Rosellini, J.
This case involves the question of whether the state can enforce reasonably necessary regulations for the conservation of chinook salmon fisheries against an Indian whose tribe was a party to the Treaty of Point Elliott, 12 Stat. 927 (January 22, 1855).
Defendant, an American Indian of Swinomish descent, was charged with fishing in closed waters. The trial court acquitted him, holding that the Treaty of Point Elliott granted him immunity from state regulatory powers. The state appeals.
In the early morning hours of July 28, 1960, defendant was fishing from his boat in what is called the “jetty drift” located near the mouth of the north fork of the Skagit River. He was operating an 18-foot, 25-hp-outboard-motor boat, and was using a 600-foot modern nylon gill net. One end of the net was attached to his boat; the other end extended horizontally 600 feet. The top of the net was equipped with floats and the bottom with a lead line. The net, thus, was held perpendicular in the water and the mesh was deep enough to drag the bottom of the river. The defendant would commence in the upper reaches, and drift with the tide to the end of the jetty. This procedure would be repeated. The effect was to sweep the jetty clean of fish. The defendant’s catch of salmon was for sale to commercial buyers.
The jetty drift is a commercial fishery which has been enjoyed in common by the Indians and non-Indians for a period of many years. About 1959, the Swinomish Indians asserted that they could fish unregulated at the jetty drift.
The regulation in effect at the time of the defendant’s arrest was not a permanent prohibition of fishing. It was a 10-day closure designed to protect the peak of the salmon [423]*423runs passing through the Skagit River to the spawning grounds.
Salmon migrate through many fisheries. Time closures, therefore, are staggered to protect the fish as they make their way through each fishery situated on the path of migration. This 10-day closure on the Skagit River was closed to all fishing. Defendant asserts his immunity to the closure regulation because of Art. 5 of the Treaty of Point Elliott:
“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.” (Treaty with the Dwamish, Suquamish, etc., 1855, 12 Stat. 927).
The court found that the respondent was not fishing within the boundaries of the reservation, but was fishing at the usual and accustomed fishing grounds.
The 24 assignments of error raise two issues (1) whether the state can show that regulation is reasonably necessary to conserve a fishery resource, and (2) whether it has been preempted by the Treaty of Point Elliott from any state action in regard to Indian fishing rights.1
It is contended by the respondent that the Treaty of Point Elliott reserves to Indians the unrestricted right to [424]*424fish. Therefore the reasonableness of any regulation is an irrelevancy. The law is otherwise when applied to treaty Indians fishing off of the reservation at the usual and accustomed grounds.
In Tulee v. Washington, 315 U. S. 681, 86 L. Ed. 1115, 62 S. Ct. 862 (1942), the court ruled that the state might regulate the time and manner of off-reservation fishing by Indians where necessary for conservation.
“. . . The appellant [Tulee], on the other hand, claims that the treaty gives him an unrestricted right to fish in the ‘usual and accustomed places,’ free from state regulation of any kind. We think the state’s construction of the treaty is too narrow and the appellant’s too broad; that, while the treaty leaves the state with power to impose on Indians, equally with others, such restrictions of a purely regulatory nature concerning the time and manner of fishing outside the reservation as are necessary for the conservation of fish, it forecloses the state from charging the Indians a fee of the kind in question here.”
The United States Supreme Court reaffirmed this ruling in Organized Village of Kake v. Egan, 369 U. S. 60, 75, 7 L. Ed. (2d) 573, 82 S. Ct. 562:
“. . . Even where reserved by federal treaties, off-reservation hunting and fishing rights have been held subject to state regulation, Ward v. Race Horse, 163 U. S. 504; Tulee v. Washington, 315 U. S. 681, in contrast to holdings by state and federal courts that Washington could not apply the laws enforced in Tulee to fishing within a reservation, [citing authorities].
“True, in Tulee the right conferred was to fish in common with others,. while appellants here claim exclusive rights. . . . ”
In Makah Indian Tribe v. Schoettler, 192 F. (2d) 224 (C. A. 9th, 1951), the court held that the state had not proved the necessity of a regulation limiting gear in the Hoko River to hook and line. In the course of the opinion, the court observed that the resource might be equally well conserved by permitting a fishery with periodic closures.
In the case of Maison v. Confederated Tribes of Umatilla Indian Reservation, 314 F. (2d) 169 (C. A. 9th, 1963), the court said:
[425]*425“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.”
Of interest is the Indian Claims Commission decision which is not published, but is on microfilm at the University of Washington Library, and has been transcribed and made available to this court. That is the case of Makah Indian Tribe v. United States, 7 Ind. Cl. Comm. 477 (1959) affirmed 151 Ct. Cl., docket No. 559, unpublished, cert. den. 365 U. S. 879, 6 L. Ed. (2d) 191, 81 S. Ct. 1028 (1961). There compensation was sought for the alleged impairment of the treaty-fishing right by regulation. The treaty provision was similar to that in the instant case. The commission ruled, p. 507:
“By entering into international agreements with Canada to conserve, protect and restore the depleted Pacific halibut ocean fishing, the United States did not deprive, abrogate, or deny to the Makah Tribe of Indians any right which they may have reserved under Article IV of the 1855 Makah Treaty to fish in common with all citizens of the United States at usual and accustomed grounds and stations because:
“(1) Such fishing rights as guaranteed under Art. IV of the 1855 Makah Treaty are not so absolute, unlimited, and exclusive in that they cannot be accommodated and adjusted to meet changing circumstances where the Government must impose reasonable regulations designed to conserve and protect our natural resources for the benefit of all. Tulee v. State of Washington, 315 U. S. 1081 (1942), Makah Indian Tribe v. Schoettler, 192 F. 2d 244 (1951); and
“(2) The defendant has shown by overwhelming evidence (for the most part undisputed) that the seasonal restrictions, imposed upon the Pacific coast halibut fishery by regulations promulgated and adopted by the International Fisheries Commission, pursuant to the Convention between Canada and the United States, are fair, reasonable, and absolutely necessary to conserve, protect, and rehabilitate the halibut species. . . .
[426]*426“(3) The reserving of Makah fishing rights at usual and accustomed places under the 1855 Treaty was founded upon the need of the petitioner tribe to maintain its then subsistence economy which was based primarily upon the immediate products of the sea, and in no sense was this treaty provision a guarantee of future commercial fishing rights.
“ (4) Petitioner has failed to prove that in complying with the regulations of the halibut Commission, or by their enforcement, the individual members of petitioner tribe suffered a deprivation to the extent that they are unable to sustain their immediate wants or that of their families consistent with a subsistence economy.”
To ascertain whether regulation is reasonably necessary for conservation of Pacific salmon, one must understand the life cycle of these fish.
Pacific salmon are anadromous fish; that is, they are hatched in fresh water, descend to salt water, attain most of their growth there, and then return to the stream of their origin to spawn and perpetuate their kind. After spawning, they die. They have a well-developed homing instinct that enables them to return to spawn in the stream of their origin. Spawning occurs in the fall and winter in well-percolated gravel beds, where the fish bury their eggs to protect them from predators and the elements. The eggs hatch in the gravel and the fish live there for a time, subsisting on the yoke material from the egg. After emerging from the gravel, the young fish begin to swim actively. Depending on the species, some salmon spend a year or more in fresh water before migrating to sea, while others leave for ocean environment within a few weeks or months after emerging from the gravel of the nest. Three to five years later, the chinook salmon return from the sea to the river of their birth to spawn.
After the various species of salmon near maturity and are in prime condition, they leave the extensive pastures of the sea to begin the long journey to the home stream of their origin. It is during this period of the salmon’s life that the main effort toward harvest is concentrated. While still at sea the chinook, silver, and pink salmon are caught by the commercial and sports trollers off the coasts of [427]*427Alaska, British Columbia, Washington, Oregon, and California. After these species enter the inside waters off the mouths of their spawning streams, their numbers are further reduced by net fisheries.
When the survivors escape the last net fishery in the rivers of their birth, they deposit their eggs in the gravel to perpetuate their kind, complete the life cycle and die.
The appellant proffered testimony to show the number of other Indians fishing, their manner of fishing, and the effect of such fishing. It offered proof of the effect on salmon runs of unrestricted fishing. It offered charts and testimony with regard to catch versus escapement of chinook and silver salmon in the Puyallup River, showing how an unregulated Indian fishery affects conservation, and the necessity for regulation to conserve salmon runs. This evidence disclosed that prior to 1953, there did not exist any Indian fishery on the Puyallup River. During the year 1953 there were three Indian nets, and by 1960, there were some 30 gill nets and numerous set nets on the Puyallup. Exhibit No. 14 illustrates graphically what occurs when unrestricted fishing is permitted. It shows the catch record of only a few fish in 1953 and more than 14,000 fish in 1960. While, the escapement record shows approximately 13,000 fish in 1953 and less than 1,800 fish in 1960. As the catch increased, the escapements decreased so that a point of extinction will be reached should the cycles of salmon all be subject to unrestricted fisheries.
The offered evidence was rejected. This was error.
One essential of a conservation program is the regulation of the harvest of salmon in salt- and fresh-water areas. It is regulation that provides the escapement necessary to maintain a perpetual supply of salmon for the harvest by all people. If a fishery, within a river or off its mouth, harvests too many of the adult salmon because of the shallow confined nature of the fishing area and the habits of the salmon which cause them to school up and delay in these areas prior to ascending the river, there will be little escapement to perpetuate the runs. An uncontrolled fishery in such areas may harvest almost the entire run [428]*428of a fishery resource. Salmon are not inexhaustible and without their proper escapement for reproduction from year-to-year through controls in the harvest, the stocks will be reduced to a point where only a remnant run will exist.
Experience has shown that for runs of chinook salmon returning to a river, there are limits within which the harvest must be kept if sufficient seed stock is to reach the spawning grounds to maintain the runs. For chinook, a catch of 40 to 50 per cent of the total run is estimated to be within the necessary limits.
The Skagit River is capable of handling approximately 60,000 to 75,000 chinook spawners. Surveys in 1952 showed escapement of only 20,000 adult fish, and these continued to drop until, in 1957, the escapement of chinook in the Skagit River was down to 10,000. To stop the decline, regulations were imposed restricting fishing time, until in 1960, approximately 30,000 escaped and spawned in the Skagit. It has been demonstrated that unrestricted gill net fishing on the Fraser River could take 98 per cent of the runs. Similar results have been obtained on the Columbia River.
The state had a right to show that the number of fishermen fishing the jetty drift could take a major portion of the returning salmon. It is suggested that if greater regulation had been imposed upon the harvest of salmon in the ocean and in waters other than the Skagit River, that Indians could fish unmolested. This is contrary to the scientific proof. It has been demonstrated in places both on the Columbia and Fraser rivers that the regulation of one form of gear has not in reality saved any fish for spawning purposes, but instead has provided additional catch to the last fishery on the road of migration.
Edward M. Mains, supervisor of the Research Division of the state Department of Fisheries, established the relation between regulation and conservation, as follows:
“Q. You mentioned previously time, manner and place so far as the regulation of fishing was concerned. Would you tell us the importance of regulating the time of fishing so far as the conservation of salmon as a resource is concerned?
[429]*429“A. Yes. The control over time of fishing is one of the best tools we have in conservation work. During the time the salmon are migrating from the sea to their — this applies especially, I should say, to migrating fish, because over the years we have collected information and we have quite complete information on when these runs pass through certain areas and we know the time that they are in this area. So that by restricting the number of days of fishing it is fairly easy to actually conserve fish to spawn. We can actually do this by areas. We know the fish come through the outer straits areas at a certain time and in approximately a week later they are in another area, and a week further they are closer to the spawning grounds. We can stagger the closed seasons in this area to protect this entire group of fish. For instance, if you effect a ten-day closure out in the straits somewhere you would have to consider travel time —
“Q. —Excuse me one moment. What is the travel time of the average fish?
“A. It varies. From the time they cease feeding and start moving toward their home stream it varies from ten to twenty miles a day. This has been borne out by tagging studies. From the actual time when the tag was placed on the fish and released and time it was recovered we know the actual number of miles it covered in certain days.
“Q. Thank you. I did not mean to interrupt.
“A. Anyway, by following these certain groups of fish, by taking care of the fish in the peak of the run, by staggering the closures as it goes in you can protect this group of fish. This is the real prime principle you try to do. In other words, there is no use in trying to curtail fishing for ten days out in the Sound some place if you are going to let this same fishery catch these same fish you saved out there. In other words, you haven’t accomplished your intention of getting this same fish up to the spawning grounds. You have saved this group of fish from this one fishery and you let them be caught by another. This has been demonstrated time and time again in the Columbia River fisheries and Fraser River fisheries where unlimited and unrestricted gill net fishery can take ninety-five to ninety-eight percent of the fish. Unless you effectuate staggered closures up the river you can’t really save the salmon from one year to another year.
“Q. In other words, this time closure on fishing is necessary for the conservation of salmon throughout the State of Washington.
[430]*430“A. Very definitely. If you don’t actually design the closures correctly so that they are compatable with the time movement of the fish, and if you don’t have everybody observing the closures that you set, why, then you effectively have no regulation or only partial regulation.”
This same witness concluded that a few individual fishermen, unregulated by the department, could destroy the run:
“Q. What would your opinion be, sir, as the effect of conservation, if you have one or a few individuals unregulated so far as the Skagit River is concerned?
“A. Well, you could definitely destroy the run by the same illustration which I mentioned here. It has been demonstrated, for instance, that unrestricted fishing on the Fraser River by their gill net fishery could take ninety-eight percent of the run. It has been demonstrated by studies on the Columbia River that unregulated fishery there has the ability to take ninety-five percent of the run, and we also have the rather recent illustration in the case of the Puyallup River Indian fishery where they have virtually destroyed that run and are in the process of doing so with unregulated fishery.”
This evidence if considered by the court would have proved that regulation was reasonably necessary to conserve chinook salmon runs in the Skagit River.
The reason for the great increase in the Indian fishery and its attendant conservation problems, is because of the skyrocket values of salmon. An adult chinook salmon will weigh from 15 to 45 pounds, and some have weighed as much as 82 pounds. The average weight in a catch is anywhere between 18 to 22 pounds. The average wholesale price for chinook salmon is $10 per fish. With such an economic bonanza, just for the taking, individual self-restraint is a poor substitute for proper state regulation. Without state action to permit enough seed stock to escape to spawn, salmon will face extinction.
The trial court held that the Treaty of Point Elliott granted the Indians an unrestricted right to fish. This decision was based upon the reasoning of Indian “water rights” cases.
The “water rights” cases are distinguishable in that they involve the on reservation use of water, which was neces[431]*431sary for the agricultural development of Indian lands. It was the policy of Congress to integrate the various Indian tribes eventually into the agrarian level of our economy. Conrad Inv. Co. v. United States, 161 Fed. 829, 831 (C.C.A. 9th, 1908); United States Department of Interior, Federal Indian Law, 225-230 (1958).
Pioneer Packing Co. v. Winslow, 159 Wash. 655, 294 Pac. 557 (1930), is not contrary to this view. That case involved the Indians’ right to fish on the reservation, as is clearly shown by the statement of the court on page 662:
“In the case of State v. Towessnute, 89 Wash. 478, 154 Pac. 805, there was involved the right of the Yakima Indians to catch fish in violation of the state law outside of the reservation. The question of their right to catch fish within the reservation was not involved in that case, and it has no application here.”
To say that, by analogy, the Indians have a right to go outside their reservation to their “usual and accustomed grounds” to fish free of any regulation, amounts to an unwarranted extension of the rationale of the “water rights” cases. United States v. Fallbrook Public Util. Dist., 165 F. Supp. 806, 838 (1958), forcibly demonstrates that the “water rights” theory is not to be extended by analogy.
An examination of the Point Elliott treaty discloses that the Indians ceded the lands to the United States. They reserved lands for Indian reservation purposes, and reserved 36 sections of land for the purpose of establishing an agricultural and industrial school for the Indians. In consideration for the land, the United States was to pay $150,000; and an additional $15,000 was granted for expenses of removal and settlement of the Indians on the reservation, and to provide for the breaking and clearing of land for cultivation, and for fencing the same.
The United States was also to establish schools and to provide instructors, and to furnish mechanical shops.
By Art. 9 of the treaty, the tribes and bands acknowledge their dependence on the government of the United States, and promise to preserve friendly relationships with all citizens and with other Indian tribes.
[432]*432The Indians of Puget Sound, unlike those of the upper Columbia (Yakima and Nez Perce) were remnants of former large tribes; their numbers were depleted by smallpox and other diseases. These tribes were docile and were subjected to raids by the Haida and Tlingit of British Columbia and Alaska and by the Yakima from Eastern Washington. In addition to these difficulties, the settlers were fencing the gathering places, and, when objection was made by the Indians, they were told that the Great Father would pay for the lands. Existing under these conditions, the Indians appeared to welcome the messages from Governor Stevens which promised them protection and a way of bettering their lot by providing reservations for their use and even a means of imitating the white settlers. The Life of Isaac Ingalls Stevens, by his son, Hazard Stevens (1901) Vol. 1, 451-459. Under such circumstances, Art. 9 of the treaty of Point Elliott, by which the Indians acknowledge dependence upon the government, becomes more meaningful.
In the light of the governmental policy to set aside farming areas for the Indians and the condition of these tribes at the time of the treaty, the reason for Art. 5 is clarified. Governor Stevens was commissioned to carry out a governmental policy intended to protect and provide for their ultimate civilization and a place in the community. The Indians’ condition was such that they welcomed the opportunity to have a place set aside for themselves.
But the project of instructing the Indians so that they would be self-sustaining would take years. The treaty itself had to be ratified. Unless the Indians were permitted to leave the reservation to pursue their gathering culture, they would starve.
In The Life of Isaac Ingalls Stevens, supra, p. 454, the author states that while in Olympia, the Governor outlined the provisions to be included in the Puget Sound treaties. With reference to the reason for the fishing provision, he says:
“7. As the change from savage to civilized habits must necessarily be gradual, they were to retain the right of [433]*433fishing at their accustomed fishing-places, and of hunting, gathering berries and roots, and pasturing stock on unoccupied land as long as it remained vacant.”
A similar account is given in The Northwest Coast; or, Three Years’ Residence in Washington Territory (1857), by James G. Swan, p. 344:
“ . . . The Indians, however, were not to be restricted to the reservation, but were to be allowed to procure their food as they had always done, and were at liberty at any time to leave the reservation to trade with or work for the whites.”
Article 5 does not relate to fishing alone. It obviously relates to the Indians’ gathering culture at the time of the treaty; the right to gather roots and berries, pasture their horses, and to fish.
Article 5 is limited: The right to fish was limited to a right “in common” with other citizens and to the usual and accustomed places. Only temporary houses for curing were to be constructed at such places; the gathering of roots and berries, and hunting could be conducted only on open and unclaimed lands, and shellfish could not be taken from beds staked or cultivated by citizens.
Governor Stevens’ representation was that a means would be afforded for the Indians to obtain food during the transition period to a civilized life as farmers. There was no intention to limit governmental powers and there was no need to discuss governmental powers. The United States had purchased the Indian lands but secured to them the limited right to go on those lands to obtain food consistent with their needs at that particular time.
The decisional law arising from Indian claims leads to the conclusion that the treaty secured to the Indians a servitude, or easement, upon the land at their usual and accustomed places. This right in the soil protects the Indians from exclusion from such places by non-Indians. United States v. Taylor, 3 Wash. Terr. 88, 13 Pac. 333 (1887); United States v. Winans, 198 U. S. 371, 49 L. Ed. 1089, 25 S. Ct. 662 (1905); Seufert Bros. Co. v. United States, 249 U. S. 194, 63 L. Ed. 555, 39 S. Ct. 203 (1919). [434]*434But the treaties do not impair the police power of the state. Ward v. Race Horse, 163 U. S. 504, 41 L. Ed. 244, 16 S. Ct. 1076 (1896); New York ex rel. Kennedy v. Becker, 241 U. S. 556, 60 L. Ed. 1166, 36 S. Ct. 705 (1916); Tulee v. Washington, 315 U. S. 681, 86 L. Ed. 1115, 62 S. Ct. 862 (1942); Makah Indian Tribe v. United States, 7 Ind. Cl. Comm. 477 (1959).
Neither line of decisions is exclusive of the other. The interpretation of the right as one in the soil, subject to the sovereign power of the state (United States Department of the Interior, Federal Indian Law (1958) 716) is consistent with the nature of the Indians’ aboriginal right in the soil, the policy of the United States in extinguishing this right by purchase, and the conditions surrounding the making of the treaty.
The relative rights of the United States and the aborigines to the soil was first established in Johnson v. McIntosh, 21 U. S. 543, 5 L. Ed. 681 (1823). Chief Justice Marshall distinguished between the powers of government and rights to property, stating at p. 584:
“ . . . Thus, all the nations of Europe, who have acquired territory on this continent, have asserted in themselves, and have recognised in others, the exclusive right of the discoverer to appropriate the lands occupied by the Indians. Have the American states rejected or adopted this principle?
“By the treaty which concluded the war of our revolution, Great Britain relinquished all claim, not only to the government, but to the ‘propriety and territorial rights of the United States,’ whose boundaries were fixed in the second article. By this treaty, the powers of government, and the right to soil, which liad previously been in Great Britain, passed definitively to these states. We had before taken possession of them, by declaring independence; but neither the declaration of independence, nor the treaty confirming it, could give us more than that which we before possessed, or to which Great Britain was before entitled. It has never been doubted, that either the United States, or the several states, had a clear title to all the lands within the boundary lines described in the treaty, subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right, was vested in that government which might constitutionally exercise it.”
[435]*435The governmental powers of the Unted States were not derived from the Indians. The Indian right was one of use and occupancy in the soil to the extent that it is recognized by the United States. Cohen, Original Indian Title, 32 Minn. L. Rev. 28, 35 points out the distinction between a transfer of governmental power and a transfer of rights in land:
“It may help to appreciate the distinction between a sale of land and the transfer of governmental power if we note that after paying Napoleon 15 million dollars for the cession of political authority over the Louisiana Territory we proceeded to pay the Indian tribes of the ceded territory more than twenty times this sum for such lands in their possession as they were willing to sell. . . . ”
The United States has consistently pursued the policy of acquiring the Indians’ rights of use and occupancy by purchase rather than conquest, engaging in what was termed by President Truman as “the largest real estate transaction in history,” involving more than 90 per cent of the public domain. While the United States paid 50 million dollars to Britain, Spain, France, Mexico, and Russia for claims of sovereignty based on discovery, 800 million dollars has already been paid to the Indians for their rights of use and occupancy. 32 Minn. L. Rev. 28, 34, 43, 58. Additional claims are now pending before the Indian Claims Commission.
The Treaty of Point Elliott was a part of this real estate transaction — a treaty for the purchase of real estate.
Spain had released its claim to lands north of the 42nd parallel by treaty in 1819. Russia relinquished its claims south of 54° 40' by treaty with the United States in 1824, and Great Britain in 1825. The United States and Great Britain settled their differences in 1846, thereby leaving what is now the state of Washington open for settlement. 5 Treaties and Other International Acts of the United States of America, 1846-1852, Miller, pp. 3-5 and 11.
It is difficult to conceive that, after treating with these European nations for the governmental power and rights to the soil arising from discovery, the United States authorized [436]*436Governor Stevens to bargain away its governmental powers to the Swinomish Indian tribe and a multitude of other small tribes and bands of Indians.
By Act of March 2, 1853 (10 Stat. 172), the Washington Territory was organized out of the Oregon Territory and, by Act of July 17, 1854 (10 Stat. 305), the Oregon Donation Act (9 Stat. 496) was extended to the Territory of Washington. Thus, the Territory was opened for settlement prior to any of the Indian treaties.,The United States was buying and the Indians were selling the aboriginal right of use and occupancy to the Washington Territory.
Prior to the treaties, the fee was in the United States subject to the aboriginal right of use and occupancy insofar as it is recognized. Johnson v. McIntosh, supra; Original Indian Title, 32 Minn. L. Rev. 28; Tee-Hit-Ton Indians v. United States, 348 U. S. 272, 99 L. Ed. 314, 75 S. Ct. 313 (1955), reh. den. 348 U. S. 965; United States v. Santa Fe Pac. R. Co., 314 U. S. 339, 86 L. Ed. 260, 62 S. Ct. 248 (1941).
In United States v. Winans, supra, p. 381, the court held that by such treaty provisions, 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.”
Such a right naturally follows from the recognition by the United States of the existence of aboriginal Indian title and the acquisition of that right by purchase. The court further stated at p. 384:
“The extinguishment of the Indian title, opening the land for settlement and preparing the way for future States, were appropriate to the objects for which the United States held the Territory. And surely it was within the competency of the Nation to secure to the Indians such a remnant of the great rights they possessed as ‘taking fish at all usual and accustomed places.’ Nor does it restrain the State unreasonably, if at all, in the regulation of the right. It only ■fixes in the land such easements as enables the right to be exercised.” (Italics ours.)
The United States may grant such rights in the soil while lands are held in territorial status without conflict with the subsequent admission of states upon equal footing. [437]*437United States v. Winans, supra; Shively v. Bowlby, 152 U. S. 1, 48, 38 L. Ed. 331, 14 S. Ct. 548 (1894); Stearns v. Minnesota, 179 U. S. 223, 45 L. Ed. 162, 21 S. Ct. 73 (1900); and Organized Village of Kake v. Egan, 369 U. S. 60, 7 L. Ed. (2d) 573, 82 S. Ct. 562 (1962).
The State of Washington was admitted into the Union upon equal footing with the original states. Enabling Act, § 8, chapter 180, 25 Stat. 676, 678. By such admission, it became entitled to exercise all of the powers of government enjoyed by the original states of the Union. Coyle v. Smith, 221 U. S. 559, 55 L. Ed. 853, 31 S. Ct. 688 (1911); Constitution of the United States of America, Sen. Doc. No. 170, 82nd Cong. 2d Sess., 1952, Corwin. The power to protect fish and game is an inherent attribute of the sovereign power of a state. Geer v. Connecticut, 161 U. S. 519, 40 L. Ed. 793, 16 S. Ct. 600 (1896); Ward v. Race Horse, supra.
While the United States had the power to impair a state’s police power by treaty, Missouri v. Holland, 252 U. S. 416, 64 L. Ed. 641, 40 S. Ct. 382 (1920), the language of a treaty wherever reasonably possible will be construed so as not to override state laws or impair rights arising under them. Guaranty Trust Co. v. United States, 304 U. S. 126, 143, 82 L. Ed. 1224, 58 S. Ct. 785 (1938).
There must be a clear and unequivocal expression of congressional will by Congress if state powers are to be preempted. Cohens v. Virginia, 19 U. S. 264, 443, 5 L. Ed. 257 (1821); Reid v. Colorado, 187 U. S. 137, 47 L. Ed. 108, 23 S. Ct. 92 (1902). Here, there is no express limitation of governmental powers in the treaty and no expression of congressional will which in any way conflicts with state law. In the absence of a clear conflict, state law must prevail.
But it is argued that all doubts must be resolved in the Indians’ favor and that the application of this rule requires that the treaty be construed as a limitation of the police power.
Of this rule the court said, in Northwestern Bands of Shoshone Indians v. United States, 324 U. S. 335, 353, 89 L. Ed. 985, 65 S. Ct. 690 (1945):
[438]*438“. . . But the context [of the original statement] shows that the Justice meant no more than that the language should be construed in accordance with the tenor of the treaty. That, we think, is the rule which this Court has applied consistently to Indian treaties. We attempt to determine what the parties meant by the treaty. We stop short of varying its terms to meet alleged injustices. ...”
Further, the rule that such treaties should be construed so as to uphold the sanctity of the public faith will not permit a state to be stripped of an essential attribute of its governmental existence by implication and deduction and
“ . . . should not be made an instrument for violating the public faith by distorting the words of a treaty, in order to imply that it conveyed rights wholly inconsistent with its language and in conflict with an act of Congress, and also destructive of the rights of one of the States. . . . ” Ward v. Race Horse, 163 U. S. 504, 516.
While the court endeavors to construe such provisions as the Indians understood them, it will not construe them so as “to divide the inherent power of preservation as to make its competent exercise impossible.” New York ex rel. Kennedy v. Becker, supra.
The intention and understanding of the Indians must be established by clear and satisfactory proof sufficient to warrant the application of this rule. Choctaw Nation v. United States, 121 F. Supp. 206, 211 (Ct. Cl. 1954).
The treaty secured to the Indians an interest in land, consisting of an easement, which secured to them the right not to be excluded from their usual and accustomed fishing grounds by non-Indians. Those cases which recognize this right and protect the Indian from such exclusion do not hold that a state may not subject the Indians to reasonable and necessary regulations in the exercise of these rights, for the protection of the fishery resource.
Upon admission to the Union upon equal footing, this state acquired all of the sovereign powers of the original states, including the power to preserve its natural resources, and it cannot be stripped of this power by implication and deduction.
[439]*439For the reasons herein stated, the judgment of the trial court is reversed and the state is granted a new trial.
Finley, Weaver, Hunter, and Hamilton, JJ., concur.