good morning and welcome to the th circuit before we begin judge beatty and i would like to welcome and to think judge moscowitz the district judge here visiting helping us out welcome and thank you glad to have you  we've got four cases of this morning i anticipate we'll hear two then we'll take a break and then we'll come back and hear the remaining two the st case on the calendar this morning rizal is versus and i'm not sure i'm going to pronounce this correctly provision i thought this was a statutory claim it includes the constitutional violations under the st amendment the free exercise clause and the th amendment taking without just compensation and due process as well as the nagpur claims the statutory claims under the administrat necessary required or indispensable party because they've irrevocably waived any claim in the subject matter of what remains in this lawsuit as rogers notes when looking at the briefs things have changed dramatically since this case was originally filed and there are certain claims that judge miller focused on that are no longer in the complaint in a clearly abandon as we set forth listing them in the reply brief those sentences involved whether the dr had any land whether it was recognized none of those claims are before you anymore the only issue now is what to do about the human remains they are not on federal or tribal property anymore they are beneath a state highway down at the mexican border where they were trucked and dumped then that's the allegation that's correct your honor and since no answer has yet been filed the motions were under twelve b six before the answer was filed you need to assume that those are truly understand  remove those allegations we tried to make it clear that those allegations were not predicate acts between the difference between standing before judge miller making that argument and filing the reply brief we decided to make it absolutely clear and remove those claims we did not do that before we made the argument on the motion to dismiss before judge mueller didn't think we had to because they are not predicate acts to the claims that we're making under negra st amendment and th amendment ok what i've got and the rd amendment complaint is the most recent complaint filed correct what in that complaint now is valid is viable i've got i've got to complaint here in front of me that's correct everything except what's in paragraph twelve whether the cemetary indian lands or not and whether the nonfederal defendants violate the compact or not those issues are not before you any long because we're not seeking any remedies that would have any effect on how the g i he wants to operated self make policy make any got it so what's your allegation with respect to the individual least in individual capacity tribal defendants what did they do that you are basing your cause of action on primarily your honor nagpur is set up the native american grave protection act is set up to have both the federal land managers in this particular situation as well as the nonfederal defendants says ok but i'm asking you what do you say that they did that was wrong intentionally removed the human remains from or they were originally interred without consent no doubt notice to our clients did did they do it where in the complaint are you alleging behavior by the individuals that creates liability we have listed in the behavior honor because it applies both to the federal defendants as well as the nonfederal defen all of the paragraphs at pages in the excerpts of record forty six and forty seven but wait a minute it would be helpful if you could give us the paragraph numbers from the rd amended complaint can you sort through that and identify where we can find these allegations certainly are on a paragraph thirty three the microphone it's ok so the when you ran through a list of paragraphs that were no longer at issue that included paragraph thirty three dollars the now you're identifying paragraph thirty three dollars as containing the allegations against the individual defendants issue in paragraph thirty three dollars that is no longer there is any reference to whether the j i v properly has the property exercise control over the property so that is what has been removed from thirty three what's left in thirty three are the basic allegations that there was an intentional excavation coming going of the remains without consent and just compensation without the required permits ok now back to my question the men were working here in tandem so where is their allegation with respect to the individual defendants is what they did in this paragraph they references to all of the defendants there are not called out by name they are called out by name in the earlier paragraph i was so all of the defendants did what them i'm just did just to make you allegations of point me to the language in this paragraph i believe your honor asked originally about the nonfederal so let me address them wait a minute that they did that themselves personally that's what the allegation is wrong i find under it well not plausible that they would themselves well digging is that we are saying that they themselves operate on the back whole the beginning of our investigation disturbance traded that when mr mays a came forward and said he was out on the bulldozers supervising the actual removal of remains and but that's not here that's not in the complaint your honor that was discovered after we filed the complaint but you didn't amend the complaints include more specific allegations i mean this is what we have right well under the women when to case  miller shouldn't have dismissed without giving us an opportunity to amend if she thought that we could properly allege this we thought once the nonfederal defendants put in one hundred and fifty pages of what we thought was extraneous material we had the right to then convert the twelve b six motion to a fifty six motion for summary judgment and deal with it in terms of summary judgment and so we didn't used mr mayes's declaration where he admits to having supervised this activity and get out there actually on one of the bulldozers in response so we did not think we had to seek an amendment before the motion to dismiss was ruled upon given the fact that the nonfederal defendants had put so much extraneous material outside the face of the complaint so now if the judge is going to be looking at any factual allegations that either side had made all we had to do was be able to point to those factual allegations so our complaint states the cause of action the further discovery of mr mayes's declaration have elaborated upon that and i believe complaint you had a motion to dismiss i couldn't find anywhere in the district court docket that you had filed a motion seeking leave to file a further amendment in response to the motion to dismiss and also it appeared that although the transcript was ordered there was no follow up and that was abandoned so we don't have a transcript of that hearing so did you make an oral motion to amend the rd amended complaint before judge miller yes we did wrong and what did you say to judge me a lecture the best of your recollection just calling to  attention under women when to that leave to a man would be appropriate if she thought the factual allegations were not sufficiently specific we thought they were because we had obviously put in mr mayes's declaration ok and do we have any any of the other defendants either tribal or non tribal as to what they personally did ms chamberlain to miss pinto were the supervisors of mr mays according to their declarations and their declarations are also part of the record  now do you have anything other than paragraph thirty three in terms of what the individual defendant did i believe thirty three is the best summary in the complaint itself your honor because it goes through the six major things that nagpur would require both the federal defendants and the nonfederal defendants to do you can't intentionally decide to go dig up remains  those six provisions he actually has forty six different provisions of the act in the regulations but we organize them into the six claims in paragraph thirty but live of course of what you or i might believe doesn't matter what matters is what's in the complaint well that's correct and we believe we're quoting directly from what the regulations on nagra say and that's what they said those defendants did how detailed that you know you are bringing individual capacity claims against these defendants they were acting as offices knowledge of where any of the remains were actually located in mr maze it took it upon himself to do this so mr mayes's acts in violation of negra are not the acts of the tribe they are his personal acts he's only been sued personally as ms been to in this chamber have been sued ok does that laid out anywhere in this complaint to explain how these individuals were not acting as tribal officers not acting in that capacity in the initial paragraphs talking about who the different defendants are paragraphs eleven referred to may's chamberlain and pinto and their relationships being sued individually not because they were necessarily officers this tribe now we recognise that they were officers of the tribe but as soon as they are violating the federal statutes but wait we have to look beyond your characterization of whether the being there being sued in an individual or official capacity so all that you say here is that they were officers of the tribe and they're being sued in their individual capacity there's no specific allegations that i can see here show why they weren't acting in their official capacity that's how it is demonstrated in paragraph thirty three where we go through the very specific six general areas of nagpur that were not followed that were where they failed to follow those as soon as you are not following federal law you are acting outside the course and scope of your capacity as an officer of the tribe the most important thing that this circuit has said three times the last three times this circuit has looked at the issue in the maxwell case the pissed or case and on october nd of this year in the gaming case the issue is the remedy saw if we only seek the remedy against the individuals and seek nothing to do with the j ivie there is no sovereign immunity that would apply to those individuals and under the thorpe against borough of jim thorpe case there is no protectable interest under nagra because the j i v has no protectable interest in human remains only the lineal descent so now we're taking you over but please don't let me give you a chance to respond so far i've been asking you your allegations in the complaint with respect to the tribal defendants where are the allegations of individual wrongdoing by the federal defendant in the same paragraph sure that's why i began by saying could you have anything other than they just didn't after me and here you've got to use a maze of going i'm going to go back and look mazie himself as i was out there supervising the bulldozers do you have anything like that the you would amend say here's what the federal defenders did they were out there they were supervising or is it just general failure of duty what are you going to be able not only on the failure of duty it's a very specific look at what do you those who allege pacifically with respect to those defendants if allowed to amend we will be alleging the violations known what did they do they failed to provide our client's notice they failed to get our clients consent they failed to have an r permit under the archaeological resources act and you have to have that permit they did not seek an order from the california superior court because you were moving human remains from one district to another district in the state of california and it was your all in those are all obligations on the federal yesterday applied both to the federal defendants and the nonfederal defendants it's just the federal defendants have the obligation because they're the federal land managers to see that these things didn't happen on what's either federal land or tribal land before the remains were removed but as soon as the allegation is that there's an obligation under federal law to do something on the person didn't do it that starts to move me away from an ability to think about this as a so called constitutional or statutory tort this sounds like it was a duty to was imposed upon on their official capacity they didn't do  a state local federal or tribal officer in his or her individual capacity you've got to show somehow the disappoint like activity merely pleading in the individual capacity is not in itself sufficient th there's some things done in the end of if you sue an individual quest you sorry a sovereign immunity protects i were for you for example to edelman resists jordan where the allegation is that the state officials did not timely process application under a federal statute and the court sorry even though you sued in the individual capacity that's a suit against the sovereign so merely saying individual sequester doesn't necessarily get you there that's correct your honor and justice sotomayor in the us against clarke case points that out as your honour's the other the maxwell case but you have to look under the maxwell addition to this area of whether the sovereign immunity applies to the individuals you have to look at the remedy to see whether the remedy is only being sought against the individuals and if so then so does not is not a question only of what the remedy is the question is what's the violation for which the remedy is sought i agree with that you are the difference in that case is what wasn't done wasn't specifically required to be done as is specific they're seeking because i don't think it changes the rule nineteen analysis at all but it does mean that several of the other claims they bring are no longer viable so the reason it doesn't change the rule nineteen analysis is because under nagpur and with regard to all of their other claims there has to be an initial determination by the court of whether these allegations happened on federal or tribal land and those are just those are defined under nine pres being mutually exclusive of one another  about the parcels were were the allegations took place they talk about several different parcels those parcels are all either indian trust lands that are held in trust by the united states for the tribe or there is one parcel  title decisions there's a map seventy four that i think helps explains what these different parcels are but the important thing is that they can't be both federal and tribal land as n defined the two are mutually exclusive because federal land is is specifically defined as land under the control of the united states other than typo your argument let me make sure i understand it your argument is that even if it is true that the remains were removed and even if it is true that they were maimed remains protected under the statute because they were removed from tribal lands there's no obligation aided by the federal defendants that's the argument that's correct instead the obligation would be on tribal officials this is under the nagpur regulations at forty three dollars c f r right and so your allegation is there's nothing in the complaint alleging that this land it's that and that in order to even make a determination about whether or not the federal palance would have any liability here this court the district court would necessarily have to decide something that involves the tribes rights to its property whether or not it was tribal or in fact it's federal land i'm i'm i maybe i just got confused let me say what i just said before and you can respond under your description of the statute the federal defendants have no obligation if the remains were on tribal lands that's correct your honor and i'm asking you them well is the complaint deficient then in that it fails to allege that these parcels were federal  there would have to be an allegation that that it was federal land and not tonight and i don't see such an allegation yes your honor that's interact and i don't know why you need ten minutes what there was at the outset of your remarks i thought i understood you to say that if plaintiffs abandon claims on appeal and they are specifically abandoning the claim that  ok so when they abandon that argument on appeal what is your understanding of what that claim what claim remains is are they now suggesting these are federal lands so no your honor let me clarify what i was saying  what they've abandoned because they think it removes the nineteen issues are all of the injunctive relief in terms of returning these remains to federal or to the tribal land that doesn't solve the rule nineteen issue but because they're giving up all injunctive relief and now just seeking monetary damages and injunctive relief related to leaving something on state property that none of the parties or the court have control over monetary damages aren't available under either the a nag the monetary damages are available under the federal tort claims act and under bivins but under those two statutes they have failed to state a claim on which relief can be granted so essentially by giving claims where there could be monetary damages starting with the f t c a they haven't complied with any of the procedural requirements that are a necessary prerequisite for the waiver of sovereign immunity so  the supreme court has been clear and mcneil that the more support and day is when an action commences which is when the complaint is filed and that has to occur after a claim has been denied which if you know there is no action by the agency as there has been no formal denial here because the agency never received a claim would be six months so even taking all of their allegations is true even assuming that they had any of the damages they're seeking under the act the ca bivins likewise they have failed to state a claim again there are not specific allegations about ways in which either of the federal appellants have actually violated their constitutional rights even if there weren't here we have another statutory scheme which is meant to deal with situations where the lineal descendants of native americans want to have the remains for their family just because it doesn't provide the relief that they like here doesn't mean that it's not the alternative scheme that congress has provided so as a result none of their none of their claims remain viable this court can either affirm on the one thousand grounds because the district court did not abuse its discretion in ruling on those grounds or as i've said there's a number of additional grounds with regard to the federal appellants that this court could also from  and if the court has no further questions i'll turn it over to mr lawrence ok thank you morning you may please the court my name is frank lawrence i represent the tribally related defendants in the case the district courts rule one thousand decisions very well supported in the record this court came to the same conclusion in two thousand and three with judge fletcher on that per curiam opinion that this is a federally recognized tribes i've got a really good short term memory short term defined as i understand your other seventy three federal appendix  it's a two thousand and three case your honor seventy three fed appendix nine hundred and thirteen and the court held that the whole indian village was a necessary part of your rule nineteen in that case which was the same plaintiff's lawyer in the same plaintiffs against the village is also indispensable party so this issue was litigated and fully resolved sixteen years ago but one issue is what about the issue let us say that just for purposes of argument you don't need to concede but for purposes of argument was on site supervising the excavation and as alleged in the complaint again you don't have to concede the truth of it indian remains were removed and they were removed illegally what then official capacity as a tribal official he was the cultural site monitor so under the tribe the congress passed the indian gaming regulatory act and said you tribes are can have a casino you have to negotiate a compact with the state you're in the tribal state compact requires the tribe do an environmental have an environmental review ordinance akin to sequence in california or nepa on the federal side so that's a requirement of the compact the tribe has an environmental review ordinance it requires among many other things or we're there because we're on a different path not when i'm interested in at the moment let's assume that it was illegal to own that there were indian remains that were being removed during the construction of the casino and it was illegal to do so and under the statute and mr mays was there supervising so as a tribal official carrying out tribal state and federal law he was acting in his official capacity and but but the allegation is and i'm asking you for the moment to accept as true what what was happening was illegal under federal law well it is there there's know that judge that the district court judge dismissed an earlier complaint under rule eight it was because it was vague and unintelligible and she warned the plaintiff she said when you were men again you need to be very clear in your allegations and they filed this rd amended complaint which is the court has seen is copus leave vague we don't know who did what where or when or to whom so but you're so far not answering my question i may not be answerable in the form i asked it but let me try again the statute for bids the removal of indian remains without fairly elaborate protocols and permissions such protocols were missions were not obtained now you're a there were indian remains and tribal lands the indian remains were taken from tribal lands without authorization without permission and removed and dumped somewhere where they say they were removed and that one of the defendants was there supervising was there a violation of law at that point and i am not asking you to concede the truth of anything yeah i don't i don't know a tribal if if the person if the cultural monitor observing the excavation well i in preparing for today your honor i looked at the allegations in the complaint i looked at the district court opinion i looked at the record in this case i looked at the nagpur issues that they've raised and there as your honor government attorney that there is no cause of action for damages no damage remedy available in or negras a true that's true the only monetary sanction under nagra is specifically for penalties that can be issued against museums that are holding artifacts and that don't comply with the statute but there's no individual cause of action for damages under nagra there's no actually that's going to answer that mantra a lot of those cases there's no actual discovery of anything protected nag can't be triggered until you have an actual discovery it's either intentional or unintentional but there's no actual discovery even alleged and mr meses declaration i started to say was part of a request for judicial notice in the trial court in this case which the district court judge denied so it is in their excerpts of record but it's not in the record in this case if you read it i think it it's helpful to our position because it explains that there weren't that  he's very well versed he's been the tribes cemetery supervisor his whole adult life he's been the tribes greg grave digger his whole adult life he's attended and observed the scattering of ashes of personal possessions some members of the tribe have a custom of burning furniture and clothing of the deceased and distributing those ashes and that's really what we're talking about here couple of points beyond that if i may and that's the the in the district court record e c f seventy six is the denial of the request for judicial  notice mr mayes's ok and i would just you know the threshold issue is not you know the threshold question is do any of these laws that provide for damage remedies apply and to answer that question you have to understand you have to determine st what the status of the land is they've alleged that it's not indian trust land that's what the complaint says now that i understand today they're trying to exercise parts of seven or eight different paragraphs in the complaint i mean i would submit the proper way to do that is with a motion for leave to men in the district court and not in a reply brief on appeal but none of the california laws apply if it's federal in the interest land the tribes were not parties to the constitution and so the constitution does not apply to tribal governments well settled supreme court and circuit law nagra doesn't provide  damages a remedy this is not a museum so even without the ruling you know i mean there's just no way to get there so any amendment would be futile the district court gave them an opportunity to amend and warn them to be specific and clear minutes on the clock carter's st question i have for you based on what i was hearing what we were hearing from the government is there any allegation that the land in question from which the remains were allegedly removed was federal land shows the united states is the title owner of the property ok whether it also may be tribal land there after taking into trust in something is irrelevant because an egg bread wait wait a minute i'm asking about the status of the land at the time of the  removal of the remains is there something in the complaint that alleges that that is federal land as distinct from trust land or feeling and yes your honor we allege that it is owned by the federal government and we attached exhibit in paragraph thirty three it begins defendants quote both intentionally and negligently breached these duties to plaintiffs by failing to protect the interests of and prevent personal injury to plaintiffs by a conducting in facilitating the attention title twenty five united states code three thousand and one in three thousand to make negra apply to both federal or tribal lands no matter where the remains were originally interred they're no longer there they were removed from what started as federal lands i believe there is a little more in paragraph twelve that survives the twelve says what the land is not which leaves it in paragraph thirty three as either federal or tribal land it makes no difference your honor ok nd question is there a cause of action for damages for improper negra as the standard of care against a federal employee or contractor who backed up over of number of religious sites at the core china location down between california and arizona and in that case treated ok cool another question assuming we have a proper allegation that this is federal or part of it might have been federal and from which the remains were removed does not is not does not get us back to rule nineteen issue with respect to the federal government not at all because the remains have been removed once they've been removed from that property now the issue is what to do about the fact that they were removed and assuming as your honor did in your question if it was done illegally then the damages will apply because they are not where they're supposed to be they should have been left either in the federal land or the tribal land whichever it is it makes no difference to us at this point in time what matters is it was intentionally removed without going through the protocols versus submitted for decision