i for one am gonna be fishing for kings up in idaho as soon as they reach up there and i could buy a indian license which would entitle me to fish for kings in which they had nuthing to do with but get to set up a license cuz its "reservation land", but since this post and other personal reasons i have decided to buy a out of state license, i know it wont hurt the tribe but i dont want them to get any of my dollars, im not being racist, but i choose what to do with my money, so it will go to employ state fish and game,and other services, who somewhat care about fish...**schitzo**

1. Salmo,
How can you say "a net in the river is no more a good thing or bad thing than a hook"?
Last I checked gill nets = 100% death, at least with a hook there a chance the fish will live if the angler chooses. I see what you are getting at, but to say that sport angling does as much damage to a run as draping a "wall of death" 3/4 of a way across the river is ludicrous.

2. I agree with the numerous other posts about hitting the tribes where it counts, the wallet. I know for a fact that I nor any memeber of my family will ever patronize any tribal establishment in which its members encourage or practice the gillnetting of wild salmon or steelhead. And I actively encourage all others I associate with to do the same.

Done ventin, time to tie leaders
tight lines
Chris

This rulling gives the Tribes the right to fish with non-traditional gear like gill nets,set nets and purse seines off-reservation.

U.S. Supreme Court

PUYALLUP TRIBE v. WASHINGTON GAME DEPT., 433 U.S. 165 (1977)

433 U.S. 165

PUYALLUP TRIBE, INC., ET AL. v. DEPARTMENT OF GAME OF WASHINGTON ET AL.
CERTIORARI TO THE SUPREME COURT OF WASHINGTON

No. 76-423.

Argued April 18, 1977
Decided June 23, 1977

After protracted litigation the Washington Superior Court entered a judgment against petitioner Puyallup Tribe reciting that the court possessed
jurisdiction to regulate the Tribe's fishing activities both off and on its reservation, and limiting the number of steelhead trout that tribal members
might net in the Puyallup River each year, and the Tribe was directed to file a list of members authorized to exercise treaty fishing rights, and to
report to respondent Washington Department of Game and to the court the number of steelhead caught by the treaty fishermen each week. The
Washington Supreme Court affirmed, with a slight modification. The Tribe contends that the doctrine of sovereign immunity requires that the
judgment be vacated; that the state courts have no jurisdiction to regulate fishing activities on the reservation; and that, in any event, the limitation
on the steelhead catch is not a necessary conservation measure. Held:

1. Absent an effective waiver or consent, a state court may not exercise jurisdiction over a recognized Indian tribe, but tribal sovereign
immunity here does not impair the Superior Court's authority to adjudicate the rights of individual tribal members over whom it properly
obtained personal jurisdiction, Puyallup Tribe v. Washington Game Dept., 391 U.S. 392 (Puyallup I), and hence only those portions of the
judgment that involve relief against the Tribe itself must be vacated in order to honor the Tribe's valid claim of immunity. Pp. 168-173.

2. Neither the Tribe nor its members have an exclusive right, under the Treaty of Medicine Creek, to take steelhead passing through the
reservation. It not only appears that the Tribe, pursuant to Acts of Congress passed after the treaty was entered into, alienated in fee
simple absolute all areas of the reservation abutting on the Puyallup River, but, moreover, the Tribe's treaty right to fish "at all usual and
accustomed places" is to be exercised "in common with all citizens of the Territory," Puyallup I, supra, at 398, and is subject to reasonable
regulation by the State pursuant to its power to conserve an important natural resource. The fair apportionment of the steelhead catch
between Indian net fishing and non-Indian sport fishing directed by Washington Game Dept. v. Puyallup Tribe, 414 U.S. 44 (Puyallup II),
[433 U.S. 165, 166] could not be effective if the Indians retained the power to take an unlimited number of steelhead within the reservation.
Pp. 173-177.

3. It appears that the state court complied with the mandate of Puyallup II, supra, at 48-49, and used a proper standard of conservation
necessity in limiting the steelhead catch, where such limitation was based primarily on expert testimony for both parties. P. 177.

4. Although the Tribe properly resists the state courts' authority to order it to provide information with respect to the status of tribal
members and the size of their catch, it may find that its members' interests are best served by voluntarily providing such information, but
the state courts on remand must continue to respect the Tribe's right to participate in the proceedings without treating such participation as
qualifying the Tribe's right to claim sovereign immunity. P. 178.

86 Wash. 2d 664, 548 P.2d 1058, vacated and remanded.

STEVENS, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST,
JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 178. BRENNAN, J., filed an opinion dissenting in part, in which MARSHALL, J.,
joined, post, p. 179

William H. Rodgers, Jr., argued the cause for petitioners. With him on the briefs was John Sennhauser.

Slade Gorton, Attorney General of Washington, argued the cause for respondent Department of Game of Washington. With him on the brief
was Edward B. Mackie, Deputy Attorney General. Don S. Willner argued the cause and filed briefs for respondents Northwest Steelheaders
Council of Trout Unlimited et al.

H. Bartow Farr III argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General
Friedman, Assistant Attorney General Taft, Edmund B. Clark, and George R. Hyde.*

[Footnote *] Joseph S. Fontana filed a brief for the National Tribal Chairmen's Assn. as amicus curiae urging reversal.

Briefs of amici curiae were filed by Mason D. Morisset, Alan C. Stay, and Michael Taylor for the Colville Indian Tribe et al.; and by Joseph T.
Mijich for the Purse Seine Vessel Owners Assn. et al. [433 U.S. 165, 167]

MR. JUSTICE STEVENS delivered the opinion of the Court.

On April 8, 1975, after more than 12 years of litigation, including two decisions by this Court,1 the Superior Court of the State of Washington for
Pierce County entered a judgment against the Puyallup Tribe of Indians. That judgment recited that the court had jurisdiction to regulate the
fishing activities of the Tribe both on and off its reservation, and limited the number of steelhead trout that members of the Tribe may catch with
nets in the Puyallup River each year. The Tribe was directed to file a list of members authorized to exercise treaty fishing rights, and to report to
the Washington State Department of Game, and to the court, the number of steelhead caught by its treaty fishermen each week. The judgment,
with a slight modification, was affirmed by the Supreme Court of Washington, 86 Wash. 2d 664, 548 P.2d 1058 (1976).

The Tribe, supported by the United States as amicus curiae, contends in this Court that the doctrine of sovereign immunity requires that the
judgment be vacated, and that the state courts of Washington are without jurisdiction to regulate fishing activities on its reservation. The Tribe
also argues that the limitation of the steelhead catch imposed by those courts is not, in any event, a necessary conservation measure. We hold
that insofar as the claim of sovereign immunity is [433 U.S. 165, 168] advanced on behalf of the Tribe, rather than the individual defendants, it is
well founded, but we reject petitioner Tribe's other contentions.

I

The complaint as originally filed by respondent Department of Game of the State of Washington (hereafter respondent),2 named 41 individuals,
including "John Doe and Jane Doe, members [of the Tribe],"3 as defendants. It alleged that the defendants, claiming to be immune from the
State's conservation laws, were fishing extensively in the Puyallup River with set nets and drift nets in a manner which would virtually exterminate
the anadromous fishery if not enjoined. Anadromous fish are those which spend most of their life in the open sea, but which return as adults to
freshwater streams, such as the Puyallup River, to spawn. The steelhead is an anadromous fish. The prayer of the complaint sought a
declaration that the defendants were bound to obey the State's conservation laws and an injunction against netting the runs of anadromous fish.

The trial court entered a temporary restraining order enjoining each of the defendants from netting fish in the Puyallup River, and directing that
service be made on each defendant.

In response, a "Return on Temporary Restraining Order and Answer to Complaint" was filed by "the PUYALLUP TRIBE of INDIANS, by and
through the Chairman of the Tribal Council, MR. JEROME MATHESON." App. in [433 U.S. 165, 169] Puyallup I, O. T. 1967, No. 247, p. 8
(hereafter App. in Puyallup I). The return and answer used the term "tribe" in two senses, first as a collective synonym for the individual
defendant-members,4 and also as referring to a sovereign Indian nation.5 It asserted an exclusive right to the fish in the Puyallup River,
describing that right somewhat ambiguously as a "property right which belongs to the Tribe and is exercised by the Tribe members under the
Treaty of Medicine Creek." Ibid. Therefore, while filed in the name of the Tribe, the return and answer was also tendered on behalf of the
individual defendants.6

Throughout this long litigation the Tribe has continued to participate in the dual capacity of a sovereign entity7 and as [433 U.S. 165, 170] a
representative of its members who were individual defendants.8 The Tribe has repeatedly asserted its sovereign immunity from suit, arguing
that neither it nor Congress has waived that immunity.9

In Puyallup I, we addressed the problems of tribal immunity and state-court jurisdiction in a footnote:

"Petitioners in No. 247 argue that the Washington courts lacked jurisdiction to entertain an action against [433 U.S. 165, 171] the tribe
without the consent of the tribe or the United States Government (citing United States v. United States Fidelity & Guaranty Co., 309 U.S.
506, and Turner v. United States, 248 U.S. 354), viewing the suit as one to `extinguish a Tribal communal fishing right guaranteed by
federal Treaty.' This case, however, is a suit to enjoin violations of state law by individual tribal members fishing off the reservation. As
such, it is analogous to prosecution of individual Indians for crimes committed off reservation lands, a matter for which there has been no
grant of exclusive jurisdiction to federal courts." 391 U.S. 392, 396-397, n. 11.

Thus, Puyallup I settled an important threshold question in this case - regardless of tribal sovereign immunity, individual
defendant-members of the Puyallup Tribe remain amenable to the process of the Washington courts in connection with fishing
activities occurring off their reservation. That conclusion was predicated on two separate propositions worthy of restatement here.

First, even though the individual defendants were members of the Tribe and therefore entitled to the benefits of the Treaty of Medicine Creek,
that treaty as construed by this Court does not confer the complete individual immunity they claim. The State may qualify the Indians' right to fish
"at all usual and accustomed places." Specifically, we held that the "manner of fishing, the size of the take, the restriction of commercial fishing,
and the like may be regulated by the State in the interest of conservation, provided the regulation meets appropriate standards and does not
discriminate against the Indians." Id., at 398.

Second, whether or not the Tribe itself may be sued in a state court without its consent or that of Congress, a suit to enjoin violations of state law
by individual tribal members is permissible. The doctrine of sovereign immunity which was [433 U.S. 165, 172] applied in United States v.
United States Fidelity & Guaranty Co., 309 U.S. 506, does not immunize the individual members of the Tribe.10

Although only the Tribe had entered an appearance in this Court in Puyallup I, because of its representation of its individual members,
jurisdiction over the individuals existed. And since the state court's jurisdiction over the individual members was settled by Puyallup I, neither in
that review nor in Puyallup II was any further consideration given to the status of the Tribe itself as a sovereign. It was after our decision in
Puyallup II, when the trial court was required to determine the portion of the steelhead run that could be allocated to net fishing by the members of
the Tribe, that the state court first entered an order which, in terms, is directed to the Tribe rather than to the individual defendants. That order
places a limit on the number of steelhead which all members of the Tribe may catch with nets, and also directs the Tribe to identify the members
engaged in the steelhead fishery and to report the number of fish they catch each week. In the trial court, in the Supreme Court of Washington,
and in this Court, the Tribe has attacked that order as an infringement on its sovereign immunity to which neither it nor Congress has consented.

The attack is well founded. Absent an effective waiver or consent, it is settled that a state court may not exercise jurisdiction over a recognized
Indian tribe. This Court, [433 U.S. 165, 173] United States v. United States Fidelity & Guaranty Co., supra; the Washington Supreme Court, see,
e. g., State ex rel. Adams v. Superior Court, 57 Wash. 2d 181, 182-185, 356 P.2d 985, 987-988 (1960); and the commentators, see, e. g., U.S.
Dept. of Interior, Federal Indian Law 491-494 (1958), all concur. Respondent does not argue that either the Tribe or Congress has waived its
claim of immunity or consented to the entry of an order against it. And certainly, the mere fact that the Tribe has appeared on behalf of its
individual members does not effect a waiver of sovereign immunity for the Tribe itself.

On the other hand, the successful assertion of tribal sovereign immunity in this case does not impair the authority of the state court to adjudicate
the rights of the individual defendants over whom it properly obtained personal jurisdiction. That court had jurisdiction to decide questions
relating to the allocation between the hatchery fish and the natural run, the size of the catch the tribal members may take in their nets, their right to
participate in hook-and-line fishing without paying state license fees and without having fish so caught diminish the size of their allowable net
catch, and like questions. Only the portions of the state-court order that involve relief against the Tribe itself must be vacated in order to honor the
Tribe's valid claim of immunity.

II

The Tribe vigorously argues that the majority of its members' netting of steelhead takes place inside its reservation,11 [433 U.S. 165, 174] and
that, while our prior adjudications settled respondent's right to regulate off-reservation fishing in the interest of conservation, neither respondent
nor the state court has jurisdiction over on-reservation fishing. The Tribe relies on both the Treaty of Medicine Creek, 10 Stat. 1132, and federal
pre-emption of on-reservation Indian affairs, see Mescalero Apache Tribe v. Jones, 411 U.S. 145, 147 - 148.

Article II of the Treaty of Medicine Creek provided that the Puyallup Reservation was to be "set apart, and, so far as necessary, surveyed and
marked out for their exclusive use" and that no "white man [was to] be permitted to reside upon the same without permission of the tribe and the
superintendent or agent." It is argued that these words amount to a reservation of a right to fish free of state interference. Such an interpretation
clashes with the subsequent history of the reservation and the facts of this case. Pursuant to two Acts of Congress, 27 Stat. 633, and c. 1816, 33
Stat. 565, the Puyallups alienated, in fee simple absolute, all but 22 acres of their 18,000 acre reservation. None of the 22 acres abuts on the
Puyallup River.12 Neither the Tribe nor its members continue to hold Puyallup River fishing grounds for their "exclusive use." On the contrary, it is
undisputed that non-Indian licensees of respondent fish in great numbers within the reservation, and under the close supervision of respondent's
wardens.13 [433 U.S. 165, 175]

Although it is conceded that the State of Washington exercises civil and criminal jurisdiction within the reservation for most purposes, petitioner
contends that it may not do so with respect to fishing.14 Again with particular reference to the facts of this case, we also reject this contention.

Our construction of the Treaty of Medicine Creek in Puyallup I makes it perfectly clear that although the State may not deny the Indians their right
to fish "at all usual and accustomed" places, the treaty right is to be exercised "in common with all citizens of the Territory." We squarely held that
"the right to fish at those respective places is not an exclusive one." 391 U.S., at 398. Rather, the exercise of that right was subject to
reasonable regulation by the State pursuant to its power to conserve an important natural resource.

In Puyallup II we directed the Washington State courts to devise a formula pursuant to which the steelhead catch could be "fairly apportioned"
between Indian net fishing and non-Indian sport fishing. No such fair apportionment could be effective if the Indians retained the power to take an
unlimited number of anadromous fish within the reservation. Speaking for the Court, Mr. Justice Douglas plainly stated that the power of the
State is adequate to assure the survival of the steelhead:

"We do not imply that these fishing rights persist down to the very last steelhead in the river. Rights can be controlled by the need to
conserve a species; and the time may come when the life of a steelhead is so precarious in a particular stream that all fishing should be
banned until [433 U.S. 165, 176] the species regains assurance of survival. The police power of the State is adequate to prevent the
steelhead from following the fate of the passenger pigeon; and the Treaty does not give the Indians a federal right to pursue the last living
steelhead until it enters their nets." 414 U.S., at 49.

The resource being regulated is indigenous to the Puyallup River. Virtually all adult steelhead in the river have returned after being spawned or
planted by respondent upstream from the boundaries of the original Puyallup Reservation, which encompass the lowest seven miles of the river.
Though it would be decidedly unwise, if Puyallup treaty fishermen were allowed untrammeled on-reservation fishing rights, they could interdict
completely the migrating fish run and "pursue the last living [Puyallup River] steelhead until it enters their nets." Ibid.15 In this manner the treaty
fishermen could totally frustrate both the jurisdiction of the Washington courts and the rights of the non-Indian citizens of Washington recognized
in the Treaty of Medicine Creek.16 In practical effect, therefore, the petitioner is reasserting the right to exclusive [433 U.S. 165, 177] control of
the steelhead run that was unequivocally rejected in both Puyallup I and Puyallup II. At this stage of this protracted litigation, we are unwilling to
re-examine those unanimous decisions or to render their holdings virtually meaningless. We therefore reject petitioner's claim to an exclusive
right to take steelhead while passing through its reservation.

III

Finally, petitioner states that the courts below have failed to apply a standard of conservation necessity in fashioning relief. We disagree. The
trial court, on remand from our decision in Puyallup II, conducted a two-week trial which was dominated by expert testimony for both parties.
From the testimony and accompanying exhibits the court determined the number of steelhead in the river and how many could be taken without
diminishing the number in future years; the court then allocated 45% of the annual natural steelhead run available for taking to the treaty
fishermen's net fishery.17 The Washington Supreme Court affirmed, 86 Wash. 2d, at 684-687, 548 P.2d, at 1072-1073. This is precisely what
we mandated in Puyallup II, 414 U.S., at 48-49. In the absence of a focused attack on some portion of the Washington courts' factual
determinations, we find no ground for disagreeing with them.18 [433 U.S. 165, 178]

A practical problem is presented by our disposition. The limitation on the size of the net catch applies to all members of the Tribe. The
respondent has no interest in how the catch is allocated among the Indians; its concern is with the total number of steelhead netted during each
season, with obtaining information to make it possible to recommend a proper allocation in succeeding years, and with enforcement against
individuals who may net fish after the allowable limit has been reached. On the other hand, the Tribe has a separate interest in affording
equitable treatment to its members and in protecting those members from any mistaken enforcement efforts. For that reason, although it
properly resists the authority of the state court to order it to provide information with respect to the status of enrolled members of the Tribe and
the size of their catch, it may find that its members' interests are best served by voluntarily providing such information to respondent and to the
court in order to minimize the risk of an erroneous enforcement effort. The state courts must continue to accord full respect to the Tribe's right to
participate in the proceedings on behalf of its members as it has in the past without treating such participation as qualifying its right to claim
immunity as a sovereign.

The judgment is vacated, and the case is remanded to the Supreme Court of Washington for further proceedings not inconsistent with the
opinion.

It is so ordered.

Footnotes

[Footnote 1] In Puyallup Tribe v. Washington Game Dept., 391 U.S. 392 (Puyallup I), the Court held that Art. III of the Treaty of Medicine Creek,
10 Stat. 1133, did not foreclose reasonable state regulation, in the interest of conservation, of fishing by the Indians "in common with" fishing by
others; the Court remanded the case to the state court to determine whether a total ban on net fishing was justified by the interest in
conservation.

In Washington Game Dept. v. Puyallup Tribe, 414 U.S. 44 (Puyallup II), the Court held that a complete ban on net fishing for steelhead trout by
the Indians was precluded by the treaty, and remanded for a determination of the number of catchable fish that should be apportioned to an
Indian net fishery.

[Footnote 2] Respondent regulates steelhead fishing in the State of Washington. The Washington Department of Fisheries was a coplaintiff
with respondent in the original complaint by virtue of its responsibility for salmon fishing. After this Court's decision in Puyallup I, the Department
of Fisheries amended its regulation to allow members of the Tribe to use a net fishery for salmon. No issue relating to salmon fishing remains in
the case.

[Footnote 3] Three of the named individuals were further identified as tribal officers.

[Footnote 4] I. e., "Answering Paragraph No. 1 these defendants being a tribe of Indians . . .," App. in Puyallup I, p. 8; "the defendants have
suffered numerous arrests, jailing and other indignities at the hands of the plaintiffs who knowingly and wilfully badger, abuse and degrade the
defendants . . .," id., at 9; "[t]hat the plaintiffs are recklessly using the power of the State of Washington to deprive the defendant [sic] and each of
them of their means of making a livelihood . . .," id., at 10.

[Footnote 5] I. e., "this Tribe of Indians signed a treaty with the United States of America as a sovereign nation of Indians . . ."; "the Puyallup
Tribe of Indians own the fish in the river . . . ." Ibid.

[Footnote 6] The trial court so found: "Defendants answered and alleged that they were members of the Puyallup Tribe of Indians . . . ." Id., at
31, Finding of Fact I.

[Footnote 7] The Tribe has been described several ways in the captions which have been filed over the years. In this Court this Term the Tribe
has described itself as "Puyallup Tribe, Inc." The Washington Supreme Court has thrice noted that there is no such entity, see 86 Wash. 2d 664,
666 n. 1, 548 P.2d 1058, 1062 n. 1 (1975). In Puyallup I the trial court held that the Tribe had ceased to exist; this holding was reversed by the
Washington Supreme Court, 70 Wash. 2d 245, 252-253, 422 P.2d 754, 758-759 (1967). It has therefore been settled in this case that, whatever
its correct name may be, the Tribe is still in existence and is clearly recognized as such by the United States.

In this Court Ramona Bennett is a copetitioner with the Tribe. She [433 U.S. 165, 170] appears in her capacity as chairwoman of the Puyallup
Tribal Council. Accordingly, we treat this case as though the Tribe itself is the only petitioner in this Court and hereafter use the term "petitioner"
to refer to the Tribe.

[Footnote 8] On a few occasions individual tribal members have been represented by attorneys who filed appearances in the Superior Court for
Pierce County. On at least two occasions attorneys have filed appearances in the Washington Supreme Court in this capacity. No such
appearance has been filed since the decision in Puyallup II in 1973. No appearance on behalf of an individual defendant was ever filed in this
Court. Nor does the record reveal any instance of an objection to the Tribe's representation of the individual defendants. It is clear from the
record that the major responsibility for the defense of the litigation has been assumed by the Tribe.

[Footnote 9] It has relied on Worcester v. Georgia, 6 Pet. 515, and United States v. United States Fidelity & Guaranty Co., 309 U.S. 506. Only
twice in this litigation has petitioner failed to clearly raise the issue of its tribal sovereign immunity. The first time was in its first return and
answer, supra, at 168-169. The immunity issue was later presented to the trial court, however, and the court, in the course of concluding that the
Puyallup Tribe had ceased to exist, held in its memorandum decision that "this argument about the tribe being a sovereign nation is without
merit." App. in Puyallup I, p. 18. As already noted, n. 7, supra, the trial court's holding that the Tribe had ceased to exist was reversed by the
Washington Supreme Court. Second, during the representation of the Tribe by the Solicitor General before this Court in Puyallup II, no mention
was made of tribal sovereign immunity. Congress has not given the Solicitor General authority to waive the immunity of an Indian tribe. United
States v. United States Fidelity & Guaranty Co., supra, at 513; cf. Ford Motor Co. v. Dept. of Treasury of Indiana, 323 U.S. 459, 466-470.

[Footnote 10] That case involved an action brought in a federal court by the United States on behalf of the Choctaw and Chickasaw Nations to
recover royalties under a mineral lease; defendant was the lessee's surety. In an earlier bankruptcy proceeding, the lessee had obtained a
judgment for $9,060.90 pursuant to a cross-claim against the same tribes. In the Fidelity case the lessee's surety pleaded the earlier judgment
as a bar to recovery in the action for royalties. We held that the earlier judgment was void in the absence of congressional authorization for a
suit, 309 U.S., at 512-513. There were no individual parties to the proceeding.

[Footnote 11] The continued existence of the Puyallup Reservation has been a matter of dispute on which we express no opinion. The Ninth
Circuit, relying on our decision in Mattz v. Arnett, 412 U.S. 481, held that the reservation did still exist, United States v. Washington, 496 F.2d
620 (1974), cert. denied, 419 U.S. 1032. That decision predates our consideration of DeCoteau v. District County Court, 420 U.S. 425, and
Rosebud Sioux Tribe v. Kneip, 430 U.S. 584.

[Footnote 12] 70 Wash. 2d, at 253, 422 P.2d, at 759 (Puyallup I). Counsel for petitioner intimated at oral argument that petitioner might contend
in the future that it retained trust status title to the bed of the Puyallup River, Tr. of Oral Arg. 10. This contention is at odds with the otherwise
uncontradicted findings below.

[Footnote 13] The tribal members' right to fish "at all usual and accustomed grounds and stations," secured by Art. III of the treaty, continues to
protect their right to fish on ceded lands within the confines of the reservation.

[Footnote 14] Washington has acquired "Pub. L. 280" jurisdiction over the Puyallup Reservation, much of which coexists with the city of
Tacoma. Pub. L. No. 280, 7, 67 Stat. 590; Wash. Rev. Code 37.12.010-37.12.070 (1974). A provision of Pub. L. 280 exempts treaty fishing
rights from state jurisdiction, however, 18 U.S.C. 1162 (b).

[Footnote 15] The original complaint in this case alleged that, "[a]s a result of the defendants' fishery, the anadromous fish runs of the Puyallup
River will be virtually exterminated if said fishery is permitted to continue." App. in Puyallup I, p. 6.

The ability of the on-reservation activity to completely destroy the resource in question has not been a factor in other cases which have rejected
regulation, Arnett v. Five Gill Nets, 48 Cal. App. 3d 454, 463-464, 121 Cal. Rptr. 906, 912-913 (1975), cert. denied, 425 U.S. 907 (on remand
from this Court, Mattz v. Arnett, supra, where the on-reservation fishing regulation question was reserved, 412 U.S., at 485); People v. Jondreau,
384 Mich. 539, 185 N. W. 2d 375 (1971); State v. Arthur, 74 Idaho 251, 261 P.2d 135 (1953), cert. denied, 347 U.S. 937; State v. McConville,
65 Idaho 46, 139 P.2d 485 (1943).


[This message has been edited by Aerofly (edited 03-31-2001).]

In November 1973 - This ruling gives the Tribes access to in-river fisheries, but provides that the State is not oblgated to subsidize them with planted fish.
U.S. Supreme Court

WASHINGTON GAME DEPT. v. PUYALLUP TRIBE, 414 U.S. 44 (1973)

414 U.S. 44
DEPARTMENT OF GAME OF WASHINGTON v. PUYALLUP TRIBE ET AL.
CERTIORARI TO THE SUPREME COURT OF WASHINGTON

No. 72-481.

Argued October 10, 1973
Decided November 19, 1973*

[Footnote *] Together with No. 72-746, Puyallup Tribe v. Department of Game of Washington, also on certiorari to the same court.

Commercial net fishing by Puyallup Indians, for which the Indians have treaty protection, Puyallup Tribe v. Dept. of Game, 391 U.S. 392,
forecloses the bar against net fishing of steelhead trout imposed by Washington State Game Department's regulation, which discriminates
against the Puyallups, and as long as steelhead fishing is permitted, the regulation must achieve an accommodation between the Puyallups'
net-fishing rights and the rights of sports fishermen. Pp. 45-49.

80 Wash. 2d 561, 497 P.2d 171, reversed and remanded.

DOUGLAS, J., delivered the opinion for a unanimous Court. WHITE, J., filed a concurring opinion, in which BURGER, C. J., and STEWART, J.,
joined, post, p. 49.

Joseph L. Coniff, Jr., Assistant Attorney General of Washington, argued the cause for petitioner in No. 72-481 and for respondent in No.
72-746. With him on the brief was Slade Gorton, Attorney General.

Harry R. Sachse argued the cause for respondents in No. 72-481 and for petitioner in No. 72-746. With him on the brief were Solicitor General
Griswold, Assistant Attorney General Johnson, Deputy Solicitor General Wallace, Edmund B. Clark, and Glen R. Goodsell.Fn

Fn [414 U.S. 44, 44] Charles A. Hobbs filed a brief for the National Congress of American Indians, Inc., et al. as amici curiae urging
reversal in No. 72-746. Briefs of amici curiae in both cases were filed by James B. Hovis for the Confederated Bands and Tribes of the
Yakima Indian Nation, and by David H. Getches for Ramona C. Bennett et al. [414 U.S. 44, 45]

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

In 1963 the Department of Game and the Department of Fisheries of the State of Washington brought this action against the Puyallup Tribe and
some of its members, claiming they were subject to the State's laws that prohibited net fishing at their usual and accustomed places and
seeking to enjoin them from violating the State's fishing regulations. The Supreme Court of the State held that the tribe had protected fishing
rights under the Treaty of Medicine Creek and that a member who was fishing at a usual and accustomed fishing place of the tribe may not be
restrained or enjoined from doing so unless he is violating a state statute or regulation "which has been established to be reasonable and
necessary for the conservation of the fishery." 70 Wash. 2d 245, 262, 422 P.2d 754, 764.

On review of that decision we held that, as provided in the Treaty of Medicine Creek, the "`right of taking fish, at all usual and accustomed
grounds and stations [which] is . . . secured to said Indians, in common with all citizens of the Territory'" extends to off-reservation fishing but that
"the manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the State in the interest of
conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians." 391 U.S. 392, 395, 398. We
found the state court decision had not clearly resolved the question whether barring the "use of set nets in fresh water streams or at their mouths"
by all, including Indians, and allowing fishing only by hook and line in these areas was a reasonable and necessary conservation measure. The
case was remanded for determination of that question and also "the issue of equal protection implicit in the phrase `in common with'" as used in
the Treaty. Id., at 400, 403. [414 U.S. 44, 46]

In Washington the Department of Fisheries deals with salmon fishing, while steelhead trout are under the jurisdiction of the Department of Game.
On our remand the Department of Fisheries changed its regulation to allow Indian net fishing for salmon in the Puyallup River (but not in the bay
or in the spawning areas of the river). The Department of Game, however, continued its total prohibition of net fishing for steelhead trout. The
Supreme Court of Washington upheld the regulations imposed by the Department of Fisheries which, as noted, were applicable to salmon; and
no party has brought that ruling back here for review. The sole question tendered in the present cases concerns the regulations of the
Department of Game concerning steelhead trout. We granted the petitions for certiorari. 410 U.S. 981.

The Supreme Court of Washington, while upholding the regulations of the Department of Game prohibiting fishing by net for steelhead in 1970,
80 Wash. 2d 561, 497 P.2d 171, held (1) that new fishing regulations for the Tribe must be made each year, supported by "facts and data that
show the regulation is necessary for the conservation" of the steelhead, id., at 576, 497 P.2d, at 180; (2) that the prohibition of net fishing for
steelhead was proper because "the catch of the steelhead sports fishery alone in the Puyallup River leaves no more than a sufficient number of
steelhead for escapement necessary for the conservation of the steelhead fishery in that river." Id., at 573, 497 P.2d, at 178-179.

The ban on all net fishing in the Puyallup River for steelhead 1 grants, in effect, the entire run to the sports [414 U.S. 44, 47] fishermen. Whether
that amounts to discrimination under the Treaty is the central question in these cases.

We know from the record and oral argument that the present run of steelhead trout is made possible by the planting of young steelhead trout
called smolt and that the planting program is financed in large part by the license fees paid by the sports fishermen. The Washington Supreme
Court said:

"Mr. Clifford J. Millenbac[h], Chief of the Fisheries Management Division of the Department of Game, testified that the run of steelhead in
the Puyallup River drainage is between 16,000 and 18,000 fish annually; that approximately 5,000 to 6,000 are native run which is the
maximum the Puyallup system will produce even if undisturbed; that approximately 10,000 are produced by the annual hatchery plant of
100,000 smolt; that smolt, small steelhead from 6 to 9 inches in length, are released in April, and make their way to the sea about the first
of August; that during this time all fishing is closed to permit their escapement; that the entire cost of the hatchery smolt plant, exclusive of
some federal funds, is financed from license fees paid by sports fishermen. The record further shows that 61 per cent of the entire sports
catch on the river is from hatchery-planted steelhead; that the catch of steelhead by the sports fishery, as determined from `card count'
received from the licensed sports fishermen, is around 12,000 to 14,000 annually;2 that the escapement required for adequate hatchery
needs and spawning is 25 per cent to 50 per cent of the run; that the steelhead fishery cannot therefore [414 U.S. 44, 48] withstand a
commercial fishery on the Puyallup River." Id., at 572, 497 P.2d, at 178.

At oral argument counsel for the Department of Game represented that the catch of steelhead that were developed from the hatchery program
was in one year 60% of the total run and in another 80%. And he stated that approximately 80% of the cost of that program was financed by the
license fees of sports fishermen. Whether that issue will emerge in this ongoing litigation as a basis for allocating the catch between the two
groups, we do not know. We mention it only to reserve decision on it.

At issue presently is the problem of accommodating net fishing by the Puyallups with conservation needs of the river. Our prior decision
recognized that net fishing by these Indians for commercial purposes was covered by the Treaty. 391 U.S., at 398-399. We said that "the
manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the State in the interest of
conservation, provided the regulation . . . does not discriminate against the Indians." Id., at 398. There is discrimination here because all Indian
net fishing is barred and only hook-and-line fishing entirely pre-empted by non-Indians, is allowed.

Only an expert could fairly estimate what degree of net fishing plus fishing by hook and line would allow the escapement of fish necessary for
perpetuation of the species. If hook-and-line fishermen now catch all the steelhead which can be caught within the limits needed for escapement,
then that number must in some manner be fairly apportioned between Indian net fishing and non-Indian sports fishing so far as that particular
species is concerned. What formula should be employed is not for us to propose. There are many variables - the number of nets, the number of
steelhead that can be caught with [414 U.S. 44, 49] nets, the places where nets can be located, the length of the net season, the frequency
during the season when nets may be used. On the other side are the number of hook-and-line licenses that are issuable, the limits of the catch of
each sports fisherman, the duration of the season for sports fishing, and the like.

The aim is to accommodate the rights of Indians under the Treaty and the rights of other people.

We do not imply that these fishing rights persist down to the very last steelhead in the river. Rights can be controlled by the need to conserve a
species; and the time may come when the life of a steelhead is so precarious in a particular stream that all fishing should be banned until the
species regains assurance of survival. The police power of the State is adequate to prevent the steelhead from following the fate of the
passenger pigeon; and the Treaty does not give the Indians a federal right to pursue the last living steelhead until it enters their nets.

We reverse the judgment below insofar as it treats the steelhead problem and remand the cases for proceedings not inconsistent with this
opinion.

So ordered.

Footnotes

[Footnote 1] "ANNUAL CATCH LIMIT - STEELHEAD ONLY: Thirty steelhead over 20" in length . . . ." 1970 Game Fish Seasons and Catch
Limits 3 (Dept. of Game). (Cited at 80 Wash. 2d 561, 572, 497 P.2d 171, 178.)

[Footnote 2] The Washington Supreme Court noted "that substantially all the steelhead fishery occurs after their entrance into the respective
rivers to which they return." 80 Wash. 2d, at 575, 497 P.2d, at 180.

MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE STEWART join, concurring.

I agree that, consistently with the Treaty, commercial fishing by Indians cannot be totally forbidden in order to permit sports fishing in the usual
volume. On the other hand, the Treaty does not obligate the State of Washington to subsidize the Indian fishery with planted fish paid for by
sports fishermen. The opinion below, as I understand it, indicates that the river, left to its own devices, would have an annual run of 5,000 or
6,000 steelhead. It is only to this run that Indian Treaty rights [414 U.S. 44, 50] extend. Moreover, if there were no sports fishing and no
state-planted steelhead, and if the State, as the Court said it could when this case was here before, may restrict commercial fishing in the
interest of conservation, the Indian fishery cannot take so many fish that the natural run would suffer progressive depletion. Because the Court's
opinion appears to leave room for this approach and for substantial, but fair, limits on the Indian commercial fishery, I am content to concur. [414
U.S. 44, 51]

Oct 1996 - This case gives a little background on Judge Boldt and denies more Tribes status as Treaty Tribes.

U.S. 9th Circuit Court of Appeals
USA v STATE OF WASHINGTON

UNITED STATES OF AMERICA, Plaintiff-Appellee,

and

DUWAMISH INDIAN TRIBE;
SNOHOMISH INDIAN TRIBE;
STEILACOOM INDIAN TRIBE, Plaintiffs-Intervenors-Appellants,

v.

STATE OF WASHINGTON; NISQUALLY No. 95-35202
INDIAN TRIBE; HOH INDIAN TRIBE; D.C. No.
LUMMI INDIAN NATION; SKOKOMISH CV-70-09213-BJR
INDIAN TRIBE; JAMESTOWN BAND OF
KLALLAMS; LOWER ELWHA KLALLAM OPINION
TRIBE; PORT GAMBLE BAND
CLALLAM; MUCKLESHOOT INDIAN
TRIBE; QUINAULT INDIAN NATION;
QUILEUTE INDIAN TRIBE; TULALIP
TRIBE; MAKAH INDIAN TRIBE;
SUQUAMISH INDIAN TRIBE; PUYALLUP
TRIBE; SWINOMISH INDIAN TRIBAL
COMMUNITY; NOOKSACK TRIBE;
UPPER SKAGIT TRIBE, Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Barbara J. Rothstein, District Judge, Presiding
Argued and Submitted December 5, 1995--Seattle, Washington
Filed October 23, 1996
Before: Betty B. Fletcher, Alex Kozinski, and Edward Leavy, Circuit Judges.
Opinion by Judge Leavy; Concurrence by Judge Kozinski

COUNSEL

Tim Atkeson, Arnold & Porter, Denver, Colorado; Dennis J. Whittlesey, Venable, Baetjer, Howard & Civiletti, Washington, D.C., for the
plaintiffs-intervenors-appellants.

David C. Shilton, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for the plaintiff-appellee.

Fronda Woods, Assistant Attorney General, Fish and Wildlife, Olympia, Washington; Mason D. Morisset, Morisset, Schlosser, Ayer &
Jozwiak, Seattle, Washington; Annette Marie Klapstein, Tacoma, Washington; Jeffrey Jon Bode, Bellingham, Washington; Richard M. Berley,
Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, Washington; Kathryn J. Nelson, Eisenhower & Carlson, Tacoma, Washington; Robert L.
Otsea, Jr., Auburn, Washington; Sharon Ilene Haensly, Office of the Tribal Attorney, LaConner, Washington; Harold Chesnin, Mathews,
Garlington-Mathews & Chesnin, Seattle, Washington; Daniel A. Raas, Raas, Johnsen & Stuen, Bellingham, Washington, for the
defendants-appellees.

OPINION

LEAVY, Circuit Judge:

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 rights1 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. S 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 concern 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 fifty percent of the harvestable fish passing through their offreservation fishing
grounds. United States v. Washington, 384 F. Supp. 312.3

After Judge Boldt's 1974 decision, five additional tribes moved to intervene as plaintiffs in United States v. Washington: the Duwamish,
Snohomish, Steilacoom, Snoqualmie, and Samish ("the Five Tribes"). On September 13, 1974, Judge Boldt referred the issue of the treaty
status of these Five Tribes to Magistrate Judge Robert E. Cooper. Magistrate Judge Cooper held hearings and received evidence on whether
the Five Tribes had treaty fishing rights. On

March 5, 1975, Magistrate Judge Cooper issued a Report finding that none of the Five Tribes had maintained their political cohesion, and thus
recommending a conclusion of law that none had rights under the Stevens Treaties. After appeal by the Five Tribes from the magistrate judge's
report, Judge Boldt held a three-day de novo evidentiary hearing later in 1975, directed the parties to submit additional evidence in 1976, and
heard oral argument in 1977.

In February 1978, before issuing a decision, Judge Boldt underwent surgery for an aortic aneurysm. By letter dated July 25, 1978,
Judge Boldt informed all counsel involved in the pending case that, although he was making "very good progress" in recovering from surgery, he
was not fully recovered. He stated his intent to rule on the status of the Five Tribes within the next several months.

However, on February 7, 1979, Judge Boldt notified all counsel that, in light of his health, he had asked then Chief Judge Walter T. McGovern to
remove him from the case. The Samish, Snoqualmie, Snohomish, and Steilacoom tribes filed a motion on February 15, 1979, in which they
requested that Judge Boldt decide whether they qualified as treaty tribes with respect to fishing rights. In an order dated March 14, 1979, Chief
Judge McGovern granted the tribes' motion on the grounds that it was "in the best interests of judicial administration and economy, and in the
interest of all parties." In a footnote, Judge McGovern stated that "[t]he court has been informed that Judge Boldt is willing, if requested, to
consider and issue a ruling on this matter."

Nine days later, on March 23, 1979, Judge Boldt ruled that the Five Tribes had no rights under the Stevens Treaties. United States v.
Washington, 476 F. Supp. 1101 (W.D. Wash. 1979), aff'd, 641 F.2d 1368 (9th Cir. 1981), cert. denied, 454 U.S. 1143 (1982). In doing so he
adopted with minor changes the proposed findings of fact and conclusions of law submitted by the United States. On April 25, 1979, Judge
Boldt denied the tribes' motion for reconsideration.

The Five Tribes appealed to this court, which, in a split decision, affirmed Judge Boldt. 641 F.2d at 1374. Because Judge Boldt adopted the
proposed findings of the United States, his decision was given "close scrutiny. " Id. at 1371. This court concluded that Judge Boldt had applied
an incorrect legal test (i.e., that federal recognition or nonrecognition was decisive) to determine whether a tribe had treaty rights. The proper
inquiry was whether a "group of Indian descendants . . . have maintained an organized tribal structure." Id. at 1372. Applying the correct test
directly to the record, this court concluded "[a]fter close scrutiny, . . . that the evidence supported [Judge Boldt's] finding of fact" that the tribes
had not functioned since treaty times as "continuous separate, distinct and cohesive Indian cultural or political communit[ies]." Id. at 1373. This
court affirmed Judge Boldt because "the district court correctly resolved this question despite its failure to apply the proper standard." Id. at
1374.

The United States Supreme Court subsequently denied the tribes' petition for certiorari. 454 U.S. 1143 (1982).

Judge Boldt died in 1984.

On June 11, 1992, the Seattle Post-Intelligencer published a front-page article, "Alzheimer's Strikes Indians Through Judge," which
reported that, at the time of his 1979 ruling, Judge Boldt suffered from Alzheimer's disease. Paul Shukovsky, Alzheimer's Strikes
Indians Through Judge, Seattle Post-Intelligencer, June 11, 1992, at A1, A6. The article was based, in part, on Judge Boldt's death certificate
which lists pneumonia as the immediate cause of death and Alzheimer's disease as a secondary cause. According to the death certificate, the
Alzheimer's set in during 1978. In the newspaper article, Judge Boldt's son is quoted concerning his father's medical condition:

"He was so bright, so sharp, so articulate all his life until February of 1978," his son said. "He was a different man afterwards. He went into
a state of deterioration. He went into a six year decline" that ended with his death in 1984.

"He started to develop a lot of the symptoms of Alzheimer's and continued to have them," his son said.

Judge Boldt's son also stated in the article that he believed his father to have been mentally competent when he ruled against the tribes in 1979:
"He loved the law. " "He would not do anything to violate his duties as a judge."

On November 22, 1993, the Three Tribes filed a motion in the United States District Court for Western Washington for relief from Judge Boldt's
1979 judgment pursuant to Rule 60(b)(6). At oral argument on the motion, held on November 11, 1994, almost a year after the motion was filed,
the Three Tribes argued that their motion was for the limited purpose of conducting discovery into the state of Judge Boldt's mental health at the
time he rendered his 1979 decision. The record does not indicate that the Three Tribes moved for discovery during oral argument or in the year
that elapsed between the time they filed their Rule 60(b)(6) motion and their oral argument.

On January 23, 1995, Judge Barbara J. Rothstein, without deciding whether the broad language of Rule 60(b)(6) provided a remedy in case of a
judge's disability, denied the Three Tribes' motion. The district court noted that 15 years had passed since Judge Boldt's decision, but
"decline[d] to deny the tribes' motion on this ground alone." Instead, the court rested its denial on three foundations. First, courts should avoid
disturbing the public interest in the finality of judgments. Second, a ruling for the Three Tribes would open the floodgates to future challenges to
judgments on grounds of judicial incompetence. Third, the Three Tribes suffered no "manifest injustice" because the magistrate judge and the
Ninth Circuit reached the same conclusion as Judge Boldt. The district court concluded that "the moving tribes have failed to demonstrate the
existence of any extraordinary circumstances which would warrant reopening the final order of March 23, 1979 for the purpose of conducting
discovery into Judge Boldt's mental health. Their [60(b)(6)] motion is accordingly denied." The Three Tribes timely appeal.

STANDARD OF REVIEW

This court reviews a district court's denial of a Rule 60(b) motion for an abuse of discretion. In re Roxford Foods, Inc., 12 F.3d 875, 879 (9th Cir.
1993). Under the abuse of discretion standard, a reviewing court may not reverse unless it has a "definite and firm conviction that the court
below committed a clear error of judgment in the conclusion it reached upon weighing of the relevant factors. A district court may abuse its
discretion if it does not apply the correct law or if it rests its decision on a clearly erroneous finding of material fact." Kayes v. Pacific Lumber
Co., 51 F.3d 1449, 1464 (9th Cir.) (quotations and citations omitted), cert. denied, 116 S. Ct. 301 (1995).

ANALYSIS

Rule 60(b) provides in relevant part: "On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or
proceeding for the following reasons: . . . (6) any other reason justifying relief from the operation of the judgment." Fed. R. Civ. P. 60(b)(6).

[Rule 60(b)(6)] does not particularize the factors that justify relief, but we have previously noted that it provides courts with authority
"adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice," Klapprott v.

United States, 35 U.S. 601, 614-15, 69 S. Ct. 384, 390, 93 L. Ed. 266 (1949), while also cautioning that it should only be applied in
"extraordinary circumstances," Ackermann v. United States, 340 U.S. 193, 71 S. Ct. 209, 95 L. Ed. 207 (1950). Lilejeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 863-64 (1988).

Following the admonitions of the Supreme Court, we have used Rule 60(b)(6) "sparingly as an equitable remedy to prevent manifest injustice."
United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir.), cert. denied, 114 S. Ct. 60 (1993). "The rule is to be utilized only
where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment." Id.

The Three Tribes argue that 60(b)(6) relief should be granted and discovery allowed because of the possibility that they were denied a
competent fact-finder when their treaty status was decided by Judge Boldt. This is not one of those rare cases where "extraordinary
circumstances " warrant vacating an "erroneous judgment." The Three Tribes offer only Judge Boldt's death certificate and the Seattle
PostIntelligencer Article to support their contention that Judge Boldt may have suffered some mental impairment in 1979. The death certificate
states that Judge Boldt was diagnosed with Alzheimer's sometime in 1978. In the newspaper article Judge Boldt's son says that his father was a
changed man after his 1978 surgery, but that he was mentally competent when he decided the tribes' treaty status. The correspondence from
Judge Boldt shows that the judge knew his surgery had physically weakened him and that he also knew of his obligation to decide the tribes'
treaty status. When he felt unable to fulfill his commitment to decide the tribes' status "within the next several months," he asked Chief Judge
McGovern to remove him from the case. The tribes responded by requesting that Judge Boldt rule on their status before stepping down.

Chief Judge McGovern allowed their motion and Judge Boldt ruled. We should not reopen a judgment under these circumstances. Moreover,
this court, as well as a magistrate judge, closely examined the case and reached the same conclusion as Judge Boldt. A decision on the issue
of whether Rule 60(b)(6) gives the district court the power to correct a manifest injustice arising from a judge's disability should await the
extraordinary circumstances in which it might be presented. The district court did not abuse its discretion in denying the Three Tribes' motion to
reopen the judgment and allow discovery.

The district court's denial of the Three Tribes' motion is AFFIRMED.

KOZINSKI, Circuit Judge, 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 morethan-sufficient 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 authority on federal courts to set
aside past judgments. Or, to put it differently, Rule 60(b) authorizes setting aside a judgment only for reasons that would have prevented entry of
the judgment in the first place, had the reasons been known at the time judgment was entered. In deciding whether the district court was
authorized to grant the Tribes relief, we must therefore answer the following question: Would Judge Boldt's disability (had it been known at the
time he ruled against the Tribes) have been grounds for securing his recusal, or for reversing his judgment on appeal?

The answer is no. Under 28 U.S.C. SS 144 or 455, a party may petition a judge to remove himself from a case in which he has a financial
conflict of interest. See 13A Charles A. Wright et al., Federal Practice and Procedure S 3550 (1984); 7A Federal Procedure L. Ed. S 20:47-54
(Thomas T. Trenkner et al. eds., 1992); Liljeberg v. Health Services Acquis. Corp., 486 U.S. 847, 863 -70 (1988). A judge's failure to recuse
himself can also be raised on direct appeal, see, e.g., Yagman v. Republic Ins., 987 F.2d 622, 626-27 (9th Cir. 1993), or by petition for
mandamus. In re Cement Antitrust Litigation (MDL No. 296), 673 F.2d 1020, 1025 (9th Cir. 1982). If the conflict of interest is disclosed only after
the judgment becomes final, the judgment can be set aside under Rule 60(b)(6). Liljeberg, 486 U.S. at 863.

A party can force a judge to recuse himself in such circumstances because financial conflict is an enumerated ground for disqualification under
section 455. There are other grounds for disqualification in sections 144 and 455, such as bias, prejudice and personal knowledge of disputed
evidentiary facts. See generally Richard E. Flamm, Judicial Disqualification: Recusal and Disqualification of Judges (1996). But a litigant who
would force a judge to disqualify himself must point to some statutory ground for recusal; there is no residual common law authority for judicial
disqualification. See, e.g., Sinito v. United States, 750 F.2d 512 (6th Cir. 1984)(claim that judge was assigned to case in violation of court's
random draw policy not a basis for disqualification).

Disability, mental or physical, is not one of the grounds enumerated in sections 144, 455 or any other statute; it is, therefore, not a proper basis
for seeking a judge's recusal. The only recourse when a judge is believed to be disabled is to complain to the circuit judicial council. See 28
U.S.C. S 372(c). If the council, after investigation, finds the judge unfit to serve, it may request that he voluntarily retire, order that no further cases
be assigned to him temporarily or take "such other action as it considers appropriate. " 28 U.S.C. S 372(c)(6)(B). 1 Unlike a motion to recuse
under sections 144 or 455, which is raised in the particular case where the conflict arises, a section 372(c) complaint is handled as a separate,
quasi-adjudicative proceeding. 2

As my colleagues may recall, section 372 was passed in response to the problem posed by an Article III judge who was thought unfit to serve but
could not be removed because he had not committed an impeachable offense. See Chandler v. Judicial Council of the Tenth Circuit, 398 U.S.
74 (1970); H.R. Rep. No. 1313, 96th Cong., 2d Sess. 12 (1980)("An illustration of the type of complaint that might be referred directly to the
Judicial Conference [under the House version of the Act] . . . could involve circumstances like those existing in Chandler v. United States.");
Judicial Tenure and Discipline 1979-80: Hearings Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the
House of Representatives Comm. on the Judiciary, 96th Cong., 1st & 2d Sess. 27, 39, 45, 82-83, 107-08, 111, 114 (1979-80) (discussing
Chandler). In dealing with the problem, Congress was aware of the Article III implications of removing a judge from further service by means
short of impeachment. See Chandler, 398 U.S. at 136 ("What the Judicial Council did when it ordered petitioner to `take no action whatsoever
in any case or proceeding now or hereafter pending' in his court was to do what only the Court of Impeachment can do.") (Douglas, J., joined by
Black, J., dissenting). Section 372 was, for that reason, highly controversial and viewed by some as an unconstitutional encroachment on Article
III independence. See S. Rep. No. 362, 96th Cong., 2d Sess. 21 (1979), reprinted in 1980 U.S.C.C.A.N. 4315, 4334 ("[T]he Judiciary was given
no power [by the Constitution], either express or implied, to police its own members.")(additional Views of Senator Howell Heflin); id. at 27
("[The Judicial Conduct and Disability Act] would pose a direct and serious threat to the time-honored and constitutionally enshrined principle of
judicial independence.") (additional Views of Senator Charles McC. Mathias, Jr.); id. at 29 ("I believe[the Judicial Conduct and Disability Act] will
chill the independence of the Federal Judiciary . . . .")(additional Views of Senator Paul Laxalt). See also Frank J. Battisti [Chief Judge, United
States District Court, Northern District of Ohio], An Independent Judiciary or an Evanescent Dream, 25 Case W. Res. L. Rev. 711, 71415
(1975)(arguing that the "vague and overbroad language of the section . . . present[s] a significant threat to the independence of the federal
judiciary."); Lynn A. Baker, Note, Unnecessary and Improper: The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, 94
Yale L.J. 1117, 1141 (1985)(blaming congressional "impatience" for "alluring [but] unconstitutional" Act).

Section 372 reflects a carefully crafted compromise between maintaining Article III independence and ensuring a competent judiciary. In striking
this balance, Congress gave the judicial councils, not the courts of appeals, the power to remove disabled judges. The judicial councils,
composed as they are of district and circuit judges, see 28 U.S.C. S 332(a) (1), are far better suited to deal with the delicate problem of judicial
disability than are panels of the courts of appeals. For appellate judges, sitting in a particular case, to disqualify a district judge because they
believe him unfit to serve would upset the balance embodied in section 372 and exceed the authority conferred by sections 144 and 455. The
Tribes thus could not have forced Judge Boldt's recusal had they been aware of his disability while he was presiding over their case. It follows, a
fortiori, that his judgment cannot be set aside on this basis years later under Rule 60(b). 3

If you had my camera with you when you see this stuff, take a picture and send it into the news. And just keep sending them pictures. After a while they will get sick of it and maybe look into it. Try tv news and the newspapers. Just an idea!