the issue on appeal is whether the college is an arm of the confederate states as title seven of the civil rights act excludes tribes from the definition of employers and that exclusion extends to businesses that are an arm of the tribe as this court is aware and arm of the tribe analysis the court looks to that five factor test set forth in white versus university of california to determine whether an employer or an entity is an arm of the tribe in this particular case before getting directly to those five parts i think it's important to determine whether the state college incorporated under the montana law is separate and distinct from the sale of community college incorporated under the tribal laws because i believe that those articles of incorporation  are used in analysis of several of the the different white factors it's our contention that the two entities the tribal corporation and the montana corporation are separate i believe that that that argument has there's been holdings that said deulin corporation doesn't affect sovereign immunity i think in cases with with different discussion of whether dual incorporation but i also believe that not knowing the record in that case i think and also knowing that they didn't apply the arm of the tribe analysis i think  we can get to a different resolution here today in looking at that but the record in this case is your position the corporation and the montana law constitute a sort of you're still a tribe corporation when you're arm of the tribe but when you become a state incorporated energy you wave or you take yourself outside of the sovereign immunity for purposes of j arguing back and but but then but i go back to my can i question to you because that's what i have in mind here when the college that incorporated as as under tribal law  would you had two minutes to the gentleman's time so you can start again  please excuse me for interrupting the session is my fault that corporations are two separate and distinct corporations so the fact that there was a travel corporation already incorporated the montana corporation is separate and distinct and and the reasoning behind that is the travel corporation in its incorporating documents it sets forth several limited powers and reserves several powers for the tribe itself whereas  montana articles of incorporation the articles of incorporation that i believe are controlling don't have any similar limit limitations and and don't reserve any power to the tribe itself either and you know and this is important because when when a corporation is is is created by the articles of incorporation  those incorporating documents set the parameters of the corporation and set its powers and those powers can be expanded after that point without formal amendment articles and there aren't any such articles amending the travel corporations incorporating documents and i think that the the differing powers in the limitations are very significant in this case  and also also i think the facts show that that the sales scrutiny colleges operating under the montana articles of incorporation as i stated the montana articles of incorporation grant grodd broad powers whereas the tribal articles place limitations on those powers and deserve several rights and powers for the tribe your honor has has discussed one is that montana articles allow the corporation to sue or be sued without limitation whereas a tribal articles of incorporation limits suit to tribal courts similarly  in borrowing money the montana articles of the corporation provide general power for the corporation to borrow or contract for debt without limitation while the tribal articles limit the corporation's power and only allow it to borrow from the tribal credit enterprise similarly in buying property the montana articles provide power to having purchased property of every kind nature inscription without limitation where the tribal articles limit to acquiring property within the boundaries of the flathead reservation as we discussed or as i discussed certain powers or are also reserved to the tribe under the tribal articles this includes a montana certainly during dissolution the dissolution is certainly mentioned but not certainly there isn't anything in the statute granting the tribe a power over just any montana corporation to dissolve and that's what i'm saying i'm saying the articles of incorporation for the tribe for the tribal corporation so you've received on the basis of the five white factors really don't enter into this issue of issue because we have two separate corporations and if you are able to get a judgment  the articles of incorporation we refer and rely upon the montana articles of incorporation whereas the college relies upon the travel articles of incorporation to apply the white factors one being the method of creation  when when say when we're talking about the method of creation the st white factor the court is supposed to look at the state or that where that entity was incorporated under what laws and if we have several part if we have separate and distinct corporations then the montana articles control and so then when we're looking at that we would see that the incorporating under montana law would weigh in finding in supporting that that college is not an arm of the tribe under the st white factor and that's why i'm saying it's important for us to look at what articles that the corporation was incorporated under and and what articles that actually followed i think we understand the point i mean are you going to talk about the white doctors i will and i guess i just if i can  i just want to make one more ok all right sorry and i realize i'm getting short on time but but there is evidence in the record that that the college borrow so if we're operating under those articles and i think st off the st white factor with the method of creation you would have an entity created under the state laws of montana and that would weigh in favor of finding that it is not an arm of the tribe i think i think that also goes to the stated purpose because when we're talking about the stated purpose we once again look to the articles of incorporation for those initial purposes that are set forth and within the articles of incorporation for the montana corporation there's no discussion at all of the tribes or serving direct tribal tribal self government nance or their direct benefit it speaks to general educational benefits and it speaks to benefits of people without within the flat indian reservation which does comprise  members of the sailors could drive or the confederate states could be tried but also comprises several people that are nonmembers that aren't indian at all with respect to your point on operation you also mentioned that the certainly i think don't jump to that point but but yes the as a college does enter into several contracts with governmental agencies wherein they they state that they will be subject to title seven and to the sanctions that can be granted under title seven including institution  of cases under title seven and that i think goes to the th white factor which is the intent of sharing the tribe sovereign immunity i think the fact that they're entering into those documents demonstrates that they don't intend on sharing the tribe sovereign immunity i also think that going to the rd white factor the structure ownership and amount of control  that is exercising could be exercised by the tribe i believe that one when we start with articles of incorporation of the montana corporation clearly there aren't any  there aren't any powers or any rights reserved to the to the tribe i also think that the facts themselves show that the tribe doesn't  control the college has repeatedly said the united states government in tax filings that no governance decisions of the college are reserved to persons other than the governing body of the college and that the college did not delegate control over management duties to any person other than officers directors or trustees of the college i think  they also admit in sorry your honor i'm sorry they also it mitt is that this that that college does nothing to control the day to day activities of the tribe realizing that day to day control isn't required but that certainly can be looked at and in determining what management or lack of control that they have  organizational chart of the college details the heads of the administration and departments and fails to list the tribe or anyone specifically affiliated with the tribe anywhere on the chart the highest density on the organizational chart of the college board of flathead reservation with the last case on the last day on the last lawyer and i'm going to try and make it quick i think the only thing this court needs to decide is whether or not judge christiansen's opinion in order finding that scrutiny college is an arm of the sailor confederated says you need tribes and therefore excluded as an employer under title seven of the civil rights act is supported by a preponderance of the evidence clearly you didn't it was substantial with preponderance of the evidence your honor clearly it is and just as a way of background mr mccoy it was employed from twenty million one hundred and sixty two thousand and seventeen academic year under a one year written contract as academic director in december of two thousand and sixteen he voluntarily terminated his employment with sally scrutiny college he then filed an action in federal court alleging civil rights violation title seven under sex discrimination as this court instructed in kane we undertook substantial jurisdictional discovery where we furnished to mr mccoy over thirty thousand dollars pages of documents we then filed a motion to dismiss which was fully briefed and judge christiansen went through each one of the elements of the white test and each one and explain why each one of those elements are satisfied and therefore decided that the court or that the college was indeed an arm of the tribe as virtually every other court that's ever been faced with that issue has also decided and declared rightfully that it was excluded as an employer under title seven and therefore the federal court lot subject matter jurisdiction  claims as part of our motion we submitted a demonstrative exhibit which is at s c r one through fifty five dollars where we went through every single white factor and cited to the court minutes and documents dating back forty years which probe proved each one of the white elements to speak to his threshold issue about the two different corporations i will your honor you know i'm going to get to that right now st of all to address your question that you  pounded to mr coburn was whether or not this deciding issue had been decided before and the answer that question is yes that precise issue was decided by this court sitting in bank in smith versus elite college and just as a refresher on that what happened there is that mr smith sued college in tribal court for damages arising and toward that case and went up to the court of appeals of the sale each of the confederacy the scrutiny court and in that court of appeals opinion that identical issue was addressed and argued in which the plaintiff was sane said that the tribal court didn't have jurisdiction to  claims because he was suing the state incorporated silly scrutiny college and not the tribal incorporated solution because there aren't two colleges in fact the  confederated philly's two tribes addressed that issue head on and went through it very specifically that there are not two colleges there's one college that's duly incorporated the plaintiffs smith and filed a case in federal district court challenging the decision of the appellate court of the tribe that then went up to the th circuit and that issue was address specifically by this court and you said that it's a duly incorporated tribal corporation in any event your honors that issue was presented to judge christiansen and judge christiansen decided after weighing all the evidence that indeed there is only one corporation and in fact mr mccoy's arguments disregard really the entire record and rely strictly on the articles that were filed with the state and they disregard and ignore the charter of the tribe the minutes of the tribe the resolutions of the tribe the corporate documents that have been filed with the tribal office the history of the way that this organization the silly scrutiny college has been treated by the by the tribal council and by the tribes itself there's only one sailor scrutiny college there's always only been one fairly scrutiny college and regardless that issue was adjudicated and there's a preponderance of evidence to support that conclusion one other thing i will say about that and it's not in the record because it actually happened subsequent to judge christians since decision is that the state incorporation has now been involuntarily dissolved so there isn't even really a state incorporated saley scrutiny college there's only a tribally incorporated saley scrutiny college and that's not in the record that's not in your record because as i said it happened subsequent to that it's not it's not really fair game for this argument right it really isn't other th if you write an opinion i don't want you to say that it's now you know incorporated under state law because it isn't any longer and the reason i believe is because they've had to face this precise argument in like six different cases and he's case the courts have held there's not to corporations there's only one and it's a tribally controlled college it's a tribal corporation it's duly incorporated and this argument that we have two separate colleges operating on a parallel track is really just a fiction that's been argued and rejected many times before and regardless judge christiansen here dealt with it and rejected and that's supported by a preponderance of the evidence and i'm hoping at some point in my client's existence that that decision will be the end of it that they'll no longer have to face this concept that there's two different colleges but in any event it was it was disposed of appropriately by judge christiansen just as this court had done in banking the smith case there's not two different colleges there's only one now the nd test of  white has to do with the purpose and again just crisis and address that issue head on and found that the purpose of the college or the purpose of its incorporation and of the college was to further you know the various issues with regard to the tribe one thing i should mention is that in his brief mr mccoury mr mccoy cites a case from the eastern district of virginia in title williams versus big picture loans claiming that for the purpose of determining the purpose one looks to the financial benefit provided to the tried in fact that case from the ist eastern district of virginia was reversed about six weeks ago by the th circuit court of appeals and you could benefit that determines the purpose but whether it furthers tribe tribal self determination which is precisely what this college does for this try again judge christiansen address that issue at l th and found that the purpose of this college was to further the benefits and intentions and goals of the tribe and that that element too was mad now the question was asked  with regard to this waiver whether or not there had tension been a waiver in the articles st of all a clause in articles of sue sue and be sued is not a waiver of sovereign immunity you said that in dean and hagan also held that i think there's a number of cases that held that but more importantly for this case is a defendant can't waive in to the civil rights act you're either an you and therefore you define within the act as a party who can be sued or you're not as the chain court said in the context of a of the false claims act you can't wave in the false claims  held specifically that you can't waive into a title seven defense i think pink also held there you can't waive in to being a title seven defendant so the waiver of what about the contracts of the  contract by a triable for a tribal entity that says they agree not to discriminate in violation of title seven doesn't bring them into title seven again it's a waiver argument you can't waive yourself in the titles of what it does do is that it is between the contracting parties the granting authority and this case the college let's say if the college discriminates the granting authority can somehow penalize them under the grant for f discrimination that doesn't now though bring that entity in to outside of being a tribal in any arm of the tribe so that it can be sued for title seven the contract the rd party beneficiary contract title seven and that's what cain health because kane they argued that there had been a waiver that waved them into being defined as a defendant of the false claims act in fact the st paragraph or two of the kane opinion says you can't waive yourself into that you simply can't do it and this all weekend case said that as well in the context of title seven and in fact rejected the same argument that mccoy's making right now that somehow entering into a contract that allows you know a grant contract that has discrimination prohibitions somehow bring you that title seven it just doesn't work you're either you're either entitle seven or you're not you can't waive yourself in you can't contract yourself in this case judge christianson properly analyzed all the white elements and said you're an arm of the tribe that's it you can't be an employer under title seven i don't have any subject matter jurisdiction mr mccoy you have to take your claims elsewhere multitude of cases where they've held that casino a payday lender are all arms of the tribe it would be an absurdity to say that a college named after the tribe located on tribal land with literally a bridge running from the college to the tribal complex is not an arm of the tribe when you're saying casinos and payday lenders are to me that would be a ridiculous result and in any event your hono just christianson did a good job examining the white factors applied the white factors to mr mccoy's claims that is supported by more than preponderance of evidence i was just overwhelming evidence and i respectfully asked this court  d judge christiansen and in a firm denial of this case for lack of subject matter jurisdiction consistent it's consistent with how the federal government has treated college it's consistent with how courts have treated cities county college it's consistent with the federal policy behind the travel college movement that you see in the images from the american indian higher education consortium most important it's consistent with how the tribes and selves see and view their college and entire history of college and what it means people judge christensen follow the thread pink says arms of the tribe are not subject title seven white says you define what an arm of the tribe is by a five factor test kane says the definition for whether say to call it is an arm of the tribe is through the white five factor test we're simply here asking to close that loop now and say the college is in raising courts have seen that and said it's one college that it's doing corporation courts that have looked at it no matter what the test was whether it was in smith or in white have said that whatever the test is for the college it has met the test to a corporation does not they festivus tribal status that's consistent with th circuit law it's consistent with the federal district decisions in montana and it's consistent with with virtue of dune corporation there are no cases that i can think of your honor although we're not saying there's two colleges we're saying that there's two corporations and that the facts of this case demonstrate that the college is operating as the montana corporation and therefore in analyzing the white factors the court should look at those on tanna incorporating doc and if we do that what is  your view how do these factors change what are the most specific important changes that you see if we were to agree with your premise that there are two different corporations well i think and i think one the method of creation of the college goes to obviously it's incorporating or montana law i think the structure ownership and control or lack thereof is there is no reservation of any powers or rights by to the tribe within those articles the articles themselves don't mention an intent to share in the sovereign immunity of the tribe and that is the st point in analyzing whether that's the th white factor intent to share sovereign immunity and the st point that the court has to look to is so that incorporating documents and see is there mention of an intent to share in the argument that we would look to those documents and we wouldn't look to the actual practice or history of who's appointed who did witchboard i think i think we look to those documents st but then i also think that when we look at the actual control as i was discussing previously and as we discussed in our brief it actually shows that the tribe doesn't actively control that all the governing decisions are made by the board of directors that the board of directors typically makes that the corporation legally operative documents where they swear under penalty of perjury such as the form ninety submitted to the i r s specifically state that there is no governance decisions given to anybody other than the board of directors of the college not reserved to anybody other than that i know the record but if it's in voluntarily dissolved what is your purposes  of montana corp certainly i think we could look to the fact that it's dissolved there still are the liabilities of those corporation and then we look to settling that thank you very we are now in recess