and that significant it is to an extent and at the same time it's not a lot of the the rights of that there's an argument as to what rights were inheritable under the you terminations partition act not incorporated but it is they have a distinct tribe there are approximately two thousand members they maintain roles they have tribal officers and these two thousand are either members of the mixed bloods or the descendants thereof and  they have maintained that tribal identity from at least one thousand nine hundred and fifty six to the affiliated youth citizens and so our argument is no they're not a federally recognized tribes however that does not impact their your stamp says you and a valley they do have a seal yes that's what's on the licenses that's correct i thought the record reflected that they did hold themselves out to the public and people interested in running and fishing licenses that they were at least recognized tribe so an accurate reading of the record i think to some extent it is accurate that the they were holding themselves out to be a federally recognized why they do that if if they're not your honor there's there's a fair amount of they dispute  on what do they charge what they charge from what it what did your clients charge for i don't know what the you tribe charges but but but ours were approximately twenty five dollars and thirty five dollars depending on me that type of license for the game so they were they recognition that only allows you access to you know to those special special relationship between the tribe in the united states government you know that the access to the certain rights with the licensing program they were not involved in the licensing program of the u n to valley shoni tribe no they were a part of this litigation no they were not in my review of some of the tried the nine hundred and fifty four dollars partition act and and as well as the court order from the from the district of utah both state that those hunting and fishing licenses and rights are to be jointly managed by that you travel business committee in a representative of the affiliated citizens which is now the event of alice's shoni tried and unfortunately that that has not happened and what do you mean that hasn't happened had there hasn't been a representative from the un to valley shon licenses certainly around or so the eight hundred and sixty one executive order for mean that you want to value reservation as well as the eight hundred and eighty two executive order form in the what was then the unencumbered reservation which were then subsequently combined to the form that you wanted and or event or a reservation provided the the right to use the lands i think believe that the  specifically hold that those rights are retained by the tri after terminations by congress unless congress pacifically abrogates those rights and if you look at  blood embers i still don't know what legal and it is inherited rights on this land the you want to valley indian reservation the ute indians that are now the federally recognized tribes are a group of huge indians that were given land in utah in the eight hundred and eighty s that you went to valley shoni tribe dates there they're using occupancy the land back to to a time before the spanish came and as well as their rights under the sixty want to executives order creating the you want the value reservation were any of your clients criminally prosecuted now they're worse going there were some  state actions i'm not sure what the tendency of those was but i don't believe it involved any of the individuals name in this matter right and i'm and i'm specifically curious as to whether they were prosecuted for wire fraud they were not  now and with respect to that i think that our argument with respect to the permanent junction related to the wire fraud charges brought by the united states is simply that the united states cannot meet all the elements of of the requirements  think that they had that it was their their position that they were on the list of federally recognized tribes that's published by the bureau of indian affairs i think they may have been using the term loosely  and they are no longer making any representation as to that since since the suit was filed have your clients attempted to sell any more fishing or hunting in oral argument that there were some assertion of these right if they continue to assert their rights it's my understanding they didn't issue any further licenses so soon as is lawsuit was filed the record will indicate there was no refrain from and as showing any further on in fishing licenses until until this litigation is concluded they have followed through with that unfortunately to the detriment of of its members who haven't been able to access the right to two hundred fish on the property and we have a case to that effect wrecked and so that's the one murdoch case and understand i think that reading of it is a rather generous assets that they are not divisible and they note oil oil and gas and mineral assets are not divisible and and can't be inherited and into that they the courts of the court as has also read although not specifically in that act hunting and fishing rights are also not divisible assets and therefore not inheritable by the children of the four hundred and ninety dollars that were were on enrolled  and i think that goes against the nominee case which says that you have treaty rights and you know the tribe is able to to retain those and then must there is a direct abrogation of those rights by congress that that those rights are therefore retained so i think that the statute doesn't take those rights away and i think that a direct reading of it of the statute means that those rights have to be retained by the mixed bloods regardless of the reading by by this court i think that that understanding was was incorrect does the record indicate whether the individual defendants are descendants of the four hundred and ninety i don't know it please the court jared that it on behalf of the united states the district court correctly held that the defendants have absolutely no right to sell hunting and fishing permits for use on travel land and for that reason the court should have permanently enjoined those fraudulent activit cases this court held that when the you tribe was combined from the different branches to form what is now the you tribe that you try became the exclusive tribal authority over the reservation that included the ability to regulate hunting and fishing within its boundaries what's the best authority for that assertion so united states versus von murdock i believe has the best synopsis of the history there in stowing you tribe was the tribe that has the authorit regulate hunting and fishing in that case there was a member of what would now be the utah of the human issue showing a tribe who went on to land and shot an elk or deer i believe on you travel land and in that case the person was prosecuted for having done so asserted that his rights were time immemorial like we're hearing here today in this court found that to be untenable simply because the terminations act made these mixed bloods no longer part of the huge tribe and forbade them from ever being a tribe so rebranding themselves down as the utah valley shoni tribe doesn't cut it for that reason they're not federally recognized they never can be and to assert that they are federally recognized will talk about in a nd is indicative of the fraud that we're talking about in this case what what are they with what is their corporate or organizational status the unit alysha showing tribe i'm not sure your honor they certainly hold themselves out to be an organization they hold a seal they have a council they have these licenses and applications for liason they have any any federal status none at all know in fact the statute determination that preclude them from ever seeking federal status again so there there is no question here this is not a federally recognized tribes with any rights whatsoever under federal law there in lies the problem here we have this reservation that is the by congress the exclusive tribal authority you try now we have this other entity which was terminated from the your tribe is now asserting the ability to constitute a rival regime for regulating hunting and fishing permits that's on tenable congress by recognizing  tribe as the official tribe of the reservation could not at the same time of contemplated that some day in the future this other entity would come along and set up a rival regime to regulate resources on the you try and land this is why the defendants cannot have what they want because it's simply not possible as a matter of law for that reason the united states filed suit against the defendants under the theory of  they chose not to intervene because the united states is the trustee is able to step in and in the shoes of the tribe and litigate on its behalf which is what it did here they've never asserted a an interest a tribal interest in the outcome of this case or the legal stipulated facts indicate what they were charging for these license yes the twenty five dollars i believe for a hunting license and five dollars for a fishing permit how many were sold least on the rolls that we have which i think begin on page seven hundred and twenty of the have to go to the you try to get permission to be able to exercise that right the your tribe is supposed to based on their status as being one of the four hundred and ninety grant that permit to hunt and fish not to set up a rival government as to  yes i'm sure that's what they're representing to to these to the why is that not so well because there is a lot of history from this very court that they would show otherwise in addition to facts on this record which told them that was not the case there was no good faith basis citizens which has now been rebranded in the modern day as you in a valley shoni tribe looking at the record they're the same entity and that's been for example believe it's page five hundred and sixty five dollars of the record the door of and the valley shoni permits and said these aren't valid i mean isn't that the crux of the whole deal though is the u n to valleys shoni tribe members their whole beef is that they shouldn't have to ask the youth tribe if they can that they already have these rights so when approached by tribal law enforcement i mean does that really put them on notice that they don't have the right or just that they it's more evidence of their ongoing disagreement with the ute tribe about the rights your honor it is it is not the latter it is the former and it has to be because if it weren't the case then every single tax protester that comes here and starts to sell to people a tax scheme that says you don't have to pay your taxes even though it's well established that you do and someone can say well i didn't know well the the proof that we would put on for that to show that wasn't a good faith belief is the fact that they were told so many different times by authorities that that isn't the case and that has been held persuasive in terms of showing intent numerous cases in your talk about in criminal cases certainly and this is a wire fraud case for simply using the civil standard  the evidence to show that there was an intent to defraud here the law is clear that they do not have authority to sell these permits hence the three misrepresentations that run their licenses and permits you need to help me make that jump look at cochran cochran is the case we talked about earlier and we cite in our briefs about wire fraud is wire fraud we have to have intent to mislead and i think that's what this question is going to so order prove intent to mislead on page sixty eight dollars of that case it that if there is to be actual harm that flows from the fraud we infer intent to mislead what's the harm that has flowed d from this if these people have gone out with these licenses well ok you infer that means you can and you so choose as a fact finder correct certainly and did the fact finder so infer in this case we don't know judge jenkins decision as to whether this what there was a scheme to defraud is found on page one thousand and seventy seven dollars of the record basically that portion of the few sentences in which he addresses it seems to suggest that he wasn't convinced that we had we the united states had proven a fraud because there was a critter was we didn't meet the something the evidence of a criminal statute well it may be a criminal statute but this is a civil case but it would have been so you're saying he applied the standard of beyond a reasonable doubt it's hard to say from from the order your honor but it to pete would appear that way from the reading that i have criminal statute which kind of leaves us wondering but to to retch of to put this to a motion is to clarify that you know your honor to put this to bed though the harm that these folks suffered as a result busy of purchasing these permits was that when they went out they were then visited and scrunch at times criminally cited for using them they obtained a false permit to be able to go out and hunt fish where they couldn't they were based on three material misrepresentations number one that they were are federally recognized tribes regardless of what the plane the defendants here would like to hope that means that means something legally as an objective person looking at that saying should i buy this permit saying you're a federally recognized tribes matters and what compounded the problem was the but the point is that these are serious misrepresentations that would lead an objective person to acquire these permits based on those misrepresentations then go out and use them and suffer the harm of being criminally cited for having used the  abused its discretion by not finding a scheme for the evidence that is clear and stipulated in undisputed on the record where we also have this problem in terms of why it should have granted is that the elements twenty three and four to obtain a permanent injunction were the defendants didn't brief them below and they did not brief them here and when a party does not brief elements of a case specifically whether there is a reparable harm with the balance of the harm favored issuing an injunction whether the public interest favored injunction that has not been briefed here or below its waived moreover the nd element to prove wire fraud that wire the use of the interstate wires was and in was a incident to an essential part of the scheme that hasn't been briefed either here or below that is also waived so the only position that they had a acuity ery interest in issuing these licenses that they were trying to make money they were selling them for money whether they were out whether that turned into a profit based on their op is that is that enough if i'm if i'm trying to make a point in assert some rights by issuing licenses if i sell them  for a de minimus amount is that enough i believe that is simply because when you are selling something using material misrepresentations regardless of whether you sell it for an exorbitant amount which certainly is an element of proving wire fraud that's enough but if they said come in and get your free hunting and fishing license from us a federally recognized tribe then i think we would have a more difficult time in proving an element which requires the obtaining a property through false pretenses here there was money and property obtained and ultimately the huge tribe in addition was a victim of this in that they were losing the ability to hard to we're talking one thousand five hundred dollars a charge total right but at least at least for the records we have in the record yes it does record indicate how much total money that he laid by selling these licenses no your honor but the important thing to remember is that out whether you made a lot of money isn't an element of wire fraud it's whether it's things were sold and property was obtained based on material misrepresentations which is what we have here for those reasons your honor a sorry another one any of the licensees criminally prosecuted not yet now that the state well at least by the federal government by the state government i'm not sure about the tribe the tribe can't prosecute them because they're not in they're not