good morning may it please the court my name is james hamilton and i represent the appellant's in this matter i would like to take fifteen minutes to open and then to reserve five minutes remedy that is sought here is basically the invalidation of the compaq's educated terminations by this court that the governor was wrong to sign the contacts well they they may not by that activity not be by that ruling not be allowed to engage in additional activities but it would level the playing field it would it would remove the discrimination that they are facing because they cannot engage in the from an economic sector congress would have spelled this out congress did not do this in there is nothing in that expression lee authorizes the states to give the tribes a monopoly in mind what you think they had in mind that they didn't say it very clearly and there is any rational way to view it another way don't we have to apply the that you should avoid interpreting the statute to raise serious constitutional issues and if you interpret this the statute if you interpret it go to our allow a monopoly you will raise serious constitutional issues which i wish to i do think that the court the district court has done is to reach a rather odd result the district court has interpreted the statute to mean something that congress did not  they are not required to negotiate with state law permits well i'm not sure i completely understand your question i interpret cation of that provision in here and what it means is that the state must permit class regaining for retained in other parts of the statute has to class two gaming this going to protection the district court's interpretation is inconsistent with the commonsense reading of the admin did johnson act requirement that slot machines legal in a state before tribes can operate them and also the district court's interpretation makes the commission clause of the statute circular and the legislative history that i referred to shows very clearly that congress did not intend a monopoly for tribes that congress wanted a balancing of competitive economic interests and that congress wanted  s because its legislative history claim li show that there was no intent to ordain a monopoly it is wrong to mis interpret a statute that was intended to prevent discrimination against indian as one that allows monopolistic discrimination in favor of the in yes would you agree that it's pretty ambiguous as to what congress intended i do not think it's ambiguous as to what congress intended when you read the in the legislature in the senate report they wanted a fair balancing of competitive interest and they wanted free market competition though those words are inconsistent with the notion of a tribal monopoly now if we are wrong about this and it really does allow a monopoly in the statute present serious constitutional problems now we were recognized that congress may give tribes some wagman said that if the preference involved did not concern hiring at the b s a but instead concerning government wide hiring a more difficult question would be presented it and i submit indian reservations certain activities can be permitted conducted that are not committed allowed elsewhere in the state so it's not the fact that you're giving him the members whether it does and not quite what this court is going to decide is whether the preference relates to a uniquely indian interest and whether it relates to congress's unique geishas to the indians that it just doesn't make an indian unique any interest because it happens online on indian my under that doesn't make it unique well if something was working fine only true indian land perhaps but  christina gaming is not confined only to indian land the tribes advertise throughout the state they soon buskins out to bring people into the state and more over the discrimination of course is not defined just an alien lands well my comment on that statement is this first of all as i have said casino gaming does not relate only to indian lands here it is a state wide business whacking in from the airport yesterday casino gaming would violate would not involve uniquely indian interest or congress's unique obligations to the tribes judge kozinski in the court of course was well when he said that that certain economic activities in the other when he suggested was the space shuttle could not be the subject of an indian preference i mean there's very little number of activities that obviously could be rest of the state and i think that that that push scripts by california which has been approved by the federal government violates equal protection  be focusing on the statutory interpretation question mr before ca will be addressing the equal protection clause issue if you can still try to keep the meaning i think i think under either the secretary's decision in this case as to be affirmed as your honor indicated previously the rules of statutory construction do favor the meaning that was and prohibit banks games across the board that would prevent and preclude class three gaming in indian country but i don't want to think words that say anywhere in any of the documents legislative history that conclusion that it probably was not in the forefront of congress's mind that this state might actually be willing to give tribes more than what the group was forcing them to get but there's nothing in the statute that forecloses or prohibits a state from doing supports is the conclusion that was in fact reached in rumsey that states would not be allowed the concern is that states not be allowed to protect their own license franchises or their own entities that the state might license to engage the last three games and then refuse to negotiate with tribes over this very games plaintiffs i think concede here are that if the california lottery commission were authorized to have a half a dozen slot machines and were authorized to have a half a dozen house bank card games that at that point the state would have accomplished indirectly exactly what the state did directly here in proposition one a the state would situation under the alaska ranger act was remarkably different from those examples because in every one of those examples there was there was a concern over tribal lands tribal governmental  tribal governmental entities that are being authorized to engage in the gaming when you look at the two dozen examples that judge kozinski points out in his footnote six you can go through each and every one of them and make the same comment  there's nothing uniquely indian about providing housing there's nothing uniquely indian about providing programs for protection no violence against women there's nothing uniquely indian about biomass energy there's nothing in italy indian about community services it's the fact that these are tribal programs these are activities on tribal lands that makes it uniquely indian tribal self government to promote tribal economic development and it's a pretty common to all men it seems to me is and is probably the most rational and likely real purpose that california agreed to enter into a compact with other governmental entities they can indeed engage in activities on their tribal lands but i think that gave question is prohibit the manufacture of automobiles and it would do so that what i think would create a more significant equal protection issue is if it's sad that only native americans as a ra of indian reservations because it will produce a lot of revenue for the trip i think the state does have its police powers to prohibit activities that it deems appropriate to prohibit other entities were already engaged in doing it agreed to change its constitution and to change its people coach to remove a barrier to the governor entering into compacts that would allow tribes to engage in the form of some type of benefit on an indian tribe that is not a race based classification that is a preference just as though state were giving a particular benefit to him and it's a power he or accounting or any other political  operation gambling car manufacturing whatever your imagination can and if it makes money and therefore fulfills the economic development purpose then if the government could agree to allow it dealerships there probably would not be a rational basis for the state to say we need to protect the public from that ubiquitous automobile sure shouldn't we shouldn't i mean why couldn't the states were so interested in the environment that we won't may be that the point the fact that there is a constitutional prohibition and there historically has been a constitutional prohibition against you know gaming in california we view this issue in the district court  gaming has some sort of preferred status on indian lands because in that five hundred year history of our relations with indian tribes congress has determined that really gaming is unique in its ability to provide funds for economic before my time is up i would like to make one point with respect to these daschle tory construction argument i'd like to refer to the court to the operative section here in twenty seven ten d one the beginning activities are would suggest to the court that this gaming for any purpose language the any purpose language would allow the court to rule that proposition one day was passed for the purpose of meeting the requirements that they grow this requirement  in california are approaching a five billion dollar a year business this is a major section of the california economy and we submit that there is no constable you can discriminate in favor or try for less favored activities like gambling or perhaps some other things that we could think about but you that type of discrimination is appropriate discrimination in more traditional forms of economic activity is not i see nothing in the cases that were gay allow that distinction in california see no i see no justification at all for distinguishing between this favorite forms of economic activity and their favorite form should be can i make activity in terms of you of the other part of your question judge whether economic success is a justification for this type of discrimination i think that cannot be a sufficient justification because there would in that would justify any type of discrimination in the record shows a tragedy engaged in a number of different types of economic activities smoke shops in hotels for example and restaurants surely  just because those types of economic activities are successful for the tribes that doesn't mean provide economic stability that doesn't mean that the state of the federal government could say that only tribes