would like to reserve three minutes for rebuttal in the doctrine of ex parte young is it all at the core of the sovereign immunity issue in this case dr and is a narrow judicially created exception to the basic rule that sovereign immunity protects tribal officials sued in their official capacity the exception is designed to ensure that federal court you to take advantage of the exception of plaintiffs must at a minimum allege of violation of a federal law that applies to the tribe and here to have plaintiffs cases bail out   involved fisheries tribes fishing on state land and the holding of the supreme court was that the tribes were immune but the states could prevent particular tribe members from suing on state land by getting injunctions against them so i think the the important point is it's an individual liability not an official capacity suit and similarly the bay mills and dicta should be understood as to the two to refer to individual capacity suits the court after all in bay mills was not writing on a blank slate for over one hundred years expert a young doctor and has been applied to to enforce federal laws and indeed that's entire justification for the doctrine is the need by federal courts to enforce federal laws so it would be quite an expansion to begin to apply that narrow exception to sovereign immunity in order to win that permit suits involving state laws and which which when in the only case in which the supreme court has considered whether that was even possible they very like very clearly it is not  allegation nose up nose have an immunity inquiry has never been made to depend on on whether or not the the court believes that there's a reason for the tribes being caged in that in a particular conduct and again i would say those are allegations what what sovereign immunity put depends on is congress and whether congress is intended for the tribe to be sued now to be clear this is a thing that auto is wrong it auto is dealing with a very different issue if different individual capacity suits against tribal officials are not protected by tribal sovereign immunity so we would not be having this discussion of course plaintiffs brought in official capacity suit they relied on the fact that they were bringing an official capacity su multiple ways below they rely on it in order in the making their personal jurisdiction arguments they relied on it in making their arguments about indispensable parties they relied on it in explaining why and why the ricos case rico claim could go forward so there's no question that here we're talking about official immunity and there's also no question that in an official immunity and sorry pardon me in official capacity suit sovereign immunity protects tribal particular non consenting tribal officials liable to suit and so the sort of question is are they liable to sit at all but i don't mean to disagree with you or hear your honor to the extent you're saying at the trial the defendant should know if there is certainly available to you to say that there's no personal jurisdiction as there is not and to dismiss the trial the tribal officers are not i'm not ground and to avoid perhaps these issues if the court if the court wishes  please the court lewis wiener for the think defendant or non tribal defendants the district court erred in refusing to compel arbitration under the f a a and that error manifest itself in two ways first the district court disregarded the arbitration agreements clear and unambiguous delegation provision without without specific challenge to the delegation clause as required by the supreme court's rent a center v jackson case second having disregarded the delegation provision the district court erred by concluding the arbitration provision was unconscionable with respect to the rent a center v jackson standard there was no specific challenge to the delegation provision as required by by that case plaintiff's purported to challenge the delegation pr is fraudulent and allege that the defendants planned the delegation provision to shield their widespread fraudulent practices from federal court review what that is is an attack on the tribal review provisions not the delegation clause this court's decision in campion elo provides that you cannot establish a connection between the alleged fraud and the arbitration clause merely by adding the allegation that the arbitration clause was a part of the overall scheme to defraud  did was basically challenge the arbitration agreement as a whole and the contract as a whole but they never challenge the delegation provision as a whole i read the arbitration agreement insofar as it provides  federal court review is always available and the standard under federal court review we believe addresses the concerns that were raised both by the plaintiffs and by the district court below in that if they were concerned about issues of corruption fraud  cetera that's what section ten f a a review is therefore even had they gone through tribal review they still would have the right to section ten review those issues could have been handled at the appropriate time  the supreme court's weimar case again deals with that issue by saying that the appropriate place is for the court to first honor the delegation clause and then deal later if it needs to with these issues of in force ability of the judgment what the court did was both engage in speculation and and its ruling was premature because it front ended its analysis it said because of what might happen at the backend we're not going to honor the delegation at the front end that was clearly error having having made that decision though the court further erred in finding that either under chip walk or as the court decided the under vermont law the agreement was unconscionable it's not under application of either law under the under the vermont law as the court  applied the arbitration agreement was neither procedural nor substantively unconscionable and moreover the tribal review process does not render the delegation provision unconscionable again the first thing the court should have done was assess the validity of the arbitrate of the delegation provision which is clear and unambiguous and instead it bypassed the delegation provision in favor of a front end analysis that looked to what it thought could be the ultimate the ultimate problem with the case but again that decision was both speculative and premature your honor there was a rule twenty eight a letter that was submitted to the court yesterday advising the court of the fourth circuit still in decision we have filed a a a rule for rule twenty eight j response this morning and we wanted to point that out i would like to point out with respect to the dealing decision that issued by the fourth circuit that there are three reasons why this case differs from delon first the court below found that there was no preclusion effect of federal law that's at the special appendix page thirty four second the delegation clause in this case makes it clear that disputes include claims based on federal statutes so to the extent that dylan found that there was no opportunity to bring federal claims the delegation clause in the arbitration clause in this case specifically permits federal claims brought under federal that shoots third chippewa korean law pursuant to chippewa korean law the court may apply federal law or or the law of the state of montana that could be found in section one section one point nine of the law and order code of the chippewa creature so to the extent that there are concerns about whether this agreement permits the application of don't think that that is a meritorious argument i think that is in us because there have been any number of cases that have held arbitration provisions to be binding in these situations and in fact i don't believe that the plaintiffs raise this below and to the extent that the am a case is attacking the f a a that there is no surprise on that your honor the f a a in this instance is binding this is a matter of contract between the parties which should be upheld it please the court there is no dispute that the defendants loaned money at interest rates that violated vermont and federal law the only question is whether they can design a system to shield themselves from any responsibility for their actions the to resolve this case on the arbitration issues to follow the hayes case in that case the court held that the wholesale waiver of federal law was a sufficient basis to invalidate the entire situation agreed hayes did not reach the delegation issue because it felt that the waiver of federal law was sufficient in and of itself to take care of the to to invalidate the arbitration agreement despite their contentions there is a wholesale waiver of federal law in this case and if you look at the appendix at page eight to fifty eight the a language of that agreement says that there are the borrowers further agree that no other state or federal law regulation shell applied to this agreement it's its interpretation that is incorporated into the arbitration agreement on page eight to sixty five that says that the arbitrator shall apply the tribal law and the terms of this agreement including the agreement to arbitrate and the agreement that's not so the text of the statute says through section two and section four that the decision is made before the arbitration and if there are grounds that the common law to invalidate it were other reasons than it's invalidated before you go down the path of your betrayal so section two and section four tell you that even though there is a way to review it under section ten there's no reason to wait let's just invalidated now the other argument that they make is that the law the chip warcry allow for the application of federal or state law but that's not true because the agreement itself this claims the application of both federal and state law in addition the chippewa korean law that's most specific in this case on the delegation there's also been an argument that we weigh the his point but i want to point to page fifty five and through fifty seven of the read brief were remake the argument that we quote hazmi say in hayes the fourth circuit held that an arbitra created by a tribal lending operation wasn't forcible because a party quote may not flatly in categorically renounce the authority of the federal statutes to which it is and must remain subject it's quite clear that we raised this argument in our brief and then in that then argued by anal to the hayes case and said that that should that should apply in this case and there's no need to reach because of that there's no need to reach the delegation cause as far as the delegation clause itself it's the delegation clauses both unconscionable and fraud in the briefing about what's the actual delegation clause but if you look at the the rye and the parnell and mcdonald cases the delegation clause that they think applies is exactly the same type of language that the defendants are claiming is the delegation c in ryan in purnell in big donald they have all gone invalidated delegation clauses for that reason the other reason that the delegation cause is unconscionable is because the dream eliminates all federal and state law that's set agreement the other aspect of this case that the defendants don't touch on at all is the allegations of fraud our allegation is that this entire system is fraudulent and that it is one mechanism for enforcing the fraud none of those facts have been contest intimidated and also was fearing for its financial won't be there is a serious concern as to whether there there is any way that the law can be applied equally in the chippewa creek works the other issue he and therefore it's invalid under from i want to touch of a little bit on the the issue of tribal sovereign immunity the idea that ex parte young deals with tribal sovereign immunity it's plainly not true because  conflicts among sovereign states as we've outlined there is a conflict between tribal and states there's a conflict between federal and state so it's clearly that under the pen of hers case this is clearly a case where you would want to have the mechanism of an injunctive relief to be able to deal with the issue of conflicts of the sovereigns on the rico argument this circuit's law under the angeline it case clearly says that it should apply to governmental units and so under this court's precedent anything that is a governmental unit should be applied should be held accountable under rico and the supreme court's cases in the don king case tell you that the that we should also look to individuals and that is a political to individuals so rewarding and if we actually went back and looked at the briefing and it was a prosecutor so none of the arguments were even raised in that case as to whether it should actually apply to municipalities so it's very very weak if it weren't for that never dealt with the issue that we believe that if you're going to apply nine hundred eighty three laws written large to the situation what you would find is that there is sufficient data that entity has a fishing capacity for mens rea it into entitle circuit all law you can get relief against individuals on a rico right you can do that and they can be governmental officials and they can have sufficient mens rea even for punitive damages and the newport case tells you that the newport case says you can't get p fissions the don king case in the supreme court tells you that under rico it's not really relevant what capacity the individual is sued and so when you're looking at the mens rea issue which you have to do is say there sufficient mens rea up for the official act either in your government or are individual capacity to be able to get to enforce rico and the the other point on this is that we do have a motion to men we do have a request to men in the district that was never acted on by the district the issue of what we can now get under individual you can bring an action against somebody in their individual capacity under second circuit law before versus clarke case that was written based on whatever this court of the district court room the other point though is that the case would not end against the individuals because we also have an e f t a claim which they conceded applies to the truck so this is a federal claim which we're seeking polities and there is no reason to draw a different line with respect to tribes and and when when when except that rico does not apply to tribe it is actually the entire suit that must go with respect to the tribes because personal jurisdiction was based on rico so the e f c a claim also must be dismissed i also want to be clear that in the end that with respect to rico and the individual capacity issue the district court specifically said oh rely on the fact that this was an official capacity suit because the defendants who were sued were not the ones who entered into the agreement and the way that the district court got around that difficulty was to say mills and that that is what would should control and finally with respect to the arbitration issue this case is is not controlled by hayes first of all his fourth circuit precedent but no more importantly i exactly the opposite and that's a key distinction because that is is what was one of the key factors in or help was held that that federal law does apply to in this arbitration agreement that that was a distinction between pains and  that language that he's referring to is actually not in the arbitration agreement and so under this in court's opinion in jackson is irrelevant the main thing that he's referring to is a belief at the beginning of the contract as a whole but in fact the arbitration agreement which is what the district court was looking at the arbitration agreement does not disclaim federal law and in fact it says in defining disputes that one of the disputes that may be brought under the arbitration agreement o first before court review if the arbitration were then going to proceed on a on an invalid basis soonest the arbitrator would would deem federal law to be inapplicable it seems kind of awkward apply and right so so first of all they just record has already given a strong indication for an arbitrator that that federal law does apply again to the extent you're concerned that there might be language that would mislead an arbitrator never trying to could look at decide not to apply federal law then in that circumstance the f a a provides a means for redress to the plaintiffs but that is speculation and it demonstrates that what what plaintiffs have put before you so far is pure speculation maybe the arbitrator will decide rightly pardon me to to apply to two to find that federal law doesn't apply maybe the tribal courts will somehow be corrupt despite the fact that the supreme court has