Satiacum, 50 Wn.2d at pages 525-529.
See cases discussed in the first Satiacum opinion (50 Wn.2d at pages 516-519).
In State v. Quigley, 52 Wn.2d 234, 324 P.2d 827 (1958), a case in which a non-treaty Indian claimed the right to hunt deer on his own property without a hunting license, this court, in a unanimous en banc opinion concluded with this dictum: “Of course, a treaty takes precedence over a state law, but appellant has no treaty rights that restrict the state in its exercise of the police power. Our question, therefore, must be answered in the affirmative.”