good morning everyone mrs judge sykes and like to thank everyone in advance for your patience with telefonica arguments this morning i will be keeping time and i will give the appellant's counsel a one minute warning when you are approaching your rebuttal time that you st served and i will give all counsel one minute warning when you're approaching the end of your argument time with that introduction i'll call the st case this morning and night a nation the question in this case is whether the oneida reservation located in northeast wisconsin has been reduced in size by more than seventy five percent there buys them ject invitation to regulation by the village of hobart the district court found that the reservation a compact area of sixty five thousand four hundred acres was created by treaty in eight hundred and thirty eight between the nation and the dollars that a statute of general applicability throughout the country authorized the president in his discretion to issue a lot months on any indian reservation to members of that reservation with trust patents to be held for twenty five years as to some reservations congress also inactive surplus land x referring to land remaining on the reservations following the law for settlement by not in good courts have construed some of these surplus land acts as abolishing or diminishing the boundaries of the affected reservation there is no surplus land at applicable to the oneida reservation nonetheless and relying on cases that contain the civic surplus land  or a unique allotment act that applied only to those particular reservations the district court held the field not a reservation has been diminished according to the district court  occurred over time as allotments passed out of trusteeship and were conveyed in feet and not indian thus reducing the reservations to individual parcels scattered throughout the reservation randomly located and known generally as chapel boarding and totalling about fourteen thousand acres this judgment directly contradicts a one hundred year old body of supreme court authority that construes the general that is leaving reservation boundaries intact the judgment also unsettled the status of literally dozens of other reservation dramatically unless this judgment is reversed following this by as a result of this returning to the argument your honor it's important to point out that as your question suggest but just the judgment below also undermines a widely held and shared view regarding the continuing vitality of the eight hundred and thirty eight treaty reservation boundaries this widely held  underpins a number of contacts and contracts between the nation and the state of wisconsin local counties and local municipalities these agreements affect a wide number of a wide range of issues including law enforcement gaining tax collection and other issues as a result of this judgement these agreements are all now in jeopardy lot it was expressly accepted from the general a lot of that and instead was a lot of pursuant to specific statutes that applied to those were so there is nothing that will come out of those cases that will teach us anything about the general allotment at the that or anything regarding allotment at the oneida reservation so it is not necessary to await the result however there are there is a large body of supreme court cases that's more than one hundred years old issues st it argues it disputes the district court's judgment that a nine hundred and thirty three dollars un published opinion which to which the nation was not a party and which held that the reservation had been abolished has no precludes defect here in addition the nation the village also challenges the existence of so called exceptional circumstances under which it claims authority to regulate the nation even if the reservation remains intact those issues are raised by the village without the benefit of a cross appeal and unless the court has questions on those issues the nation will submit on them on its brief instead disappointing i will focus on this important body of supreme court cases that the nation believes determines the outcome of this appeal there are three important principles that i will address this body of supreme court cases clearly and explicitly rejected the proposition of the district court that the general allotment act and the burke at had the effect of diminishing reservations either by a lot united states versus the listing in that case the reservation had been allotted in accordance with a treaty which terms of allotment were nearly identical to those of the general allotment act and indeed the supreme court relied upon authority construing the general allotment act to come to its conclusion that a lot but under those provisions did not have the effect of abolishing decision was a fee a fee parcel held by a non indian nonetheless the supreme court relying upon its decision in united states versus a listing that the court had consistently construed the in the alternative the state of washington also argued that if not disestablished then the reservation was necessarily diminished over time much like the argument of the district court below by the passing of title t not indians in c citing soliciting the supreme court in c more specifically rejected this proposition and again held that there is nothing either in the terms or the effect of the general  and in fact it's remarkable that the district court cannot cite a single case where the court relied upon the simple conveyance of title either by a former allotment or by open surplus land to a non indian in see that would have the effect of diminishing reservation boundaries and in fact the th circuit the th circuit and the th circuit courts of appeals have relied upon consistently the court's supreme court's decisions in soliciting and  seymour for the general proposition that it is clear that the mere passage of title without more in feet when an indian on the reservation has no effect on reservation boundaries couldn't couldn't follow up brenda if i recall correctly there was no issue at all about changes in the reservation such as we face here but instead what the court wound up doing was saying that with respect to use controls there might be some changes in jurisdiction where there were some changes or reductions in the jurisdiction with respect to that particular exercise of governmental authority by tribes and accurate statement would you correct me on that i think that's a fair statement of the law your honor there is a body of supreme court cases that address that the whole issue of tribal authority over non indians on reservations and in several cases the supreme court has indicated in brindle as well as montana versus united states and others that the mere fact that the nodding in holds fee title to some portion of the reservation leave reservation intact but maybe limit tribal jurisdiction over the non india the supreme court has been very clear on that even those councils remain a part of the reservation unless there to regulate that not in good activity on their feet land be it land regulation hunting and fishing but nonetheless those parcels remain a part of the reservation and  judge in this case was obviously troubled by the consequences of the ruling in favor of the united nations in this case if i understand this correctly if we were to reverse then in non tried members would then in essence be subject to that body of law and to this network of intergovernmental agreements that you referred to a few minutes ago and that is correct your honor the district court did mistakenly find what he referred to as quote breathtaking implications close quote from the nation's position that the reservation remains intact in fact it's it's the contrary the breathtaking implications seventy eight the supreme court ruled in only font sizes to quantised case that tribes lacked jurisdiction over the criminal activity of non indians on their reservations altogether  as we indicated earlier in the montana case the court also very nearly circumscribed v f r the over of tribes over non indians for civil regulatory matters on their feelings on reservations but the court has always been careful in all of those cases to make clear that nothing in those jurisdictions limitations suggests that the reservation boundaries have been altered or abolished to the contrary they remain reservations with tribal authority over not indian activity and their fee lands there in nearly circumscribed but the court's decision here would undermine all of the decisions that are referenced before in all of the compact and agreements by certain states to exercise civil and criminal jurisdiction over reservations in their borders wisconsin is one of those states as a result wisconsin holds civil and criminal fardy over the oneida reservation including oneida those tribal police may be authorized to exercise the state's criminal jurisdiction all that reservations if those officers are certified under state law to meet the standards and be aware of the applicable law the nation has such deputy station so called deputies ation agreements with both brown county and out again the county where the reservation is located authorized its nine thousand officers to actually exercise state authority over law enforcement authority on the reservation however under the judge's decision instead of the sixty five thousand four hundred acres that is now the prince reservation that is now the premise of those deputy depravation agreements the nation's jurisdiction is restricted to the roughly fourteen thousand acres that are scattered throughout the reservation law enforcement becomes problematic if not impossible under those circumstances and the entire system under which the reservation is now governed in that regard will be completely overturned if we that has not happened yet your honor obviously if that isn't that would be a concern going forward but under the circumstances as they now stand both the state and the local counties have agreed to continue to abide by the so called the fact diminishment that the precipitation can be abolished the supreme court explicitly rejected this theory in its unanimous two thousand and sixteen decision regarding the reservation with reference to  area where not a single of trust land remained and it appeared that there were no indians and occupation of the remaining trust land that being the case there is no circumstance under which this court can rely on the district stemming from allotments with the directly addressed the court referred to prior supreme court case brought when coming to the conclusion that the land at issue was no longer part of the reservation because of those allot for that is so you don't you don't think the district judge was correct in allowing them to be anigh to nation to continue to exercise jurisdiction over the fourteen thousand or so trust act it was that subsequent activity subsequent to diminish and that that land came into existence prior to that ninety five  not certain exactly what you're referring to in that regard but that's what our team or what the story what the stevens court felt correct when he did guard reservation had then t any grounds within the record the judgment is that the villages special event ordinance applies to apple stuff that can be done either via the district court from using or also the preclu hamilton mentioned here there's a distinction between those two things then you're asking for a large majority of rights the treaty would no longer be in effect at all if we gave for close of effect to that case result as of today it is the same because of the union reorganization act there really isn't any difference in terms of how the district court's decision could truly be applied here in terms of which parts of the plant took place before the federal rules of civil procedure were in place especially bill twenty three had class action how should that impact our decision well st i would indicate that it is brought by someone the nation's own expert confirms had the authority to bring it on the nation's behalf he indicated he is bringing it on the nation's behalf and it is that is the way in which things were done as far as the tribe is concerned  typically so i don't think that impacts things because it is worded as precisely being on the nation's behalf by the authorized person to do that and i think that so is regardless of the rules of civil procedure on class action i thought it was brought on behalf of tribal members will make a difference it was brought on behalf of all the tribal members as often arise and represented by mr skin in order to have the authority to do that and bringing action by behalf of the tribe at that time is how things would have been brought because we have to remember this is prior to nine hundred and thirty four and the creation of the united corporate charter pursuant to wage a different form nation of its government came into existence back prior to the corporate charter under the indian reorganization act that's all things would have needed to have been brought by the nation and in fact was  it wasn't brought on behalf of the ones who had trust pat and that was clear and that counts in answer to the complaint i would agree that trust patents would have a different situation as currently exist in terms of the fourteen dollars acres those would be part of the remaining part of the fourteen thousand dollars acres but the actual implication of the case remains exactly the same as a district court here there's fourteen thousand dollars acres that are indian country the rest is not and that's true whether you appl stevens or whether you apply the district court's decision if i may turn to arguments in general i believe the test is not some sort of hallmark language or magic words which must appear in an act in order for a reservation to be diminished or dis estab d the test is is there some evidence of congressional intent to do those things and there is a supreme crime evidence evidence i mean we're talking here that we're talking here about the united some evidence is enough no it's not ok and i'm sorry if i misspoke in that regard but there is a supreme court case of precedence that clearly states using the word the policy and the purpose of the dawes act was to extinguish reservations and indeed reservations and i believe it is that line of cases which shows there is a clear expression by congress that the inten of allotments under the dog's act not the original allotments not whether still in trust or have some protected status but the eventual process all of that what's to end reservations as the supreme court has clearly held in  montana and as a th circuit as this court has indicated in wisconsin versus stockbridge monthly that every congressman believe reservations were thing of the past and would soon disappear because of the  solemn well solomon is a surplus land act case and it looks at the three criteria relating to that type of an act it looks for words of session or return to the public domain the villages point is that if the diminishment stems from allotment those type of the word would not be expected in fact they would be nonsensical in the context of allotments i think that's why in par reservation i believe that applies in all contexts i also believe that there are more there's more than one way to accomplish that it could be a surplus land act in which case you examine that language to see if they talked about ceding the land or clear indication the land was given up or just simply opened for settlement another way to do it is it then that open that simply opening reservation lands for non indians settlement is territory through a last minute so we're taking that position that this is a different role to accomplish the mission in order disestablishment you still need clear congressional intent but it doesn't have to be through a surplus land back teeth and in fact it would make no sense to look for that type of language in allotments there was no surplus land last tool open for settlement or to do anything with this is the old ideas of what has been noted by commissioner collier as one of the extreme cases of allotment meaning it went so far down the planned path of how the allotments were supposed to extinguish reservations the old expert of the nation in this case discussed the nineteen provision as a remarkable piece of legislation supported by congressman minor who was unsatisfied with the scope and extent of the burke act in terms of even mandating the oneida reservation allotments it's similar you look to the intent of congress with the string of allotments act of probable in this case and we have the supreme court using the word that was the policy that was the purpose of these a to supreme court authority that has diminished reservations in this sort of checkerboard fashion on the basis of allotments well that has never fan block in front of the supreme court i believe that it is an issue of st impression as is the argument that the allotment under the doj act can remove a reservation status i don't i disagree with the nation when they said the supreme court has clearly indicated that is not a possibility i do not believe there is a case where the supreme court has held allotment allotment through which there were restrictions on the allotment restrictions to a nation indicated that did not get rid of a reservation but the maps court said when all my aunts had been allotted and the trust period expired the reservation could be abolished so to the extent there is a supreme court precedent which at least touches on the issue i think it's mot foreshadow redhat but the rest of the rest of not just pretty hard to reconcile  up that i believe the triggering event was the removal of all restrictions of the past and provided to the native american and when it was free of all restriction that is what terminated the district court to the extend doesn't say conveyance to to a knotted it does not have to but we have that extra step here so if there was ever any question if with simply the removal of the restrictions on a parcel held by the union with inadequate which i don't believe there is as we still have the fact it didn't occur here in terms of going to non native americans which is a circus holding in gappy and which is things when it says the premier court precedent has clearly confirmed that is not a possibility if that were true the current edition of call untamable would label that an important pending question also i would point to the fact that this court's decision in the stockbridge muncy in terms of the question of what's the triggering event when it looked at the one thousand or six act language of put the ball to that try and it said well why have this result in the different holdings here so we have to look at what was existing for those two tribes at the time the thing that is the money that was mandatory on the secretary it in particular so if that discretion is basically a matter of degree and perhaps attaining but it is not a change in substance the key issue is the secretary had the ability to that's and that's the exact same thing the nation's expert held and testified in this case that the nine hundred and six provision relating to the oneida in his words was a remarkable act course by congressmen not satisfied with the berg act because honor i'm not entirely clear if i understand your question it's fire is the you know the jurisdictional issues that might exist in typically are linked to whether the land is under the series of acts and you did ultimately remove land from a reservation and to some extent as is the case line to gates and i believe that in the stockbridge monthly case the you know the loss of the federal government jurisdiction of controls that shed light on that is well we're here just like in stockbridge you know issues relating to alcohol problems were repeatedly indicated by the federal government to be something the state had to be deal with issues regarding hunting licenses and permissions work repeatedly stated as being something the state had to take care of that's pretty much true with jurisdictional issues across the board at that timeframe after the allotments were in  people were deemed to be citizens of the state in which they reside you're honest i would like to touch upon also the subsequent history here i believe it is rather clear from the record that the federal government the state of wisconsin and the nation itself all the reservation to be diminished if not completely dismiss stablished we indicate those items in our brief and some of the key examples but even the nation itself in more than one publication indicated its reservation was thought the substantial evidence i believe our expert indicated that the reservation was does it diminish to the extent there's a mixed record relative to diminishment versus disestablishment may be true because there was some confusion as land has been turned moved moves they do not have jurisdiction that that indicates a clear understanding at the time which is what needs to be looked at here that the federal government understood that to be the case i think the stevens case even to get issue preclusion does not apply here or is not considered is evidence of again the federal government the eastern district of wisconsin court believing that was the case at the time as does the whole case in which  another federal district court case refers to the area as a former reservation so you would add that from basically all levels of the federal government as well as the state at that time indicating that the reservation the ramifications here is not that overstated in our view in part because one of the things that happened here is the nation shut down and barricaded a village road because they believed this was all occurring within their reservation and therefore they had the jurisdiction to do this and not the village so that's a pretty exceptional circumstance if a nation is allowed to shut down a road under the jurisdiction of the state based government that's pretty significant the issues that could stem from that are far reaching this is also an extraordinary event in that this event literally doubles the population of the village in two days from eight thousand to roughly sixteen thousand because there's eight thousand gas that come to this a vast majority of whom are non indians picking apples on the land not trust land so there are some exceptional circumstances or significant issues here which regardless that is i think something that the deport was well aware of and concerned it great that we also see situations of the parker case being an example tribes extending extreme authority or attempting to over  environmental issues because they believe it's part of a reservation there is a large amount of for forty jurisdiction the tribes scream across the country on the land owned by nine indians and that has continuously led to their stiction of its fire that's being mitigated with governmental remembrance i would note the village of hobart has no such agreement with the oneida nor does the city of green bay four and fourteen percent of the reservation historic reservations within that city they don't have a service agreement either there may be some other nominal agreements but the primary service agreements which you typically see when you have th attempts at cooperation don't exist for the village of art or the city of green bay so again raising a larger jurisdictional concern and if this property is going to be still part of the reservation ownership was intended at the time at the turn of the century to in fact diminish or disestablished reservations and that is the time frame that the port should focus upon so the fact the united i'm sorry you have one minute left the final point here is that you need congressional intent certain hallmark language language that would not be expected if the diminishment is through allotments there are supreme court cases which i believe were this court to apply the stevens judgment to abolish the reservation altogether it is questionable whether or not the nation's eligibility for our yearly benefits including trust land would survive indeed this is not a fanciful concern on the nation's part the village of hobart itself repeatedly and consistently races that the alleged in applicability of the ira to the nation in every condemning administrative appeal were a challenge is a trust decision by the so there's no question that there would be an expansion of the judgment of the court to apply the stevens judgment secondly with respect to the villages argument with regard to the distinction between allotment and plus land to enter into negotiations with individual tribes for the acquisition of so called surplus lands the act makes no distinction between land that might be transferred with regard to the effect of that and that supreme court make the distinction in any of the cases that we've sided with regard to whether the land was obtained in fiji as a result of allotment or is the result of the surplus land act under that statute in fact in every case allot always preceded the passage of the surplus land act and yet in every case the supreme court held that the reservation had not been disestablished or diminished allotments occurred in the cheyenne river case and that the supreme court held in its decision that the surplus lands that diminish the reservation with regard to the ceded land but made no finding with regard to the  land which consisted mostly of the allotments that had been issued as a result the th circuit dealt with that decision that issue in the gaffa case and in that case the court was very clear that it relied upon the effect of the surplus land that dollars rd where the court says if congress is general understanding that tribal ownership was a necessary component of reservations that is controlled all land which passed out of trouble ownership would necessarily be found to have lost its reservation status a conclusion the supreme court has explicitly refused to accept and then later in its decision at page one thousand and twenty eight the court specifically find the land which it foresaw would pass into the hands of white settlers and homesteaders that is the allotments the court is very clear that neither of those events authorized by section five as a general allotment or a surplus land act had the effect of its own it's own of abolishing or diminishing reservation boundaries some further act was required and if i may say one final word with gives the secretary discretionary authority is the court observed to issue a lot with before the expiration of the trust period however the village is incorrect that that occurred at night in one thousand and six it did not that occurred over time in fact the original trust patents were issued in one thousand eight hundred and ninety two and were not scheduled to expire until nine hundred and seventeen before nine hundred and seventeen several parcels several in fact dozens of similar provisions that congress and that did from time to time to tweak the implement implementation of the general dos act to a particular reservation at least ten others applying the same secondly the nine hundred and seventeen dollars act was nothing more than an authorization to the secretary to sell for the tribes benefit which anticipated a continuing relationship the land that had been set aside at the time of allot purposes of school and this was just in anticipation of transferring to be jurisdiction from oneida itself to the kachina agency of the menominee reservations and it was principally for that administr purpose there is nothing either in the language or the circumstances surrounding that that indicates the congress understood that to be evidence of an intent to diminish the reservation  this case is that the district court made a decision here that is unprecedented with any authority behind it and has breathtaking consequences that are the opposite of those that the court itself found and for these reasons we believe that the district court must be rev