uttal if i may this case began as a personal injury lawsuit in a tribal court on iraq a boy just chippewa career reservation in montana there are two now i guess three issues before the court because the courthouse  for supplemental briefing on the issue of jurisdiction under thirteen thirty one or do you get to that i just ask a question i want to make sure i understand the claim that's actually before us so when i looked at your second amended complaint in district court i didn't see the personal injury claim in that complaint is that right so the complaint seemed to be saying that  you were wrongfully kicked out of court by the tribal officials correct as that's the nature of the claim so so your actual claim for damages against the housing authority isn't before us is  correct that's correct and so help me understand and the nature of your claim that's before us against the individuals i think it's it's billy and they in their individual capacity is it given the nature of your claim that you were wrongfully kicked out of court what did what did they do the nature of the claim against susan hay  billie issued a no bid contract it was the big contract limits were five thousand dollars after that you have to bid and then once you're at it but she issued a ten thousand dollar employees of the house and you did billy and hey have anything to do with that wrong being kicked out of tribal court no not for that we named the travel business committee and the  sovereign immunity does not provide and dependent basis for federal jurisdiction under twenty eight u s c section thirteen thirty one how does that case not preclude subject matter jurisdiction here ex parte crow dog in eight hundred eighty three indians have been coming to federal courts to request relief thirteen we see thirteen thirty one as a clear and unequivocal waiver of all governments immunities to suit in federal court on federal questions and this includes tribal governments tribal courts or tribals tribes are not excluded under thirteen thirty one so but thirteen thirty one is not a federal question by itself and there has to be something else that triggers access to the courts under thirteen thirty one and  referencing bodie and oklahoma tax commission for that there were issues that were strictly state and not tribal or excuse me state and federal and those couldn't go to federal federal court under thirteen thirty one is there a question about our jurisdiction over the the defendants in the case in this case are they claiming that we don't but you have a claim here in district court that you were wrongfully kicked out of court and years you're bringing at the clara tory action against the tribe the housing authority the tribal officials and the like and are they claiming that that they're immune from your suit in our court yes they are and what they are saying is that the treasurer arguing that not indians can access the federal courts on federal questions but indians whether they are members of the same or a different tribe come on so they're saying we don't have jurisdiction over them here correct because essentially my clients are indians but congress granted native americans citizenship in nine hundred twenty four even when there were words of the government though they had access to the federal courts even as accepted jurisdiction tribal jurisdiction or the personal injury case that they brought to the defendants what's the claim that the the defendants have here what's the claim but you're anticipating they are going to raise against you i don't know ok so you're not aware that they have any claim against you do what are you raising we are raising that we were wrongfully denied access to the courts in tribal court because of a misapplication of the law of tribal as a legal matter they are immune or they're not immune what what remedy could we provide you so so we we can enjoy persons who we have jurisdiction over but what remedy could we give you i don't think there is one we're done at that point if we can't serve the if we can't if we  can't access the waiver that the tribe put into the housing ordinance and overcome tribal sovereign immunity that way then we're finished so let's say we agree with you and them in fact the tribal courts so all you would have is a ruling saying the the tribal court analyzed sovereign immunity wrong and what do you do with that because we can order the tribal court to do anything well we can go back to tribal court without and say so if we as if we said we had jurisdiction to determine the the issue of whether sovereign immunity was correctly done and we said that as to the individuals that court  misapplied the case law the lowest and and other case law that that the individuals would not be entitled to sovereign immunity and we were man did it to the tribal court the tribal court wouldn't have to do anything is that what you're saying i'm not sure we all we can do was is put it back to the tribal court and we expect them to fall federal law but their case is already decided so do they have is there anything in their statutes or the rules that would require them to reopen the case we have an urgent due process concerns all the way along and if the court wanted to rule on a due process  history of this matter which led us to this point a poet's originally chose to pursue their claims against c c h and tribal court they were unsuccessful they're being dismissed on both sovereign immunity and on the statute of limitation grounds opponents were unhappy with this result three years later they fall in district court seeking an appeal of the tribal court's decisions the opponents concede even here that tribal jurisdiction is proper for the defendants in his declaratory action lacked sovereign immunity from his suit then and we make that ruling what effect does the ad have on the tribal court it has no effect on the tribal court the tribal court is a sovereign it's a sovereign entity it has its own court systems as they said in santa clara pueblo tribes are free to make their own laws and be ruled by them right but sovereign immunity is created by it's it's created by congress and federal law correct sovereign immunity is a reserved an inherent right of a sovereign nation well but if this but this sovereign immunity isn't the same as say like a state or another country i mean it's congressionally created by federal law that is not my understanding of it your honor mine or standing is it's an inherent right and in fact it's coextensive with united states sovereign immunity their supreme court opinions on that in our court because the argument has all been what's the rule in tribal court but in our court here is your client or clients claiming that you're you have sovereign immunity and we in fact issue first right because they're both threshold issues or they're not on the merits they're both threshold issues but i think it would be more appropriate to address subject matter jurisdiction first because sovereign immunity divest a district court of subject matter jurisdiction so if it never had subject matter jurisdiction to begin with i think it would more be more appropriate to address that first and then move on to the sovereign immunity analysis well it looks like though it looks like the tribal court didn't properly apply it louis freeh clark looks like as to the individual capacities well actually louis freeh clark post dated the tribal court decision so the tribal court made its rulings long before lewis because clark came about but we feel that it made a proper determination anyway because let's say we don't agree ok well i think that then why doesn't that fact the feat sovereign immunity has applied to them well i think l distinguishable on a number of for a number of reasons that happened outside of reservation boundaries we're not talking about actions that occurred outside of the reservation here but what just ask what if we decided that the individuals under lewis and clark the individuals like us billion hey lacked sovereign immunity either in the tribal court or before us and we make that ruling what effect does that have on the tribal court now can we if we make that determination and here is the correct analysis of sovereign immunity as a matter of federal law then what happens in the tribal court why i think that the tr court action has concluded and i don't know that there's any authority that would require the tribal court to reopen those proceedings i think it's a done deal and i think that if we're talking about it in this action i think the court needs to look at the relief requested they wrongfully kicked them out of court so that the tribal court's decision was wrong and that's the only the only claim that's the only claim that we can read in their second amended complaint as well well if  if the federal courts have jurisdiction over sovereign immunity th and determined that it was wrongfully applied as a defense then are you saying that it that the travel courts are just free to disregard it i believe so as a sovereign nation though they could i suppose we could speculate that they might reconsider there might be a motion to reconsider but there's no rule that would require them to i'm going to wear of any laws of the chip walk retried that would require them to reopen this matter position that the federal courts can't look at sovereign immunity either authentically or defensively i think there are circumstances in which a federal court may look at sovereign immunity and sovereign immunity issues the context that it's typically come up in is where a non indian litigant has said that the tribal court has exceeded the lawful limits of its jurisdiction i think in that in so in that situation i think that the non indian us citizen has a right to be free from travel jurisdiction we're not dealing with fact pattern here that we're talking about indians living on a reservation suing indians officials and indian tribes and tribal organizations so in those cases where there's a  host of cases where the claim is that the tribal court exceeded its jurisdiction in requiring a nonmember or a non indian to do something and then when that claim is brought to just record the district court has authority to enjoying the tribe or whoever it is from taking an action i don't think that it's authority to enjoin the way that i've read it is more in lines of comedy and that when the federal courts are looking at these  the action they take is whether or not to recognize the tribal court judgment but they don't go back in and then tell the tribal court what to do they allow that non indian litigant to proceed in federal court because there was no jurisdiction over them originally well s bodies for travel courts there's there's no case i didn't find a case that's so hell and you're not aware of one so i'm going to wear and i think you know the tenth as the tenth circuit enbrel v armijo citing to national farmers union stated federal courts are not the this is quote federal courts are not the general appellate body for tribal courts as a supreme court has instructed the federal policies promoting tribal self government and self determination instruct us to provide great deference to tribal court systems their practices and procedures the speed we do not take lightly and quote so i think that i think that in that we've reached an issue that the tribal court has was raised in tribal court they've considered it they've issued their opinion and i don't think that the federal courts should disturb that but as to whether we ever have jurisdiction to review sovereign immunity you concede that we may you may but i think that under under the case we cited in supplemental briefing issues a sovereign immunity alone do not create federal jurisdiction under section thirteen thirty one there has to be some other basis so here there is no i was trying to understand the declaratory judgment action because normally as i said we flip it and it's the the party bringing the deck relief action who is anticipating a lawsuit or a claim by the defendant but here the the tribal defendants aren't bringing any claim that the question is the  appellant believes that the tribal officials oh him money or damages for the injuries that were done to his house and the like but there's no claim being brought by the the tribe or nor any of foresman action none know i'm a little confused by the nature of the complaint myself but in any event the tribe is not seeking any relief from the  so you know i think it's also i think it was important to look at the district court in its determination that it was the best of subject matter jurisdiction it seems as if appellants have are made all their arguments on the assumption that that or applied to the tribal courts determination on that point and i don't i don't think it does but even if we go beyond the scope of the order and even if we want to have an academic discussion about sovereign immunity because i don't think we reach that issue opponents have conceded that a waiver of sovereign immunity is only applicable in the sovereign it is not applicable in federal court so there's night circuit opinions that  confirm that so i think that even if there had been a waiver somehow by the soon be sued clause that at the end of the day that waiver is only effective in tribal court it's not affected in federal district court and the federal district court made the right determination in dismissing on that that basis all right unless there's for their questions you can over time thank you thank you on the extra time thinking about it and listening to the exchange today my thoughts my thought is at this time that we saw relief under thirteen thirty one and four and travel sovereign immunity is a common law issue so perhaps it deserves a common law remedy for it almost being deprived of a fair trial and some kind of an remedy for their the bigger picture here to india and should not be treated differently than on non indians in their own courts there's also the question of the universe for many of the law governing tr sovereign immunity between in their five hundred eighty nine reservations and you're going to end up with five hundred eighty nine different kinds of decisions about how about tribal sovereign immunity between indian citizens of all tribes and the indian governments of each tribe all solve there this court case does involve the native american housing assistance and self determination act there are regulations under that act where tribal salvage immunity is preserved but the regulations require insurance for liability and that the tribes waive travel sovereign immunity  to the limits of insurance so i'm not sure that i believe that this this issue also implicates other federal statutory issues i may be reaching there but i think it's worth considering there may be remedies there