with the sherlock proponents of stand up for california jurisdiction one nine hundred thirty four but solely on the basis that there was an election held under section eighteen of the indian reorganization act for this tribe and we have argued and pointed out that the section eight thousand election standing alone cannot be evidence of a tribe being under federal jurisdiction one nine hundred thirty four and that because it's not even evidence of the existence of the try and the district court of course disagreed with us and decided to section nineteen of the act in section one thousand stephan ition of try as including the indians residing on one reservation and based on that try and we submit that that's the conclusion that interpretation of the statute while it may be convenient for the this tribe in this particular case that it could lead to absurd results and create  the record of decision does not conclude that the indians residing on one reservation are a try and even here on this appeal the agency has not advanced that argument despite the district cour reliance on that argument and we have pointed out that the language of section eighteen the plain language of section eighteen makes it clear that section one thousand option is not tribes it is an election for adult indians at reservations and it specifically omits any mention of tribes and there are two main points that i'd like to make this morning on this on this issue first is when we look at the solicitor's memos from one nine hundred thirty four is clear that the government at that time in one nine hundred thirty four understood the section one thousand definition of trying as including the indians residing on one reservation to mean that all of the indians residing on one reservation could organize as a tribe if they chose to do so and this is entirely consistent of course with congressional policy of tribal choice and autonomy whether  tribe chooses to exist or to organize as a try is purely a matter of tribal choice and autonomy and the only way to harmonize the definition of the act and in to discern congressional intent which is ultimately we had some very strong language from the supreme court that we're supposed to look at the tax and look at policy and other matters only half the indians residing on one reservation alister peoples point right water bottle well we know what's not what's ambiguous about well there are multiple different categories there and it may very well be that the tribe a tribe may could we know from the historical record occupying more than one reservation tribes could there were multiple tribes occupying the single reservation at the time  have this is sort of a lead ins in the way of for example the queen all reservation disaster mean congress was just wrong well no i think that the intent that congress had as indicated in the solicitor's memos at the organize or identify themselves as a tribe per se or any evidence that those indians were on were the ones you reason not know there is not so i thought maybe you're going to make the argument well one reading of the exact words here is that if they are residing on more than one reservation they're not to try but you don't have any evidence to suggest that circumstance in this case know the evidence in this case and didn't there's that brings me to another point but the evidence in this case indicates that the ranch area was purchased for the indians in the vicinity or even in the geographical term and and that these indians had varying tribal affiliations in the past and not that there was not that this applicant tribe existed at that time and so so the evidence here overall is far from clear as to whether or not there was a tribe in existence at that time and certainly far from clear whether it was this african tribe and never was the district court endeavored to interpret that evidence and relied on certain historical documents to to reach the conclusion that this tribe was under federal jurisdiction at that time and as we've said considering that the secretary is the one who possesses expertise in matters of tribal recognition and in history it was error for the district court to interpret the historical record the historical documents when the secretary specifically chose not to interpret that historical information and instead to rely solely on the conduct of section eighteen election can i can i ask you if  are under jurisdiction it would be sufficient i believe to say that a tribe was under the jurisdiction of the court reaches a conclusion that the section eight thousand election is evidence of a tribe which again we dispute then yes the section one thousand election i would conceive would be evidence of the tribe being under jersey and all the election itself takes place in one thousand thirty five i think that's that's fair we're not making up argument over that and that i think it is because of the now word  yes yes even if if the court does determine that the section eighteen lection was evidence of a tribe we still have the problem was that this applicant tried there is still a gap in the record there terminate the government's relation with trials it terminates the government's relation with rancher rhea's and with the individual indians who were distribute tease of the ranch real land that can be found in sections ten and eleven of the ranch react but it does not you did not terminate relationships with tribes and so what we have in the record with this chili hartwick stipulation or stipulated judgment is says that the plaintiffs the name plaintiffs which include it includes the north fork try shall be restored to the same status that they possessed prior to determination that still b what was that status and we know from the government's federal record for the register notice that there was no notice of a terminations of the north fork tried there was simply even notice that the ranch people miss johnson and her two sons were not members of any doctor and so it still begs the question what was the north for ranch area status prior to the termination the second part of italy hardwicke judgment that's the part this i'm referring to section four of the stipulation and the second portion that i'm referring to says said the tribes bands communities in groups so be included on the bureau of indian affairs federal register list of recognized tribal i don't believe the first part of that sentence actually is is the portion by which north fork ranch really gained recognition all that section says is whoever was terminated under the ranch reacts shall be restored to that same status but it's the second part of the sentence following the word and by which the tribes bands communities etc in this applet contrive in particular gain federal recognition the federal register list of recognized tribal and i d s is not the same thing as tribes or not the current list i believe so what about in the year where they were confusing a little bit as i've said that the rant that the tribe spans communities groups of the rancher is listed in paragraph one which included more or shall be included on the federal register list of recognized tribal entities they could have been communities they could have been groups what happened when they were listed how were they listening or listening when northward i i don't know or by i'm afraid i can't really answer how they were listed you mono indians as a tribe yes certainly certainly coming out of this still hard work stipulation that there was there was a tribe ok i have one more question for you  some of the of your opposing counsel also refer to the land appropriation and one thousand for thirteen that act which was for the benefit of some of these indians i appreciate your argument but that's not the grounds for the decision of though it's listed as the next paragraph but if it were the grounds for the well again i don't think it needed a valid ground for the decision because the one nine hundred thirteen act merely appropriated money for the secretary to acquire land for california indians generally and not for certainly not for this applicant tri specifically there's no question about it that that congress wanted to acquire these rancher ias to provide land because that at the time the state of california indians was was well not very good to  and from our perspective there is one more line in the secretary's opposition that sums up the problem and the issue here and that's when the secretary says we don't know whether or not t did this the outcome of the secretary's decision would be different if he fully contemplated the impacts on the edge of chance he tried and it's obviously our position that the indian gaming regulatory i'm requires and just there is the requirement to add allies the detriment of point to statutes is surrounding community and regulations to try and surrounding community has twenty miles and your clients more than twenty five miles away th scripture doesn't find the striving to be that way but it does include an exception to that and it includes an exception for tribes or local communities we can show that those authors significant impacts by the gaining facility and right that was his conclusion well he did conclude that the problem is that a conclusion isn't based on any evidence in the record if it's he concluded that by saying i believe that the benefits outweigh because of their distance from the from the from the proposed site well that this is when you take that approach to it what you're doing is you're required try to show the hypothetical impacts if they were a twenty five mile radius what they made clear was that twenty five made a mile radius rule was intended to be flexible because what they recognized was that the determination of all the detrimental impacts was the more important inquiry it was more important than the twenty five miles and when you're talking about other tribes that are gaining on the reservation or senior year you're in your argument you're arguing a subject and then we looking at the bad as deferential a way is a court can we're looking at the agencies interpretation that's the regulation and it's a question of whether evidence supported that and so you know you have sort of a double problem here so good looking at it equal weight to everything else but the secretary didn't interpret it that way well i don't see how you can i do it that defeats the entire purpose of the consultation process because the cars in addition it can reject that would have happened if they had refused to but they did it with giving master weight we don't know what weight and there's nothing in the regulars nothing in regulation there's nothing in the indian gaming regulatory act that it says that the secretary can or grant or heard him use or anything in the act  but it is so do so the exception is the exceptions that allow a tribe to become part of the surrounding community if they are secure about that so this is where i hate being such a stickler here on the text but since i did in the last case i'll do it in this case so the text of the statute says romney community as george cable said and the regulation says around the community is twenty five miles and you're not in it so if that were the end you would be done right where it then it does not go on and say we're making an exception to the meaning of surrounding community which is the way you're reading this sect the regulation it just says that a local government or indian tribe be obvious to any five mile radius can petition for consultation doesn't say that makes them a part of the of the surrounding community it just says they can petition for consultation included among all the others who are who are consulted are the governor who as far as i know is not within twenty five miles and is not part of the surrounding community state officials who are also not part of the community so they get to consult but they don't get to be considered part of the surrounding community so why do you keep referring to this as an exception to the definition of surrounding community rather than as it says to a exception that allows consultation for people who are not in the surrounding when you look at the explanation in the purpose that the secretary attached to that twenty five not mile radius rule the reason i'm saying it's an exception to the surrounding communities is because what they said is specifics with secretary and i i'm sorry it's exactly what the secretary did it took out all the impacts and balance them against each other well didn't see it in your briefs but i think how we try to explain it in the brief was that when you're dealing with another game when you're dealing with another indian tribe and i apologize for coming back to this i think it's of critical critical importance when you're dealing with another indian drive in the local area those impacts are even more important i mean the picayune tried but it's that you can see tried is only economic engine is that you see you know it is all it has and the secretary owes a responsibility to them as well as to north work and all the other drives and so when they're shown the significant impacts that will include them in the consultation it's more important because of the secretary's duty to all the tribes it's more important that point with the secretary to take a evidence that the tribe was under federal jurisdiction in one nine hundred thirty five if you look at the sentence of the wrong itself it says it refers to the fact that an election was conducted after tribes reservation some page twenty appendix four zero nine affairs five to seven or zero three two five three four how do you get to this part d which is about the need of the individual indian or tribe for additional land and  rule of the tannery case we should look over the entire record and find anything that would support the agency even if the agency did not rely on it well i think the agency did indirectly rely on it here by referring to the tribes reservation in that he sends them or zero nine five but even if you are you know even not consistent with the general a p a practice so long as the agency's path of reasoning can reasonably be discerned that satisfies the  that that says if there was an election call for under section eighteen doesn't matter the result that that itself is an assertion of federal jurisdiction by the secretary contemporaneous with the statute let's say that we didn't think we could rely only on the election are you saying that if we were reading then that the agency to tell us whether they also rest whether it also rested on the appropriations bill or just come asserted over the the group that was present on the reservation and in thirty five the question that standard raises is whether this was the same trough that's before the court today but there's there's no judicial decision that i'm aware of that they cite that authorizes the court to make that type of inquiry into how all of the tribes membership has fluctuated over time into basically trace the lineage of the membership by virtue of the fact that the tribe is on the list band of the rancher reeva that was fully recognized as having been on lawfully terminated a person to the ranch area after so really there's a continuity there through the harvick stipulation but it really defeats my friend's argument with respect to the section eighteen argument or as i will say the ira argument that is the under federal jurisdiction argument and then you know one point with respect to the detrimental effects of the terminations with respect to you  first of all on the question of whether the section eighteen alexion alone will establish is that a tribe is under federal jurisdiction the secretary of the interior has without exception consistently taken that position and explained that position in its two thousand and five to two thousand and fourteen solicitor's memo the first three times that the department took that position four of them before the decision in this case five no ninety eight and for the enterprise rancher rio that was a that the secretary also said it in his record of determination that page forty four a couple of weeks before this one so and that is a that is a correct and accurate statement for the construction of under federal jurisdiction for the reason stated at page twenty of the secretary's tooth of the solicitor's two thousand fourteen memorandum if it were enough the question as i think the court's questions identified is was there no molested the secretary nonetheless determined that this was an election of members of a tri members of a being and and mr toes pointed to the secretary's determination on page four zero nine five that the the election was tell the by the adult indians residing at the tribes reservation now i understand the court's questions about will is that really a finding that the reservation had been purchased for the benefit the band mr sherlock says there's no evidence in the record that this band for whom or these indians for whom this land was purchased in one thousand nine hundred sixteen was in fact abandoned i want to make dissin valuating that the court has in front of it what i believe the very says are the very substantial findings and evidence made findings made by evidence before the secretary for the north fork and band of indians and that was supported by the very deed of trust the very deed of purchase which is referenced both in the wall and i'm holding on page five twenty seven but the discussion continues all the way to the front page five thirty in one nine hundred sixteen the federal government purchased an eighty acre parcel of land in the in the town of north of and it gives the meat's imbalance quo for the use of the north fork band of landless indians and then of course the torah realm report not only says at page four of two zero that the purchase is for the more than two hundred indians properly belonging to the north fork and vicinity ban and on page four on one nine  cites that mr terrelle is actually providing a census of those indians to the tribe now with respect to this tracing argument that the tribes application  ninety nine percent sure included the tribes constitution the tribes constitution requires that to be a member of the tri you have to demonstrate this descendant see from because it's we think overwhelmingly clear both from the secretary's determination in the iraq and for all the other reasons that i've stated which was the evidence in front of the secretary that when he for the the north fork band of indians but even if that weren't so clear i think i point to this court's decision in association of bitumen as contractors versus f l which i believe mr chief judge and judge table were on the panel where the court says explains that the secretary's implicit reasoning may be spelled out in subsequent briefing where it is consistent with longstanding interior policy that reflects favoring considered judgment and george carlin there as you also said in the app act so no bells salt case from two thousand and one of my favorites agency practice and not to show favorites here judge table in your case the association of civilian technician that's a really good one i'm struggling to find a long standing and under the circumstances the court considers council's explanation of the statutory basis for the denial of the full relief so i buy the guardsman to represent the united states is fair and consider a determination that it would be eligible for gaming and that used to be very clear that determination by the secretary in the it world wide was supported not only by the term rail report which was cited there but also by all of the findings and and recited documents in the b i a decisional package that the secretary had in front of them whether or not i this tried was with in the surrounding area certainly agree that it plainly was not in the secretary expressly in this case and now that it was not a nearby try it is not the case as mr robinson said that they're simply the secretary simply made a determination without any analysis the the record contains both the the relevant pages in the determination are on thirty nine fifty seven and thirty nine fifty eight and the secretary also the secretary's decision had incorporated in reference the final environmental impact statement and at the five pages six eighty to six eighty four and seven twelve the final environmental impact statement ma very detailed analysis which the secretary adopted finding that a nineteen percent which was conservative in one thousand percent loss and revenues would aid was a in the context in which the north ranch urrea would cold would bring about and nine hundred ninety million dollar increase in gaming it indian casinos in the general madeira fresno area and that in this market in a market of this sort that even if there were a drop of nineteen percent it would not effect be a bit to the picayune tribes ability to operate profitably and the sec and that something can be detrimental by reducing your profits can well not as the secretary has determined the secretary found that the detriment would be the final environmental active impact statement found that the detriment would be quote less than significant and the secretary made clear both in the secretary's regulations and in the preamble to the section ninety two regulation that very sentence of the regulation that could you he's talking about how you know when a nine year by tried can petition sets out the secretary's articulated standard for what detriment to  the governmental functions infrastructure or services will be directly immediately and significantly impacted by the proposed gambling establishment identity within society to that is the site to twenty five c f r section two ninety two point two and the secretary found quite to the contrary that even the competitive impacts on the peculiar draw i had was not considered a detrimental impact because the trial of the picayune would still be able to operate profitably and that there was no basis for a finding that tribe's governmental functions and services would be impaired honor two minutes thank you very quickly with regard to the acre rod the rod that was done a year earlier when the court reads the secretary's analysis of the historical information in that record of decision you will see that the secretary referred not to a tribe in relation to the actions prior to nine hundred thirty four rather two predecessors of the tribe and ancestors of the tribe but there is no indication from that discussion of the points in the record where it refers to the north fork band of organ of the north or band of landless indians i would merely point out there that the definition of indian in or i'm sorry of tribe in section nine organized band not merely a band so if there was a reference in the in the documents to a band it was necessarily to an organized band and there are many many more references in the record to the north fork indians or north indians in the vicinity of north fork in geographical terms and what we're saying is this really calls for the secretary's expertise and analysis here on the issue of federal jurisdiction and whether there was a tribe and that really wasn't done finally mr waxman made a reference to page five twenty seven from our record here that is eggs are from the draft record of decision on the decision the trust decision and that analysis that he read from was scrapped in the final record of decision primarily because in that draft record of decision the secretary was relying on the fact that he's thought there was a section sixteen election that had been held at the north fork ranch area and it turned out if the court will see in the record j forty thirty one forty thirty two that counsel for the north court brought to the secretary's decision or attention that no it wasn't a second section sixteen election which of course is an election for trying to organize it was actually section eighteen election at that point the secretary revised the record of decision throughout the discussion that mr waxman was referring to and concluded soley on the basis of the section eighteen election to drive us on but what jurisdiction ok thank you thank you and if you have more tells out the standard for the term in detriment that is the standard for determining whether or not a tribe or a nearby and local community can be can will be consulted that's not the standard where that i'll be in the room there will be a detriment is whether or not they will be consulted and in making the determination that he had to consult if you tried he made the determination that they would be detrimental impact and what we're saying at this point is once he made that determination he had an obligation