the reservation up in the mountains where there were no sounds and where the actually didn't live then went to the yankees and said this reservation up in the mountains is of no good no use to we can't sell our brother's house and take the money and get rich from it said you have to talk to the natch the government did bring to a natural john carmel their leader and the government what we'll be arguing in the district court and the district court will have the opportunity to rule one way or the other on that all we're asking for is the opportunity to rule on it and i should point out that there are so yeah it's most probably the government to think of language to do it said we're giving up all rights here and then just say it's land it's out of the fishery and and then the very next provision in the treaty it's not a is the central or four issues raised by the cultural complaint in intervention and further to emphasize what is not a phrase there by the issue this is where you decided in the case is whether the confederated tribes colville reservation may exercise authority as a separate treaty try to administer regulate off reservation treaty fishing rights based upon the fact that some of its members can trace their ancestry to parties so the to intervene in the case they have these rights and eight hundred ninety four they've never been ruled out and both judge marsh and judge king agree that they haven't been ruled out judge king says they court and they just wanted to fish and that's how they asserted their right and that's how civil rights were certainly in the in the civil rights movement a person went to a lunch counter and he didn't bring the cleric thore action to say that he could and when somebody their in their brief in your honor that they made a litigation decision when you read their when you read their brief the litigation decision not to raise not to raise this issue before  well of course that's that's so that's an interesting question they certainly they certainly did present the evidence mr dick who was a witness in the injunction proceeding and also in that in the u s versus oregon  where were they stipulate that that agreement doesn't deal with a cliche at all yes well did what they do is they talk about the agreement they don't talk about the treaty they talk about the agreement your honor this is the situation that of course we find ourselves in this good faith when you read their complaint and this is  very important date they say that they were limited by judge march in fact they came forward and said the call the tribe is successor in interest to them when actually any actual land colombia and polluted tribes of indians that's important here is is that mr sacks he says well the one actually tried is it's here bringing this here bringing this claim in fact he does he represents the colville tried when you read mr d states when he was asked by mr saxby how is the one actually tribe organized mr dixon as well i never we never thought of ourselves as really being organized we just sort of occasionally give advice to the so the tribal council  the court needs to be very careful and in dealing with that issue because there's simply no question but that these rights all of the rights that are involved with with the when actually people  the tip of my tip of my tongue but the fact of the matter is of course the whole that you make a litigation decision you're going to go forward and say we want to have treaty rights we want to take these rights we're going to take all of these rights which include article ten of circular argument there because this court has ruled an uphill judge march saying that those people are part of the call they also they're not an independent tribe and quite frankly when you read the agreement the agreement was made with something i believe that's absolutely correct you are they they chose they chose to make that argument they chose not to make the argument that they're making here it's the classic situation in when you read this read living here we've got a different situation we've got an intervention and conditions were as to what what could be argued in order to be allowed to intervene well and you could you can i parg you these other issues number that's point number one point number two when when you look throughout the record there is that no point there is at no point to call the all says and this is this directly to the the judicata claim call though so the judge that's unfair because we have this claim under under this this agreement that we're submitting into evidence and that we're presenting expert testimony to learn that we're something that would otherwise be regarded as one cause of action can't preclude a later kane's so structured right correct that there were dishes placed on this claim and  manner in making this claim i think when you read your brief read their their briefs you see that they made a conscious a conscious decision at that point not to raise that claim they don't say that to rai it's they're very interested in this as well the fact of the matter is that they made the decision to proceed in the manner they proceeded they went all the way to the united states supreme court on this issue now i'm sorry what i'm trying to what's different or what's the staffer i don't i don't think that there's anything that's different they're proceeding now they're saying well now we have a different theory of the nineteen or eighteen ninety four agreement then we had when we presented it and stipulated as to what it meant we're basically the same people we have clearly clearly in privity with with the with the prior plaintiffs in that case actually criticizes me for saying they just went fishing well the fact is they've never they've never made a rule sixty b motion asking to to amend this judgment they never appealed the issue that claiming they had another issue the treaty right i don't think there's any question but that what they call they'll have the opportunity in the prior case and were limited by rule twenty four a to say to judge marsh we have this theory that's based on on the one  as you correctly pointed out a little earlier they changed their horse in midstream once they got to this court it would never they never responded to a judge marsh in that regard and then when they got to this court they said well wasn't there a limit it's how that argument as with regard to the conditions of their intervention that they could not have raised an argument that was one of the tribes and would only have succeeded in getting one of the tribes well actually that's you and that's where was i don't believe there was a limit on the intervention i don't think judge march would have would have limited that head call those said we're you know the surgeon asserting this right under this agreement that we have put forth  ninety four agreement and once again your honor i continue to maintain that that's a that's a function without it without article ten of the treaty and any theoretical rights that flow from it you don't have an eight hundred ninety four agreement plus that the big thing is we're not attacking anything that was said in the in the earlier decisions of the court we're saying that apart from what was said in the earlier decisions of the court there does remain this group three on this case you specifically disagree with judge martian held that the record shows that the constituent tribes in one thousand and thirty eight had identifiable cultural political characteristics  don't have the treaty right so if you corrected this maybe they would have treated but they certainly have a right under the eight hundred ninety four agreement and we have the right to assert it in court and not be found by race