fact retire in the meantime but one of the this was a three to two decision whether in rome a committee to disenroll the op the family by the way if any my classroom working today side well larry echo hawk says in his opinion as a matter of law the federal government must supply and more stringent standard to enroll committee recommendations to in rome a committee recommendations to disenroll tribal members he should use a higher standard that's an excerpt record to ten who's a member of the tribe is it the tribe or is it you know the federal court who gets to decide this and it you know what i what i've been struggling with as long as there is some evidence to support w the tripe is done if they don't just flip a coin or are the equivalent but if there's some paces for what they've done don't they get the hopeful last word on who's a member of their own tribe is just a matter of you know  governance right thank you for that my colleague and dress at issue and more than than and indeed they have and all that all the issues that have been brought before the tribunals has been that the the agency the bureau of indian affairs has the final call on that and that was a gift i guess to the government and to this family in particular that in fact those that are by my distant rolling my classes family they're increasing their own paychecks because they get paid from a casino on a per capita basis so when they throw fifty four people out of their paychecks go up so there's a strong reason to look at the biases behind trying to eliminate the other issue that came into play in during that part was that mclean said center children to college and they were right enough in the power in the tribe and sitting on boards and panels so but things are going to try and involve those kind of appeal the ninth circuit another panel that said that the tribe gave the final decision to the bureau and the final decision to determine membership so in this case it's a little different than the other membership cases that you've seen before if you look at alto person is black and that's i don't have the side on it right now but it's a twenty thirteen published decision that says that that they gave up that right to the final government to make the final decision and but what i want to talk about to you is raised to the current i'm sorry i want to make sure i understand how this works i have the impression that the the bureau of indian affairs reviewed what the tribe did to make sure that there was evidence of what you know to support it's really not that they effect reviewed it ennobles to my right about that or do i have a misunderstanding of that understanding in this case under the governing document th that's not but i'm getting at do they is the final decision yes the tribes your old committee had evidence to support it or do they say we don't care what with the tribe committee did i get i get to look at it all secretary it was a secretary at that time but it was delegated to this it secretary had the right to make a final and conclusive decision that is what was done in this case in nineteen ninety five assistant secretary a dear under part seventy six made a final inconclusive decision on the my client's membership and right to membership in this ban that final inconclusive decision was not appealed by the band and they then there would be no basis for disturbing but the other provision i don't have the front of me but it's not part d i think of forty fourteen your honor forty eight fourteen does not apply these provisions you want that says if there is you know if you basically have new evidence that shows that the information on which the earlier decision was based was inaccurate then you get to revisit it and that's what happened here there was new evidence that posted the hundred five decision that called into question the accuracy of information that was used to make the first decision right if you take the whole part seventy six as a whole you have to read that organs as a whole in that organs it says final conclusive and if you take the word final that would be fine but the word final inconclusive and seventy six point fourteen means conclusive putting an end to everything as long as no new evidence surfaces that calls into question the accuracy of the information on which the earlier decision was based otherwise you've read out of the constitution that other provisions have and you know you have that ok well under your reading a final inconclusive would that other provision ever get get triggered to other tribal members your honor i wanted to lodge with you there's three subsequent roles after my clients a bit and rolled under part seventy six point four so they can roll a lot of other tribal members two and page five eighty six of the record and this is this was in the agency and alcoholic didn't even discuss this fact and what it says is that the band adopted by  seventy six the mast mr mast broadest challenge under part seventy six in the enrolment committee said part seventy six was what you should bring the roman challenger and part seventy six says is what our clients were enrolled under so you've got to look at that statute as a whole and you've got to say final conclusive and conclusive means putting any end to all inquiry so if it was and you've got to look at that statute together the whole the whole part seventy six have pleased the court john are bad for the federal employees could just make a comment about this emblems emphasis on final and conclusive i think that for better or for worse the term final and conclusive is to sort of  like the term null and void in the law and in other words the and void doesn't really add anything to the word in all in this situation the word and conclusive doesn't really add anything to the word final and i think that both secretary dear and her decision and secretary echo hakan his decision just said my decision is final for the department it's true that the regulation itself does have  extra words and conclusive but i don't think they really have much operative force and certainly not they they don't bear the weight that the plaintiffs are placing on that term i think  walker quite correctly pointed out that forty eight point fourteen d does allow reopening the final and conclusive decisions when you do read the regulation as a whole so i think the real issue here is  substantial evidence support mr eko hocks determination on the merits and if i could address one of the point that came up earlier the standard that echo hawk used was that the enrollment committee's  recommendation had to be supported by preponderance of evidence otherwise he would not accept it in a roman committee was arguing for much more lean years lenient standard in other words that echo hawk had to accept the recommendation unless it was clearly erroneous but the second assistant secretary rejected that in effect giving a more plaintive protective burden of proof placed on the tribe nonetheless he found that there was ample evidence in the record before him to support the recommendation of the enrollment committee and so i ask you a process question terms of how this how the review would work for assistant secretary  really i mean you would agree i gather that if no new evidence surfaced at all that the assistant secretary couldn't come along in two thousand and eleven and just say you know what i feel like taking another look at this and i'm going  the conflicting evidence and come out differently from the way assistant secretary dear did i did you that would not be permitted under this provision khurana i think that would be a much closer question it's it's not this case as you pointed out earlier the operative language of forty eight point fourteen d the standard as well as the earlier in rome and based on information subsequently determined to be inaccurate right so that suggests there's got to be something new that's thrown into the mix right i w probably a vast majority of cases that is true and there was new evidence here look at that that was the process question yet so you get one new declaration from somebody that wasn't available or that wasn't submitted to the system well that's certainly not how it worked in this case there was far more than just one one new affidavit oh no no i know but i'm as a matter of process all i'm asking is once something new is thrown into the mix then can the assistant secretary in the subsequent review basically reweigh everything because that some part d provision was triggered is that is that how it works and the thing about this case well the sec this is the secretary would have to come to a determination that the that the inaccuracy in inaccurate information standard had the not and if all you're talking about is one new declaration otherwise just a rehash of the same old evidence then i can't it would be very very unlikely ok but so the information that supposedly was called into question in terms of its accuracy by these new declarations that were submitted was whether marcus senior might be getting the name from but i think it whether marcus senior that information was subsequently determined to be inaccurate not not your honor just just based on the new declarations but what else was another evidence that all but that's what i'm saying then i read through this in secretary echo hawks decision and he's basically other than these day new declaration that seems like he's just plowing through the same ground that secretary dear did no your honor if i could i think i can throw some light on that in addition to the new doc aeration zz which incidentally were accept that the one thousand and seven new newly discovered baptismal certificate is that of of marcus alto sr that document throws into into great doubt whether maria was his natural mother because it was a different person those were not before secretary dear she made no mention of them and those were also something that echo hawk found to be highly probative because when you look at those censuses jose maria and frank al administrative record of many thousand of thousands of pages that alcoholic was faced with here and when you look at the materials that were presented to deer in the administrative record the census is or not the amongst the materials that were presented to her  mention of marcus so again echo hawk found reasonably it's not arbitrary and capricious it's supported by substantial evidence found that this is another indication that at the time back in one thousand ten the family understood that marcus was you clarify that for me certainly your honor and this is fleshed out to some extent an alpha one the first appeal but essentially under the part forty eight regulations and also into parts of the six regulations for that matter which don't apply  the band only makes a recommendation to the assistant secretary this isn't secretary has the final final say as it were the final approval or disapproval authority he can either just bear in mind that this is an in the strait of procedure act case the court has a limited review function the truck the trier the finder of fact was mr eko hawke and the only question is did he act arbitrarily and plaintiffs certainly think that the trier of fact or the finder of fact should have come to a different conclusion and maybe arguably a reasonable fact finder could have come to the opposite conclusion but that doesn't mean that the rule and also explain why we are bound by the plaque saying that forty eight per forty eight is the controlling rule well your honor i think i think essentially the court is bound by that as you pointed out earlier all parties agreed that part forty eight applies and that was the assumption that the court used in the first appeal to finds that contrary to the band's argument in the first appeal that the district court had had jurisdiction to even entertain the case and jurisdiction to enter preliminary relief but as to your other question your honor i think it doesn't make any difference as we point out in the brief even into indulging the erroneous proposition that the revised parts seventy six regulations apply those regulations have a counterpart to the reconsideration rule in forty eight point fourteen d and you find that it part seventy six point i'm going to take four minutes and leave one minute for mr him one by four minutes of our five minute you'll have a minute left i only have a minute left ok well the reason you can go ahead from alto versus plaque and apply sept part seventy six this because review you have to look at the whole record and in in the whole record it shows that part seventy six was adopted by the band in one nine hundred eighty six that was a piece of evidence that was not before the district court and was and the agency didn't cite that piece of evidence in the record and you've got to review the whole record as far as evidence that that supports the agency decision and about record that the tracks of it as far as zero nine to twelve and to thirteen it's a two thousand and eight decision they apply race judicata to agencies decisions why should you apply it because if this is a final and conclusive decision why do you play part seventy six because that is the governing statute as i suggested the challenge itself was brought under part seventy six and that's in the agency record itself we how do you respond to your opponent's point exact same permission it does have because i responded that yes it does in the way you have to read the whole ordinance that's what the caught of cases that we've cited in our preview have to read the whole heart seventy six  decisions and dison rolling up my clients who have been native americans he took away their culture their identity they took he took away everything by dissin rolling them and saying that he's that there are ancestor was a child was a mexican and not a native american they have been known as native american since one thousand nine hundred twenty when they were on the u s census and one nine hundred thirty three when they were on the california judgment rolls thank you the case of