and what did the judgment say in order to understand the judgment i have to give you a little bit of history about how the judgment came about what we know the facts counsel in this case you have a limited time so probably it's better for you to just get into  the violation of federal law was the government taking the reservation land now the government ownership and given it to the indians so the district court used its inherent equitable authority to fashion a remedy and the reson exactly taken it out of the it was not for feeling all the conditions that went with taking the well i won't quibble about that but it was neither here nor there in terms of this jackson's client well see i guess i would say i did not think that the question before the jester cart was whether that be i should have granted mcleod's can dance requests but rather whether jackson proved by clear and convincing shoe where they did what if the if they're if they refuse to take the property into trust and the judgment that's what i see as the issue right it probably if they had an obligation to take that particular apostle back into trust because united states government to put back into trust any property that an indian of the ranch area who was listed in the distribution plan who still had an ownership interest in the property requested that the government put back into the trust because remember the judgment with the with the court was trying to do was void determination process so that the court wanted to give the indians the option not the government of the option the indians the option to void determination and put the property in it i was just going to say the government could not take the b i could not take the property back into trust because ms jackson did not timely attempt to convey it and never asked for an extension that's not correct the facts of the case are this amber being jackson within one year from the date of the entry of the judgment exercised her option and requested that the property be returned to trust status at that point the bureau had a mandatory  nondiscretionary duty to put the property back in the trust they prepared the deed sentence in is jackson to for her to date it and cite it and return it to the government and if she would have done that the government would have accepted the deed and put the property back into trust unfortunately you're slightly mistaken she made her election the government set or a deed and after the government sent her deed she changed her mind she didn't change her mind to put the property into trusts she changed her mind as to who she wanted the gets entered the indians have one year to make their election right miss jackson makes her election within the one year time period and what was that was to happen after that after she made her election the government prepares the deed  in grants to the united states of america and trust to aberdeen jackson and her husband because that's that was the election she made her name was macleod happened was she got the deed and she decided she did want to convey it to her back to herself and her husband she wanted to give it to her two daughters sign so she sat on the deed like ok but she had made her election within the one year time period but if you don't effect to wait that well the election is not may so so so that the one year time period the only relevance of the one year time period is that once the one year time period expires the county can start taxing the property again because it's in fee and the government no longer has a mandatory duty to pay for the costs to put the property into trust they still have a mandatory duty to take it into trust that's their continuing obligation so whenever the jackson went back into california indian legal services to mr upward and said i want to convey it to my daughter he prepared the deed she signed it she set it up she said at the deed and mr ruppert said you have a continuing obligation to take this property into trust the b i agreed virginia carpenter the realty officer said yes we'll take it into trust then they said oh wait a minute you have to pay the taxes you got to pay the jackson contested that she took an administrative appeal that took time but ultimately the interior board of a new peers ruled against her and said be i e you got to take the property in trust but you don't have to pay for the taxes or for any of the other costs that would have to be incurred in order to put the property into a trust and jackson was going to pay the taxes send him up she died right right so but the the ok you keep telling me that i'm wrong but that i don't take it as disrespect and night we're here to have a discussion and i respect you and i appreciate what you say to me and i'm not in but the problem that i see is that ms jackson rico macleod received the seventy nine order november twenty three of one thousand eighty one dollars waited a year to send a letter to the bureau of indian affairs requesting the restoration of parcel parcel five to trust  that was a year there was more time than she was entitle to notwithstanding that as you say properly the b i a did prepare a grant to and sent it to her with the instructions for her to complete it now all this other stuff that you just mentioned did happen with the taxes and the additional time but the b i a didn't get the executed grant deed to restore the parcel until january twenty five and eighty eight more than four years after one thousand nine hundred and eighty three judgement and nine years after the seventy nine dollars order so even though everything you say is true legally the district court didn't have any  time compliance from ms jackson macleod to look at when entering the order of dismissal that's not true there's no there was no time period look at the judgement there's no time period in the judgment for an indian to exercise their option to put the property into trust in fact if you read the judgment it makes it very clear that it is at any future at any time in the future an original distribute tea or dependent member an indian reservation acquires title to to the land goes back into the private marketplace and buys a piece of property on the reservation they can exercise their option in request that the government take the property in a trust and the government has a mandatory continuing obligation to do so they just don't have the obligation to pay for the costs associated with her doing that at an instant and any time absent any communication that the client needs more time or an extension  back and said ok mr jackson we have a continuing obligation we'll put the property in the trust but you've got to pay you've got to clear the property taxes into everything else if you look at the judgment the judgment revise for that it says it says that you  know the part the indians of the government are free to enter into agreements to accomplish a trust restoration and the government in this jackson entered into a series of agreements that process lasted seven and a half years during the course of that seven and a half years the government not once not twice not three times before times assured miss jackson they were going to accept the deed provided that miss jackson paid for the costs and reliance of those representations to her detriment she reached into her pocket and she's not she paid the taxes she paid for the plenary title report she paid to have the property evaluated so the so that the title insurance company could issue the title insurance policy she hired her lawyer to go into state court to make sure that the state court judge  have dirty hands when it comes to court today to rely on these time limits yes i think they do this is the dirty hands they catch they shouldn't have st st of all ima timely election that placed the duty on the government under the judgement yes it took time for her to change the grip who the grantees were and and to to get the deed back up but there's no time limit on the gun in the judgement on the indians exercising their option once jessica jackson came to them and made the request if the government was going to put the property into trust and accept the deed than they should have said they were they repeatedly told her yes we're going to take the property in trust and fact that the government kit the government got ready to take the property into trust and they weren't sure whether the national environmental policy act applied to the fee to trust transfer so they went to their solicitor's office and they said is this a mandatory acquisition into the judgment or do you have discretion solicitor came back and said this is a mandatory acquisition the department of interior itself interpreted the judgment the way we interpreted the judgment so did you want to save any time for rebuttal i did let me i'll just finish my statement it's she they said we're going to take the property into trust and we'll tell you in thirty days how long it's going to take us to do it they came back and said we'll put the property in the trust in ninety days and then they turned around and refused to take the property in the trust yes the government did not meet its fiduciary obligation thank th macleod died in two thousand and one the property was held by her and fee it was not in trust with the united states there's overwhelming evidence in the record to that effect and opposing counsel is argument is that it should have been in feet a government was obligated to take the property in trust and so de facto it was trust land so what's your response to his argument the responses as they just were recognize there is no such thing as a as a unilateral decision to put property in trust and must be accepted by the united states to take cavanagh's sat around for two years and then do nothing and then then it went into the whole problem of then there's the taxes and then there's this and the problem we have is we're talking about decisions and things that happened in the one thousand nine hundred and eighty s the only evidence i have about what happened then is in brief that macleod filed administratively which lays out her version of her leisure election and the efforts and the fact that she changed her mind about what she wanted to do and it was responsibilities of the parties so it's your position that unless the government accepts the formally accept the property it is still in fee to the individual correct and the agency was transparent about the ins a year after the cloud died in two thousand and two the agency sent an official communication to the wall saying we agency have researched this there are no trust assets for macleod you need to go to state probate court to administrate it's wednesday when the government researched it what were you looking for to determine whether or not it was a what would have conveyed to you that it was a trust asset you know there's a trust asset because there'd be a deed to the united states of america and then importantly attach to that there'd be something called an acceptance of conve which is a document signed by a government official saying on behalf of the united states we agreed to take this this property into trust on the at the united states so there would be a conveyance d from the native american person to the government and then with that conveyance the there would be an acceptance from the government in those two documents would be together forever and absent those two documents appearing in the record it your position that no duty to accept the d n n and because of the or prior order they had continuing obligation what's your response to that that you just didn't effect to wait what you were required to do because the judgment the the problem by the with it not having been perfected before macleod died that's just mcleod's death becomes a dispositive legal event because she died and she didn't have a will and so amicable dispute or is said what if this has tax consequences i guess whether you got through probate or whether in the trust star or is it let's at the bottom here is it seems to the agency that there's not a lot of love between the two sisters and the issue that the agency blag in two thousand and two and again in two hundred and one two thousand and twelve is that essential to any request to put property into trust the government needs to know who owns this this parcel that's in the regulations and i think it's common sense that you've got to know who who owns this parcel and in only a state probate court can can make that decision there's a walled there's jackson there's a brother there's another sister who died and had a couple children and that seems to be the universe of potential heirs that have an interest in this property and so you know as we sit here today it doesn't seem that been appropriate for the agency to you know transferred to jackson and cut out these other potential heirs and his a k his property even probated now is  would belong to no one probably courts waiting for the federal court to say whether it belongs in trust right brad and sue there's the federal court's order here makes that finding there's another piece of litigation the wall versus jackson that's a separate piece of litigation that raises the same question and they file the stipulation that if the judge hearing the content matter resolved it then that will also resolve that other piece of litigation and so this to me seems a very unusual case where you can affirm the judgment of the district court and that affirms actually allows things to move forward allows the probate court to resolve who owns the property and then the owners of the property can come and apple apply to the agency to take in a trust if that's what they want to do and the district court so if what the  is asking is to put it in trust in the name of the two sisters and that automatically cuts the other ones out is that or how does that work i would believe so he says he's nodding his head so  seem that that's a very intentional part of this is is that jackson is trying to do an end run around probate by trying to get a federal court to order the government to take it into property for  jackson and not the other in the other potential heirs i have a quick question assume everything that your brother counsel said to be true and that the government has you know this be a tough assumption for you the government has dirty hands the time deadlines were result of government slowdowns and mismanagement and refusal to  file documents whatever the case may be is that a ground for a court of appeals to force a district court to hold the agency in contempt as a legal matter because that's what we're talking about here i don't think so and and the district court judge if the disk were a judge thought that the government a arguments here on appeal i mean these deadlines and refusals of the b i to take the property in a trust overtime was well known to the district judge one refusing to enter the contempt order correct and that's going that's part of the standard view is that district courts are are well equipped to judge whether someone has violated an order of the district court and i think also importantly the district court stated quite clearly at the hearing that  she wants to set this on the right path to have the probate court make a decision that there be an application to the agency and she said explicitly if they agency in processing the application does something that isn't  justified decision to deny it or reject it or ask for information that she's open to hearing again from the parties about the the matter so it seems affirming moves moves the matter forward and protects everyone's interests in terms of finding who the owners of the property are and then allowing those people to make a decision about what they want to do in terms of putting the property in trust thank you counts thank you callahan you've asked a question about the relationships between the sisters in the family it's a total disaster they are at each other back and forth and i think that's really the impetus of a lot of what's going on here i think  on both sides but at the end of the day you know the department can only put the department of interior can only take trust according to the statutes that are out there and there are certain requirements there are need needed to take that into trust and one of those requirements was that the whole tax issue those taxes were never paid she decided to go ahead and contest that notice that she didn't contest that until one thousand nine hundred and ninety four at which time in also and ninety four the decision came down and told you know saying that you know we're not going to take it into trust for these reasons at that point in time she had an obligation in order to move forward with this file a case with the interior board of indian appeals to perfect her right to file a case in federal court and she didn't do that and it's have to be i and immigration cases and then we have to be  line the days since we issued our decision there has been no appeal to the to the indian appeals court so for that so therefore she has failed her predecessor this isn't even this is you know th is the statute of limitations it's very clear that the six year statute of limitations does apply to indian tribes and indian lands and that was directly from a case that this course court decided in case and this is analogous to that whole continuing obligation that the court decided that the statue of limitations applies when there is a trust issue a breach of trust and it applies especially when the  government is being sued and in that particular case a tribe was seeking to restoration for things that happened thirty years ago and the court this court said no we're not going to do it six years have passed if you look at the timelines here from  when this started you're either looking at a thirty four year past the statute of limitations or seventeen years but in any event either or she's passed the statute on the to that limitations run from an order that imposes a continuing obligation well like a it's possible to take the man in trust so i'm not sure that i'm persuaded that it's the same well the continuing obligation isn't you know just an amorphous thing the continuing obligation has to have sideboards and that's why we're saying that once the once the interior department of interior made a determination that something was missing that that their continuing obligation ended now one more thing before i before you go  during the during the harry basically the court or the united states represented to the court that after the probate issues there is still an obligation and they will still work with the parties for whoever wants to put their parcel and trust of ensuring compliance with the government's continuing obligation that that's that's number one number two the administrative appeal that was taken by amber deen jackson had nothing to do with the request to put the property into trust she demanded that the government under the judgment pay the back taxes and when the government refused she took on a ministry of appeal from that decision so the administrative appeal has no application or relevance in this case this was a judgment the government wanted to take away the secretary's discretion they wanted to give the indians the right to avoid determination process in the put the property in a trust this is not a dispute among sisters jackson their mother when he end and executed a deed in front of a notary public david rappaport her lawyer explaining to her lawyer that she wanted this property to be returned to the ownership of the government in trust for her two daughters to the government's position that the land is not legally in trust until there is a grant be conveyed and an acceptance of that conveyance in the record what's your put the response my responses they don't have that the she executed the deed the government had the obligation and the and the only thing in the judgement that prevented the government from accepting the deed was making sure the government has a right to make sure that she owns the property free and clear that it's not there's not tax liens on it there's not she has a mortgage a to a bank and so the government's in title to a policeman or title report