you name oh i'm sorry george foreman f o r and a and counsel for the clues indian community at the outset it's important to emphasize i think what what this case does not involve this is not a case involving gaming on land taken into trust under a land claim settlement approved by congress land restored to a formerly terminated tribe or a newly recognized strives initial reservation no this case is a textbook example of what has li become known as reservation shopping a tribe that has gaming eligible trust land in a location distant from a major population center partners with a casino developer to acquire and try and put into trust for gaming a parcel of land in a more simple desirable location preferably closer to a major population center that will support a larger casino than could be developed on or even near the tribes existin land base in this specific case that process involves leap frogging over the clues in the community and several other rural tribes that have developed modest casinos on their  rural lands to a location that's not only closer to major population centers but was also selected precisely and approved by the department in its cheerier precisely with the objective of intercepting customers and inclusive case also employees that otherwise would patronize the leap frogged casinos this was not introducing a new participant into an existing market more like constructing a dam upstream from downstream union users and with the idea of depriving them of their water in this case as well this inner diction w not only significantly reduce the other tribes gaming revenues but also would deprive their governments of the revenues essential to fulfill their obligations to their communities form an assert it seems to me the making of the jury argument weaving everything into the injustice of the result your client but let's talk about what the specific legal points are the shoe must carry the interior didn't adequately show that the enterprise tribe need of the land to an extent yes let's let's take that why because they there need there isn't a tribe in california that doesn't need more land i'll grant you that but the question is whether they needed this particular parcel of land which is fifty six miles from their existing land base not for they're not going to do any housing office they're going to build a seventeen hundred didn't the department of interior find that enterprise had adequately demonstrated an economic need that is economic development to fund the activities of the tribe not really it what interior what interior ratified here was a decision that had been made in two thousand and one two thousand and two by the tribe that left no alternative but development of a casino on this particular land with this particular developer not a casino closer to butte county in their existing mark and again the interior was is a trustee for all tribes and what interior did here was basically sacrifice several other tribes to benefit and a prize and we think that is an abuse of discretion under egress in the gaming regulatory act and that abuse was supported by an environmental impact statement that was fundamentally flawed but doesn't t have the discretion to make decisions that may be benefit one tribe and may prejudice another tribe is not exactly what the administrative agency is supposed to do not on the basis of inadequate information and what was the information that was inadequate i mean they knew where the land was a new with the development was the new with the project was what was the information that was missing the impact that this would have they considered the impact you consider the effect that it would have on your clients what you're saying is my clients have a casino and we don't want another casino to stop we don't want competition from another casino now that's not what my card to say your honor my client is saying that it has a government that will be effectively destroyed by the elimination seventy seven percent elimination of the revenues it derives from its casino not the four point three million dollars a year that the environmental impact report estimated would be diverted from colusa or the seventy six point eight million that would be diverted from collectively the other tribes in the area and these they're not facts that's the problem they were guesses the the environmental impact statement itself admitted that they had no actual data about the impacts on the other tribes casinos and they did not even address what was it you what information you provide to the department to help them in this determination collusive requested consultation with the it intimated you were asked to provide information documentation or evidence identifying the impact of the project on you nothing to that's just saying that it ought to be fifty miles just trying to say whether fifty miles or twenty five miles you're asked to provide information i was going to say even outside the twenty five miles but would had we had the opportunity had the opportunity and there's no question you were asked and you did nothing and our opposition is that as the tribes trust the interior had to do more than invite the try to to get involved so you were going to have interior make your arguments for your side what to do for you even though they gave you a chance to speak up and say what you had to say and you did nothing interior knew the damage that was going to get done they knew a guesstimate of the damage they did nothing to look worries me is why haven't you waived any of your complaints when you do nothing because in the in a trustee beneficiary relationship i think the standard for waiver is is a bit higher well you think it is but your case  i have no idea you find one i have no case going on point well that's the worry that i have every one of these things that you say went wrong you had a chance to get involved and say no do something else and you did nothing so i said the interior was aware of this they could have a phone call to your ear was aware of what they were where my worry is here i am on the court and you want me done do and frankly the standard or view is pretty high on this kind of stuff you want me to undo what they did and you gave no information to them not even this meister declaration was around you gave nothing to them to help  the data were there and they they they could've made a phone call they could've made a phone call even though they ask you to provide the information in writing they had to make a phone call that's what they had to do well definition of india as a as interpreted in the carcieri decision the supreme court that definition requires a demonstration of members of a recognized indian tribe under federal jurisdiction hundred election that was offered by reservation to adult indians reside so there is no reasonable way to conclude that the adult indians who voted enterprise were necessarily in members of a recognized indian tribe explained to me quite simply the words recognised and india and tribe all have meanings and they were offered the chance to go to doesn't mean that the recognize indian tribe not indians they had some tribe allegiance or necessarily they were how would they be indian they could be indians because they met the minimum blood quantum as an indian of what tribe doesn't have to be of a tribe of any has three definitions of indians one is members of a recognized tribe one is matching a blood quantum and one is being descendants of people who were on reservation in one hundred thirty four the secretary decided in this case that the qualify for trust acquisition he had to show that these indians were members of a recognized indian tribe that's his decision not to any tried some recognized  may have done it but it's a little bit like saying is a person a polish american it means polish is their limits american is their nationality but it doesn't mean the polish you lost me we go t i'm saying there's a reason you and your co counsel used the word reservation quite frequently yes i come from arizona yes reservations are distinct boundaries we know where the set aside for indians in california for the most part they were for homeless or landless indians and there were very small plots of land that were usually as in this case purchased for a specific family there was some determination that the family members were indians but there is nothing in the record of this case showing that when the land grants were made they were made for a tribe they were made for someone of indian ethnology and the record shows that they were for that this case walters or nancy martin and their immediate family it doesn't make them a trial if the secretary is trying to meet the standard of a recogniz is that can that be answered with a yes or no no they did not they did not the agency did not the did the district court so far no record decision is outlined or patterned after the agencies trust acquisition regulations there is a specific section one fifty one ten twenty five c f r one fifty one ten a which says existence of trust authority it is in that section of the rod where the justification for the situation must be found that is three scant paragraphs with no background facts or reasoning that simply says the election under section eighteen is exclusive evidence that the tribe was a recognized in the untried an argument is so simple that it is that is not evidence you have to look elsewhere but you can't look elsewhere in the chain of a doctrine because it is only in that section of the argument or the rationale proffered by the secretary on which you cannot pull the decision now here probably is of all you know the things they've turned to the definition of tribe in section one thousand and the land acquisition neither of which were mentioned in that section of the record decision neither of which were relied upon by the just record so the question really to start with is the shangri mean anything just generally mean that this court is bound to look only at the explanation the secretary or maybe it rummage around the record decision to find some fact or argument that might support the decision that is not supported by the secretary's analysis the second argument would like to briefly address is whether or not the secretary satisfied section twenty seven nineteen of the indian gaming regs or act that act requires him to make it determination that game mean at the site of the parcel taken the trust would not be detrimental surrounding community that decision expressly finds no detriment city of marysville but the decision also rests on a plumas brophy fire district agreement which didn't exist and that's found in excerpts of record one seventy nine eighty other agreements to be determined by yuba county that's excerpts from record one eighty and the green with the wheaton fire protection authority and emily was another agreements with various government entities including the california t and other cities at the time of decision none of these agreements existed at the time the record i'm in favor acting as case was closed none of those decisions existed nonetheless the secretary has made determination contingent were dependent or subject to that mitigation doesn't just mean trying to see if i couldn't help you i didn't avick i can't find a case that suggests that mitigation man measures must be i don't know how it can be arbitrary and capricious if i can't find a case that says mitigation measures must be enforceable why is it not enough i guess just predict that the mitigation commitments will be fulfilled or what is the evidence in the record suggesting they won't be for failed and when i go all the way down just keep asking myself that question well there will be medication measures ok and that those mitigation measures will take care of them i understand i followed your argument pretty well and then i said well what kay says that i have to go find that these mitigation measures must be enforceable there's no case saying that there's no you didn't cite me one and i couldn't find one then in my next question why isn't it enough then just to predict that the mitigation commitments will be fulfilled i didn't have a case that says that's wrong where is the evidence in the record suggesting they would not for fail there's dependent upon mitigation it was executive pay for with there were no agreements to be made by the tribe which he cannot compelled to do this it is by a tribe which has sovereign immunity so it cannot be sued by any of the parties to an agreement if it existed certainly can't be sued by parties who have not entered into an agreement so there is no means by which the sector could reasonably conclude that this will happen now kelly say trust us why would do this well my answer to that is why would they do this this is common cost millions of dollars and there is nothing in law that requires that they enter into agreement why would they why is it not arbitrary that the secretary has ensured is particularly differential in matters implicating predictive judgment does that hurt your case at all well obviously that case hurts me a lot i was on that case in washington d c we believe it is wrong because it violates the shell of a doctor and we believe the grounds on which the court of law so if we agree with you we'd be creating a circus but if the d c circuit doesn't reconsider and rehearing that would be tribes in northern california that includes enterprise ranch urrea and just scope of our trust responsibility in implementing the indian gaming regulatory act is to provide fair procedures to implement that act there are regulations that were promulgated and there was fair opportunity given to colusa as well as the other tribes in northern california to say their piece the cia commissioned a very detailed analysis of the expected competitive impact on the other cars you know those twelve existing and proposed tribal casinos in northern california that's in appendix am to the environmental impact statement that was released as part of the draft he i asked in two thousand eight there was an opportunity for comment  two thousand and nine two thousand and nine the consultation process began to look at the impacts on the twenty five mile radius surrounding community collusive was not invited directly because they were outside the twenty five miles but they sent a letter saying we want to consult and the department said please present whatever argument evidence you have about the effect on your casino n trot nothing was received and twenty ten the final environmental impact statement was released which had the same appendix and the conclusion that there would be some competition with other casinos but it was not expected to be a significant impact on the operation of those casinos or the tribal revenues collusive at that point did submit comments on the f b i s but they talked about the scope of alternatives they talked about impact on fish and other biological resources the description of the arrow missions they did mention appendix am in the somewhat abstract discussion of how that fits into the environmental justice framework but they didn't say hey your numbers are wrong hey you don't really know in saying it's not a significant impact you haven't considered information which is not public information the b i i did everything a possibly could with public information it was up to colusa to provide any not public and to any other tribe that wanted to submit their comments with respect to the arguments of citizens about the authority of the department of interior to take this land into trust they are essentially arguing with how the indian reorganization act record of decision was drafted and it was drafted the way it was drafted to respond to the arguments that had actually been presented in march two thousand and nine the stand up group and citizens group each sent comment to the department after the february two thousand and nine decision and  cherry versus salazar and these letter said very briefly we think you have a kid cherry problem taking this land into trust the focus of that case was whether the  rhode island was under federal jurisdiction in one nine hundred thirty four the supreme court said it had to be one thousand nine hundred thirty four they did not give much direction on what it meant to be under federal jurisdiction because the state asserted that the derrick gansett were under state jurisdiction going back to colonial times so that was what the department was responding in two and in that summary they said we do not believe the cherry is a bar because this enterprise ranch area tribe which was a federally recognized indian tribe was under federal jurisdiction in one nine hundred thirty four we know that because when the ira was passed the department of the interior dispatched an agent to run a six section eighteen election to see if they wanted to opt out of this why does the section  was resident and part of the tribe in one thousand thirty four that election required residence on the reservation as is nine hundred thirty five so somebody could have moved there nine hundred thirty five right that's theoretically is because the history of enterprise ranch area was not set out in detail in these three paragraphs that it can simply be ignored we do not have a channel re problem here though the reasoning of the agency is clear land in one nine hundred fifteen called enterprise one and two now when you go to the rod which this rod followed you needed both decisions to effect an effect of land and to trust decision that record of decision expressly stated that the tribe had been recognized as of nineteen fifteen that's when the department of  interior dispatched j j terrelle to enterprise he was on a mission to travel throughout california to take a census of the indian communities in california to see what could be done about the desperate situation here arrived in enterprise i'm sure there was no problem asking where are the indians here he was sent to where they live he took his census and the united states followed up by buying these two parcels of land for the indian community at enterprise the argument is well it was just for these families it wasn't for an indian community now had they made that argument before the decision was made i think there would have been a more elaborate answer but the answer is clear because plaintiff robert edwards was contesting the existence  status of the tribe just a few years before and this went to a decision a formal decision by the in terrier board of indian appeals in two thousand and seven that's the robert edwards versus pacific regional director decision and that explored in detail the circumstances of these families the census the purchase of the land and it rejected the argument that enterprise number one was for one family enterprise number two was for a second family there wasn't really a try this decision said no we were view the entire historical record and this was a tribe this was meant to be one indian community which is why the section eight thousand election is relevant because that election was held for the members of the indian community at residing on both parcels of land which indicated that interior viewed this as one reservation with two parcels so this is all has been  decided the arguments have become elaborated as we proceeded the initial as i said the only argument there was maybe just the next question is there are the indians in a tribe right they were indians of the a feather river valley who aboriginal e lived in village communities average originally they had their own little territories they had various relationships among themselves they have to find them to be a tribe that's correct and so in order to find them to be a tribe they have to be indians residing on one reservation correct correct and the pretty important the or all indians living on one reservation correct in order to make this decision correct so is there any disagreement that there were indians who lived on the enterprise ranch urrea since at least nine sixteen i don't believe so i don't think so either so the next question was the nine hundred thirty five election among the indians on the enterprise rich ranch yes it was hard suggesting that because of that election it's contemporary evidence that they are subject to federal jurisdiction yes and then you have to find out if they're on a tribe but the role of being on one reservation for all they've made a drive that you're that's correct your honor and i would point out that there is there is there are a number of cases where in the situation of california there are many current tribes who have members whose ancestors came from different what the anthropologists used to call tribal it's and that is because the population decline in california was ninety percent and when the gold rush miners rushed in the villages were destroyed the streams were destroyed the wood was cut down they lost their source of food and their place of residence and the landless indians came together they gathered in communities now precisely  relationship was we don't know because the government wasn't conducting an anthropological field exercise it was in sending people in to say what did your grandparents say about which village community you came from and before contact what were your relationships in the feather river drainage the agents were sent to try to help these people and so as i said they went to to federal jurisdiction yes your honor and so i have to make sure that nine hundred thirty five election tips the way that the government would want to do i owe any deference to the government i believe you do your honor and the interior department what is the case i mean i looked at this it seems to me the nine hundred thirty five election is the if you will factor that hangs in the balance of where we're going on the issue they're bringing up and then i said to myself who i only deference to the government to the department that they think that that is contemporary evidence that they're on a federal jurisdiction and i said what says that that is so i think that's basic chevron deference your honor the statute says the tribe under federal jurisdiction that is ambiguous and the department of interior is giving effect to that but looking here we know that in one thousand nine hundred seventy nine apart from the election this was a recognized indian tribe now citizens in their brief says they were added to the list in one thousand nine hundred eighty nine but that's misleading because one thousand nine hundred seventy nine is the first list comprehensive list ever published and enterprise rancher e m i do indians was on that list so then you have to ask well when were they first recognized and the bigger record of decision points to the census hundred fifteen when j j l went to enterprise and identified the community living there and took a census and wrote down their names and bought land for them the one nine hundred thirty five election was part of that continuum there was nothing that happened after nineteen thirty five that made them a recognized tribe if they weren't already recognized by these historical events that we know if a person were a member of one of the lists to try was there any obligation on the tribes part to seek further recognition as a tribe no your honor that was just a list of the tribes with whom the united states already had a government to government relationship it was is a formalisation it's just a list sorry but he knew that there is a process by which tribes or groups that feel that they should be a tribe and should be recognized that weren't on that list to go to the government and ask for recognition correct that's correct and i know that's happened with the least two or three tribes in my home state of arizona that's correct there  no obligation on the systems to do their that's correct there was no obligation now for a group that was not identified historically and did not have land purchased for them if somehow there were a group of my view indians in the feather river valley that were not visited in one thousand nine hundred fifteen land was not bought for them and came forward today and said we are the of the upper feather river valley at this point in time there would be a requirement for geological proof historical evidence continued political relationships at this point in time but this court just a few months ago in the amador county case with the i own band the me walk indians recognize the tribes in california were formed of indian communities of people who came from different if you went back pre contact they would say i am a me walk i my do but that these are tribes they have been recognized by the federal government in california recognizing the circumstances here these people were allowed to come together the north fork decision the stand up case the d circuit said you don't have to have a trial to have a try for the ira you don't have to have homogeneous ethnic logical people they because of the circumstances of california and it's not just california in the that the indians were terrible situation in the beginning of the one thousand nine hundred the united states created the reno indian colony any indian in the state of nevada could move to the reno indian colony they were paiutes they were shoney's they were washoe they were allowed to come together they are a federal federally recognized indian tribe it's the reno sparks indian colony the to layla preservation in washington state a treaty was signed with multiple well tribal it's bands the these are terms that logically it's it's hard to fit the concept anyway many different bands signed this treaty they were said you can all move together to the to lay lip reservation that that to lay low indian tribe is a federally recognized indian tribe under the indian reorganization act it allowed people coming together on one reservation to function as a tribe and that's what we have here thank you your honor i took all four score and seven years ago our fathers brought forth on this continent a new nation conceived in liberty and dedicated to the proposition that all men are created equal now we are engaged in a great civil war testing whether that nation or any nation so conceived and so dedicated can long endure we are met on a great battlefield of that war we have come to dedicate a portion of that field as a final resting place for those who here gave their lives that that nation might live it is altogether fitting and proper that we should do this but in a larger sense we cannot dedicate we cannot concentrate we cannot hello this ground the brave men living and dead who've struggled here have consecrated it far above our poor power to add or detract the world will little note nor long remember what we say here but it can never forget what they did here it is for us the living rather to be dedicated here  unfinished work which they who fought here have thus far so noble e advanced it is rather for us to be here dedicated to the great task remaining before us that from these honored dad we take increased devotion to cop to that cause for which they gave their last full measure of devotion that we here highly resolve that these dead shall not have died in vain that this nation under god shall have a new birth of freedom and that that government of the people by the people for the people shall not perish from this earth abraham lincoln november nineteenth eight hundred sixty three