on educating treaty claims sam ish freely acknowledge is that it cannot really lead again it's off reservation treaty fishing right washington for ended that claim rather washington fishing right under the treaty is different than the hunting and gathering claim the treaty fishing right is in common with the citizens of the territory it's a right the hunting and gathering rights states and and in the absence of washington for which looked at the totality of the evidence they howl that while washington to not be reopened and their primary reason was all of the different court decisions over seventy five decisions and the longstanding management decisions that have been management agreements that have been entered into as a result of the original decision it would be what i would appreciate your analysis well there's a couple of reasons one as the court recognized and i think this came out in the washington three decision and it's really reaffirmed by judge gambia in washington for kay's is in its recognition proceeding a great deal more evidence better quality of the names was submitted and in that proceeding the sam the same standard that is necessary for the exercise of treaty rights it proved in the recognition proceeding that it had continuously existed from before treaty time to the present that its government had been maintained in an organized fashion so he hadn't met all the same criteria that it needed to establish for me treaty status in washington to now the court also in washington for and in washington three went through some of the historical background sort of the chaotic situation that existed in the early days of washington to and continuously existed from treaty times to the present the factual findings are just that they were currently organized as a tribal government they had a current tribal membership role and they had an perspective so it seems odd to me that you can rely on the fact that there was not specific findings on things things they that that in law is something in terms of  decision and that doesn't hold water to me yeah and i'm not saying there is an implication that i say i think that's the criteria that the washington for or ears but it specifically adopted this test at a newly recognized try even wanted has previously adjudicated treaty rights and lost in that case can litigate an adjudicator treaty rights and new by presenting it then the evidence and new really relates to treaty tribes status not just the recognition well that's what you have to prove in the new proceeding is treaty status you can't even use the presumption of recognition in that case but you have to go back to the evidence for example in this state and they're brave said well that doesn't really mean you present your treaty status evidence again you present your recognition status evidence again by one green one in two sad recognition does not involve treaty status and since one thousand nine hundred and ninety four when the federal recognition regulations were changed you only have to prove that you were existing from one thousand nine hundred to the present so you're not you know if it applied only to a new recognised tribe that's never met a gay treaty status they will not have presented any evidence that they existed from eight hundred and fifty five they only present evidence that they existed from one thousand nine hundred so it doesn't make any sense unless you are presenting your treaty status evidence  no factual evidence or hearings on that issue and that is to be decided by the district court we just state the district were completely ignored the issue clues are an exception it laid out in great detail that needs to the practical or the argument made here by the cry because it seems to me have everything where to go your way and it may not if each of those issues was decided when you'd be right back here we probably will in a new case once those issues have been decided by the district court you know we believe that what the task laid out by washington for as that case has to be raised  an appropriate posture primarily by intervening in a case brought by existing treaty drives but that's for the district court to decide that but if the but the but the technical argument that you're also making is that you should be here in the st place but the view agreed that the district judge had the ability to look sovereign immunity question which the th circuit has ruled is quasi jurisdictional and has to be decided before you get to the other questions thank you your honor good morning may it please the court robert smith with kilpatrick townsend on behalf of the appellant so call me indian tribe i would like to acknowledge the elected members of this the homey tribal council who are watching today and i'll i'll try to reserve one minute for rebuttal your honor as i don't want to repeat mr dorsay as argument but i have the sense that you may have more questions related to to washington for let me begin by addressing the issues in the questions asked this morning in a slightly different way the un bone court in two thousand and ten tells us that treaty status cannot and should not be viewed in than the fishing rights claim adjudicated that was the court's fundamental error below was that it read washington to the exclusion of washington for and what the court in washington for did was have in washington too and say that the issues they were addressed in that case were limited only to treaty fishing rights creating an exception for newly recognized tribes like salmon like snow all me so litigate other treaty claims that had not yet been adjudicated in this case is brings those other claims hunting and gathering claims which this court in the district court acknowledged have never been adjudicated before so the district courts error was was twofold one sort of jumping to issue preclusion without st establishing whether it had subject matter jurisdiction over the state defendants but then secondly wrongly deciding the important because what i think you won and and you should clarify for is you would like to go back to the district who are and have a district court rule on standing in jurisdiction correct that is correct ok if you lose on those issues you're out correct that is also correct if you were to win at least on some  of the jurisdictional claims then you would be right back into the issue of if you would you not no your honor because the issue that we would be litigating right the question of whether snowball me maintained an organized tribal structures fissions to exercise treaty hunting and gathering rights hasn't been litigated before so it is so because that specific issue has never been raised or contested or submitted for determination there is no issue preclu proceedings so we were never able to get to that fundamental question that you are asking judge for one which is the continuous separate distinct and cohesive indian cultural or political community question judge and ten cabins that decision just to treat the fishing rights read that's what the court was saying by allowing newly recognized tribes to present claims of treaty rights not yet judy  the court certainly could in that two thousand and ten decision have said that sammis and other tribes cannot bring any claims right could be for close from litigating any treaty right but it created a distinction for hunting and gathering claims for subring claims of treaty rights not yet adjudicated by presenting evidence a new right what the what the state tries to do and what the district court bought into with this idea that  you replace newly recognized tribe it were newly reckoned with you replace claims a treaty rights not issued a kid with tribes to say that tribes who have litigated any treaty status before cannot bring those claims again but that's not what the in bonn court set the bone court was intimately familiar as are the three of your honor's with what the issues were that were being adjudicated within washington two in washington three in the in the entire body of law that is us the washington and it said that those claims relate only to fishing rights only to treaties status for fishing rights and that is a critical distinction that the court was drawing by creating this this exception the district court york i believe the rest of the paragraph discussion discussing green two is making clear that when nearly recognized tribes like snow kwame or sam a string of these claims they can't simply rely on the fact that of their new recognition to be able to overcome presenting the evidence that you discussed right evidence of that if it had maintained a organized tribal structure sufficient to exercise treaty hunting and gathering rights so while the fact the recognition is significant because it triggers that one aspect of the exception the tribes can't simply rely on that they need to be able to present their evidence as to treaty status and you write present a full sort of factual argument as to how the tribe has maintained that tribal structure so that it can be able to claim treaty rights for hunting a getting federal recognition who are still out there who could make fishing rights clean no i mean the only the only two tribes that have obtained federal  that word is used in the offenses that has a semi colon in the middle if you read the entire sentence including the nd half of the sentence it's clear that that  those three words out of context that it is important to look at the entirety of that phrase it indicates that the court in washington before was thinking about two possible scenarios where they literally recognize example of a tribe that this language could apply to there is numerous other tribal and cities that in the state of washington some of which are seeking the federal recognition is on that have not but could in the future court in washington for revisited its decision in washington three who made a determination of the interests of anality wave strongly against just missile and not reopening this long litigation standing because they've alleged that they were basically closed out of what's going on is a right of rights that they have all of which of course ultimately will go to americans but one of them at least give them standing to kick this soon off issue here and we believe that the core of the district court appropriately is just discretion to go to the core issue of the fees which it is issued reclusion rather than going through back to mr dorsey yes her have one minute st i want to address miss innes complained our contention that there are other tribes that have been subject to this if you look at page eight hundred of washington for it talks about new entrance newly recognized tribes that have never been litigated any treaty rights and it says all the finale concerns of washington to washington for don't apply so new tribes say this is no qualms to try if they were newly recognized and they live for treaty rights they can litigate treaty fishing rights as de jamestown s'klallam they were recognized after washington too but they intervened and they litigate a treaty fishing rights in addition to they can litigate other rights the other thing i just mentioned is in us the washington they complain says it is only for off reservation treaty fishing hunting and fishing rights for no mention and thank you he just met thank you your honor very very briefly in my minutes this state standing argument is is absurd the clearly was an injury in fact here as director says when the washington department of fish and wildlife said in a letter that he disclaims the homeys treaty status he said they did not have treaty hunting gathering rights that creates an injury in fact that is directly traceable to that state conduct and such states opportunity would not at the very least protect the claims against directors wins under ex parte  young right as this is a case against a state official in their official capacity seeking prospective relief in fact there was a case out of the district court involving mr seuss wins predecessor director goldmark this brought by the