please the court my name is donald childress and i represent mark allen who is the pro se plaintiff below mr allen was in the courtroom today seated in the first row with his wife your honour's my client alleges that his civil rights were violated when gold country casino terminated his employment on account of his race and in retaliation for his seeking the guardianship of three tribal children and the quote unquote white man's court the court below adopting the findings and recommendations of the ma you we'd like to address two points the first point is that the court below clearly erred in summarily dismissing all of the individual claims against the individuals in this case you don't really count those claims are in the fifty two thirty four allen says affirmatively that he was trying to comply with the plame and plain statement rules of federal civil procedure and that is a scheduling conference he would seek to name some of these individuals and begin to make his case for the conspiracy it seems that at one level it would be an onerous requirement indeed to have mr allen try to sort out the various hierarchy within the casino and also within the tribe to determine precisely who all was engaged in the conspiracy to violate his civil rights our second point is that the tribal casino and the tribe are not coterminous they're not of the same necessary entity it while it is clear under federal common law that absent congressional abrogation or tribal waiver different to begin with in that case it appeared on the record that there at least was some affirmative showing by the other side as to the exact contours and relationship of the housing authority to the tribe here we would say that the ad police in effect got a pass if you look at the record it is unclear what exactly the organization or the structure or the relationship of the tribal casino is to the tribe all that is ever said is that it is a tribal casino or rather it is that tribe doing business as a tribal casino it's possible to separate incorporated into city it's possible that it's and it's incorporated either in the laws of the state of california or under separate provisions it's also possible that it's a separate management company none of these  put forward on the record below and what we would alleges that in the case such as where there's a housing authority the court has that information in front of them and the allegation or anything that it's own and operate it by a crime that's all we know your honor but again that doesn't necessarily tell tell the court or in particular the court below much of the precise relationship in the case of gabble the little six the court had before it certain information for instance what was the preamble the reason for putting together the trouble economics what was the precise relation where the tribal elders the same people who owned and operated the tribe where did the money go all these are questions that remain on this record and given that it is unclear we feel that every man is appropriate for further proceedings on this very point again it was not mr allen's obligation under the federal rules to put forward these facts rather aside the fact that he was proceeding pro se is is the obligation of apple lees while there is no case precisely one point claiming that  trouble economic sub unity has to put forward all this information we would say first of all by looking at the other cases such as the pink in most hagen the system you can see there on the record that the court is able to make some particular findings of fact so that obviously had certain factual predicates in front of them in a tribal operated casino without an intergovernmental agreement with the state with the with the state your honor i believe i believe it's required that there is that there is a contract between the state and the tribe first of all there's the indian gaming regulatory act yes your honor which permits these so it's a creature a federal statute can exist absent that statute the casino couldn't exist right i believe you're correct and it couldn't exist without a state tribal compact i believe you're correct around you have any cases where an entity created is the result of a congressional statute in operating because  because of the an agreement of this type was declared to be not only in the you know your honor we did not but we also would recognize that there are no cases which specifically except for gavel and perhaps the johnson v harris case out of the district of kansas that analyze the exact or similar factual predicates to what we have here and in those cases they at the least or or the defendants in those cases had to come forward with affirmative facts that require them to show certain things what was the connection what was the ownership relationship where did the monies go none of that was required here again while there aren't cases on point specifically making that the burden about police it is clear that in general cases of sovereign immunity and in particular in  sort of similar instances where someone claims foreign sovereign immunity under the foreign sovereign immunity sacked that they are required to affirmatively show that they are entitled to assert the sovereign immunity this is a rule twelve dismissal this was the rule twelve b one i believe with respect to the tribe  tribe well again agreed it says owned and operated by the tribe are doing business as in the complaint but it is perfectly unclear based on that language what exactly the relation ship it is and again based on this court case law in re a state of ferdinand marcos it is clear that when a foreign sovereign or even in this case the dependent sovereign seeks to put forward sovereign immunity they bear the burden of affirmatively status family showing that either the tribe or in this case the tribal economic subunit is clearly entitled to assert that immunity they didn't meet that burden here they fact we got a pass from the magistrate judge and got a pass you know from the court below who summarily dismissed this case you know we don't want to make sort of too much out of this but you know to the extent even that you look back at the record and it says when the district court dismissed this case that mr allen was a pro se prisoner i mean you know it sort of raises questions of whether or not this was given the full consideration that was required and even if you look back further as the magistrate judge's findings very close i think to saying this scheming must be for a governmental purpose or it couldn't exist it is very close drawn or i'd like just to take recognition of the time i'd like to reserve two minutes for a bottle but i would like to answer your question right now your honor if that's possible sure i think that we have to look at this in the context of guess nicely yes or through the three parts test the third part of that is whether or not it's the there's of certain federal interest involved here clearly there's a federal interest under the supreme court's case of cabazon in this case the other  that there is not that there should be a distinction between the tribe and casino and that the district court didn't do the proper context to a factual analysis but as this court is clear from the court's questions is properly focused on what the allegations of the complaint were which was that the casino is e t a of the tribe the tribe is doing business as the gold country casino and you can set an example of the tribal enterprises would not be   set up a company that was going to sell some products off the reservation and the entire purpose of the company was to do business off the reservation and it was not unlike the indian gaming regulatory act was not a business that was specifically authorized by federal law to further tribal sovereignty and independence that that would be a situation potentially where if the tribe were not actually responsible for a liability of that separate company then that potentially would be a situation where doing the kind of factual can textual analysis that is a contemplated  might make some difference i guess i was looking for you to give a hypothetical example of a business enterprise that a tribe was involved in which if so facto if you will would not be entitled to sovereign immunity the flipside of what i understand occurred here that is judge carleton looked at the gaming enterprise and said sovereign immunity no need to examine the facts can you give us an example of an enterprise that would be the exact opposite of that where simply by its nature there would be no need to examine the facts to determine whether it was entitle to starve a minute i don't think or is the answer there is no sign that you i don't believe that there is such an enterprise where just by its nature the tribe would not be entitled to soften immunity i believe that it would depend on whether the you would have to look at whether the tribe was going to be responsible for the award if it's not the type of business  that is specifically contemplated by federal law to enhanced travel sovereign immunity which can be and i both from arizona were near neighbors of san diego i read yesterday's arizona republic that's our major statewide newspaper and it had an article about business of the element along the corridor between scottsdale in phoenix in the salt river indian reservation and they report that the stock river tribe is building a one point five million square foot office retail park eighth at one location call riverwalk at another location and office in or that has three million square feet including  unavailable i do think that they would be very different from gaming because they are the types of enterprises that are engaged in by many different companies and private actors not just indian tribes why isn't sauce for the goose sauce for the gander well i don't i mean i know what you say i think that the key is that if you tell us that on the opposite end that we that factual examination is required why isn't it the key is that the indian gaming regulatory act authorizes gaming with respect to indian tribes as a part and the purpose of which is to enhance tribal sovereignty and  in this case particularly you don't wind up getting to the question of whether you have to do a can text rule of factual analysis you don't get to the person a rule issue because in this case the plaintiff has pled out of the tribe in a casino where the same that the tri owns and operates the casino so in this case i don't think this is the case to decide whether you make the per se rule or not and that's not what the district court did in this case properly so however certainly  looking at the cases and what has happened to the gavel test and seen how the ghastly test has been applied in the context of other claims against tribal casinos i would i would suggest to ant relies on is the harris case johnson versus harris kansas casino i believe it is and in that case because the management group with the management company actually that wound up getting sued in the management company was held not to have  the unity of the tribe and that makes sense because it's a management company it's not the tribe there really is a fundamental distinction between the tribe and its tribal casino on the one hand versus the tribe and a management company that it's the manager of because you know on the other hand also allegations of conspiracy elsewhere in the complaint but it's it's not clear that these allegations apply directly to ms make you or to whom the conspiracy would involve if it is made you were a part of it and  perhaps now being represented and either shot or commandment to spell it out well the the allegations with regard to conspiracy there actually are some more facts from reading the complaint the allegation is that there was this guardianship proceeding and that mr allen was not treated fairly in the guardianship proceeding which involves a tribe and it means make you may have somehow worked with the tribe too to make life more difficult for always individuals and so in other words there are not other individuals played in the complaint and with respect to conspiracy if you had to have ms make you in the casino  in the tribe obviously those defendants are subject to sovereign immunity and you wouldn't be able to keep either the tribe or the casino in it they would be necessary if you were state albright irish thinking is th the court takes a more liberal view of the pleadings however even taking that liberal view with the pleading there isn't anything that that the tribe could have responded to with respect to the allegations as to the doe defend isn't it is in the brief i don't think it's necessary to get to but that would be an additional basis for not keeping the tribe in even if the casino were to stay in the tribe as is a necessary party so you couldn't have a claim go forward against the casino even if it you put two minutes on the clock thank your honor i'd like to make two points the first point is that there was no analysis undertaken whatsoever of any of the individual those in this complaint if you look at the excerpts of record pages fifty two and fifty three and alan's opposition to defendants is motion to dismiss he effectively gives a cry for help he says to the court your honor this case is unique and i pray the intelligence of the court to let me go forward and based on further in a scheduling conference and other colloquy with the court to be able to precisely define who the those and other individuals are in this case and to make up my complaint while it is clear on the face of the complaint that it does not mention the magic words forty two u s c section one thousand nine hundred five three he does on the first page of the complaint referenced conspiracy and after that the words fourteenth amendment and likewise in his opposition to the motion to dismiss he says my only complaint is not against but rather goes to the individual defendants as well as part of a conspiracy to violate my civil rights and the silencer found in this case was that i'm sorry there was no answer filed in this case was there i don't believe so you're both the case goes back you can  amended complaint exactly your honor and that's what we would ask at least as to the individuals that this case go back to remand for further proceedings to allow mr allen to name the individuals who firmly alleges forty two u s c section one hundred eighty three eighty five claim and to go forward there the second point as i think is obvious from the fact that the mr greene struggled a great deal is that he wants a per se rule in this case and your honor ask great questions as to when or or in what circumstances that per se rule would fall away and that's exactly what we're asking the court in this case to do which is to remand for further proceedings first and foremost to determine the exact relationship between the tribe in the tribal casino that is the apple leases obligation they've got to pass on that in the court below and this cour remand for further proceedings there as well unless the court has any further questions like what and what rights were alleged to have been interfered with i think the best way of looking at it is that when mr allen sought to take recourse in state courts of california there was a conspiracy to prevent him from doing that and that is his terminations from gold country casino effectively stopped his financial abilities to continue with the guardianship be submitted for decision in the next case