morning in court my name is manual corollas i represent the plaintiff california valley me walk tribe and i would like to have fifteen minutes and reserve five minutes for rebuttal if i may  you'll have to keep track of your time as you do that yes or anything i'd like to as as the court knows we hear about the washburn december two thousand and fifteen decision and what i like to focus on  today i set out a lot of issues in my brief but what i want to focus on today is his improper historical analysis concerning the membership quote membership of the tribe and the  validity if you will not recognition of the general counsel the governing body of the tribe of the house so therefore you get to that or else you are discussing it i'd like you to address the question whether this issue this same issue was in fact necessarily and actually living gave you to me why up wine and me work too because the entire basis of the two thousand and four letter that was involved in earlier peals was that the constitution would not be accepted because it did not represent the will of the majority of the tribe and there was an extensive discussion of who else either  or probably or maybe was a tribal member and it rejected the burly factions statement of who was a tribal member so why are we here again litigating that same issue if you're you're right you're on the you're talking about a two thousand and four letter from the b s a is what the court which was which was part of the which was part of what was challenged in me walk one and assistant secretary echo hawke rendered his decision in two thousand and eleven basically finding that the general council was the valid governing body of the tribe in that t in the district of columbia and that was appealed i know where i'm aware of that but i guess the bottom line for me is whether the tribe consists of more than five members  the issue of whether or not that was necessarily decided that is limited to five members was rejected by me what three the well that's one reading of it seems to me that another question this is a district court judge said it wasn't it wasn't expansive and i don't think it's i think she specifically stated the only issue before the court in in  one into was whether the secretary had the authority to refuse to approve a constitution submitted under the theory that is for life specially the only reason that was not approved was that it didn't represent a majority of the members because there were more than five members because the constitution was submitted by three members which would be a majority of fun and and yes that was the ultimate question but the whole point was that it would be accepted the ira and under the ira statute it talks about the whole the whole community the whole tribal community i think language is this is talked about there but but what constitutes the majority of the tribe is whether or not there are these potential members who should be included as the majority or the actual enroll members council nine hundred ninety eight yes your  one point that i'd like you to address today is if i were to agree with you that issue preclusion does not on it's not appropriate in this case why shouldn't we in any historical analysis in the in the administration record what what what he what he did observe and what i think is pretty compelling is that jeff davis in one nine hundred thirty five was approached by the  thousand nine hundred thirty five and in this tabulation the b i a says says there are these rancheros in california or an organized in addition to others they were they were tabulated in accordance with this referendum and they they listed the tribe as having sixteen population of sixteen but they listed other rancheros as well and so when the june fourteenth one thousand thirty five letter went out and listed jeff davis as the only eligible person to vote they had this this other tabulation said well there are sixteen people that are populated for the two for their insurance but there were others there were family on your contention is that's arbitrary and capricious yes yes so can you tell me exactly why that conclusion is arbitrary and capricious on the state of the evidence before the secretary yes  with him and his brother dixie became and rolled members not in the old but members of the tribe the question is whether or not these descendants of the one nine hundred fifty s fifteenth census that are these these two hundred so potential members punitive members are also members and the answer is no in fact washburn concedes that he says but but ultimately they can be members to participate in the reorganization of the tribe then he goes even further says they are actual members that's confusing the actual the actual members are those that were in rolled because dixie alone had that authority in one nine hundred ninety eight just like jeff davis had that eleven were eligible to vote and so forth so the policy that the b i had was who are the members that have this power and authority to enroll and to vote and to organize the tribe only those that resided on the rancheros and it was dixie alone who ultimately he was the he create claims in and and washburn conceded this he was the dwindling try he was the remnant the last of the mohicans so to speak he was the only one that was residing on the ranchero who was authorized and empowered that the only reason they were trying to do that is because of this leadership dispute we see that in the i b i a decision of two thousand and ten that was that was the reason why the b i a decided that they were going to call this this meeting and have all these participants disputed members participate in the reorganization reorganization of the tribe because according to them they said in order for us to to have in order for the tribe to have this government to government relationship we first have to resolve this  and she said go back and first determine whether it was find the find the facts in the record to justify these conclusions washburn didn't do that instead he comes up with this idea about  these these potential residents or punitive members who were outside never resided on the on the on the lot they were eligible to vote in the future and because of that they must be members and they and therefore there is more than five members of the tribe that is that is wrong that's inconsistent with the historical facts of the case in the administrative record that says that the the ira consistently considered those who resided on the ran unorganized ranchero as to be the only members the only members of the of that tribe the only persons who had authority to organize the tri so that's why washburn's decision is arbitrary and  capricious it's inconsistent with the record it's inconsistent with what the v a s policy was throughout these years and then we have to look at mabel dixie what happened with her she was approached by the b i in one thousand nine hundred sixty six and said you were the only one says wait a minute me my brothers and my my my granddaughter we all should should participate in the voting for the terminations and the b a said no no because you never resided and you never had a vested interest in and in the property and so she was excluded and then of course mabel dixie dies and the probate court issued an order vesting the interest of that property to to her heirs which included yakama dixie so so what we have is we have yakima dixie having a vested interest in the property the the authority to to enroll the authority to organize and we have this leadership dispute that the be a was trying to resolve they did so by forcing trying to force the tribe to reorganize under the ira that is unlawful and it's also inconsistent with the i a e a policy their policy is basically to allow these unorganized tribes to organize themselves if they have those members residing on the on the ranch area to do so not people that never resided on the tribe and that's part of the problem part of the problem that we have is is this inconsistent historical analysis by washburn and then of course we have now dixie's death we he died in december of two thousand and twelve they had this leadership dispute now that that's gone there's no need to do that so the issue is who is the tribe washburn never said that that pixies act in rolling  in ship of the tribe if they if they asked the general council but we have this problem that washington says wall i'm not going to knowledge the general council and so we have nothing what do we have and what standing do these followers of decision of the assistant secretary for two reasons first because the d c circuit has already ruled and me walked to that interior reasonably may decline to recognize the burden burley family as  district court said that the precludes of the issue was there was a necessary decision that the tribe consisted of more than five members but that was the issue correct but i think it's just a narrow way of of reframing that the same issue that  say that depends on it does the dr have you know five members four members of whatever book counsel the district courts the issue of how many tribe members there were was precluded and you walk one for example in  decided as a matter of fact that the tribe consisted of more than five members but if you look at the ruling in the walk to from the d c circuit where the court specifically says that the burly family's attempts as i see it if piers to me that me were to did in fact decide the issue i mean why are three described to me walk to him correctly and so when that happens i guess the legal question is do we take me walk to and its own face value or are we value by all later miss description of what may want to actually help and i that view that the decision that was made in the walk three with respect to the binding impact of me walk to in this proceeding i mean it wasn't for the court i mean what the court did in iraq three was address that precludes si secretary's interpretation is a permissible one yes and the district court hears me walk one and me walk two did this side the issue of whether the tribe consists of more than five members issue preclusion requires necessarily decide as and actually side of more than five members can you point to any specific language in either me walk one or me walk to where either court said as a matter of what was decided the tribe does consists of more than five members as opposed to it potentially exists of more than five members specific language which you're on of the language and me walk to  is very specific in this describing the efforts of the burley family it's anti majority terry and and as describing them as a tiny fraction of the tribal community as we've explained in our brief determining the actual number of members of a tribe is ultimately up to the tribal community as a as part of the organizational process so there's sometimes confusion between the terms who is a member of the tribe and you know potential member but also the realms of the district courts  thirteen of the order me walk one and me walk two did this side the issue of whether the tribe consists of more than five members and i'm trying to i'm asking them to identify where did they actually say that they did decide it because we're you right in what i'm saying is the issue in this case is not how many members there are in the tribe the issue is did the department of interior reasonably did decline to accept the burley family as a governing majority of the tribe ultimately the issue as to how many members there are in the tribe is up to the tribe through the organization process the question whether to accept that is then a deferential one with respect to the department of the interior in me want to this court circuit didn't decide the number of people in the tribe because the question before the court to me walk to was could the department deteriorate reasonably decline to accept this group this group before early family members as a majority of the tribe because that there was this broader tribal community that's the exact same issue that's before the court today it is not the ground the district court below relies on in the motion to dismiss on the basis of issue preclusion what you just said i think the district court analyzed issue without deciding exactly opposite what the d c circuit held which was the department of interior reasonably declines to accept the burley family as a majority as a governing majority for purposes  of operating the block i think what what's difficult is that this sort of a line drawn exercise because a tribe is entitled to set its own membership criteria ultimately and decide who's a member and yeah the secretary has the obligation to make sure that that process is done by respecting a majority so they're kind of conflicting policy and that makes it sort of difficult to analyze a rehearing situation i would agree your honor and i don't want to get caught up in the question of issue preclusion if this court has difficulties with it because the issue as to whether th determination was reasonable is not a difficult issue it was an issue that's essentially been decided but if you this court determines that it needs to look at that issue afresh this court shouldn't have any difficulty with that issue because the burley family has not identified any law any regulation or any precedent which supports their view that the two thousand and fifteen decision is unreasonable or contrary to law their argument if they say it's arbitrary as i understand it exclusive authority to organize the tribe and to enroll other members and there's there's no statute there's no regulation and there's no precedent that is stablished is that they point to the indian do was to go to reservations and then take a vote among the residents within the reservations for the limited purpose of of determining whether those communities were to opt out of the ira and so you had small reservations you had large reservations with the bureau did at the time was to go to the reservations and just take an election of the folks on the reservation but as council knowledges the population of the tribe at the time  deemed to be sixteen so there's a difference between complying with section eighteen which is a limited provision just talking about opting out and organizing and and the issue of who has the authority to organize and the statute certainly doesn't say to section sixteen organization or organizations generally by tribe that somehow the creation of a reservation who lives on the reservation provides the authority to to organize a council when the when the matter was remanded or the secretary's decision and the washburn decision did the secretary have the authority to determine how many members were had the authority to determine whether the tribe was limited to five members but that authority was clearly there will they have the authority to determine that issue in that context which is which were these was it proper to recognize these five people as the only members of the tribe and and the says all of the federal court decisions examining the dispute make clear that the tribe is not limited says to five individuals if we find that that was the basis for the decision and that that reading of the court decisions was incorrect do we need to order this case remanded for a new decision as to the the issues here as to whether the tribe is limited to five people if we washburn was saying that he was bound by these prior decisions and obviously issued his own decision his own determination and determined it was consistent with every determination that be i had made between march two thousand  to today except for the aca hawk decision has taken the view that for the proper organization of this drive it is pursuant to a broader tribal community well there is also in addition to talking about those three cases and your eight ninety four and ninety five and following the twenty fifteen decision goes on to discuss in song interpretation or make historical evidence sound who is understood the question to be was there's there a mistake of law you know in that in the two thousand and fifteen decision that somehow if the court found that the system secretary misread prior law that there might need to be a re what i suggest is that if you look at the decision over all the court secretary says and secretary is under no view that he was found by the prior cases he issued his own analysis that was consistent with the previous analysis and consistent with the facts so you you believe that when the secretary said i conclude that the tribes membership is not properly limited to mr dixey in the brulee fashion ninety four that that is unaffected by any possible legal reservation residents and historically what happened again from the beginning we know that there were some thirteen or sixteen depending on the time frame members or persons who were part of the tribe that was recognized at that time when the indian agents went out and term and pursuant to their authority to purchase land that there was a there was a band there for whom they needed to provide some assistance and what the burley family would have this court required all the members to move onto that ranch area if they wanted to organize and there's just no that's going to be anathema to be notion of tribal sovereignty that we can eliminate a tribe by buying a small piece of land there was nothing in the statute that authorized the purchase of that land that would provide that result there's nothing in the indian reorganization act that would suggest that result there's nothing in in precedent that would suggest that result the policy of department of interior has always been in helping tribes organize to is to start with the base role and to look to descendants of the broader tribal community and then look to whether when they when the tribe organizes whether they have done so consistent with the cases have been a little unclear about those two concepts but the twenty fifteen decision here it found that the tribes membership was not properly limited to five people it did not purport to define the tribes membership then went on to say that there is a larger group of people the eligible groups who are lineal descendants of known members who are eligible to participate in the initial organization of the tribe which is the adoption of the tribal governing document formation of the government and among other things defining bacteria for membership in the tribe that's how the membership actually gets the fine so it would probably be more accurate to say of me walk one and two that what they necessarily decided was that participation in tribal organization was not properly limited to five people and therefore that the efforts to create a government and define the tribes membership by the early group back in  district court was wrong in that finding your honor i think it was focused on the concept which correlates to what was expressed in the twenty fifteen decision that the membership could not be properly limited to five people so in other words wanted to did not make a an explicit determination about how many members there are or who they were but they acknowledge there is a larger tribal community entitled to participate in organization which will define the membership and therefore that these efforts to define and limit the membership to five people are not effective and can be reckoned so i may or may i do our correctly understand your argument and b that there is the issue preclusion described in a more being decided is one of statutory interpretation so if the court described what it was doing was i'm only deciding statutory interpretation how could the court have necessarily decided that the members eligible to  all i am deciding here is statutory interpretation yes and the question is how could he have decided that there were more than five people you know how could infer the issue preclusion purposes how could that include the necessary and actually decided finding there are more than five people eligible when i when he said all i'm deciding is an issue of statutory interpretation so the statutory issue that he decided was that what was then for seventy six age of the ira did not eliminate the majority requirements of the ira that the whole tribal community had to be involved it was still necessary to his decision that the two people who signed the one thousand nine hundred eighty ninety eight resolution were not a majority of the tribal community and to determine that i think he relied among other things on the burleys own statements that the tribal community was not a number about two hundred fifty people as as well the evidence in the record in the b i statements in that case which etc so there was and i don't think that the burleys ever disputed that these people existed they simply deny their legal status and that's what they continue to do today they do not deny the evidence in the record and if i could briefly you asked a question about is there members were a number far more than are known to the b i and this is addressed in pages forty five to forty six of our brief but among other things the decision and the decision itself says i find that for purpose that finding about of the tribe are and the fact that there lineal descendants are entitled to just paid an organization is fully consistent with the be past practice with the own band of me walk going backwards a council just said that there is no evidence that the vi a ever limited participation in organization of these ranchero as to those people who actually resided on the tribe and i  out to the court in my in my opening argument that look at look at forty four and three ninety three and so forth these two documents the tabulation they came up with  document are forty four or jeff davis is listed as as the only one eligible to vote and keep in mind voting for what for the e r a which is to organize to try and then seventy fo hundred eight whether the burleys in the dixies constituted the majority but what constitutes the majority of the tribe what constitutes the tribe was that dixie and his brother in the burleys or was it them plus the descendants of the one nine hundred fifteen census two hundred  so who never resided on the property that issue whether or not they resided on the property to be potential members to be these punitive members to be able to participate in the organization of the tribe was never decided walk one or two me walk one was about the interpretation of for seventy four h and me walked to said yeah i was a fair interpretation but no one was talking about whether or not there were punitive members these majority of members so called members were members because they either did or did not reside on on the on the on the property in accordance with b i a policy so uh these issues were never previously decided the other point that he makes here is about moving on to the land it's too small  and that's not my if i'm not pitching that at all this this this opportunity that john terrelle gave the the the band of indians in one thousand nine hundred eighteen when he purchased the property was an opportunity to use the property it was during the assimilation period when when the government was trying to make indians farmers so they wanted them to have a place to live so they can go down a couple miles or so to the farm and to live on the property and use it peter hodge who was  the bandleader he had his own property hundred one hundred sixty acres a couple of miles away he didn't need to live on the property so this idea about everybody squeeze and out of the property is that's nonsense i mean i'm not arguing that in fact washburn tries to say well it's those people that that were not residents of the property but had some sort of a he called it an assignment potential assignment because the government would give them assignments to use the property and there was never an assignment in this case there was never an allotment in this case all we have is it's just pure piece of land and the problem that other rancher is did not enjoy if you want to call in problems