all right mr smith you you may have received the morning your honor may please the court johnson answer for the united states your honors there are numerous issues in this appeal and to cross appealed subject to questions from the court i'd like to focus my summary judgment on the use restriction claims that two reasons first the plaintiffs failed to state a viable cause of action under the tub or ag indian tucker act and second because the use restriction claims were barred by the statute of limitations heard the first argument noted in a footnote that it had not resolve the dispute that have arisen between the parties and that is the dispute that led to the re to the amendment to the complaints to the phrasing of this new challenge and that's exactly the challenge  lawfulness actually never needed to be addressed because the use restriction claims by their nature were not money mandating big they didn't raise the money mandated duty under these appropriations acts and again because they were barred by the statute of limitations with respect to the tougher act and in the indian tougher act what the court needs to keep in mind is that what is being argued here is that restrictions that apply to the original  appropriations also applied to these land revenues that were generated many years later but the statutes themselves of course say nothing about and don't even anticipate that there would be future revenue had renounced their affiliation with med walking and band which had been banished from minnesota at the time and the video today progressions actors for the for the department of interior to expand funds for the purchase of appropriations shell of expense fund for the benefit of these individual indians on land and livestock supplies some of that money is spent on behalf of individual purchase land many years later of between one thousand fifty and one hundred seventy five long after the end of the individual beneficiaries had passed the original beneficiaries of these lands these planes were on occupied and the secretary lease the land generated additional revenue that the secretary then determined could be used in the same manner as the original appropriations that is for the benefit of individual indian to sell within this class but at that time and there's no mandate anymore to spend it in a particular way there was no requirement to even lease of the land sea acquire revenue there is no obligation in the act to even hold the land  title to the land so he could lease the land so what we're telling the court is essential that that statute should be read as providing broad discretion on the part of the department of interior to manage these plants to generate revenue and to use them for the benefit the original purpose of the act which i have the advantage of having heard some of this before yes yes and then we pretty much say that in our earlier opinion what the first invasion was about whether there was an implied trust and there was not and the court said there was not and that is the remarkable thing about our team reacted to this is a gratuitous appropriation under the quick bare sensually it was it was an ordinary procreation is what the court said and again what we're dealing with here is not even the initial appropriation but additional pond that were generated many years later under no dead majority reynolds up here how do we get in how do we get back here can actually question that that is still on your appeal that i guess is if it's relevant at all is relevant i think to the statute or imitation sure as to what may be more factual questions than anything else when when you a and that is the matter raised in the request for judicial notice and whether the three communities that were granted tribal status or i guess i have couple of related questions i i'm not quite sure what relevance if any that there is sometimes and and why is that i mean i would sink that the the land that congress specifically or the funds i'm sorry that congress specifically provided did give them an easy eighty act that that's ok because congress can say give certain money to sort of and presumably unorganized strides but there are about a thousand or fifteen hundred additional takers that were given to these commit were taken into trust for these communities before the one nine hundred eighty x is that relevant at all here and is that potentially problematic under a challenge to the one thousand thirty five recognition of these three communities while you're on of this case is not a challenge to the recognition of the tribal communities and we're getting somewhat far afield from the the challenges that were brought i want to and i want to answer your questions there were these it's a very open question what's relevant suppose it were correct that these from three communities could not properly have been recognized under the thirty four then maybe you're not the right person the question i need i'm genuinely trying to use about right in nothing for the for purposes of this case your honor and here's here's the reason that this case and began to some extent because of the foot indian tougher act on behalf of the group of the defendants as a group to have this money paid out as you said you know to be divided twenty thousand ways for all the defendants wherever they may be found is there some other form either current or future in which this challenge to the three communities recognition in one hundred thirty five and thirty six is being or can be litigated well your honor i don't i'm not in these acts that they've alleged are the acts that are the basis for their claim the eighteen eighty eighty three eighty nine appropriations act and there's just nothing in there that would mandate the payment of unanticipated future revenues to you know all descendants wherever they may be found at any time revenues are generated there was a ton of the much larger claim or to settle claims that's issue here assuming i'm right about the six hundred seventy four thousand dollars being the l and i want to focus on one specific one of those counter claims and that is the one that says not the first sentence of the separated sixty three  everything that they are claiming based on the second sentence of section nine as of february eighteenth six get your own i would think that the statute of limitations would have run on you know because those lands were ultimately sold the only part that it turns out that that's where the casino is do we have a problem i don't believe so your honor that i think that the they were on notice that the that they were not getting these you know these twelve sections as presumably the argument was were set aside but coming back to the first sentence really the first sentence said the secretary is authorized to set aside land in several cities in several of the individual indians there's no way that the preliminary act of just making sure that we haven't sold this group of land yet why we think about whether we're going to assign these lands and several feet to individual indians somehow amounted to a grand or conveyance of the land we also was founded that  february was superceded right with our second reservation lands the march act doesn't have that second sentence with the language about and with respect to the reservation land yes in terms of the authority to provide lands the march act is the one to the authorization the may the secretary may provide lands are from the public lands not otherwise appropriate and why would that exclude public land exclude lands that were either otherwise appropriate was referring to something else but here's where you get the superseding even if that's not the case in the march eighteenth sixty three act the the court made it clear that said look if there's some concern about what public land means we're saying in march sixty three that it shall be lawful it shall be lawful to place the the these displaced indians on formal reservation land that's the first time they address the former reservation lands they specifically say former reservation lands and in that act the specific will we say subject to any tenure there is no longer the second sense so the only act that specifically addresses the reservation is the second act one would you say that the a civically addresses is supersedes one that is more general and therefore encompasses i think we don't argue that your honor we don't argue that it supersedes it in entirety we argue that the act needs to be read and common operates as a whole but i  sixty five the secretary specifically invoked did he not section nine of the facts in nine sections for your honor he specifically invoked both and section four is the one that says former reservation land section four is the one that says under any land tenure and there is no document there's no grant there's no specific piece of paper that says we are here by giving you these lands under whatever the land tenure is because of course they would the idea was to give the lansing individual indians and they were never assigned to individual indian so we don't know what tenure would have been provided but they certainly did not provide grants to individual indians in several to eat pursuant to the feb eighteenth sixty three and is a fall out that the government fears in this case it passed in the eight hundred sixty s is there something that you fear i mean what is it that the government fears and why don't you just pay the six or seven thousand dollars i mean the and that's one question my next question goes back to the historical context of this of the appropriations act i mean it seems to me that the plane reading of those fatties is that the secretary was to get certain monies and to provide for of the government's not in the business of just paying people on the basis of an allegation the department terry would have an obligation if this is the right judgment to figure out who is actually a defendant and and that requires checking every one of the coins and that you know it's just it's not required here because the claim is barred and there is no claim but with respect to the context of the act you suggested that  detector interior department or didn't fulfill the obligation under the appropriations but again the appropriations were for these people in a particular historical context they were ordinary appropriations as this court had said the last time the pro create a trust there's nothing in there that says they were to provide for future descendants future generations of these indians and there is no claim in this case that the secretary of interior did not fulfill his duty at the time in eight hundred eighty eight hundred eighty nine eight over one hundred years of he has left but what we're saying is that there's no complaint in this case that the original procreation zwart fairly provided to all of the the beneficiary class and if you talk about the descendants the statute says or family we talk about there are some shells in the statutes but there's one that in principle or in the or as is want to talk about families in a context where it's a it looks like a one time appropriation the suggestion is that yes the secretary has discretion at that point to also help to provide for families you know if it can't be turned into a mandate to provide for future generations you know for or for perpetuity it just it's  mandating statute as i know as i argue in my brief your honor when you set us back on remand after very narrow certified questions i was allowed then to bring forward my second claim i had another dog to put in the site and that other dog was of course united states department of interior who was recognized prior to the community being recognized that these were reservations and so how could they have been reservations but for this group of lineal descendant and if you protected indian tribal land right in under the united nation case damages were awarded for a violation that unite intercourse act the congress in many cases says resolve these cases by statute or damages for violations of united air force  reservation to a third party's without congressional authorization nothing could call for that inference more than a violation of the unite intercourse act so this court is going to shut down in an airport sex claims  with respect to money mandating duty i'm sounding like i'm repeating myself but haven't we already found the appropriating are simply that appropriations and therefore quick there tells us united states transfers a reservation to groups that are authorized by congress to receive it but that the money mandating what else i mean if you take a reservation that's been reserved for a group of indians and you give it to another group of asked me to ask where the money mandating duty is the inference can be drawn from the inference we use you know that the trouble with the tucker x is the c are closely associated with sovereign immunity which requires that you can't do there's kind of two problems there's a problem and judge randall points out that they want to try but isn't there also the problem that there's no land taken from what will judge know the kind of who strikes united states has a more embarrassing record than its indian rights policies but we have to have jurisdiction you have to show me where this court has any authority that lochie judge with respect when i go to the legal history just like with s organization but we can't do it because they're a tribe because they're not we instead can do it they thought because there were reservations now maybe that's correct or incorrect under carsey area but they didn't say that my interpretation one nine hundred eighty s turns on whether these communities are simply creations of interior rather than statutory identified entities and if that's the case then there's only one that and that was not true and i'm here as well to reiterate that that i believe that is not true there's clearly nothing in the march act that would say that it somehow repeals or abrogate or changes the inten frequently explained that repealed by implication are not favored and it has instructed that word two statutes are able to coexist that it is the duty of the chords absent a clear express can crash congressional intention to the contrary to regard each each statute as being viable and as a supreme court case and you cited it here in this court i see nothing in these statutes that would indicate that they cannot co exist reservations of minnesota into dakota territories but it does also address and section four of that act the issue of the meritorious indians and their compensation so clearly bold acts of never been repealed they were not repealed by the one nine hundred eighty act they're still alive and well i don't think this quarter any court can point to any substantive law out there or statute that indicates that either one of these statutes have been repealed or have been superceded or somehow been done away with they're still good law and as to your question of money mandating i would say the appropriation act numerous ones of followed the sixty three as well as march so clearly there's a money mandating duty here in the federal government you know as a native american attorney i'm tired of always coming to these cases and always finding a court somehow finding some reason to the getting out of giving us justice and equity of indian people clearly this uprising of eight hundred sixty two was brought about not by the indians themselves although they did commit an uprising it was brought about by the federal government violating the statutes not appropriating the money as they promised to them they were starving to death so the proximate cause of this operation was not the indians themselves that was the federal government so i believe you know it's an injustice to  men walked in the friendly middle walked and not to recognize the fact that clearly the statutes the language of the statutes coupled with the legislative intent on the floor would not indicate that they should have been given yes right i mean you have one claim under the first sentence that says it's you know and it's mandatory enough i want to put that aside for i want to focus just on your claim that another action was taken in the spring of eight to the extent that you allege that was a taking a leave the selling of some lands of those lands later that's in time barred for a hundred years and i question is if we agree with that time and time this ruling is there any assume breach brighter but you can't do anything about them if they're untimely so is there anything that was fine about some of their claim you have resting on that that that it would never court held the february sixty three act language clearly would have created an inheritable beneficial interest in the recipients of any land conveyed under the statute that's wolf child six page twelve forty one that was es and the land so when the discussion occurred during the debate in the senate by senator mcmillan who was a minnesota resident he looked into the future and said hey if we do this if we a manaul all these treaty rights for everybody including friendlies aren't they going to come back and ask for their treaty lands back for there are new digs and he was right because that was the actual reason why section nine of of us still valid an operational treaty obligation pay me paying over the course of many years to appropriations and and other things we don't have that because because we were talking about a treaty that was as you said it's fully abrogated in the know that it's possible to do absolutely judge and the importance of that is that the fifty fifty one treaty carried annuities forward into the eight fifty eight treaty there were newbies that were still bowed to people so when the february sixteenth of eighteen sixty three actually place and then the senators took into account that fact that we're abrogating the entirety of it to all people the land the eighty acres was directly analogous to that now when we talk about the annuities those were put into a trust fund that's your trust fund assets that existed from eight hundred sixty three that this panel has decided back to in two thousand and nine created in a charitable beneficial interest in the people in section nine so when we talk about the fact that there is a breach of the treaty the people that caused the uprising surely breach a treaty it was a peace treaty but there was also a breach on behalf of the government that continues today that breaches never been remedied but how when and when congress has  in that case the court of claims that acted in one nine hundred seventy nine was charged with the duty to determine an evidentiary record as to whether or not the treaty violation occurred they opened up the evidence for the record in that case to determine that to to allow the evidence to float the court of claims did decide that there was a treaty violation in the black hills situation if you term an that that was a case of the most dishonorable rank dealings that this country had ever seen of years asking for justice there's never been anything done on behalf of the government they tried to piecemeal legislative approach with these appropriations acts which was basically proms and here we are arguing today we c to revisit the case on the issue of the breach of the treaty by the united states because then the eight hundred sixty three act will be seen for what it was it clearly was an answer a money made mandating the statute that existed to right the wrongs and just the judge would like to just say here i think your time's about done you know the final fours yes i just would encourage the court that how this case has taken a long time time should not measure justice and if it requires us to go back in front of the c f c we'd encourage that to develop the evidential record on the treaty argument because  neither of them have the money mandating duty even the first is just an authorization to provide lands but if we're talking about the specific lands the land that they keep talking about in their briefs that the twelve sections of land that were preliminarily identified as potential lands for these indians those are specifically governed by the more specific statute heard the one that talks about the former reservation lands and the language in the march eight hundred sixty three act is much broader and does set of beneficiaries that those reservation lands were reserved not a qualifying plaintiffs under the  c actually relied on and which makes it tempting to to focus just on that one at least first so just focus on this question is the set of beneficiaries of lands that we said were regarded as reservation lands a tribe they were regarded as preservation lanch the three communities who organize in the land shark or i mean they were never regarded as reservation lands for the eight hundred eighty six and washington and this port found that the eight hundred eighty eight t that the individual indians that were living on these contiguous lands that were not held in trust but were held in this unique system under the statutes could organize as tribes based on the notion that the land for reservations  who went elsewhere and that dispute is not before this court thank you mr smelter our next case today