good morning your honour's anthony brought in on behalf of the confederate tribes and bands of the acma nation may it please the court keep an eye on the clock and i would like to reserve five minutes i would also like to recognize the members of the elected leadership of the acrimoniously who have traveled here a this case is another example of the united states breaking its word to the acrimony in this court should not allow that to happen great nations keep their word united states accepted back all jurisdiction over crimes on the yakima reservation with one exception and that one exception has two necessary elements non indian defendants and non indian victims in other words if there is an indian involved in a crime on the akamai reservation well what washington got over that was all criminal jurisdiction except for on trust land within the reservation but post absent a subject matter that aren't really applicable here the key thing here is that post retrocession the idea was and the idea was in part overall there were things that the money should ask for that the state wouldn't give up for instance mental health jurisdiction off reservation ask for mental help to correct so then what doesn't make sense to say we granted it in part and denied it and well it didn't give jurisdiction over offers aeration trust land that you think that good impart just met him part of the total jurisdiction that would have been out there not him part of the request that the argument that's true when you talk about jurisdiction as a whole your honor it's also true when you talk about criminal jurisdiction on reservation because the jurisdiction that was that the united states has after retrocession is not all jurisdiction it does not include mcbride new york saund this is not only a reasonable interpretation of what the proclamation said it is exactly what the united states accepted the united states as i are at their acceptance letter and the federal register would not call the roberts memoranda and the letter internal guidance and i think they are higher than published in the federal register no but the federal register was clear it says we're going to accept the language of the proclamation from our perspective the proclamation is clear it says you think it's it's an ambiguous language that i do your honor i think it's very clear and here's why not only do i think that the united states thought that for three years and they took the position formally three times here's what's critical to remember about mr roberts  another letter from the o l c and other federal agency interpretations do we i've not sure i guess i guess a threshold question is do we care how a federal agency interprets a state proclamation well here's why we don't have to worry about what the state proclamation says because the amicus as you'll hear in a moment and the i agree that when the united states is looking at the proclamation we look at what's apparent on the face of it and the body with the power to make that decision whether you're looking on in the grand scheme of things interior has the authority under twenty five dollars u s c section two to manage indian affairs to manage the relationship between the federal government and the acrimony that's all that mr roberts is doing in november do we do we interpret the proclamation consistent with washington state law or with federal law with federal law and washington said but the district or didn't do that the district or didn't do that why is that so if if this state for example law i think the i think that this should always be resolved through a federal lens and i think that that's what the that's what your president requires if you know so all of a and lawrence those cases talked only about the evil lead at the acceptance it didn't talk about interpretation of the meaning of the state law i think that's right you're on the right so is there any case that says we would interpret a proclamation in this context not in the th circuit but it's remember if you look at brown lawrence together omaha tribe together all of these cases they say this is a federal lens brown says do not make the tribe a political ping pong ball between the state and the federal government so what we do is we look at the moment of acceptance because that provides clarity this is a contract that the moment of acceptance there was not a federal and her pretty well there was a federal belief on what was being accepted and that is crystal clear from her that i mean the acceptance and the federal register no interpretation at all right but it's very doesn't tell like over a year later right well it's in november of two thousand and sixteen the closest three moments of this from the federal family are all consistent if you look at the larry lawrence roberts letter well i would challenge the court slightly and that i think that there was an understanding of what mr washburn accepted because when when he said all mr washburn said is the language is clear he said when the governor tried to recast the word as the word and to mean something different in a cover letter mr washburn said no i think that's an overstatement well so what he said and it seems fair and i want to ask this question is we're not going to get into what the governor said in his statement but he did not weigh in a desire at it he did not weigh in on the substance of it he just said the department of interior when they accepted it said the language is clear and if this is ever  contested will rely on the courts i suppose i read it a little differently your honor because what i see is the cover letter trying to change the word in to mean and or and that's true and that that i don't but i'm not sure whether it was change i mean that's the debate did the tribe ever weigh in on the cover letter was there ever a real on the tribe had no role in all of that i mean did you ever respond oh try very well and throughout the process throughout the i didn't see anything in the record where the tribe wrote a letter to interior and said hey see what the governor just tried to do he's misinterpreting this well i can find that record i can find something on that your honor and i will try to provide present that in rebuttal but here's the point at that moment of acceptance it's not defined by a later decision by by interior by the withdrawal of all prior guidance because we have three statements from the federal government under twenty five dollars u s c the body with the authority to manage indian affairs on the interpretation by federal agents of this there is a difference on the same level of official within the department of the interior makes clear because it's not clear to the governor he's saying we still think and or means and so larry roberts writes him back in november and says no you are in here's the problem counsel and can mean the end or and so why why is it just presumptively that you look at this and you say well it only means and don't we have to read that in context no because for three years within indian affairs and he says washington state retains jurisdiction only over civil and criminal causes of action in which no party is know whether it ministration had changed in the acceptance and the up its letter would that approval for the federal government without the tribes consent yes but that's not what happened here i understand it's not and what it was impossible for that was possible for the united states to send anything to the federal government the state of washington so the state of washington you know yes th initially says this is what i mean could he have changed the language without conflict consulting with the tribes he could have here's the important part of that the united states has the authority to read the four corners of the proclamation so because we don't have the word or in there it wouldn't i can't speculate on how the united states would have interpreted that but the amicus and the ackerman ation agree if you look at the amicus brief docket twenty eight page thirty two interior can accept based on the apparent meaning of state documents and that's what happened here thank you  tell from the arguments of counsel the only way the yakima nation can prevail on this appeal is by ignoring numerous key facts which are dispositive of this case st we must ignore the fact that  criminal law over indians was assumed by the state of washington under public law to eighty n r c w three thousand seven hundred and twelve nd we must ignore the fact that the u s supreme court determined that that assumption of jurisdiction was in fact valid and that's the confederated bands and tribes case from one thousand nine hundred and seventy nine rd we have to ignore the fact that the state actually retro ceded part specifically part of the jurisdiction it previously assumed under public law to eighty do you don't need to do you agree that this is ambiguous language or is it i'm an ambiguous language your honor it read in context i do not believe the language is ambiguous the the law excuse me the language when read in context makes very clear that what we have to do is read it in context to make that determination precisely  and in certain circumstances or it can mean and or in other circumstances that doesn't make it automatic lee ambiguous is exactly right and that's exactly what the washington court of appeals held in the sack what difference do we owe to the washington state would you agree that this is a federal question or is it a state question i would i disagree that it's a federal question i my interpretation of this and i believe the zac court's interpretation of this is it's a state law matter it's a state law proclamation it's a state statute i was confused by the district court because the district court seemed to suggest it was a state law question but then it said that zax was only persuasive not binding so that suggests that it would have had to follow the state court on an interpretation of state law so would the district court do blow your honor i believe the district court determined it follow the reasoning of the zach case found that that was logical reasoning but did its own interpretation of other federal law or under washington law i believe the interpretation was under federal or excuse me under state law your honor based upon the zach case and the that statute at issue why would it be state rules that govern this analysis when i mean i understand it's a state problem proclamation but it doesn't become effective until the government the federal government acts and the federal government can accept it or not or accept part of it or not so why wouldn't it be the federal rules that govern under that structure when when dealing with the actual acceptance i would agree that that's probably a federal question but what's at issue in this case and what was at issue in sac is the scope of what was retro seated and that was made that determination was made based upon the actual proclamation but again wouldn't i mean there are cases and granted they're not binding i think that the district court cases that say that the federal government can accept only part of what the state is asking to retro cede so that would suggest that that federal rules govern a scope analysis i guess i would have a different interpretation of that those cases your honor i believe go to the validity of the actual  whether whether or not the retrocession itself was was valid the cases that we have cited in that thing stat or tons tuns the stall case indicates that the actual scope of the retrocession is a state law in her petition and again back to our case and the district court's interpretation of zack i think it's very clear what's being interpreted here is a state law proclamation and a state statute as to what was being retro ceded so curious about the how do we interpret this you just said two things the state law and a state proclamation do we interpret this as a statute as a contract is a treaty as an executive order as a regulation where we with the now legace document that we're reviewing base upon is on the zach case itself it lays out that this the appropriate interpretation would be as something akin to an executive order or a legislative act on behalf of the figurehead of the state so it would be a legislative interpretation so similar to a statute the current pea corrective orders might be different than statutes true true so if we look at the proclamation as if it's a statute and we say you were careful this is not ambiguous but clearly the language is susceptible to more than one interpretation or meaning maybe only one is plausible but there is at least two ways to read it doesn't washington state have the same rule as the federal law that  interpret language to the benefit of the that's intended to affect the indian tribes to their benefit well your honor in this situation if if the tribe was a party to that the contractor the legislative action then then perhaps that would be a valid argument it's not a valid argument in this situation because the two parties involved were the state government and the federal government but if we look at it as a  how do we apply the canon of interpreting to the benefit of indians i don't believe it that i don't believe that's the case your honor and even if even if that was the court's analysis i would say i would i would argue to the court and submit to the court that the interpretation given by the zach court and the district court is to the benefit of the acma nation the acma nation as indicated in our briefing is in the midst of a crime  epidemic they've actually reached out to the defendants asking for help in resolving these these issues to determine that the defendants are enjoined from actually participating in force in crime on the reservation is certainly not as to the benefit of the yeah c'mon nation so this is the most puzzling thing to me about this case why didn't the state simply say what it meant in the proclamation i mean if the statement or and why didn't you just use or in the proclamation your honor i unfortunately can't answer that question but i would indicates that you have to look at this is a package deal i guess is how i wouldn't say it the proclamation by statute by the r c w the proclamation if any of the retrocession request is not had then the state is obligated to explain why the retrocession is denied that's the that is governor inslee is letter it's explaining why the in the retrocession was denied but also elaborates on what the actual language of the proclamation means so we can't look at the two in a vacuum they are one and together together b when do you think that the governor inslee statement came be read to interpret the language it does seem to me that we need to reject that we've got to look at this on the plain language of the proclamation the fact that he tried to whatever you want to say clarify change it sort of doesn't matter i would agree and if we redo an array so you agree we don't look at the governor if if if the court finds that the language is unambiguous and i would argue that that that should be what we determine then i think reading in context to the district court was correct however if the court feels that it needs to go to the interpretation angle because there is some ambiguity or partial ambiguity then the best evidence we have is governor inslee is letter which he was required to send and which interior received before it made any statement as to  what the retrocession being acceptable but so then if you if you go that route are you suggesting that the two thousand and sixteen letter from interior was ultra very i mean could could interior not change its view in two thousand and sixteen and say that they disagreed with the governor's statement absolutely not i think that the letter actually contemplates that there could potentially be a court challenge like we have today and so what do we do with the two thousand and sixteen interpretation from the department of interior that was the that was the guidance at the time and they interior expressly recognize that potentially there could be according to a petition and acknowledge that the court interpretation is what would control that's what this that case was it was an interpretation of the proclamation and apparently i mean there's an open question as to whether it's binding on us because if it's i mean if this if it's a state issue controlled by state law i think that gives a lot federal interpretation then it's maybe just persuasive agreed yes ron are you are you conceding standing at this point you haven't had any chance i got to be honest i didn't find them very compelling arguments but i'd be interested in hearing what you have to say your honor i actually i would like to focus on the retrocession got because i think that's where the case the heart of the case is and i see i'm approaching my five minutes so i would defer to department of justice thank you it please the court you can move this can you show her how to move it down thank you it please the court stacey stoller for the united states i believe your honors that some of the more complex interpretive questions that we've gotten into this morning may actually not be necessary to reach in the context of this particular case  although there are circumstances in which it will matter whether we are giving a federal interpretation or a state interpretation to a particular document in this case because the document can be interpreted and understood within its four corners there is no need to ever reach that question similarly the question of whether it should be interpreted as a contract or as a piece of legislation there are certainly aspects of both to it and it is implausible to believe that an offer that has been clarified before acceptance can in any circumstances be accepted in a manner contrary to the clarification and there are indeed the cases on which the ambiguity versus a seeming ambiguity question there is certainly two ways to read the language as you have pointed out and it is only upon close reading of the proclamation that you can understand why it is that the nation's  interpretation is simp not consistent with the remainder of the proclamation in some part of interior in two thousand and sixteen just posited a totally implausible interpretation that i don't know that it's implausible but it certainly doesn't look beneath the surface of this the department of the interior maintains ongoing relationships with the nation and it was clearly at that point in time the nation's interpretation  that the department of interior was accepting there is no indication of your honor that it was the nation's interpretation at the time that the proclamation was submitted well i want to ask about that because the governor sends forward this statement and the tribe says well we contested that is there anything in the record to suggest that the tribe actually contested the government the governor's interpretation or clarification whatever you want to call it so this is an extremely incomplete record if you were looking for the i don't believe so and the governor certainly in his april th letter to the department of interior set out his belief that the tribe had fully understood the scope of jurisdiction as set forth in the governor's interpretation and there was no  objection to that statement there is also the fact that prior to acceptance as were cited in the o s c opinion the f b i s reading of the of the proclamation which it shared with interior and is referenced in interiors washburn letter is in fact consistent with the state's interpretation so there is no history of anyone prior to acceptance identifying it that way in history of negotiations shows that the whereas clause included in the i believe it's the th or th whereas clause which recites that the nation ignalina it is that the state will be retaining jurisdiction over non indian defendants was included after having been removed by the nation when they saw it full retrocession was included as an acknowledgment that the state was not returning to that part of jurisdiction that the nation had sought to would be a different issue but we are not faced with that question here and the interpretation the nation is putting forward collapses the jurisdictional retrocession in paragraphs one hundred and twenty three into a single type of retrocession so there is no difference in their reading between a full retrocession and a partial retrocession so just to just to clarify then judge could ask about brand x earlier is the government's position that this is not a brand x issue at all because deference due to the extent that there were a question of deference certainly the u s is current position would be the one that would be entitled to deference we don't think deference is appropriate here we have an acceptance that accepted the proclamation by its terms and the proclamations terms can be interpreted and are not ambiguous within their four corners so certainly to the extent deference were appropriate it would be the current position that would matter but but we don't think interpretive deference is needed here i do have one quick question what in the record shows that the federal government believed that the or construction was the proper construction at the time of acceptance so i believe that nothing suggests that we accepted or that we took any position and that i do believe that the strong letter of the formal interpretation at that time but there were but things happened things were put into place and actions happened and so we have in the record information from the u s attorney's office and information from the county sheriff's office with direction saying that's consistent with the and construction so the only interpretation that we have that's prior to acceptance is the f b i is accept and the f b i is interpretation which is described in the o c opinion and were cited in the washburn letter and that interpretation as explained in the last the opinion is consistent with the state interpretation that is that they would be retaining jurisdiction over cases in which nine indians were either defendants or its terms as well as the washburn letter which suggested this was a matter for neighbors to resolve together and in the event disagreement that couldn't be resolved that way not to come back to interior but instead to turn to i have to challenge my colleagues use of a public safety bogeyman in this case retrocession is the public policy of the aca my nation is written into state statute is written into one thousand three hundred and twenty three so the idea that there is an issue with public safety for the akamai nation which is the single largest police presence on the akamai reservation is a is a is it's part of their sovereignty and part of their i think the points will take think you're this isn't contract law this is not a moment where we're asked is there a mutual mistake was there an offer an acceptance this is an exercise of the federal government's authority under peel to eighty under one thousand three hundred and twenty three this is an exercise of the federal government's authority under executive order eleven for thirty five the moment of acceptance is all that matters and we could talk about deference but what's really important here is that the washburn letter the roberts memorandum the roberts letter they are all crystal clear proof of exactly what was accepted what we just ignore all those letters and look at the language on its face in the context of how it happened you can do that too but you have very good lawyers and very good federal officials disagreeing on both sides of it i think we have to look at what is the best evidence of what happened in april two thousand and fifteen and we have that we have clear statements from mr roberts who is the top of and you know let's be fair that was a year later so it is a reason statement that comes with now but the new one the new one is a reasoned statement two from washburn so i mean from oh i see the is is a is a reason statement it's a title to no more difference than the my point i mean i don't know i mean maybe it is titled a different deference maybe it's not but even if we rejected all that i think you have an uphill battle on on your interpretation here because you're the presumption is that the state of washington granted it isn't internally consistent with some of the provisions in the in the documents i  would disagree on i think that the use of the word and as as the core pointed out if they meant or why didn't they write or why is the yakima nation have the burden to explain to everybody else what the word and means i had asked you a question you said you might have something rebuttal i wanted to respond to that your honor it's not relevant to whether or not you know whether or not the nation jumped in right away because we look at the moment of acceptance and the best evidence of the moment of acceptance is mr washburn's response to the governor's cover letter what does he say he says we're going to look at the proclamation we're not looking at the cover letter there is nothing under federal law that talks about a cover letter the cover letter is just proof that the governor is trying to change the language of the proclamation this case is as if the united states told the akamai nation for three years the sky is blue and then they changed their mind and said it was green and it's been green for three years interior or the state of washington change retrocession  that's what they should have done here if they wanted more than what they retrofitted in the st place they should have stood by what they said in the proclamation they should have talked to united states and attempted to acquire more dollars they gave you should have done is change the end to it or if that's the way they should they should have if they intended to do so they