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Wednesday, December 6, 1995 - Page updated at 12:00 AM

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Did Boldt's Illness Affect Fish Ruling? -- Tribes Want Look At Late Judge's Medical Records

Seattle Times Staff Reporter

Three Washington tribes say theirs is a simple case with a specific question: Was U.S. District Judge George Boldt suffering from Alzheimer's disease 16 years ago when he ruled several tribes shouldn't be given tribal fishing rights?

The tribes want a court order to look at Boldt's medical records and interview people who might help answer the question.

But to do that, some say, involves straying into uncharted legal territory, opening for review the mental status of a federal judge long after his decisions have been considered final.

U.S. District Judge Barbara Rothstein ruled against the three tribes - the Duwamish, Snohomish and Steilacoom - in January, arguing that it was dangerous to reopen cases after years had passed. A three-judge panel from the 9th U.S. Circuit Court of Appeals heard arguments on the matter yesterday.

Boldt, who issued the landmark 1974 decision giving federally recognized tribes 50 percent of the state's fish, suffered from Alzheimer's disease when he died in 1984. The three tribes were not among those recognized.

Boldt may have been affected five years earlier, the tribes' attorneys say, when he uncharacteristically signed an order prepared by government attorneys when issuing his ruling against some of the tribes. Boldt was renowned for drafting his own rulings.

Attorneys for the three unrecognized tribes told the circuit court they want to move one step at a time.

"The doctors thought something was going on" with Boldt's mental health, said Tim Atkeson, attorney for the Snohomish Tribe. "If there isn't enough evidence (that Boldt had Alzheimer's in 1979) we would be the first to say we're done."

But if the tribes determine Boldt was already suffering from Alzheimer's disease, they say, the ruling should be reexamined, and the Duwamish, Snohomish and Steilacoom should have the right to share in the tribes' 50 percent take of state fish.

During questioning from the bench, the judges pushed the broader question of revisiting an old case.

"Boy, are you proposing to open a big can of worms. Big. Big. Big," said Judge Alex Kozinski, moments after attorneys for the tribes began. "You're in fact asking us . . . to impeach the status of a federal judge."

But Kozinski also challenged attorneys for the federal and state government and several federally recognized Washington tribes opposed to letting others in on the fishing-rights agreement. Kozinski asked if all parties to a suit shouldn't have the right to competent counsel, even if it means changing a decision years later.

David Shilton, an attorney with the Department of Justice, told Kozinski a presiding judge assigned Boldt to the case and a magistrate judge had issued an opinion consistent with Boldt's ruling. The circuit court ought to stop the debate now, Shilton said.

"This is really an attack on the judicial system," he said.

The circuit court's decision will likely take months.

Copyright (c) 1995 Seattle Times Company, All Rights Reserved.

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