good morning anthony brought him in on the half of a bang may it please the court would like to reserve three minutes of this you want to appeal in this case is whether the holdovers and dodge can avoid the reach of rico because they allege suit is an interest will dispute but rico itself vests the district court with federal question jurisdiction eighteen u s c section one thousand nine hundred and sixty four c states that jurisdiction lies in quote any appropriate district court case the election challenge your honor is is pending at at this time the case summary judgment crossed motions for summary judgment there have been cross motions filed doesn't make sense to say this appeal pending the outcome of that case i don't think so your honor because the jurisdictionally relevant moment during what what we refer to as the rico period is pretty clear it was subject to the next sac verses case which was found in the western district of  washington case number seventeen to nineteen in that case the holdovers attempted to go to court and have the district court recognize them as the as the governing body of the next sector of the western district of washington said no you're not you are not the governing body of this tribe  holdovers failed to appeal that decision the partner fact that is very critical there is that the two thousand and sixteen determinations from the department of the interior about the holdovers clearly stated they were not the governing body during the rico period those decisions were never overturned there was a special election later but those decisions are still good direction from the department of the interior for the rico period so the tuscarora rule really should be the beginning and the end of the court analysis here it dictates that federal laws of general applicability apply to tribes indians in indian country unless the intramural self governance exception is satisfied corner and the district court cannot make a decision adding somebody to a tribal role taking somebody off a tribal role that is not the relief that any of these litigants are see going in the district court case that is not relief that can be provided with the district would have to find that the members were wrongly essentially their membership was taken away wrongly i guess before they could assess the damages no your honor and this is a this is what makes this case different than any other case so district courts in the th circuit look at indian tribal membership every day it's a it's a basic tenet of indian federal criminal law that question is not off limits to district courts the court can make a decision about whether somebody is a tribal member not what the what the court can't do is add somebody to a tribal role or take somebody away and that's not what's being asked in the rico case well let me because your time this short so let me get to the heart of this the district court said that at the heart of this case is a question about the this in a role meant and and so as the court said it's really a dispute about respectfully disagree because again it does not require the court to make a decision that would end in and woman or disenroll man and it's admittedly carefully pled in order to comply with the with the rico statute all that is because the key is here is that the energy purporting to disenroll during the rico period was not a tribal government and that was determined definitively by the by an exact tribe versus inky the entity per this is a classic rico case in that a legitimate organization a series of legitimate organizations part of the formerly well formed nook sack indian tribe were co opted by racketeers people who did not have the ability to make decisions on behalf of a tribal governing body that was the that was the result of next verses and the three determinations throughout two thousand and sixteen it doesn't rely on the fact that somebody was correctly unrolled incorrectly and ruled it realize that this case stems from the fact that the people purporting to take these actions were not the governing body of the so the intramural self governance exception is really as far as the court needs to go you don't need to go to the intertribal dispute doctrine and the most critical issues surrounding the self governance exception is that it only applies when the tribes decision making power is usurped but we know that the district court could not have usurped tribal decision making power because there was no tribal government to usurp during the ricoh period again that was definitively established in the case the nd reason why the intermural exception can apply is that rico violations by those purporting to be a tribal government are not purely intermural just like the relief sought tests that you'll probably hear about in the sovereign immunity now assess the relief sought here is not a declaration about who is a tribal member who is not a tribal member who is a governing body who is not a governing body and recognizing that they don't prevail under the holdovers argue that the interest dispute doctrine takes back w is not correct let's look very very quickly with my last few seconds at what the court can't look at under the intertribal dispute doctrine smith versus babbitt it can't rule on a petition to a federal court to make a person a member it can on a petition to force the federal government to make a person a tribal member under lewis versus norton and vs jewel and kotto versus dutchy it can't rule on a petition to make somebody a tribal leader it can't resolve faction disputes but as the courts in the th circuit answer every day it doesn't have to turn a blind eye to capacity questions like the th circuit held to make a sooky capacity questions about whether an entity is acting in the trust in the scope of their tribal authority are questions squarely within the jurisdiction of this court so you're saying that if they if the district court finds that the governing council was not the governing council or was not were not the people that should have made the decisions then damages can be avoided that would be a question of official executive or judicial immunity which is how this case should be resolved it should not be resolved by a district court putting its head in the sand because somebody alleges that there's an interchangeable dispute it should be done in an orderly fashion using executive privilege legislative immunity or judicial immunity thank you i'll reserve morning is exactly correct this case is and always has been a matter of no exact internal tribal membership that has been are fully pled under rico to create federal court jurisdiction the this case in that jurisdiction over rico claims that there were fundamentally based on a quote scheme involving fraudulent tribal membership there the issue was whether certain non members were getting in roles within the tribe and that's page five  opinion the th circuit noted that looking at the facts of back it's looking at what the allege rico scheme was the plaintiffs were simply using rico as a tool to move a case that should have been in tribal court to federal court and the same holds true here the court need look no further than are a bang's own words in the nd amended complaint were bang uses the terms in rule or disenroll no fewer than fifty six dollars times and importantly just like in smith the entire rico claim is premised on the idea that the purpose of the rico scheme was to quote fraudulent lead deprive plaintiffs of their membership in the tribe that's it you are to twenty five to twenty so we ask you the same question  complaint is big based on this fraudulent scheme to disenroll tribal members the issue is dispositive it doesn't matter about the relief that the plaintiffs are seeking in this case just mark has your point is exactly right to federal courts have no jurisdiction now mr brahman mentioned the tuscarora rule a couple of times this morning but it's never been the case and is not the case now that tuscarora or the fact that rico is a statute of general public ability can overcome the fact that a federal court has an obligation as a court of limited jurisdiction to go back and consider its jurisdiction as the case proceeds it is also not the  case never has been the rule that a statute of general pluck ability means that a federal court must hear a case no matter what particularly in a situation like this where we have a fundamental question of tribal laws the underlying issue in the alleged fraudulent scheme the district court was clear from the very beginning of this case that its jurisdiction was temporary and that it would end if and when the united states recognized the tribal council and that was that yard to thirty eight dollars the to forty it was after careful consideration and it was after the the decisions of the department of the interior and two thousand and eighteen to recognize the validity of the next act tribal council that the district court properly required for a bank to show cause as in some way should disregard these two thousand and eighteen decisions in part because they didn't expressly overturned that's one hundred and sixteen letters from the prior administration that that ribband relies on there is no case law for this novel proposition and importantly that argument also ignores the memorandum of agreement that was entered into between robert kelly and the united states in two thousand and seventeen and that's e r one hundred and forty two that was that memorandum to correct the essentially a settlement to correct those two years where the new council was not legitimate it was it was meant to correct the very issues that were identified by the and sixteen letters that the plaintiffs rely upon if you look at those three letters from that assistant secretary larry roberts the two issues that are identified are the lack of a quorum and the lack of legitimate elections of the tribe in the way was designed to fix both of those once those new elections were held at the department of the interior correctly recognized that this tribal council was legitimate and the district court properly dismissed the case so there's no question then that during that two year time period i believe it was a two year time period the council is not legitimate that that has been the decision of the united states now now that there is a recognized tribal council that tribal council is taking action to ratify certain actions that occurred during that period which is absolutely within their authority as a tribal government good morning your honour's county sue martin on behalf of the kelley defendants i want to start with the question you just asked and i want to challenge both your language and the language of mr smith the next i travel government was and has always been even during determination by the bureau of indian affairs as to who is the appropriate government for governance purposes the inherent sovereign authority of the tribe what the decisions that the united states made which we are you certainly are were were erroneous were with whom the united states would carry on its government to government relationship and with whom would it direct federal funds it did not make any determination of the legitimacy of the government itself and indeed the question of with whom the government maintains a government a government relationship is a completely separate legal question from the question of who the tribe is and that's an issue that judge bay i believe you addressed in two thousand and five in a dissent in one of the u s the washington decisions the question of whether the sammis tribe could exercise treaty rights was completely separate from whether or not the united states government recognized the tribe a nd contention that definitively determined the illegitimacy of the government the tribal government there was no such determination that was a motion to dismiss based on lack of standing the fact that it wasn't appealed by the parties at the time is not a definitive determination that there was a government lacking during that period of time there was always a federally recognized tribes and a government that was governing and those governing bodies in the course and scope of their authority has recognized by no exact laws disenrolled the riband plaintiffs and terminated their benefits and it is those terminated benefits that were bang would seek to recover now in their nd amended complaint they fraudulent only depriving them of their travel membership this case has always been about disenroll meant and the artifice of saying that one can collect money damages without making a determination that there was a wrongful death provision of the benefits that would quantify those damages is ridiculous if you have to determine that a benefit has been wrongly denied you have to determine that  the plaintiffs should not have been disenrolled that is immune from review by this court that was immune from review by the bureau of indian affairs the nook sack tribe decides who its members are and who are entitled to receive the benefits that are provided by the tribe the kelley defense in carrying out the disenroll and the termination of benefits acted in their official capacity they are cloaked by the sovereign immunity of the tribe which was never interrupted during the rico period there has always been a sovereign government at no sack and that sovereign government and its governmental leaders and tribal department heads and tribal attorney and tribal court system are entitled to be shielded by the tribes sovereign immunity the remedy that we're bang seek in their nd amended complaint is declaratory relief injunctive relief the restoration of benefits it is not just money damages that they claim the remedy that they seek would either limit the tribe by requiring that it disregard its disenroll not decision and disregard the terminations of travel benefits or require action by the tribe to reverse its descent roman decision and reverse its benefits decision and indeed allow two of the plaintiffs to occupy tribally owned housing on trust land that cannot be accomplished by the individuals anymore than the individuals accomplished through the official action by the tribal government in distant rolling there are bank plaintiffs this case is and has always been about disenroll meant over which this court has no jurisdiction to decide even when falsely closed under the guise of a rico suit the kelley defendants are shielded by the tribe sovereign immunity for the official acts they took to disenroll were banged and to deny them of their benefits the court should affirm the dismissal of her bangs claims for lack of subject matter jurisdiction and on sovereign immunity grounds thank you the tribe this is not just a case about benefits this is a case about a home homes equity in homes and whether or not individuals not acting on behalf of the next act try because they couldn't have been had the ability to take those homes away they co opted a legitimate organization a rico enterprise and took property healthcare and money from the ribbing parties on the b i tanner out of the nd circuit it tells us that while district courts can't make determinations about who is a governing body once the b i a does federal courts are able to look at that determination and rely upon it for making subject matter jurisdiction decisions and that's all that needs to happen here turning very quickly to the sovereign immunity issue because we were here recently arguing that issue  the holdovers dismissed that appeal after oral argument it's not an issue after list versus clarke i'm surprised to see it again raised once if you sue somebody in their personal capacity sovereign immunity is not an issue that's been the land in the th circuit since before lewis versus clark the problem with the intertribal dispute doctrine argument here is that it would exempt all alleged tribal governmental rico from rico it is rico is aimed at protecting legitimate organizations from being taken over by racketeers and if tribal governments are exempt from being enterprise victims of rico because it would always raise intertribal issues then they'd be uniquely situated among all of the american governments as one of the only entities that can be taken over by rico without being subject to the law and that has to be inconsistent with rico and tuscarora thank you very much