The opinion
Hale, J.
(dissenting) — There is, I perceive, a curious aura of romantic whimsy suffusing the law of Indian treaties. Indian treaty cases seem never quite fully to depart that peculiar genre of elemental melodrama compounded more of fantasy than fact, more of folklore than truth — all subject to the inevitable distortion of time and history — in order to reach a devoutly wished judicial consummation. Although this may make for good reading, it probably produces bad law. Inexorably inhering in these decisions on Indian treaties, I think, is the judicial conscience which aspires somehow to right what the courts think to be historical wrongs — even if the treaty is somehow twisted out of shape to achieve it. Thus, in Indian treaty law, the Indian occupies a traditionally exalted position; the pioneers and the government which encouraged them to settle and develop this Western frontier a correspondingly low one; and the treaties undergo an inevitable distortion in the process. The time must eventually come, however, when the courts will have to construe the Indian treaties as the parties intended and as common sense dictates. Whatever pangs of conscience the judiciary may have developed through the present century concerning treatment of the Indians more than a century ago at the hands of the citizenry, misconstruing the treaties is a poor means of expiation. Two wrongs do not make a right and the courts can *578 not and ought not remedy such wrongs whether real or imagined by revising the treaties and inventing special rights in order to come up with a result which comports With the judiciary’s ideas ex post facto of what the treaty should have said. If the treaties with the Indians did not afford treaty Indians exclusive rights or preferential privilege in the state’s lakes, rivers, streams and bays, the courts ought not accord such preferential rights and privileges to their descendants.
Courts must accept the treaties as written and cannot alter or amend them. Kansas or Kaw Tribe of Indians v. United States, 80 Ct. C1. 264 (1934), cert. denied, 296 U.S. 577 , 80 L. Ed. 408 , 56 S. Ct. 88 (1935); Osage Tribe of Indians v. United States, 66 Ct. Cl. 64 (1928), appeal dismissed and cert. denied, Osage Indians v. United States, 279 U.S. 811 , 73 L. Ed. 971 , 49 S. Ct. 251 (1929). If a treaty did not give the Indians special times and places in which to fish, the court is without power to write a new treaty giving their descendants such special privileges. Whatever rights Indians may once have possessed to treat with the United States as a contracting entity ended with the act of March 3, 1871, Rev. Stat. § 2079, 25 U.S.C. § 71 , which abrogated the treaty-making power with the Indian nations and tribes.
Lacking the constitutional power to make treaties of any kind, the courts are equally without power to rewrite them from time to time or at all — even to achieve what the courts believe to be a good result. The judicial function is limited, I think, to enforcing and upholding the treaties according to their content and spirit. Accordingly, judicial process is not the medium nor is the courthouse the place to rectify the wrong, real or illusory, done to the Indians by the pioneers and the United States government more than a century ago. Any wrongs done the Indians, if genuine and shown to persist down through the generations, should be righted by the Congress.
The Treaty of Medicine Creek, negotiated in 1854 (Treaty With Nisqualli, Puyallup, Etc., 1854, 2 Indian Af *579 fairs Laws and Treaties 495 (1902)), by the United States with a primitive people then under partial subjection to the war-declaring power of the Congress and the war-making power of the President, cannot be sensibly interpreted, I think, so as to award the descendants of these primitive people rights and privileges today in the state’s waters not enjoyed in common by all of their fellow citizens of the state and the United States. The court’s ruling, I fear, not only deprives citizens of the equal protection of the laws, but grants to some Indians as a class immunities and privileges not enjoyed by all citizens, including most Indians— all in violation of the Fourteenth Amendment.
A reading of the other treaties negotiated contemporaneously by Isaac I. Stevens with the Indians of the Pacific Northwest bears out, in my opinion, that the government of the United States, even before adoption of the Fourteenth Amendment, did not intend to disparage the citizen settlers’ rights and correspondingly aggrandize Indians’ rights, particularly during an era when the United States was encouraging the settlement and development of these Western territories by citizens; nor will it show a purpose to accord special off-reservation privileges to the Indians and their descendants.
Fishing is an art virtually as old as man; recorded history, anthropology and the Bible tell us so. By 1854, while there may have been little knowledge of and less apparent need for conservation of natural resources than today, the people of this country were undoubtedly aware of the great economic and social value of water resources. A century and a half of colonial history followed by two generations of national history could not help but impress upon the government and the pioneers the value of water as a highway for travel and commerce and its vital use in the production of food and fiber. They knew its importance, too, as a source of hydraulic power in manufacturing and as an indispensable resource in chemistry, irrigation, agriculture, and as a household necessity. A little common sense applied to the Indian treaties will reveal, I think, that the United States *580 did not intend to put Indians, when away from their reservation, in a superior position to that of the citizens of the territory with respect to the rivers, streams, lakes and tidal waters of the territory.
The Treaty of Medicine Creek itself is the best evidence of what it means for we have little else to go on. It was made between the United States and certain tribes and bands of Indians, signed by Isaac I. Stevens for the United States, December 26, 1854, ratified by the Senate March 3, 1855, and proclaimed by the President, April 10, 1855. Its explicit language that whatever off-reservation fishing rights the Indians may have are held “in common with all citizens of the Territory” (2 Indian Affairs Laws and Treaties 495 (1902), 10 Stat. 1132 ), is susceptible of no sensible interpretation other than that the Indians shall have no fishing rights that all citizens do not have and vice versa off the reservation. To make it mean something else requires an obvious distortion and misinterpretation.
This exact language of the treaty, incorporated as it was in other similar treaties contemporaneously negotiated with other tribes and bands, makes clear that the Indians were not to be excluded from fishing grounds off their reservation if the citizens of the territory were not excluded, but that these rights were to be coextensive only with those of the citizens of the territory. Article 3 of the Treaty of Medicine Creek as noted says:
Article 3. The 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, together with the privilege of hunting, gathering roots and berries, and pasturing their horses on open and unclaimed lands: Provided, however, That they shall not take shell-fish from any beds staked or cultivated by citizens, and that they shall alter all stallions not intended for breeding-horses, and shall keep up and confine the latter.
The entire treaty points to the same conclusion. In article 1, the Indians did “cede, relinquish, and convey to the *581 United States, all their right, title, and interest in and to the lands and country occupied by them.” Article 2 reserved for their present use certain reservation lands. Article 4 provides that, in exchange for the cession of certain described lands, the United States pay to the signatory tribes $32,500 in installments or annuities; another payment of $3,250 under article 5 was to be paid to the Indians for expenses of removing to their reservation and “to clear, fence, and break up a sufficient quantity of land for cultivation.” Had the Indians demanded and the government intended to grant them exclusive off-reservation rights to fishing, here was one of several logical places to say so.
The treaty was comprehensive and workable. Article 7 prohibited the annuities earlier described from being attached for individual debts; article 8 pledged the Indians to be friendly, refrain from making war, and refrain from concealing and protecting Indians who committed depradation against citizens of the territory. In article 9, the Indians acknowledged that they were “desirous to exclude from their reservations the use of ardent spirits, and to prevent their people from drinking the same” and agreed that any Indian who introduced liquor onto the reservation or who drank it stood to have his “proportion of the annuities withheld from him or her for such time as the President may determine.”
Article 10 provided for the establishment of a general Indian agency by the United States government, and for free industrial and agricultural schools and the employment of “a physician to reside at the said central agency, who shall furnish medicine and advice to their sick, and shall vaccinate them; the expenses of the said school, shops, employees, and medical attendance, to be defrayed by the United States, and not deducted from the annuities.”
Article 11, imposing higher moral standards upon the Indians than the government vouchsafed for the country at large, abolished slavery:
Article 11. The said tribes and bands agree to free *582 all slaves now held by them, and not to purchase or acquire others hereafter.
There is not a word in any of these articles, comprehensive as their contents were, nor in the other treaties, to suggest that either the Indians or the United States government intended that the Indian tribes and bands be accorded rights outside their reservations in the rivers, streams, lakes and Puget Sound superior to or not equally available to those of the citizens of the territory.
The fishing privileges contemplated by the Treaty of Medicine Creek were not unique. July 1, 1855, Isaac I. Stevens, acting for the United States, made 'a treaty with the Quinaielt, Quillehute and other tribes and bands. 2 Indian Affairs Laws and Treaties 539 (1902), 12 Stat. 971 . That treaty employs identical language to the Treaty of Medicine Creek concerning off-reservation fishing privileges, stating explicitly in article 3, that “The right of taking fish at all usual and accustomed grounds and stations is secured ... in common with all citizens of the Territory.” (Italics mine.)
Here, too, as in the Medicine Creek Treaty, had it been intended that the Indians were to acquire off-reservation hunting and fishing rights superior to those of the citizens of the territory, the treaty contains many articles where such provisions could logically have been made, including article 2 reserving for the Indians certain described lands for reservations “for their exclusive use” and declaring “no white man shall be permitted to reside thereon without permission of the tribe and of the superintendent of Indian affairs or Indian agent.” In this as in the other treaties, the Indians agreed to “remove to and settle upon the [reservation] within one year,” thus expressing an intention to put the treaty into early effect and to suit their actions to the words of the treaty.
Nor should we, in considering the Treaty of Medicine Creek, now before the court, overlook the Treaty of Point Elliott, 2 Indian Affairs Laws and Treaties 501 (1902), 12 Stat. 927 , negotiated by Isaac I. Stevens at Mucklteoh, Jan *583 uary 22, 1855, with the Dwamish, Suquamish and other tribes and bands. The Treaty of Point Elliott employs the very language appearing in the Treaty of Medicine Creek and in the treaty with the Quinaielt, Quillehute and other tribes and bands, stating in article 5:
Article 5. The right of taking fish at 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, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands. Provided, however, That they shall not take shell-fish from any beds staked or cultivated by citizens.
(Italics mine.)
The remaining provisions, nearly identical to those of the Medicine Creek Treaty now before us and to those of the treaty with the Quinaielt and other tribes, make no provision for special off-reservation fishing privileges. As with the Treaty of Medicine Creek and the treaty with the Quinaielt, Quillehute and other tribes and bands, the Treaty of Point Elliott contains not even a hint that the Indians or their descendants would acquire, even temporarily, much less forever, off-reservation fishing rights not to be held in common with the citizens of the territory.
Similarly, in the Treaty of Point-No-Point, 2 Indian Affairs Laws and Treaties 504 (1902), 12 Stat. 933 , made by Isaac I. Stevens, January 26, 1855, on behalf of the United States with the S’Klallam and other tribes, article 4 declares that “The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians, in common with all citizens of the United States.” (Italics mine.) Here one should note a minor departure from the language of the three other treaties, describing the settlers as citizens of the United States rather than as citizens of the territory. In this, as in the three other treaties, one cannot find any language from which exclusive off-reservation Indian fishing rights may be inferred. Elsewhere, the Treaty of Point-No-Point makes clear, as do the *584 other treaties, that the settler’s cultivated lands, crops and animals are to be protected from Indian trespass, thus eliminating the inevitable claim that special off-reservation fishing rights carry with them correlative rights to go upon the private lands and riverbanks and break the settler’s close.
Nothing in any of the four mentioned treaties suggests that the Indians reserved or were to be awarded hunting and fishing rights save “in common with all citizens of the territory.” The United States, seeking to promote the development of this Western frontier, obviously did not intend to put the primitive peoples with whom it was negotiating in a vastly superior position to use and exploit the waters of the territory to that of the settlers whom the government was then trying to induce to settle here. Manifestly, the purpose of the United States was to secure to the settlers a fair degree of protection from marauding Indians, cut down on Indian depradation, and elevate the standard of living of these primitive peoples according to the standards of the day, and to prevent the settlers from cutting off the Indians’ rights to fish in those places where the settler elected also to fish. Allowing exclusive on-reservation rights and common off-reservation rights was obviously designed to prevent discrimination against the Indian in fishing, to permit the Indian to fish where the settlers chose to fish, not to enhance the position of the Indian and his descendants with respect to fishing.
In essence, the treaties say no more about fishing than that off their reservation the Indians should not be barred from exploiting those natural uncultivated fish resources to the same extent that the settlers permitted themselves to exploit them. The treaties are not, in my opinion, sensibly susceptible of a converse reading that the Indians off their reservation can bar the citizens from fishing where the Indians had customarily fished.
On January 31, 1855, Isaac I. Stevens negotiated a treaty with the Makah at Neah Bay, 2 Indian Affairs Laws and Treaties 5Í0 (1902), 12 Stat. 939 , containing substantially *585 the same provisions as the other four mentioned treaties but with a significant enlargement of the Indians’ fishing rights so as to include whaling and sealing:
Article 4. The right of taking fish and of whaling or sealing at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the United States, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands: Provided, however, That they shall not take shell-fish from any beds staked or cultivated by citizens.
(Italics mine.)
Here, again, it should be noted, in common with all other treaties negotiated with the Indians in what has now become Washington state, the right of taking fish is secured to the Indians in common with all citizens of the United States and to the privilege of taking fish has been added in this particular treaty the privilege of taking whales and seals, but again only in common with the citizens of the United States.
Should this treaty of 1855 with the Makah be read so as to reserve to the Indians extraordinary rights of sealing and whaling not held by all citizens of the United States— that is, the right to take seals and whales under the treaty not only then but now? The court’s interpretation of the Treaty of Medicine Creek when applied to the treaty with the Makah would mean, I think, that the Makah still possess whaling and sealing rights not held by all other citizens. Before giving this treaty with the Makah so absurd a construction, one should ponder possible international implications arising from it.
Other treaties contemporaneously negotiated with the Indians of the Pacific Northwest shed additional light on the meaning of the instant treaty and demonstrate that, where exclusive rights were intended, Indians and the government had no difficulty in saying so. Thus, in granting exclusive fishing rights to the Indians in waters in or bordering their reservations, explicit language was employed in a *586 treaty signed June 9, 1855, in the Walla Walla Valley at Camp Stevens between Isaac I. Stevens and the Walla Walla. 2 Indian Affairs Laws and Treaties 521 (1902), 12 Stat. 945 . The treaty says, in article 1,
That the exclusive right of taking fish in the streams running through and bordering said reservation is hereby secured to said Indians, and at all other usual and accustomed stations in common with citizens of the United States, and of erecting suitable buildings for curing the same; the privilege of hunting, gathering roots and berries and pasturing their stock on unclaimed lands in common with citizens, is also secured to them.
(Italics mine.)
In the Walla Walla Treaty, the Indians and the United States elected to reserve to the Indians “the exclusive right of taking fish in the streams running through and bordering said reservation,” and outside their reservation, in common with citizens of the United States, and they had no difficulty selecting the words admirably designed to convey that idea. (Italics mine.) One should note how the two ideas are placed side by side to effect a sublime clarity— first the exclusive right within and bordering the reservation, and then off the reservation, at all usual and accustomed stations in common with citizens of the United States. The most sophisticated and learned of counsel would be hard put today to express this agreement with more clarity or greater economy of words. The phrase “in common with citizens of the United States” — explicit, straightforward and concise — means, I hope, precisely what the words say, i.e., the Indians and their descendants acquired no rights or privileges outside or bordering their reservations not enjoyed or to be enjoyed by all citizens of the United States.
These precise distinctions between exclusive and shared fishing rights — that is, on-reservation rights and those to be held in common with the citizens of the territory — were again made in the treaty with the Yakima, 2 Indian Affairs Laws and Treaties 524 (1902), 12 Stat. 951 , signed on be *587 half of the United States by Isaac I. Stevens, June 9, 1855, at Camp Stevens, Walla Walla Valley. That treaty with the Yakima in article 3, in pertinent part, reads:
The exclusive right of taking fish in all the streams, where running through or hordering 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 the citizens of the Territory, and of erecting temporary buildings for curing them; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land.
(Italics mine.)
As with the Walla Walla, this treaty by eloquent juxtaposition marks well the distinction between exclusive fishing rights in all streams running through or bordering the reservations, and in those shared rights and privileges in all other waters which are to be held in common with the citizens of the territory.
Nor is the language used in the Walla Walla and Yakima treaties to be treated as mere coincidence or fortuity, for an identical clause appears in the treaty with the Nez Perces, 2 Indian Affairs Laws and Treaties 528 (1902), 12 Stat. 957 , signed by Isaac I. Stevens for the United States, June 11, 1855, at Camp Stevens in the Walla Walla Valley. This Nez Perce treaty too employed the same juxtaposition of language to vouchsafe to the Indians “exclusive right of taking fish in all the streams where running through or bordering said reservation,” but off the reservations only “the right of taking fish at all usual and accustomed places in common with citizens of the Territory.”
Thus, a reading of all of these treaties, negotiated as they were at about the time of the Treaty of Medicine Creek in 1854, makes clear, I think, that neither the Indians nor the government had any difficulty whatever in describing or understanding the idea of reserving to the Indians exclusive fishing rights upon or adjoining their reservations and allowing them fishing rights and privileges in common with the citizens in all other waters. Rights and privileges held *588 in common protected the Indians from invidious discrimination and exclusion in a treaty that at the same time protected the settlers’ lands and crops and animals from trespass and damage.
The Treaty of Medicine Creek thus expressed a mutual purpose that the Indians and their descendants should retain off the reservations fishing rights in the state’s lakes, rivers and streams and tidal waters only in common with and to be enjoyed by all citizens of the territory. On the reservation, the Indians’ rights to fish were exclusive; off the reservation, the Indians shared them with the citizens of the territory. If the citizens could not fish, neither could the Indians.
I can reach no other sensible conclusion in the face of this clear and express language except by a process of extravagant judicial interpretation and resort to invention and innovation, amounting to the rewriting of the old or promulgation of a new treaty. The time has come at long last for the courts to brush away the fog, fantasy, folklore and mythology upon which I perceive these Indian treaty decisions appear to rest and to read the treaties as they were intended by both the Indians and the government to be read.
There is yet another reason why the treaties cannot be read to award off-reservation fishing rights to the descendants of the tribal signatories so as to give off-reservation rights not to be held or exercised in common by all other citizens. In 1868, long after these treaties were signed, the Fourteenth Amendment was adopted to prohibit the perpetration of political inequality. It expressly provides that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state . . . deny to any person within its jurisdiction the equal protection of the laws.” (Italics mine.) Presumably no class of citizens is to be excluded from its protection because of race, color, creed or national origin. For the purpose of this case, all of the claimant Indians in this case should be deemed citizens of *589 the United States and of the State of Washington. The court now reads the Treaty of Medicine Creek so as to abridge the privileges of all citizens other than descendants of the Puyallups by giving the latter the privilege of taking fish from the Puyallup River and at the same time denying to all other citizens of the state and the United States the equal protection of the laws to do the game thing. It will give to the descendants of the Puyallups special open seasons with special commercial gear, neither of which privilege is open to all others. The opinion thus not only violates the plain language of the treaty by granting to Indian citizens rights to fish not enjoyed in common by all other citizens of the state and nation, but also contravenes the express language and violates the spirit of the Fourteenth Amendment.
Finally, I agree that the record supports the trial court’s finding that the Puyallup Tribe ceased to exist as a tribal entity; that its members no longer possessed any fishing rights whatever under that treaty; that the Puyallup Indian Reservation had long ago ceased to exist; and that the descendants of the Puyallup retained no fishing rights within the area that formerly comprised that reservation. The members of the Puyallup Tribe, Inc., a federal organization, as the trial court found, therefore, for these added reasons have no fishing rights not held in common with all of their fellow citizens of the State of Washington and of the United States.
Rosellini, J., concurs with Hale, J.
Petition for rehearing denied June 23, 1972.