this court is whether the origin of a court of indian offenses otherwise known as a c f r court the power to prosecute criminal offenses is the tribes inherent authority the federal government or both for the reasons i will get to in a land but this case does not involve a tribal court created in administered by the triad it involves a c f r court created by the federal government in particular the department of the interior in this case both the c f r court and the district court drive prosecutorial story from the federal government and to different degrees inherent tribal sovereignty so i'd start with the federal government as a source of a court the department of and the interior no it's that the purpose of the courts is quote to provide adequate machinery for the administration of justice for indian tribes in those areas of indian country where tribes retain jurisdiction o and instead has exclusive jurisdiction but where tribal courts have not been to stablish to exercise that jurisdiction and other words the c f r courts or some house like stopgap court where i tried has not exercise its inherent authority to establish its own court the regulations that establish c f r courts do not require that a tribe consent to their creation it is solely a creation of the federal government although the regulations permitted tried to approve court rules confirm the appointment of judges and address other court matters the regulations requiring such approvals may be waived by the secretary and of the interior so that ultimately the secretary of interior is responsible for the administration and functioning of the c f r court the regulations limit the court's jurisdiction so for example the tribe may not be sued in the c f r court unless it waves its tribal immunity find additionally the federal regulator regulations for scribe the crimes that may be prosecuted in the c f r court and although the allow it tried to enact ordinances that are in forcible if approved by the assistant secretary of the interior the bulk of the crimes are defined in the federal regulations regulations themselves and in this case mr nez p was charged with three offenses two of which were defined in the c f in the code of federal regulations and one of which had been established by the human you tribe finally the records of the c f r court belong to the federal government not the tribe thus while the  courts function as tribal courts and our vehicle through which a tribe may exercise its prosecutorial authority the tribes inherent power to prescribe laws and punish infractions of those laws is not the only wellspring from which the court's authorit springs an additional wellspring is the federal government and this is in contrast to tribal courts tribal courts are created by the tribes there administered by the tribes and they enforce only tribal and in my brief and also in the government's brief we cite the cases that recognize the hybrid nature of c f r courts and in these cases the issue is whether his jurisdiction really bother the c f r court were top really created in other words did the federal government have the power to create the answer being yes and then the nd question being do those courts have jurisdiction authority or exercising indicia of federal sovereignty when it seems clear that the question of whether a seat of our core is controlled by the federal government whether it's the fly by the regulation of the federal government honor i agree but i think that this case is different than sunshine because the authority here i mean there's no question tribes have the authority to prosecute and the federal government has the authority to prosecute but here the federal government it's not just that the federal government understand why don't we matter because it matters you know because it ok so and i think in other cases where the courts looking at the dual sovereignty doctrine the courts are not created and managed and municipal court derives from the same source of power as a state court and double jeopardy applies here the c f r courts are derived not only from tribal sovereignty but also from the federal government's supervisory authority over indian land so it's the same it's similar to so indian tribes retain that inherent jurisdiction to create crimes and prosecute crimes on their land period so they r inherent jurisdiction are they here in authority for example to to criminalize the crimes that are listed in the major crimes act and the federal district court exercised their jurisdiction because of the united states exercising article three authority relative to federal statutes that were congress promulgated under or enact it under article one i mean there is the structure is not the thing the federal find me how a federal district court is but rather that in essence like that the the enactment of the statute stems from tribal authority that the the government has supervisory authority over the tribes has chosen that there are certain because of it tried to dependent status right and so i think the same thing is true in the c f r court where they're creating courts because the tribes are dependent and they're setting forth offenses where a tribe has tribes and the c f r accords with respect to the jurisdiction of the court courts won't have jurisdiction over a tribe unless the tribe waive that sovereign immunity so i think that there's that the tribal court in force tribal law so they may adopt or incorporate the c f r offenses but they become tribal law so it is it is slightly different and in a tribal court you know the creation the management all resides within the tribe and then if it is none of i don't think i lose your honor i think i mean i think this is a really unusual case because in other cases before this court in the supreme court the sovereign the sovereign sovereign entity at issue creates manages controls the courts that are issue of whether it's a municipality or an indian tribe and tribal court the federal government here it's both i mean this is a this is a you know a hybrid court where the source of power is coming from the un extinguished the power of the tribal court and also from the federal court will go to court part of this is simply to provide a mechanism for the prosecution  source of the power you contend that the federal government is the source of the power as opposed to simply setting up the adequate i do and c f r court your honor yes because those courts are created without the consent of the tribes these are not and some in some instances tribes may adopt c f r courts a tribal court but under the you know looking just at the statute and looking at the regulations these courts are created from the federal government this is not a creation of the tribe of its own i'm not sure i mean i i'm not sure over time that may be true i mean in the beginning it was the court to see if our courts were created to fill a gap you know between state and federal jurisdiction where there was no tribal jurisdiction so i think there could be it could be that a tribe acquiesces by an action or it could be that a tribe simply acquiesces because they don't have the capability or the desire to set up their own tribal court and you know that there's no further questions i'd like to reserve some time for r critically it does not say that it's creating any sort of jurisdiction and most relevantly it's not saying that it's creating a federal jurisdiction the machinery itself does not determine the ultimate source of the power and jurisdiction by way of analogy i i think it's helpful to consider these courts very much like a car the ultimate responsibility for what the car does or where the car goes is the driver the make and model of the car or the machinery in terms of the regulation don't change the responsibility of the person behind the wheel in that you cannot and you would have chosen this forum to join a kid tribal disputes and exercise their jurisdiction the clearest example of that from the record is the very charge but constitutes the lesser included offense in this case the assault and battery conviction which is a violation of title six section two of code why couldn't the federal government incorporated and prosecute and allow for the prosecution of it in a c f r court as the court would be corollary or the analog being the situation where you have to some of the crimes in federal district court you can prosecute datacenter so i mean why couldn't the federal government take it in the c f r court or any why couldn't the c f r court prosecute weed out the tried things go ahead and do it pursuant to the point very powerful congress to regulate the domestic dependent nations you could you could argue that they could in fact do that what it does show however is to helen's issues with respect to the contents of the tribal council that they have agreed or done more than simply acquiesce to these courts being the forms through which they revolve resolve disputes given the status of the other tribe the united states congress has the ability to eliminate a tribe that has the ability to do essentially whatever it wants with respect to the tried to quiet lacking some sort of affirmative action i don't think there's the story at this point to say that the federal government c ask with respect to the ultimate source of the ability crimes to be prosecuted in that form and that's consistent with the long understanding that the federal government is not government to do that it could but a challenge reading of the nature of the c f r court would be result in a sweeping expansion of federal power to interfere with the sovereignty of the tribe and that's something that given the of congress you would expect to see some more affirmative than a regulation promulgated by the bureau of indian affairs which purports simply to set up the machinery or it's referred to in other other aspects of case i do think it's important for the court to consider how the court of appeals interprets their own lower trial courts and cited those in the district court's decision below and both jurisdiction such as c p s gaming kaito nation of oklahoma and it conflicts with the notion of how congress interprets these courts in the indian civil rights act and twenty five u honor it's an interesting it's an interesting hypothetical i i would i would suggest to the court that congress would need to affirmatively to exercise their established plenary authority to regulate the tribes regulation that talks about machinery of this channeling function would would get if there a palin mention in response to one of judge seymour's question what's the difference between a tribal and our court submit to this court that there's very in terms of the jurisdiction there's no difference their jurisdiction matches the boundaries of tribal court jurisdiction exactly and tribal courts are still very heavily regulated by the federal i've the appellant's argument gets closer to asserting that that level of federal oversight creates the courts as an entity of the federal government that will butts up against the argument that was wheeler case where the supreme court's that that although these courts are heavily regulated although these tribal courts are present by virtue of congress allowing them to exist as domestic dependent nations that day still have the ability to bring cases in the names of the tribe and they're not simply just creations of the federal  g of where these courts get their power to prosecute appellants arguments for the dual wellspring analysis if you were to look at that through the lens of the century val chase you could make an argument that the puerto rico in the united states government would have a much better claim to such a dual wellspring approach than you do in the tribal setting where you have a constitution that has been ratified by the puerto rican people but i would submit to the court that if such if such you'd do well to bring this possible you couldn't probably find a better example of where that would occur than than puerto rico and as we see in the century val case the supreme court says explicitly we're looking at the ultimate source counsel this is judge homecare i switch to the other issue in this case for a moment please related to the mission of the witness statement right yes you are ok as it relates to that testimony was an argument for unblinded error that give me a little bit of concern i want to tease that out with you have bit because it seems to me that the two was considerably closer than what we have here i mean what we have here is do you know this person socially and response to that was some conversation of was this reference to him having battered the girlfriend error no your honor that's not our position but i also think it's crucial to look at the the full extent of the cross examination that occurred in this case the   from the discovery made available that this was the use of the other instances got the w in the street and that's been from but knowing him and talking about battering the girlfriend it seems to me are t to be some boundaries here and again if you can tell me something in these cases you cited that suggests that the net says here is the same i'd appreciate knowing it because i don't see those cases as being analogous to what we've got going on here woman and here she is saying that he did the same thing someone else why is that harm us just because of the overwhelming evidence i think for a couple of reasons your honor st of all the overwhelming of all it was never referenced by counsel either by the government or defense counsel for the rest of the trial secondly the v w made a variety of materially consistent statements that are consistent with the physical and forensic evidence that was found in the case and rd most importantly mr gillespie provided six or seven completely inconsistent recitations of what occurred including one that was done under oath before the jury which contradicted his defense counsel's question and i think that the court is exactly right that the invited error doctrine cannot be read to say that if defense counsel asks a question that the answer given no matter how far afield it is from the question cannot be reviewed by an appellate court and in this case the the wise answers were clearly beyond the scope of the questions asked by defense counsel and when you read the transcript it's apparent that she was trying to interject prejudicial information into the trial so she was asked you know st did you have visits and social conversation at city market and the answer is no i've you know i the only time i've seen him was when i used to sign my children he or i would see him when on appeal and so why the bet affectedly way thus far your footnote suggesting that these were part and parcel because they were around the same time but why does that even work here i think that the i think that they need to be read into in i recognize that council didn't object but i think you can only read them fairly together and counsel did object and ask for the them to be struck and they were highly prejudicial in the context of the case because credibility was key and prison and was an abuser of his prior girlfriend when i answered it it was not harmless in the context of the entire case and we've asked that i asked the court to reverse this case on the double jeopardy grounds and dismissed with prejudice or an alternative to