because when they're talking about jurisdiction over the nine member virtually every campaign is looking at the nonmember in the context of the defendant framework and also the smith case which was also put into the montana framework and then also the case of stop west is also a one of those defendant but in that context in where the party is being asked to go to tribal court in lieu of its preferred either state or federal for on the issue cases are different than smith it's different from smith because smith places the case within the first exception to montana because smith chose to form the the court twice in its opinion places weight on the fact that it was a voluntary choice in full control of the form and therefore and then it analogized that by making allergy between personal and subject matter jurisdiction and in this kind text the tribal system to protect the protect the tribal system of a little bit further throws the forum now you're saying that we should look at smith and find that the the only in interesting thing and the only determin the actor is where and the moving party the size of jews the tribal court they'll finish the argument i think that will smith says you have to look at two factors you look at the the status of non consenting party and you look at the the location the real defendant yes but now when it gets to the ultimate holding of the case because it goes through and analyzed just like cities best because it's dealing with described and that is the holding of the case that it does not suggest that there's an independent interest that could justify having brought smith in absent his consent that would would have been a very different case from smith and it doesn't me is that they brought in the other they brought here and smith and then smith filed his counter that's that's exactly right now everybody else settles out and then the tribal court rearranged the party and put smith as the as the plaintiff in the action so if that's what you think smith tailed off to go back and reread it is what it helped and it is unusual in the sense that having placed so much weight on the nonetheless and he was sued for his alleged tortuous actions so i mean i think that i will read this specific language again but i would prefer the court i quote the language in footnote eleven of the brief  the choice of law issue may be a little bit different but it has to at least be possible there must be some power for the try to have asserted legislative jurisdiction it may be that if they have legislative power when they yes your mind must be clearer than mine because here is the difficulty i have with him x the court like it didn't want yes said it was looking at a very narrow question so i have trouble given that th how it gets to the mom had a framework what hicks does this that picks up straights rule saying that if you think of jurisdiction can exceed legislative jurisdiction legislative jurisdiction is governed by the montana framework it turns to the montana framework and then analyze backwards it just focused on the wrong question it can't be that it's sufficient that there's legislative jurisdiction over king mountain and therefore anyone who has a claim against anything it is done wrong has to come to tribal court it would be the most vast expansion of tr court jurisdiction that really if you take it seriously so but but starting there again our own i guess you know what i think it all boils down to it boils down to how you court involving members then you're correct but if the jurisdiction over the nine member is really talking about when nonmembers  that matter that that is true but once just once you recognize that the district court applied the wrong task one could get the district court in the sense of it's a legal issue here which we have to figure out what the right t court no we have i mean certainly there that's an alternative way of looking at it because they get five a tribal court action but we've looked at the case and suggest the case should be looked at as a nonmember plaintiff's case which is member parties of plaintiff or of the threat now what he did was a very interesting thing when he found that the end if we put all of its together he wanted to find where the true defendant was defendant was a mountain that carries over when mountain goes in to seek jurisdiction and if we look at the standard that we're looking at colorful claim and if you determine that they're in fact the true defendant then turned beat the defendant for the party not moving or the end of the proposed party in the tribal action now if you get away from that that i can see where you're going i'm still hung up on the other way i'm trying to assert my way through what are smith case did relative to when ever it is the court it's clear to the court that the jurisdiction doesn't exist and going back to tribal court would just be delaying what is so clear that says a tribal jurisdiction doesn't exist i think that the question is when you add allies to jurisdictional issues within the monon tanna framework it's clear that neither of the exceptions applies what is clear though i mean actually illegally what is so clear it is clear that there are marched in interstate commerce there in new headquarters where in the tribal jurisdiction of we could pursue mobley have sued them in another jurisdiction we chose this so what difference does it make if they do have interstate contact it makes an enormous difference because that is the g question isn't whether the tribal court has sufficient ability to disable the plaintiff again if that were true then then any claim of any kind against any tribal fund to fund it would always have to be brought in tribal court because that's always going to be true that the tribal court is going to be able to have power over its and it is on the reservation but we're the conduct is in interstate commerce there can be no assertion of tribal jurisdiction products that are you know infringing against the film mars products that are sold on the reservation it is would be relevant to the first montana exception analysis because it looks at whether or not there's a commercial relationship with tribal members i would note that their entire argument was based on montana not applying they never invoked the exceptions below those arguments waived by not being raised a lot of we have argued league do you think it has any traction beyond as a first exception to montana i don't think it does that's how it has been characterized by the supreme court is hard to manage first exceptional case and it rise out of that specific relationship that leaves versus leave it was the trader on the reservation had a sales contract with a loan provision with a member and then was in forcing that contract against that member of the  can be decided now it should be decided now because it's a waste of time to send it to five the court is going to come back for going over a review you'll throw the whole thing out on your wilson versus martian ten which which says that if if there's no jurisdiction it has to go and then cases such as county of lewis the king case burn interest variable from costs all apply that kind of analysis with a few the jurisdiction question first see that they can resolve it and then say there's no it's often they don't talk about colorful question it's never mentioned in any of those cases that i think is the sensible analysis or practical analysis set forth by the supreme court if you can resolve the question now and this one can be resolved now if it's not just you know highly likely not really the deference and simple it's been c questions of the law you disagree with me on i i disagree with you to the extent that they are to use and issue of tribal law in the next o c case they indicated that part of the deference came from the issue of there being tribal law be yes we haven't alternative argument to everything else we've discussed already that based on the hicks case a lanham act case even if you could meet the montana test the lanham act claims cannot be heard in tribal court here and the other thing is you don't locus of the out the wrong in that theories outside the reservation cause in trademark cases that's where the passing off occurs i think the framework and smet is actually supported even though it's factually quite distinguish a federal claim this court's decision in charge of just poses of that argument entirely in sharper recall it was a claim regarding the family medical leave act the argument was that no exhaustion was necessary because th day that was cited by philip morris that section talks about the district courts and territorial courts judge wally cited in his decision in the lanham act section eleven sixteen that talks about the several courts that have jurisdiction lanham act claims to federal courts only that just doesn't hold up i go to montana and straight first of all it's not clear if montana and st and that line of cases actually applies here of montana itself limits the holding to cases involving nonmembers the conduct of nonmembers on one tribal lands and montana the analytical framework of the activities took place in this district mr district that's really i've lived this messed up on time and that really hit me because once you select where you're going to bring the action and then if you go to smith and read the language about you look take a look at what the party who the parties are what their true relationship are i don't know what we can do a smith it's an invent case we have to follow and so i take it that you think that we should first start out this analysis whether it's montana or whatever with the parties and who they are is the drive through defendant yes yes it is and even if they were the first one suit in the federal court that's correct now counsel doesn't seem to have much to do with the color of a claim do we need a col book claims analysis to go from there when we try to analyze whether or not there should be trouble here is fiction your honor the standard is whether jurisdiction is plainly for close by just to go i think straight makes that clear exhaustion is not immaterial that he in effect the plaintiff is not indian he was on the reservation and the transaction with the indian took place there so the one place where i have pas with your argument is that every time i read one of these cases he transaction between a and b you think in a few cases where we have a non indian versus a member there is a relationship between a and b this case is the opposite we have no relationship between a and b well we actually do have a relationship here your honor we have submitted several to me that you could for jurisdiction purposes rely on their other activities in effect to find jurisdiction in this circumstance your honor will we make that argument under but so by doing that though i don't think it limited what it was saying was i manage lies in all if we were correct i mean analyzing all these cases and where we looked around at the way and at the parties we think we start with the parties now a suing a member for conduct that arises or commences on tribal lands the court of first resort is the tribal court and here's why because the supreme court has created this doctrine that really wants to give deference to tribal courts so they can start really  courts can and do decide questions of federal law and if and i guess what's troubling about these cases we can't ignore the comedy and sovereignty that comes along with that once once the supreme court and congress that is battling it out in congress that's our latest expression i think i think that's exactly right around the smiths really did as i said grapple with that issue of comedy and trying to decide whether a tribal court can have jurisdiction over particular claims and it did it cited by the supreme court it's in the context of the first exception montana so it's not clear to me that we don't start with montana and th williams really for the purposes as announced by this court smith and again it's a less critical of the example of how the supreme court is really focusing on human relationships as opposed to land there is no direct relationship between the plaintiffs and then absolutely look at this the recent withdrawal in the ford case recall that ford dealt with the situation extension is required is that right that's not right your honor and i would point the court to iowa mutual and national farmers it's clear from the court's statements in those cases that really this whole doctrine this comedy doctrine this credential doctrine is so old that the tribes can really grapple with these issues of whether they have jurisdiction over a particular issue even if the issues of jurisdiction and particular cases are purely legal issues that's right that's right and even if because at the end of the day moreover your honor straight said we're not we're consistent and montana is consistent with the prudential doctrines announced and i will mutual and national farmers so straight doesn't somehow eradicate or get rid of this whole comedy doctrine quite the very troubling though because there is no direct contact but we still have that tribal interest which then relates this comedy so i assume that's that's where smith trying to help us a little bit in the analysis of bit but i i'm still i'm still troubled with with th there wasn't a sufficient consensual relationship between the parties but then that was withdrawn and this court mandated that exhaustion take place because it's not clear as to whether montana would foreclose your stiction of the tr would be characterized as a continuing to you know i can't think of any right off offhand you're exactly right i think they tend to be have kind of a one shot deal that occurred and then it's a question of whether the tribal court can adjudicate but your honor so much more the reason to require we know at least that's business control warehouse story gene whatever and let's assume that we talk about the continuation of the interstate sales to others we still have the major operation the another look at this jurisdiction see what the tribal court did and run the federal case if you will so it seems to me that we're going to in a bifurcated situation we give the comedy to the private after that's over with we can then deal with maybe it may be in voluntarily there but what smith talks about is you look at whether the party status of the nonmember that is whether the nonmember is the plaintiff or defendant so whether it it doesn't wish to be in trouble all we're asking for here is that the act my tribal court be given the first instance to decide whether it has jurisdiction over claims that have been brought against two tribal members and their corporation this court will have an opportunity to review that no comedy issues related to it and expression of the legislative intent of the jurisdiction of course i guess reason well they're just another they're not in the picture but it seems that we walk into that picture and would that be the basis of why we should give them a chance it could not resolve the issue without the locus of the conduct without deciding whether or not tribal law would incorporate a principle that restating the conflict so it actually said that the interest that issue could turn on an issue of tribal law that's on page nine twenty of the decision i think that's very different from this case where federal law is clear and we do not concede that the torch took place on the reservation federal law is clear that the injury and tort of passing  like to have the opportunity to explain why just very briefly and in hicks if you look at page three sixty nine of the decision it says that we added a broader exception and in straight that it says though this exception to is technically an applicable the reasoning behind it is not since it is clear as we have discussed the tribal courts lack a restriction over state officials that cetera it here instead of tribal exhaustion procedure in such a case wouldn't serve no purpose other than delay and again in the box case have decided yes which means i guess we can decide that there is jurisdiction tribal court done right we knew that it was your argument if you could conclude as a matter of law based on this record that there is trouble courters diction then you could do that if you conclude that there isn't then you could if you think that there were other issues there actually have been cases in this court in which the court has allowed discovery or determining the exhaustion issue in the burlington north