good afternoon your honour's if it please the court my name is gary montana i'm here on behalf of the appellant in this matter is very fortunate name given the judge's home i'm here on behalf of the appellant's that are members of the picayune ranch area chancy indians it's our belief in this case that the lower court erred due to the fact that there were numerous court hearings that were held at the tribal court level going all the way back to two thousand and thirteen that settled the intertribal dispute and even though those cases were brought out to the lower court judge they were not addressed so it's our position that based on the case law and also several v i i rulings or even the b i ruling in this case which indicated to be i does not have authority to recognize permanently any tribal government and during an intertribal dispute but only for six thirty eight contract purposes the i b a reiterated that when they upheld the recognition by the b i see and that their decision should not be construed in any manner as a determination on the ability of the two thousand and ten council to exercise the tribe's obligations even though a lower lower court was made aware of these decisions that decided the intertribal dispute and these cases at the tribal court mainly primarily against banks that were releasing money to a faction that was less than a quorum under the constitution under their constitution to require seven people so the breakaway faction was down in fresno and only had three members and were obscure and even with millions of dollars of the tribes money so in the royal bank case as well as the case involving you seventy bank the court held that the tribal council under article six section two of the constitution the lewis faction which was down in fresno and broke away consisting of reggie lewis chance alberta and karl bushman cannot establish a koran under the constitution article six section two and then it went on to the a pelleas the state of california as well as the council for what is termed the new council never raised the issue of whether or not to travel part was illegal or was not legally established at the lower court although on appeal they've seemed to argue that the tribal court was not legally sanctioned as well the state of california paley's of argued that that reference to the new tribal council in the lower court's decision the permanent injunction somehow was not recognition of who was in the leadership position of the tribe but the lower court's decision that the new tribal council should be recognised clearly was an act that indicated that they were recognising the new tribal council as the governing body there's nothing in this court's case law or any case law that says a federal court or state court or the b i a or the  record was presented with a request for an injunction because there had been some public health and safety issues concerning the casino and it is true that in parts of the decision the court in passing said some of these things but but the judgment as is against doesn't doesn't change anything with regard to the tribal leadership doesn't yes it does they recognize a new tribal council and it gave them what they feel is the ability to carry on what we call unconstitutional actions there was drab court room and so there could be election in october two thousand and i think was october third two thousand and fifteen was illegal and unconstitutional were various reasons well that's a construction but by the tribal council but that's not that's not in the opinion isn't that was the tribal court that ordered that i mean if if tribes are not allowed through their inherent sovereignty and ability to be self governing to decide these  intertribal disputes then what are we going to do i mean this tribe has been embroiled in intertribal dispute for ten years there's still factions out there that are vying for control of the tribe however they're not in control of the money basically the casino and this decision if you read through the decision clearly outlines the fact that the lower court judge judge o'neil recognized the new tribal council and based on that recognition he allowed things to go forward including the opening of the casino that's clearly contrary to law that the shiba case to ship a case or show any case i don't mind circuit is clearly distinguish will because that case there was no tribal court and this case there was a tribal court in fact the original tribal court was a stablish in two thousand and twelve percent a resolution twelve forty five and it was passed by the lewis faction they're the ones who broke away so the court rulings at the lower court clearly were continuation of the faction that broke away so i just don't see how the court cannot respectfully i'm requesting that it be remastered and that the  instructions from the lower court from the tribal court be followed by judge o'neill on his or the rest for yes or this afternoon and he's here on behalf of the current problem consul the district court's judgment permanent injunction should be affirmed the order dealt with the tribes breach of the compact by failing to ensure public safety just heard argument to the effect that the decision allowed the opening of the casino actually what happened if reviewing the decision the decision allowed the casino to be reopened up on the lifting of the closure order by the end i g c the national indian gaming commission that meant that a federal agency was involved in negotiations with a faction to reopen the casino the order that the judge entered one allowed reopening if the and i g c lifted the order and to imposed restrictions on the tribe not on any particular group and the conflict well count council councils opposing councils argument is the judge o'neill's order essentially singled out for favorite treatment one of these disparate factions and conferred upon them the elevated status which allowed them to then control as he puts the money which is the casino and you're arguing something different i him arguing something totally different in that judge o'neill's order does not determine who gets to open the casino the judge o when the n i g c lifts its order then the casino can be opened the n i t c relying on the b ira is making the decision about who is going to operate the casino who is going to reopen the casino judge o'neil did not make that decision at all and in fact going back to the injunction the injunction is restrictions on the tribe itself not on any faction like i said before and additionally the injunction covers any group claiming to be the tribal government and by doing that that is a recognition that the end trod tribal dispute was continuing the goals of the court and the state were to prevent another armed incursion or another armed invasion or another confrontation at the casino which endangered residents of the state which endangered employees of the casino which endangered tribal members and endangered law enforcement personnel our goal as the state and the court order i believe is clear that the state or what this order did was resolve an issue between the state and the tri and that issue was a breach of compact there's no dispute here whatsoever that the contract was breached there's no dispute that there was an armed invasion there is no dispute that the armed invasion endangered the public those are factors that were conceded in the court below airbuses additionally as we in our opening or in our answering brief the position of the state here is that these issues were never truly presented to judge o'neil judge anea was never asked please give comedy to this particular trial or tribal court order judge o'neal was never asked please defer to this particular tribal court order rather mr mittal counsel for the mile and yeah at the at the time the only time that he truly raised anything said i'm trying to figure out something that was in the transcript and at the end he doesn't end with we respectfully request that this court defer to the cry of the tribal courts he ends it by saying by saying the point i'm trying to make is that another group invaded the casino two weeks before under the circumstances here the judge judge and neal did not pick out a winner or loser in the case he tried or he did pick a winner the state of california and in doing that he was in forcing the compact between the state and the tribe he weighed all the factors that he's required to weigh or to  in with respect to a permanent injunction and under the circumstances here he did not abuse his discretion and his judgment should be affirmed thank you thank you  good afternoon may please the court our name is james cook on behalf of the tribal appellee your honor is what this case boils down to is an individual tribal member or perhaps as appellant just acknowledged perhaps a small group of individual tribal members asking this court to intervene into internal tribal affairs invalidate a tribal election and up in your ears of governance the court the federal courts do not have jurisdiction to take to grant such relief or take such actions and for that reason the judge o'neil below was observing the facts on the ground and what really what happened was this rather the distribute the intertribal dispute was resolved in a manner consistent with the case law that's been cited in this case including by a  which is first the department of interior recognize a tribal government on an interim basis for federal purposes because as the case law shows not only was that appropriate that was actually required of the department interior next the tribe resolved its internal dispute as a matter of tribal law through the ultimate tribal forum which is an election of the entire adult membership the dea the department of interior then deferred to that internal tribal resolution as the case law shows including all of the cases cited by and the national and indian gaming commission interprets in the indian gaming regulatory act as requiring that and i do see to defer to the department of interior and so it did that which again is completely appropriate and attorneys process and other case law shows as is appropriate that led them and i do see to enter into the reopening agreement and then left the top temporary closure or closure order the state of california obs of these facts observed what the department interior had done and i actually see and entered the settlement agreement with the tribe through the elected tribal council on the clean slate election and finally the district court simply observed all of those facts and then i enter the judgment permanent junction even if the district court had determined that the basically made a determination of the tribal government what it was doing was deferring to the executive branch in the department of theory and again all of the case law shows that that is appropriate and required so even if the district court had made that recognition decision which we believe it didn't that would have been appropriate in the judgment should still be affirmed appellants now want the federal courts to intervene in these matters and recognize th tribal government other than that what other than the one that was recognized by the executive branch the department of interior that actually contradicts all of the case law and they're actually also doing that without speaking without going through the proper mechanism which is an a review if they have a problem with the department interiors decisions then either they go through the first they have to go through the agency exhaust those remedies and then they seek a p a reviews through judicial review well this court you scuse me i'm sorry counsel and you know obviously he's since he's appealed he wants this this court to do intervene but his whole argument is that he doesn't want the federal court to intervene in that judge  improperly intervene that's the argument we do agree that the the issues presented by the appellants here are inconsistent in that they're saying we don't want the federal courts to intervene but we would also like the federal courts to intervene to invalidate the tribal action and anoint some other government other than the one recognized by the tribe itself and the department interior and that's another reason why we think this should be this appeal should be dismissed this court has also said that collateral attacks are not appropriate if they do have a problem with either the energy sea or the department of interior is decisions they have to go through that a p a process the pounds basically they were raising that their request on this s what they're referring to is one of two reported courts that were created by tribal factions when as mr montana referred to the isle of faction the lewis faction when they first splintered into two factions this was about a year or so after the dispute began their factions splintered into two and they both created purported courts issued conflicting orders and then you know on several third parties including banks in the madeira county sheriff and those were pretty much ignored at one point the iowa faction which by the way it should be mentioned was not to distribute teas as a completely different faction so we don't think they have standing to even enforce the eye on the factions or or secret enforcement of those orders they did take those to the courts and they were some cases but in good face and in what america the courts are very clear to point out that those were undisputed tribal courts that were functioning and in those cases even the parties had to the dispute had recognized the knowledge that the court had jurisdiction and  competent to resolve the intertribal dispute that is the opposite of what happened here it should also be pointed out that those arguments were made by the all affection to the department of interior during this process during the department's agency process the department area looked at both courts because both factions asserted that their argument and found that it could not determine which of the factions if any that created those courts was a legitimate tribal government did not have jurisdiction to do so the excuse me again if if the appellant's take issue with the department's rejection of their travel core arguments they should have gone to the federal court under an a p a review but they cannot collaterally attack it here the it should be mentioned regarding the standing of the appellant's because the circumstances have changed at the very beginning this appeal the notice of appeal was filed by the purported tribal council led by luke davis since then that tribal council led by luke davis along with all of the other factions as essentially disbanded and rejoin the tribe and and the tribal council itself the putative tribal council led by live davis asked this court to dismiss the appeal and first asked their apparently  their attorney to dismiss the appeal who did not give in those change of facts mr montana has now state is now stating he represents some number of individual tribal members who are within a group of tribal members called to distribute teas they call themselves constitutionally recognized to suggest that they have some sort of super status within the tribe but that is not how this tribe works all members are equal the constitution on its face is very clear about that so all tribal members are constitutional recognized and what's important is that individual tribal members do not have standing to challenge recognition decisions the with regard to standing the opponents had argued in their briefing that we do not raise that issue below take issue with that characterization but in any case standing is a jurisdictional issue and can't be waived i see i'm running out of time so i would just if there's no other further questions we believe that there thank you rebuttal but clearly if federal courts have jurisdiction to recognize what tribal government they're going to that's going to be permanent for a tribe then there's really no well i mean my reasoning is different your honor i mean let me let me cut to the chase a little bit what if if we were to reverse this injunction and what effect would it have on the casino you know this is not just about the casino well it's kind of his on the as far as the injunction goes well yeah it is but i mean this is also about an inner i mean up a larger picture of tribal court rulings and when that they should be followed i mean none of those arguments about there being two tribal courts was ever raised in front of judge o'neil i mean i was there at the hearing in october two thousand and fifteen and i told him the tribal court has ruled on this intertribal dispute and he said well when was that and i told him when that was and he said well who's to enforce it i said you will based on comedy and he said why wasn't this brought before me before and i looked at mr marston who is an attorney for another group who happened to be here today and there are still factions contrary to what he said and he said mr marston what happened and he said well you dismissed it well according to the record it was a voluntarily dismissal without prejudice but all through those hearings subsequent to that i raised the issue to judge on deal that tribal court had ruled on the intertribal dispute it should have been remanded back to the tribal court and let them finish out what they needed to do but the dispute was not over the compact through the contract was signed with the state of california between the tribe and state of california correct but it was used as a vehicle to get to an end well it was to open a case and judge when it was presented with a request for an injunction to shut down the casino and force the compact terms between the state of california and the tried and he issued that injunction but as far as i could see he didn't ever determine as a matter of law who what the governing body was of the tribe he resigned as historical facts as they were presented to him but i don't know maybe by a view that's different but if my view is correct what's your problem with that if i if we say he didn't decide the issue aren't you happy well then we're back right back where we started from i mean we're really back you decided in your family or clash is more problems you know one faction today holds the compound which is on trust property the other faction this alleged new council is down and all cursed with the building off of trust property outside indian country i mean clearly are you asking us to decide those questions i'm asking you to reverse them and say that he had no authority to recognize the new tribal council based on law and it says clearly in one of muck and i know that's the ninth circuit court of appeals case but it says once a tribal court rules the b i am the federal courts are hands off well that's a you know we had recognition cases here before and there is a process of if you want a relationship want to be federally recognized you go through the administrative process if you don't want to be federally i don't know that right we're not dealing with  recognition case we're dealing with a federal claim we're saying we have had these kinds of issues in federal court but they come to us from a different perspective well the only thing i can see is you know and i'm an old indian lawyer please and sovereignty and treaty rights deferred to so i mean again but where is that issue presented i don't see anything in here that argues that judge o'neil made a finding that he was not going to defer to the tribal court he was  brought to him you know in the tribal court here even the tribal court decisions were submitted to him right so he didn't say i'm not going to differ he just said i'm going to put an injunction against the tribe as far as i can tell but he's recognising the vehicle to get that he's recognising the tribal council it's very clear i mean he he cites the new tribal council twenty some times in his opinion that to me tells me that he's recognizing tribal government permanently based on the ability based on the compact to get to the opening reopening of the casino and contrary to what the appellee say and i do you see the i a e a none of those agencies have the authority to recognize a primitive tribal government only in only a tribal form can do that good face versus grass rule and then when a market is pretty instructive on that issue as soon as a tribal court has