United States v. Washington

Opinion by Judge LEAVY; Concurrence by Judge KOZINSKI.

In 1979, United States District Judge George H. Boldt ruled that five Northwest Indian tribes had no treaty fishing rights. In 1993, three of these tribes, the Duwamish, Snohomish, and Steilacoom Tribes (“the Three Tribes”), petitioned the United States District Court for Western Washington for relief from the 1979 judgment pursuant to Federal Rule of Civil Procedure 60(b)(6) on the ground that Judge Boldt may have suffered from Alzheimer’s disease in 1979. The United States, the State of Washington, and most tribes with treaty fishing rights 1 opposed the Three Tribes’ motion. On January 23, 1995, the district court denied the motion and the Three Tribes timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

FACTS AND PRIOR PROCEEDINGS

In 1970, the United States in its capacity as trustee for seven Indian tribes brought this action against the State of Washington to enforce the Stevens Treaties, which con *1161 cern Indian fishing rights. 2 Seven other tribes intervened as plaintiffs. In 1974, Judge Boldt ruled that all fourteen tribes had treaty fishing rights which entitled them to take up to…

concurring:

The majority holds that “[t]he district court did not abuse its discretion in denying the ... Tribes’ [Rule 60(b) ] motion to reopen the judgment and allow discovery.” Maj. op. at 10. In this my colleagues err twice. Their first error is assuming that 60(b) applies to this situation at all and, therefore, that the court had discretion to deny or grant relief. In fact, the district court could have granted the Tribes no relief, even had they shown conclusively that Judge Boldt was mentally impaired when he rendered judgment against them. The second error derives from the first: Having presumed that Rule 60(b) applies, the majority holds that plaintiffs did not make a showing sufficient to warrant discovery into Judge Boldt’s disability. But it seems to me plaintiffs have made a more-than-suffieient showing to justify discovery, were 60(b) applicable.

This is one time when two wrongs do make a right, which is why I am concurring rather than dissenting. But the majority, I fear, leaves misleading tracks in the sand for other courts and litigants to follow.

1. I start with the proposition that Rule 60(b) is only a time-shifting provision; it does not confer independent…