woman in the nation safe and helpful working conditions and preserve our human resources unquote protects employees of such an enterprise as the secretary could and that it does the st to release a commercial e question is definitely yes in federal power commission vs tuscarora indian nations the supreme court observed that boat is now the federal by many decisions of this court that is general statute respected by the tribe in accordance with its culture and traditions likewise disputes regarding this issue should be allowed to be resolved internally within the drop federal regulation of the crime of employers consideration of age in determining whether to hire as a member of the tribe to work at the because it's located on the reservation is a clear with an incremental matter that has traditionally been left to the tribes self government unquote and then the court heard that emphasized that the eighty business that is well actually here is if i understand the facts correctly all the employees are travel numbers and i don't think that that was the case in fond du lac but i think it's also disputed that the  fisheries themselves are run for the benefit of the tribe itself so i'm and so the only difference i see here and that you've highlighted thus far anyway is age is t x and i'm wondering why the why or how we can put so much weight on valid distinction when we have so many other similarities here it seems that as we do  at the reason why is that because the court the court does not merely mention age in the discussion of the procedural history of the case the court discussion of the consideration of age is imbedded with in the court's reasoning and then the court goes on to say this confining this to the narrow facts of an of an age discrimination case i mean the courts the courts focus on age actually makes sense the way society treats its elderly is tradition bound for example american indians to self government on intermural affairs whatever that means and so what do you how do you address the treaty issue here that gives them more punch than following they yes they argued that there was a we would be dealing with the religious freedom restoration act ok which has a specific criteria i think you'd have to say that they're actually going to do that red herring but suppose they say it's the traditional way we've always done it and if we didn't have object for example it is a core indian tradition to live on a reservation to occupy a reservation the beer fact that that is part of indian tradition does not mean that any person any indian living on that reservation is completely free of federal law the indians while occupying the reservation and on a lab to sell cocaine or do counterfeiting or blow up a building which course in telecoms you have done this but still is that tradition go with the treaty though because that's what the treaty was trying to say you get a fish your boys fish these are your rights yet again of course the tribe with pointed out  nearly all other indian reservations and then she goes in quite some detail talking about the distinctions here with respect to this particular reservation do you think that strengthens their position here if particularly in the absence of specific date specific indication by congress  actually said that the tribe or had no jurisdiction it was against indian sovereignty in that case the facts right i was very interested that two are her facts basically right that this is different are the facts that judge kelly's reciting saying that red lake is very different than all the others are her facts basically right or wrong or do you know the only thing i do know is that they are the tribe case involving the red lake tried under the federal records act which is a general federal law and the th circuit ruled that the tribe was subject to the federal records act and didn't cool common one large block of trust lands well that's something that's very significant in this case is that this court's precedent the framework that was established through the did and because of the d impermissible infringement on the tribes right of self governance and the permissible infringement on the tribes inherent right to exclude nonmembers the citations was ordered and we would ask this panel to affirm that something that's very important in this case that the government is not highlighting is the specific nature of the ocean act itself the william staker act in one thousand and seventy the ocean act was enacted and the specific constitutional authority as cited in the statute this is very different from other federal laws of general applicability of the statute says that it's and acting the osha act under the authority of the foreign commerce clause and the interstate commerce clause and it's completely silent as to the indian commerce clause and as the the court is aware the constitutional constitutional commerce clause provision says that congress shall have the authority to regulate commerce with the four nations with between the several states and with the indian tribes and rules of construction provided that if congress leaves off one or more of a list that's usually read together that's meant to mean that congress intended to omit that in this case we submit that congress is a significant reference to the interstate commerce clause and the foreign commerce clause and their failure to add indian commerce specifically intended that in commerce not be regulated through the ocean act further evidence of that your honour's is the complete absence in the whole text of the statute to the word in tribe or indian entity as well as the complete absence of any reference to it in commerce in the one thousand three hundred dollars pages of legislative history of for the ocean act so we submit that that's a pretty strong signal that congress never osha's interference with that exclusive treaty right to engage in indian commerce quintessential indian commerce at that enters interstate commerce is pilotage of what the court has told us  much as you want to say as many as you want to whenever you want to we want to wear a life jacket well two things your honor one the fishery has a robust safety protocol for its fishermen and we're a course very started that couple of our tribal members you know died as a result of this incident and we can't you know be responsible you know for big provide all the equipment go through all the robots training and if something like this happens you know we're we're not out on the boat with them they have radios it's a very unfortunate situation but also in response to your question or the interference is with trying to regulate its own internal indian commerce wit own members this fishing activity is not just a commercial enterprise this is a cultural d enterprise it's been going on for hundreds of years and while it's called the land commercial right council you you three do that for sure it's in it covers or under and it's not interstate commerce and we refer to it as quintessential indian commerce this is something this bad well recognized and because of the nature of the treaty rights that are an issue in the case this act can judge tonight judge to know that the case at the at the trial court level and he did his own treaty investigation into store research itself and came up with an argument that we've been raising for years and that is that the eight hundred and thirty seven dollars treaty which was the st one of the effect of minnesota territory guaranteed the right to fish and gather off the reservation the chiefs at the time and judge tonight indicated this in his record in the in the square case is that the fishing and using the resources of the land making the sugar from the trees and using the rivers and the lakes is more essential remember the other side's brief where they said this idea that you look at that congress is only talking here about the interstate for foreign commerce clause and not about ending commerce you didn't begin to raise th a lower level that is a made for appeal point what do you say to that vote your honor as we reply brief we point out that the decision relied on by the government only applies to the petitioners time well it was this is just an amplified version of iran there this is an amplified version you know the commerce clause has three parts and we raise this as if in response to what the what the government raised of the fishing component of the fishing industry of the trial there does the record contain information with respect to that it doesn't erode or you know we looked at it it does not include if the court would like me to supplement with the procedures that the fishery follows i can do that but i'll out leave that to your discretion it best whether you think you can do it at this point but i was just of the fisheries i don't practices and regulations i think maybe there's a danger that this could be put it is it's just maybe not safe perpetually unsafe industry there on the on the reservation it sounds just curious as to what you have to say about that and what the record can tell us what your eyes are on the record does not include the safety d procedures that i referenced and there's not a separate criminal statute you know that or d otherwise regulatory statute through the tribal code that would permit penalties you know for the fishery as a result of of  some sort cummings and some of the other question it was mentioned earlier in the argument i think i saw in the briefing that the employees the workers in the fishery participation in the fishery industry they are to travel members yes there d is your honor there's also a fishery association which is more of an advisory board but it's an advisory board of an old fisherman you know of people that have been workin you know in that industry their whole lives and so they'd be monthly and they all their late they had is the younger people you know that are engaged to and in this activity  o and then finally am i correct in my understanding that because of the the differences between the red like trop and it's all in its ownership of its property and industries the differences between that and perhaps other reservations it was it was noted that there is not private ownership for example does mostly spouses you know of red lake members but that advisory board that i was talking about provides for the employment of only red lakers and that in the fishery activities there's no not members that work in this whole industry it all the way down you know from providing the equipment to going out you know on the fishing to cleaning the nets to making the nets putting the m it sort of maybe didn't explain please stand that suggested that maybe if this were some in another circuit the answer might be different and maybe this is too broad of a question but i wondered if you had a reaction to that do you think that this case is different because it's in the circuit and we have found a lack in it and it would be treated differently in maybe the th or one of the other circuits yes yes i agree with that your honor we believe that this court's precedent and find a lack of the circuit and the ten circuits president donovan versus now blue forest products that are the correct decisions that are the most respectful of the circuits of tribal sovereignty people other ones that have bought into this framework in the th circuit d did it out of this is our position that they adopted this framework of cortical lane out of convenience because they're not as familiar as the eight than the ten circuits are with indian country and we believe that it's improper not respectful of tribal sovereignty and would not be a good broad for this court to go down we firmly believe that that was the correct decision and we believe our facts are even stronger than the fund that gives congress plenary power over indians more so than in the situations involving regular regular commerce so for example under the commerce clause in title twenty five