morning mr smith good morning or honors michael smith may please the court standing in this case is a stablished by two paragraphs in the complaint paragraph sixty five and eighty which are in the appendix at thirty eight and forty four dollars those two paragraphs clearly alleged all elements there were necessary to establish standing they alleged that the challenged decisions of the federal government  have harmed and will harm the united nation in three respects one they have caused and and assisted the wisconsin tribe and people against whom you have the the who the real understandable and the nd part which i hope that you will reach is this interesting thing about this and it's perfectly ordinary a twelve b one is not unusual but somehow when we get to twelve it was so used to doing twelve b six and saying well it's just a matter of well we don't want to hear any facts just a matter of honor because in many respects they sum up the whole case this is not an answer tribal dispute is a dispute about the decisions and the effect of the decisions of the federal government let me use the three elements of harm to show why to reach really traceability and redress ability at the same time because ordinarily they do travel together if someone causes harm and doing what they did ordinarily redresses at least some of it with respect to the claim that the wisconsin tribe has used federal recognition of the united nation name to make legal demands against the united nation and to mount legal attacks against the united nation two documents on the record show that to a thee well in the demand letter that the lawyer for the wisconsin tribe sent to my client after saying never use your own not a nation again we are federally recognized as the united nation don't do it anymore stop there that's enough for standing but they went further and did something that the district court didn't notice they said in the letter that unless you sign an agreement that we can use our federally recognized name we're going to sue to cancel your trade wars my client did not reach the agreement that was demanded to use their federally recognized name the demand letter only speaks of it in those terms federally recognize name to do the things i just described in the letter is do or were able to take advantage of i'm not sure i see the difference your honor but for the federal recognition of the new name neither of the dramatic statements the dramatic demands that they made would have been possible they could not have said never use your name again and they could not have said you need to look sorry you could have said that well the the these trademarks had been in place for years with the new york correct and they did not the wisconsin tribe did not do that until federal recognition was available and then quickly on the heels exploited the recognition providing them what they thought was a legal tool and in fact is it is it illegal to doesn't enhance their claims it doesn't recall it doesn't two respects in the t t a b paragraph nine of their amended petition to cancel explicitly relies on the inability to use their federally recognized name as harm to support the standing in the t t a b in other words the district court's analysis of all the claims presented that hasn't been decided yet that's correct in fact the t t a be dooming that you or your client certainly is opposing that saying you know that this that that argument doesn't hold water period end of story but as to the standing element they if they do make a claim that they're inhibited in the use of their federally recognized name and harmed by it and i don't think we would contend that that's not r es do we find something that that sort of inches on quote a federally recognized name i mean listen i'm totally sympathetic with your clients position but so what i mean somebody can come in here and say i got a federally support it and we have proof submitted to support the facts always going beyond what i think of the fairly dramatic uses of federal recognition of the t t a b the department actually made a party admission here in which in writing to the wisconsin's said that this change will undoubtedly cause greater confusion and so discussions now about whether the change will cause confusion or directly inconsistent with that admission in addition t wisconsin's answered it we recognize that concern which i read as a concession but then says this change is more consistent with our governmental status in the context of this case that's clearly read as v the united nation my client in new york it was a move on the united nation because in the factual setting here in all of the history which i'm not going to recount now it's pretty clear that this was an effort to achieve an apparent at least  that they say we are oneida nation and we want to undo your your your trademarks and your intellectual property because it really belongs to us because we are the united you folks have been arguing about this for decades your if context matters if they're whispering it to the wall or saying in a private sec conversation i suppose they can but federal recognition powerfully affects their ability to do that in the following ways the want recognition is for is for the availability of government services well it's much more than that if you're not on the list you're not considered federally recognized by the united states that concerns whether you can exercise any sovereignty at all it concerns sovereign immunity it concerns really whether you're an indian tribe under federal law if the they can exercise an immunity even if they call themselves the holy roman empire the federal recognition of a tribe includes the recognition of its name and it has these powerful effects if the wisconsin tribe asserts that they are the united nation in a context where it causes harm to my client and my client objects either legally or otherwise whether they can say but that's our federally recognized name has a significant effect on that dispute we know as a matter of history that they have not consistently called themselves that if you look in the record the letters they wrote to the department of the interior with regard to this name night a tribe of indians of wisconsin letterhead they have to be because when the federal what in was does the recognition mean you maybe have been terribly useful for them to as recognizing it as a path as opposed to the practical effect on the there are two different legal effects i can see automatically one is that for instance the ability to legally claim standing to bring a claim against the united nation was affected by their ability in the cancellation petition to assert that the absence of an ability to use their federally recognized name was a harm that supported their right to sue at all but two and i think this of what your honor is going to the the choice by the federal by the department of the interior regarding how it federally recognizes in any and try binds all of the other federal agencies and while i wouldn't say it binds the court that's not a technical way of putting it i think it is a fact that courts follow the nature of recognition in this court the united tribe of indians of wisconsin has always been referred to that way federal agencies will refer to it that way and they will be confused with respect to the list that they refer to if there is over similarity between the names the states also do that this is sort of an inside baseball point but if you look at one of the documents from ninety seven dollars or ninety eight dollars that the government suggests shows hundreds of years of use by the wisconsin tribe of the united nation name it is an agenda for a signing ceremony for a gaming compact not only does it at the top have seals that say of wisconsin so it doesn't establish anything but the gaming compact that was signed was signed in the name of the united tribe of indians of wisconsin why because the state of wisconsin is never going to deal with this case at least leads to a fair consideration of all the party's interests you won't have a decision made that is siloed in the midwest region that only deals with one tribe which didn't tell the eastern region you know our region or us about it he won't have an assistant secretary the federal register notice here indicates that a particular assistant secretary authorized the name change on the list he is a member o wisconsin tribe and a lawyer for the wisconsin tried if this thing goes back for a quick reconsideration not much will be required a couple of meetings a couple of submissions and there will be a decision i don't think i'm bold enough to predict it but i think it's at least plausible and i actually think more than that that when the department considers all the interests that are at stake here and the policy implications of turning the list of recognized tribes over to the several one hundred indian tribes of the united states to tinker with by unilaterally changing names and you recognize that these issues that are present here are present all over the country with multiple tribes i think the department very well may say the fair thing to do is to go back to the historic practice of using names that adequately distinguish between these tribes i want to answer your other question you're asking us to make a ruling that you can see that would why should we do something because it's going to encourage a government agency to look again at all of the names of the indian tribes in the united states the issue here is standing in judge sacks question was what's the standard here the standard is very straightforward and simple the court is required to accept the allegations in the complaint is true and to presume that they embrace all the facts necessary to prove them if that rule is applied to the paragraphs i've mentioned and then all the other parts of the complaint that talk about the supporting documents it seems to me to follow almost automatically that the elements of standing are present the district court made a fatal mistake at the beginning of its opinion the district court said i am not going to take the allegations of the complaint is true because of there's a standard of review section in the court's opinion and i'm not going to draw a reasonable inference is the court misunderstood the difference and this goes your initial question just say between the fact that a standing motion is a twelve b one motion and therefore called a jurisdictional motion in a case in controversy since it surely is  and whether or not the facts of the complaint are disputed and there is fact finding this court's recent crew saying that in in in this case that's what this g court did was to make fact ba saying i'm saying exactly the opposite i'm saying the court said the court misunderstood the standard here realizing that it was a twelve b one motion she thought it necessarily challenged all of the allegations of the complaint the law is as far back as justice scalia's decision for the court luan and as recently as this court's crew decision the law is that unless the district court is resolving disputes about  do we close we're hearing considers evidence that submitted says i'm not doing fact finding well i suppose there could be a number of ways of the order as i am here to look to see if that's true here there is nothing in the court's opinion that indicate fact finding and there were no dispute about the facts the government offered two documents that it claimed went to redress ability of the agenda and the other document from ninety seven dollars to ninety eight  did not dispute any facts in the complaint and probably more important the district court did not resolve any disputes about facts and point it follows from that that the ordinary rule applies and there clearly was no finding as a consequence there's no there's no deference there's no clearly erroneous review there's a novo review and in fact the department of interior is brief says review here is the no which means necessarily that there was no finding of fact  no factual dispute resolution in the district court good morning your honor spin schiffman from the department of justice on behalf of the appeal the department of interior your honor is with respect to my opposing counsel this is a dispute between two federally recognized tribes that for centuries have shared history and have shared the word oneida in their names several years ago both tribes opted to change their names and plaintiffs now says the department of the interior seeking to impose a procedure that exists nowhere in the law upon the department is trying to get the department the interior to undo what it did as a recognition of the wisconsin right got that right i think that is how plain is counsel would characterize it but federal recognition in this case occurred in the s the recognition of a name is is not a term that appears in the law the applicable law here twenty five u twenty three merely says the secretary of interior shout approved the constitution dot dot dot within forty five days dot dot dot unless he finds it violates federal law that's the only role for agreement that the court did not find facts and so this court's reviews de novo we did introduce evidence that factual evidence that contests plaintiffs factual findings in the form of the excuse me allegations in the form of the documents referenced that are basically wisconsin tribe documents that show them referring to themselves as the united nation and this is relevant for several reasons most notably because of the redress here there's nothing the department of the interior can do to stop the night a nation from calling itself that as indeed its counsel you know is that is that because of the language you read which said that that they shall record these names as given it's for that the reason of the provision that i read that limits the department to merely reviewing constitutional  problems with federal law conflicts with law but additionally these are sovereign nations it is hypothetically the cherokee nation wish to be registered as the would be two sovereign governments in the same way that the united states in italy if for some reason united states change its name to italy they would have to work that out amongst themselves and indeed i would submit that that is the proper course here th tribes that have this dispute must confer with each other and reach some kind of agreement indeed the letter that seems to have set this all off was about a golf tournament where the wisconsin tribe proposed that both tribes use the term annika it's not my place to decide for them how to do that but nor is that the department of interior is and frankly nor is that the federal bench these are two sovereign governments of the decided for themselves what they're called indeed the constitution  well the department of interior registered the same name for two different tribes it's the practice the department in the list act which you're talking about to simply record the names that the tribes choose for themselves there there have been occasion where in parent festivals they note a previous name or make other clarifying you know statements but they do not decide what the tribe is called the tribe as a wisconsin that assumption through their constitution authorized them to change their name the board do i have that i think that's correct i'm not sure if authorize is necessary the right word because it just say authorizes ourselves to call to to make a name change of themselves they just said this is our name and i would note that and once they do that the department of the interior from understanding you correctly just registers that  department interior and register that name in the department would have to log them that's correct the department shall approve the constitution that's the citation i had earlier and then it's the the list that is you know an informational list the department keeps they just nation the department of interior would have to accept that record correct and indeed they partment interior would have no role in the constitutional amendment process because plaintiffs and now the wisconsin tribe have written the department out of their constitutional process so i would submit that just as the plaintiff's new york tribe has changed its name the wisconsin tribe now could change its name without any action by the department and we've seen that the wisconsin tribe wants to be known and in their opinion has been known for hundreds of years as the united nation it's simply not the department of interior is role to tell them what to call themselves the is limited to whether constitutional amendments while it's a law like to point out one very important point that goes to the trademark dispute which is of course heard in a different forum and this is not a trademark that that's suspended right now that's correct they seem to think what we're going to do what have a bearing on that which would seem to support the point of view i think if you look carefully at what the trademark board did and what the apple standard is it is not that it has a substantive bearing on the case this case it's that it's related and there's no dispute that this is related as you know  but regardless plaintiff's counsel in their response to the motion to dismiss conceded it is quote irrelevant that is a direct quote to the substance of the trademark dispute the district court found the point the wisconsin tribe believes the same they said in the submission to the trademark board yes we referred to our name in our pleadings but we could take it out it would not change any of the merits of the claim the merits of the claim concern abandonment that occurred hears and fraud both of which occurred years before the name change here so honour's like to focus for a moment on redress ability to sovereign nations the wisconsin tribe in their own words has referred to themselves as the united nation for hundreds of years as evidence in the record they've done so not universally but at least since the ninety's in some way at lambeth gate lambo gate in wisconsin thousands of people every day travel through the oneida nation gate this is a big stadium there  nation would be free to refer to itself that way in its dealings with the public in its dealing with the ports and its dealing with other tribes and indeed has done so nothing this court can do can bind that nonparty and nothing the department of interior can do you can bind them to not refer themselves say on their website or in their gait at a stadium as the united nation so i would submit that there is simply no redress ability here looking at the complaints allegation not looking to any other facts plaintiff's own complaint says the wisconsin tribes started referring to itself in creating confusion starting in the one thousand nine hundred and ninety s this simply isn't a dispute that the courts or the department can resolve it should be resolved by the difference yes that's correct with one caveat i allude please i looted to slightly earlier which is while at the time of the constitutional amendments of the wisconsin tribe their constitution required the department of interior to approve these that has subsequently changed they removed that provision from their constitution entirely so now like the new york tribe they can amend their constitution without any involvement of the department of interior and i would i want to take one you're done right yes ok just a very quick question out of my own curiosity i know that you're with the environmental division the environmental division at d o j provide the attorneys that argue cases that involve department of the interior routinely yes there's somewhat of a complicated process of assigning particularly who it is but the problem of justice represents what i mean the environmental division depending on the type of case environment division attorneys will represent that you get indian nation claims absolutely the particular part of justice that i work for routinely handles that many disputes involving tribes will thank you thank you for you're the local guy that's a local i'm a live with them in washington notably i think most of the previous discussion has been about merits issues this is a case in which no record has even been filed there's been discussion about what the department's policy is we don't know the department's policy except as the complaint indicates we were told something during this process when we asked for reconsideration  the merits issues are something that will be decided if the standing to litigate them is a stablished i'll say this though about the merits issues the idea that this is just a list and that this is just  tribal dispute is very wide of the mark what the federal government does matters and it has the obligation to obey the law it made two decisions here judge paul you asked about the st one valving the constitution the if it would violate the law i'm going to come back to why it would violate the law the same legal principles relevant their government governed as to the assistant secretaries decision to recognize a new name and publish it in the list the decisions of the department of the interior are always guided by the federal trust obligation indian tribes it's uniformly expressed in judicial decisions as a fiduciary duty it may not lead to a particular answer in this dispute but it at least means it has to consider the interests of the indian tribes when it makes a decision what you think they have to have to consider the interests on the any as anybody given any government agency to change the constitution of a sovereign indian nation that is not present in this lawsuit now your i take your i do not the issue has not been raised and i do not and it has not been briefed  obviously and i do not believe in an a p a action challenging a federal decision that a party with standing to challenge it has to join all parties who are interested in it i understand the party you raise as a particular interest i don't mean to diminish it by saying all parties but i don't believe the obligation exists and in any respect doesn't that affect my dress ability no your honor the whole point we're trying to make you're asking the a federal agency to  inquiry well depends not at all we're asking for we're asking for a process in which their interests and our interests are hurting consider where no one is excluded and no one is ignored in challenging the federal decision under the a p a they can intervene and be here if they want but there's no obligation to join them and we are not asking that something be done at interior as was done in our situation without telling them and without hearing from them the the idea that the that the federal decisions here may pursue it to federal statute both of the constitutional approval decision and the decision to recognize a new name on the list have independent consequence the rd harness claimed in this case is to the status and identity of the of the nation that soley stems from the federal decision it has nothing to do with what the wisconsin's call themselves it's soley exists because of the apparent diminishment of the status of the new york tonight is the harm that's claimed as to the ability of the wisconsin tribe to use federal recognition in making legal demands amounting legal attacks is a harm that slowly or at least substantially relates to the federal recognition the recent coup decision makes the point that it doesn't have to be the sole source of all harm all you have to decide in this case for standing that the harm is at least an identifiable trifle that the decisions being challenged had some meaningful impact on the harms and then an order or addressing them that may lead to a reconsideration in the department will do something to reduce the harm it's not required in the loop on in the crew decision or are clear about this it's not required that we dispel all alternative causes of harm or that we show that in order will redress every bit of the harm alleged all right so let me go back to the phrase you use which will say i will do something to reduce the harm what is the what i've been referring to number one what is what is it all to muttley that will occur that will reduce the harm three things one the insult and diminishment to the status and identity of the nation from the change federal recognition will evaporate that will be because well not not why will that downstream because because what will have been done that will make that occur if a favorable judgment is entered in this case it will at least require the department to reconsider its decision in a fair process it's reasonable believe maybe i should just say plausible because i'm not predicting the future that the department will come to a different decision if it does and if it returns to the old what is the do what i mean i will return to understand that they don't have you tell us what your name is and we put it in the register oh that's that's ad that's absolutely wrong i gave the st reason that's wrong is that the st of all i don't know that that's the policy we don't have a record but it's wrong st because the federal trust obligation prevents that it's a violation of the federal trust obligation to turn over the federal list of recognized tribes to the indian tribes of the country section fifty one turn over the control of the list yes it least in the sense i don't mean that knowledge or a trying to figure out when you say turn over the list i mean if they walked in  didn't mean it in a concrete ok a minute in the sense that the federal recognition of the names of these tribes and not the whole list of that should not be turned over the tribes section five thousand one hundred and thirty one makes it clear that the  department is to have an accurate list and accurate list is not a confusing list section five thousand one hundred and twenty three dollars makes it clear that the department should not take decisions that affect that enhanced the status of one tr will no longer exist it will have evaporated because it won't be true that there is harm from failure use their federally registered recognize name and in the future when there are conflicts here and the wisconsin tribe in situations that cause harm to the united nation calls itself the united nation we can we can complain of the harm in court or elsewhere and we're not faced with the defense but we are federally recognized that way so you've got status and identity issues that are wholly dependent on federal recognition of those latter things sort of the hypothetical situations that i think it's a little buggers at least some one of the pronouncements from on high on standing have said we don't consider now i would say it's exactly the opposite that the hypothesis here is about what might happen other than an impact from the change federal recognition we have a record here the complaint please what happened was scott's and did not enter  some but no no i'm not talking about those letters although i think the indian health service letter is pretty compelling but let me go back to the more compelling evidence we have a history we know that there was no challenge to these marks until the federal recognition weapon  a demand letter and in court we know there was no harm to the status and identity of my client until the federal government pronounced that it recognize the wisconsin's differently that doesn't want that may or may not give them standing no that is down where you're from which is in the proceedings that i've stayed right now you have lost those proceedings right over just sitting waiting for something to happen when you guys say yeah let's get going again because the circuit did this or did that you can still find all do go all of those out and deal with the correct but we will be duking them out without the force they get from alleging federal recognition of their name if you look at the t t a b stay orders they're not shoulder shrugs that say let's just wait they refer to there's two of them there's the stay order in the order nine reconsider n both of them refer to the wisconsin's use of federal recognition to substantiate standing but they don't do it in those terms they refer to the allegation they were called stand by alleging that they are harmed by failure to use their recognized name if you look at nothing else in this case if the department were to change to its historic practice that element of standing would disappear and that's sufficient to give us standing in this case because it stablish is all of the elements that are required  standing on that note thank you very make your own thank you both will reserve decision in this case