judge gould and i before we begin would like to extend our great appreciation to chief judge cole of the th circuit court of appeals who's sitting here today by designation and is helping us with our docket and we're very grateful that you're here thank you very much thank you we're ready to proceed with our with our docket this morning the st case for oral argument is club one casino versus david bernhardt if the parties are ready to proceed and please come forward good morning your honors may please the court over link majority overwhelmingly rejected a compact for vadis style casino on the darrell parcel that is the subject of this litigation that vote should have ended the matter because here we are in a case where the federal government pushing a new and radical theory ignores the will of the people and proceeds to cram down that casino on a state that doesn't want it where where is the state the state is not a party in this case sandy here i'm curious and i just say no i haven't and that's really sorry your honor i did i just wanted to see if you could enlighten us or give any information that the state has not participated in this case and what it prompts me to offer as a thought to the court as it goes through and analyzing the issues i'm going to talk about the statute and what the statute says and a related statute on on federal jurisdiction but to the extent my clients are seeking to vindicate rights under the th amendment those are rights that belong to  them th amendment rights don't just belong to the state the supreme court has been very clear about that in bond versus united states and when you look at the  have we have a piece of farmland in the central valley california has enjoyed exclusive primary jurisdiction over that land since statehood it has never see did jurisdiction to the federal government the land is not the tribes reservation and it is undisputed on this record that this is land that has never been settled or governed by an indian tribe it was given to the federal government by a private casino company in two thousand and thirteen there is no case there is no statute there is no principle of constitutional law that allows a private parties d to somehow shift take away or reduce the state's primary jurisdiction over land within its borders that is than the of this case now the federal government ignores that principle and here's the government's argument and when i said a radical theory i meant it this is a heading from the government's brief and this is their argument tribal and federal  dare a parcel a rose without state consent or session there is no case that says that there is no statute that says that in fact the federal jurisdiction statute title forty section three thousand one hundred and twelve says the opposite says if any department of the federal government deems it advisable to acquire jurisdiction you do that by requesting a pullets do you what's your what's your response to that i don't think that's true your honor and i want to i'd like to respond to that i'm going to talk about some of the cases that come up in this area there's no case that i have seen that specifically analyzes the federal power to unilaterally acquire territorial jurisdiction are some cases that assume and but they don't know analyzed where would that power emanate from and the gaming act here is very very specific it's talking about jurisdiction over land not over people over land and it doesn't say that just once it's repeated throughout the statute and in particular the part of the statute that regulates casino gambling comes up seven times in that part of the statute and you have for example section two thousand seven hundred and ten d one way to proceed a tri must enact an ordinance but it's got to be a tribe with jurisdiction over the casino side two thousand seven hundred and ten d three in order to request the state to enter into negotiations the tribe must have jurisdiction over the casino site or the mediation process to be invoked the tribe must have jurisdiction over the casino site and the secretary of the interior doesn't have authority to issue secretarial procedures on less it is lent over which the tribe has jurisdiction does the try pier exercise any governmental authority over the site such as  contracting for law enforcement services fire fighting things of that nature know the only thing in this record your honor that goes to the exercise of governmental power which of course is a separate requirement from jurisdiction there's you have to have jurisdiction over the site and there's got to be land over which the tribe exercises governmental power the only thing in the record is a grazing ordinance and i would suggest a couple things about that if i might number one that ordinance if you will is more akin to the exercise o land owners rights as opposed to gov governmental power why do i say that because if i own land i can require somebody to pay me a fee to come on my land if they want to buy a branch and they want to graze cattle i can give them permission to do that i could give them an easement i could give them a lease those are landowners rights what we're talking about in the gaming here is st acquiring jurisdiction and then having lands that the tribe has not just acquired beneficially because a casino company gave it to the federal government but land that the tribe is actively occupying and governing and if you look at you say the tribe didn't exercise any governmental authority but as i understand it and but please correct me if i'm wrong try seems to exercise some governmental power over the land based on the fact that in late two thousand and six the tribe entered into an important one binding i park all intergovernmental agreements with the county in mid air and the city of for the provision of law enforcement and fire why isn't that sufficient to address the governmental authority and power that's a very good question your honor and let me tell you what my response is those things were done before the tribe had an interest in this land you can't exercise governmental power over something that you don't have and you don't have jurisdiction what's your  that look at the gaming act it has two requirements one is to get your is diction the other is to exercise governmental power you can't just create governmental power without having jurisdiction that underlies it that's the famous quote that the exercise of governmental power without your restriction is ineffective that it worst its invasion jurisdiction comes st and the supreme court has been very clear on this point to the extent that what you find with most indian reservation if you look at the admissions statutes of many states there's an express not trying to make a pun here there's an express reservation of jurisdiction well in the federal government but there seemed to be another example when it enacted an ordinance in october of two tribe that annex ordinances and enters into intergovernmental agreements with state and local governments exercises government mental power sufficiently within the meaning of i grew up so i guess do you have any authority that contradicts that the if you look at there's a case that came out of the th circuit i think it involved the shy and sue where the court went through a lit examples of how a tribe could exercise governmental power and it's not just one ordinance it was a litany of things you know as as you recounted it you have housing you have police y fire protection you doing all kinds of things on the land i would add your honor that when you look at the case you cited the wampanoag case there was a stipulation in that case that the tribe had jurisdiction requires the secretary to make formal determinations as to whether the tribe possessed jurisdiction exercised government power over the parasite as you have been asserting but what what specifically in  agra or other federal law requires those formal determinations can you point to me i think that the response is that the statute sets a gateway requirement of having jurisdiction if the tribe doesn't have jurisdiction the secretary doesn't have authority to act we say what the secretary should have done was look at the facts look at the history of this party i thought transferred the land to the federal government which it then held in trust for the tribe that's correct right that is correct th correct then even without a nice formal session of the state isn't there some president saying that in that context the state retained some jurisdiction but the tribe also has partial jurisdiction over the property i think the problem with any court that would say that your honor is that you run up against the federal jurisdiction statute which is section three thousand one hundred and twelve dollars which speaks to the acquisition of any quantum of jurisdiction whether it's exclusive whether it's partial or whether it's concurrent and the supreme court has made clear that that is the rule under that section and so what you have here is a constitutional and statutory structure that respects state's primary jurisdiction over land within its borders and that jurisdiction is not diminished without the state's consent and you can't create jurisdiction out of thin air that's our position in this case and if one looks let me just give you one last example here because i know we're running short on time and i do want to have some time reserved that the fort leavenworth case older case no question about about reserving jurisdiction to the federal government over that land and the court said the way one corrects that is by getting a session from the state in that state it was kansas and they got a session it wasn't complete jurisdiction but they got a session yosemite here in california that case that the supreme court collins versus you somebody where the supreme court said fifty years after fort leavenworth the way to adjust what's already there as the supreme court has said most recently in the whole y e case the consequences of statehood are immediate they are complete and you can't alter them after the fact and in this case  you know as a separate point we have about concession there are statute tory grounds upon which to say this because seen oh this project doesn't fit within the framework and if the court says that the case is over if the court says jurisdiction transferred which is what the district court said that's the federal government's position if you say that then you're going to come up against the th amendment and you have to square that within that concept you thank you thank you you used all your time oh ok here if we begin from the premise that the only action before this court is the issuance of the secretary of procedures the threshold question is whether the tribe had jurisdiction at the time the procedures were issued the answer is yes and we know that because once the secretary acquired the mature parcel in trust for the tribe under the indian reorganization act that parcel became indian country and we know that because the supreme court's decision and then a tie established that once the federal government sets aside land for a tribe under sets aside land for a tribe and the federal government maintains some federal superintendents over that land it becomes indian country and indeed that's the circumstances that are  indian reorganization so here so this parcel was taken in trust through the ira correct and so once it was taken in trust then that's when  the statue comes in with it once it's sticking with the ira once the lambs taken in trust under that statute there was a grant of federal and tribal jurisdiction that operated as a matter of law and as i said the sequence being the lands taken it to trust it becomes an indian country and then you have federal and tribal jurisdiction that results as a matter of law under the indian reorganization act and their dad and in this case what impact does a state referendum have on that process in this particular case it doesn't have an effect the referendum and if the court will just bear with me if we go through the short timeline the referendum occurred then vote was taken in two thousand and fourteen prior to that time and on this record there were a series of events that led to the ultimate issue of this secretary procedure but it also led to the land being taken into trust tribal jurisdiction being established so if we begin in two thousand and eleven the federal government made a two part determination it's called the t determination under section two thousand seven hundred and nineteen dollars and in that two part determination the secretary determined that gaming could be conducted on the material parcel it then sent that two part recommendation to the governor and the governor concurred in two thousand and twelve and in two thousand and twelve the governor signed a compact with the tribe sent that to the state legislature which voted and passed it then at  had been a long procedure the government acquired finally acquired the land in trust for the tribe in two thousand and thirteen as i said the state legislature now ratified the compact with the tribe and the proceed the way in which the gaming would be conducted and in two thousand and thirteen the state then sent the ratified compact to the secretary for final approval and in october two thousand and thirteen the secretary approved the compact and at that point all was ago the land had been acquired in trust the tribal jurisdiction kicked in the compact had been certified and approved and it wasn't until november of two thousand and thirteen that the referendum was even certified everything had been to had taken place before then so on this record all that was relevant to the questions of jurisdiction for example were taking care of been in place prior to the referendum the referendum had only one effect and if the court looks the at the exact language of the referendum it speaks only to the validity of the tribal state compact that the governor entered into in two thousand and twelve it's the compact that was nella fide and that's why the tribe had to go back to the state going to the factual background of this case the tribe had to go back to the state and say will you please renegotiate for a new compact because the old ones been nullified this case didn't have to go back to going back to the land acquisition or going back to the to the secretary's to part determination about whether gaming could occur but as a result of that then the process then turned to the special procedures correct correct and so i guess i'm curious how seems like that's rather rare going through special procedures or is it i can't speak to whether it is but the fact that there are specific remedial provisions in the in the statute makes me think that if if nothing else congress anticipated and there's a way to address it when it when those circumstances arise and so you don't know how many times that the next minute i have happen through the secretarial procedures being a shoot i'm afraid i deny can't give you a number but if the court would like i could provide that  what what do we do since there's a case pending before the california supreme court concerning the authority of the governor of california to concur in the secretary's determination to take l what the skull for new supreme court to us on this as to the issuance of the secretary procedures on the record before the secretary at the time the procedures were issued no eager it doesn't anticipate that for example when the secretary gets a concurrence in the two part determination from the state or when it gets a finally approved in legislatively approved compact that after all of the prisoners all of that the requirements are met that let's say years  secretaries to go back and look and say well let me reassess we have to reassess whether there was validity as to the determinations and decisions rendered by the state i don't know if you runners are familiar with me but th the national environmental policy act but unlike nepa where the government is to keep abreast of circumstances on the ground in meeting will have to supplement its decision there's no requirement that the government is to do so here so we're here on the record this court is judging the secretary's actions on the record that was before the secretary at the time the procedures were issued a part part of this appeal seems to turn on the meaning of jurisdiction of the term jurisdiction and  phrase exercise is governmental power which appear to be undefined in the arg i g r a what do you how do you define it how should we define it and i'm just curious how do we approach this because this is being challenged under the a do we apply chevron deference at all to your argument can you help me sort that out well your honor as to an exact definition i'm reluctant if if congress didn't provide one i'm reluctant to provide them but i don't know that we need a specific definition of jurisdiction let's begin st that as between jurisdiction exercise of governmental power jurisdiction would be the primary the threshold concern and here as i've established and as many circuits have established for example that run through that i explain as to when government takes land  to trust there's indian country that's there's distinction that's supported by the supreme court invented tight supported by the th circuit in langley a circuit in yankton sue ten circuit in the roberts decision but once we we have established a restriction which we believe is clear by case law precedents the question of the particular instance in which the tribal has exercised its governmental authority is somewhat secretary secondary and most courts haven't paid significant attention to it because for example if you have just a singular exercise of of tribal government authority that's sufficient and as you recognize your honor the passage of an ordinance by a tribe is an exercise of governmental authority there is no there is no supporting authority that says the record must be replete with with examples of it or there must be many examples of it and also we have to realize that the land was acquired in two thousand and thirteen the final acquisition and this lawsuit was brought in two thousand and sixteen were not necessarily going to find a ton of examples of the way in which the the tribal government exercise its governmental authority but we have an example the district court found that example and so the requirements have been established i would just like to point out also kind of an overarching principle the supreme court  state interests both of the courts have held that any assertion of state authority must be assessed against the crucial backdrop of one traditional notions of indian sovereignty and to the fact that both tribes and the federal government are firmly committed to the goal of promoting tribal self government a goal embodied in numerous federal statutes and indeed for purposes of the indian reorganization act issue here the supreme court in man cari and this court in arctic choke joe's held expressly that the overriding purpose of the indian reorganization act was the act under which the land was acquired was to establish machinery by which tribes would assume a greater to agree of self government both economically and politically and more recently in peabody this court concluded that the indian reorganization act was conceived as a means by which to restore tribal sovereignty and to promote tribal self governments now against this backdrop it can hardly be denied that these particular and undisputed purposes of the indian reorganization act can be fulfilled only if trust land acquisition under the act results by the operation of law in the tribe having some jurisdiction over the land on which it resides president says that that's how the law for its well i think this court addressed when you have assertions of or questions of both state authority i'm sorry in tribal authority i think in peronne a band this court addressed that most directly stating that state distinction is preempted by operation of law if it interferes with or is incompatible with federal  reflected in federal law so here the federal law is the indian reorganization act to the extent that that state interests interfere with the federal purposes of the indian reorganization act there that that the tribal state jurisdiction shifts away and makes way for the tribal and federal governments i hope by yes yes you have thank you very much  unless your honour's have any other questions i think i think we can just want to check to see if there's anything in particular that i wanted to point  out club one casino raises two arguments for the st time on appeal if you could just briefly address whether or not they're weighing and or whether we should go ahead and address those the st argument being i believe the challenge to the secretary's two part determination that as we have argued in our brief that is forfeited because it wasn't raised at all and more importantly perhaps is that that decision by the agency is was  final agency action that took place in two thousand and twelve it has been fully and finally adjudicated and is not before this court so there are numerous reasons under which the court need not reach that issue and  the nd is that the governor of california lacked authority to concur in the secretary that's not at all issue here and if it were that the state is an indispensable party and the state is not a party here the state is a sovereign government and thus couldn't be joined so that's another issue that the court need not or could not reach thank you i'm so sorry you have no time but i will give you two minutes thank you i will be depressingly  brief the new issue on appeal i think there is abundant authority within this circuit and others that the court has discretion to consider that issue and i think one of the factors it's most appropriate here it avoids having to deal with a constitutional question we did not raise the question of the governor's power to concur that's before the state supreme court the point we were raised on appeal is that whatever the governor said in two thousand and twelve the governor turned around and said i'm not going forward with this casino because the people have spoken which is essentially a withdraw all of his concurrence and under the gaming act with after acquired property if there's no concurrence there's no casino gambling it's an absolute veto and there's no case i know that is considered the exact question of whether the concurrence once given can never be withdrawn even if it's withdrawn before final action the other thing i wanted to just respond to briefly is that and this is i think i hope is responsive to judge rules question that indian tribes clearly have inherent sovereignty we're not saying they don't have that but that inherent sovereignty is the supreme court has taught us in the last forty years doesn't apply to  nonmembers unless there's a specific exception and those aren't present here and so you can't get through this issue by saying well a tribe got you restriction because that's wrapped up in its inherent sovereignty and that is what the court said in the st circuit in narragansett the problem with that is that was a decision that came before the supreme court spoke in atkinson trading and plains commerce bank i think think the supreme court's been very clear if you take the inherent starvin to cases they don't create the kind of jurisdiction that the gaming act was talking about and there has never been a case where a private parties deed has shifted and diminished a state's primary jurisdiction