chosen minority and what that minority group can expect to receive by way of constitutional protections from the constitution there are two interest here before i argued here in march two thousand and one was remanded to judge malloy in montana who made a finding specifically response to this court's memorandum that process point now there are four point one million citizens of the united states who are indians one point seven of them are enrolled indians in one of the five hundred fifty six tribes in the united states the figure four point one million from for the united states census that includes enroll indians and people who are indian by race and have stated that they have an affiliation with the tribe but they may not be enrolled or they may not be indians at right right in the two thousand census of some of those may be really tribal members though not in rome and others might be filthy just trying to associate it all really the right indian is now that the point of focusing you on the fact that every person affected by the ninety nine is amendments to the indian  to do so in the example example i gave you every one of those people immediately asked to be yes racially indian correct so you would say strict and try me in tribal court for or committing this misdemeanor you're using all the only reason you have jurisdiction is racial no your honor under the supreme court just proves the reason they would have to be in their territory i'm not suggesting anything about that point i don't i don't know i know i believe that i know the the us church groups on the issue of inherent sovereignty assumes that that was the case that that's not the same as dealing with individual's rights and that tracks very closely with what supreme court said adorama it says that individual and that person's rights has to be looked at and protected and the court recently new the number of the size of the category of nine yr old indians under this statute and i'll point out that it is it sort of a hard statistical question i don't think the census bureau was using the about five percent of their reservation population with not enrolled in any tribe so that's maybe a better approximation of the number although it's hard to be sure turning to the definition of other individuals who for whatever reason haven't actually enrolled but are functionally members of the tribe and we don't think that the existence of this category should affect the equal protection analysis  appointed counsel context and that that's a question that could be raised in an as applied case and it's it's possible that a court might conclude that congress the history  that the congress intended implicitly for there to be a right to counsel appointed counsel in certain types of cases that might be a case by case analysis the analysis it's really more of a contextual analysis and outside the scope of this case it could also in theory is if you are resident on a reservation and have an ongoing relationship with the truck and are concerned about your right to vote there and there it would seem that you're fully on notice of the voting arrangements in indian country which of changes for since before the time  framers which are based on travel membership and so you really are not in a position to object if you are concerned you can opt out because travel membership is follett's yes you don't have to remain within the jurisdiction of the of the tribe you're probably also likely to be familiar with tribal customs and other circumstances within the tribe and to the extent that any particular fact pattern might give rise to a problem connecting connection with this voting regents in indian country you've got a hideous rabbit which is the brain which is the remedy that you have for any state court type of concern as well  home the first point you make about that pathetic hole is that if you commit murder or another major crime he would likewise be subject to a different jurisdictional rule that is national indian forces resource management act and the second is the national in the in our national indian agricultural resources management act within those definitions to the definition of any it is tied to membership in a federally recognize notable that in the seminal treaty has a time that's pretty was entered into an article nine of that treaty it provided for inclusion in civil tried of persons who were not racially indian it recognized that there were people who were free slaves at the time they were deemed to be the negro blood by the parlance of that tree and that they would be determined to be members of the seminole nation without regard for their racial or national origin second question that  had to do with past practice of the tribes and whether or not they treated nonmember indians pursuant to their own cultural practice you'll find in my briefs that page nine that we address the issue and take a look at the anthropological record and also look at some cultural history as expressed by tribal structures in this case they've identified that in the past the confederate states you can try to at least did include members of other tribes often in their cultural ways historically and that they were subject to travel hardly recognized traditional institutions without regard for their tribal membership or important national or the tribal court continues that tradition today and that it does not ask for the tribal this case the particular jurisdiction of the flight had reservations distributed pursuant public lots are waiting and most pacifically under that public bus you eighty distribution that was agreed to by the state legislature executive branches and by the tribal government states law enforcement officers will determine the indians slash nonunion status of a suspect at the crime scene as soon as possible after providing emergency law enforcement services and securing public safety for purposes of required there is no reference to any race based determination for determining criminal jurisdiction of the tribal court so in this case the tribes simply are applying this federally state and tribally prove jurisdiction drives constitution provides for the potential for adoption of persons into the tribe without regard for their racial history or national origin similarly as i noted before the treaty with the sentinel and treaty with the creek provides for similar opportunities for nonrational indians to be included within the membership of tribes as my perception that supreme court the us supreme court is also recognize this this possibility for non racial indians to become citizens of indian nations smith he could greenhouse membership in a federally recognized tribes and and by so doing he would not be subject to any immutable characteristic it could simply leave behind his indian status for purposes of jurisdiction on the flat reservation he has judicial remedies the tribal court has a federally approved criminal procedure in fairly approved criminal code within it it has access to a court of appeals he has federal judicial remedy he says it's evidence today and may have future future federal remedies indian tribes any significant political remedies most notably he's a member of the church of the minister which of what if he doesn't like their race based membership determinations if that's how he deems them to be he has all of his participatory rights that he could return to the minnesota reservation exercises and finally with a few seconds left i just want to identify probably the most critical rational basis for proceeding with this and that's the existence of the tribal court and the integrated scheme that it has for  affiliated people also are swept within the scope of the statute so if you didn't roll but you live in the home that you lived in for thirty years you're still on the reservation and you know there may be some inquiry as to whether you're seminal probably moves and goes to another reservation that's why we have this issue in the first place so all indians are not our nonmembers in some circumstance  go through whatever else is undefined to make sure that you severed all relations with that tribe in order for him to have his constitutional rights if he's arrested for a misdemeanor in montana that's that's not something that i have to do i'm not indian it's not something that any other citizen of the united states would have to do and i think it's disingenuous at best to say well you can just reales to your membership it's an easy thing to do know it wouldn't overthrow many of those statutes strict scrutiny applies to all equal protection classifications but under those u misdemeanors here we're not talking about the nation security we're not talking about even any tribes security we're talking about mr meters and it's not war it's violating u