good morning your honors my name is andrea silas that i represent the petitioner appellants in this matter as i have with the district court and the bishop court of appeals with me today also representing his family is petitioner ronald napoles i would like to reserve one minute for rebuttal and i will try to help you watch the clock but you're ultimately responsible for it and may it please the court congress enacted the indian civil rights act including its takings clause not just to establish theoretical rights or to generally admonish tribes to follow them but for the purpose of providing a real unforced mechanism in federal court to those whose rights have been seriously violated by official tribal action and the circumstances of this case exactly meet the requirements for federal review under the hay b s provision of section thirteen zero three of that act there are two independent bases for jurisdiction in this case one based upon the restrictive terms of judicial superintendents and control imposed by the order of the tribal court and the other based upon coercive and threatening circumstances establishing a permanent physical and geographical restraint in conjunction with a pelleas efforts to reach egypt petitioners from their families land as cou that's has gone through the tribal court and as pending in a newly constituted tribal court of appeals at the time we filed this the court of appeals contract had been rescinded and there was no court of appeals but as this as we proceeded they resurrected one that being said the restrictions although not the first order the other restrictions remain in place and all the orders and the physical restrictions and fencing off the land are so what's this has i understand that the just telling me that the appellate court has been reconstituted and so your case is pending there yes and what stages as it's been set for argument and briefing schedule what's been the the the latest round  exhaustion and you have to establish that you exhausted the remedies or that it would be futile to do that you also look at the time of the filing and what was available and what is the relief that's requested at the time of filing we had clearly exhausted all remedies what was your case that says that you look at the time the filing because it seems like my understanding of exhaustion is that if you have something pending i understand that if the court was not constituted you didn't have i guess for that time period some ability for relief through the tribal court but it's if your case is currently pending i guess i'd like to know your best case is to to say you know that because it wasn't  the case is currently pending our new iterations of trespass searches the case is that the previous case has been dismissed and every time the petitioners move and try to move back on their land essentially these petitioners have prevailed twice through two rounds of actions that were filed by the tribal council in the tribal courts they appealed an initial round and one in the tribal court of appeals it was remanded back to the tribal court the tribal court rather than have further proceedings dismissed the case with prejudice the petitioners re entered the land and and started their normal use and occupancy a new round of charges was filed this case went on those were dismissed and now they've gone on again and last april and a new round has been filed so restraint the physical restraint that's the basis for the hades petition has been in effect all the way back from june of two thousand and fourteen but you've been successful at the appellate court some trying to figure out when you say the physical restraint when you've been six at the appellate court then when we go when the petition is go back on the land the of respondents all of them the tribal court the council and their agents have refused to honor and add here to  dismissed with prejudice which means the holding of that court that they did not have authority to trespass the people should be the good law but instead when they said can you just i don't know if those in the record where where is your citation that they were dismissed with prejudice yes well this now you're getting at information that comes after the filing of this particular case at the time of filing of this case we had a order that temporary protection order restricting them from totally from the land and imposing those threats of further charges even federal criminal charges because of the erroneous reference to the violence against women act i mean just make sure i understand they've been cited trespass  tations that's one of the things they've been doing ok and i think those who've been dismissed based on your success in the last know your honor ok so they that they have and this is one of the issues in the case they've had this repetitive it's really a manipulation of the tribal court proceedings day the the tribal court the tribal council those are the respondents in the case so the tribal judge the lower tribal judge and the tribal council have at each juncture where the petitioners have been successful have and then went return to the land as if everything was normal have went forward with the same actions bringing the police surrounding them on the land with this threat even the arms with the hand on the gun and all of that so there's a physical apprehension in the field followed by the filing of new charges new charges of trespass and this and every time we get to a juncture where we think it's resolved a new set is is filed and there seems to be a total total reluctance and inability to follow the previous decision so there's a current trespass citation out that been issued against your client yes when was that issued the charges themselves were filed in april of two thousand and seventeen the last decision was the summer in july and the  out there besides the trespass citation there there is just that citation which holds them which waves their penalties as long as they do not return back to the land so it has the effect of continuing superintendence and control that's related to the movement upon the land and i just want to ask you a question regarding detention did any of your clients live on the property question well yes your honor the family lives on the all of the land their home is on it this is not there's not a house upon the land no there was life like livestock and other appurtenances upon the land and if you go back and look at the original land grant documents to the to the family and if you look at the one nine hundred sixty two ordinance about that the land was to be provided but for the livelihood of those individuals at which and it included an agricultural opportunity because it was supposed to assist with the sustenance moving forward so that so no there was not a house but yes it was part of their total amount of land and i wanted to say a thing about the the principles the animating principles that oftentimes federal court to hesitate to exercise jurisdiction in this case those principles don't apply like they do in those other cases certainly not as they applied in different answer virus the most recent of the cases in this circuit cases the focus of most of these cases has been on enrollment and core issues of sovereignty of just enrollment and membership none of those issues are involved in that case and perhaps the most significant issue is that not only are there the interests of the tribe itself and these individuals but  there's important federal interest involved in this case stemming back to the act that created the reservation in exchange the land for and the trust agreements that were entered into the original people the grandmother of mr napoli's to induce them to move upon what's now the reservation and those documents provide for a continuing use in occupancy that's not it's not typical tribal trust land like you see in other places in the federal government had an express explicit purpose of creating that to keep people with a means of livelihood that was effective in the long run and if you also look at those documents they were to continue the interest of passing from one family member to another as long as they were available into the future and that's and of the core issues of the this federal interest also of interest are the interests of two other tribes in the owens valley the lone pine shoni and the big pine who who share authority on this intertribal board the o trustees over the land so this isn't a typical case where you can just say one tribes disenrolled decision over these members is that issue it's it involves other tribal interests and federal interest and so none of those canons that apply give deference to the so you're out of time but i have just one so what's your best case that you would point us to you know for us to rule in your favor well the best cases are the ones on good morning your honor my name is anna kember and the attorney representing the bishop tribal council as well as the tribal court and judge koch meister i would like to reserve two minutes of my time for my co counsel frank laurence to address any questions the court may have with respect to the arguments having to do with the quiet title act and the indispensable party argument before i began in addressing some of the points that were raised by missile stat i want to point out from our perspective the three significant issues that the district court was correct upon because federal courts are courts of limited limited jurisdiction it's presumed to lie outside the limited jurisdiction the bard burden lies on the party asserting jurisdiction to support and the district court believed that the appellant's did not provide sufficient evidence to show that the federal court had jurisdiction to hear this case judge dros clearly extraordinary relief and it's to only be employed in the most extreme of circumstances again principles of federalism must temper the federal courts assertion of its authority pursuant to group proceedings so talk talk to me please about the ongoing a bill ability of tribal remedies if any that you see well the tribal remedies with respect to trespass as miss pointed out is still ongoing so she does have these in these matters this matter before the court today was having to do a trespasser that were issued in i believe twenty sixteen what they claimed was the the judicial control and restraint in that case and so therefore they abandoned any appeal rights that they may may have had since the case so that's what happened in this case i thought the district court are the circuit court denied the you're saying they withdrew the met it was true the mandamus ok and then with respect to the latest round of trespass citations that have been issued there has been a case there has been a decision made by judge coca meister in the tribal court on july eleventh of twenty eighteen of this year will basically said at the june eighth twenty eighteen limited hearing several witnesses testified of particular importance is the testimony of defend ronald napoli's that neither he nor any other defendants had a valid land assignment since none of the defendants have a valid land assignment to block three lot six and seven the trespass connection must be affirmed so that was the finding of the tribal court it is up on appeal now we just received the growth in status of the defendants have filed a an appeal challenging the district the tribal court decision briefing is going at just we just got the briefing schedule today so brace will be filed i believe in november and december of this year so is that issue the issues there different from the issues in this first case the issues are relatively the same is the what's what's going on i'm trying to figure out i mean this is going to be a continuing circle of the court's going to deny are going to grant relief and then the tribal court again is going to do the same thing how long do they keep doing this well there was no grant of relief i think that was a misstatement by ms seale stad the first case was dismissed with prejudice but that was by the tribe had requested that case to be dismissed because the defendants had removed their property from this land their cattle their equipment and so therefore we felt there was no need for the trespass citations to move forward that was the first iteration the second tress the past citations were dismissed soo a spontaneous by judge coca meister so now we have the third citations we have an official a form a final court order basically saying these individuals do not have rights to use and occupy this property therefore if they continue to go on to the property they will be if they will be is citations they will have to go back into court and they will have to defend themselves but if they don't have a grant of standard land assignment they will be found interest pass and it's porton to know that they say that issue is different than what the court has already because they've gotten favorable rulings from the appellate court well i don't know what favorable rulings they're discussing there the inner tribal court of southern california decisions yes those were basically to the district court that was not necessarily a ruling on the merits there is now in new court of appeals decision that came out of the bishop appellate tribal court that i wouldn't necessarily characterize it as winning way a case that is i believe that what the defendants did here was they abandoned their rights in the tribal court and so therefore by abandoning their rights they have foregone you know  they did in fact abandon it i don't understand what they would have done with the mandamus petition otherwise if it had been dismissed men would win when the claims was dismissed and then they won i think the claims was dismissed because they had removed or again have removed their property from the from the land and so therefore the courts sponsor decided to dismiss the case at this point in time certainly there after they went back on  of the property and at this stage we have a court tribal court determination that shows that they have in fact committed the act to trespass that they do not possess any rights to use an occupied those lands but when they filed this case there was nothing pending there was nothing they could do that's correct well actually i wouldn't say that there was something they could do the trent temporary protection order was issued in november of tw a hearing had been scheduled for december twenty second of two thousand and sixteen defendants requested that hearing be stayed or delayed out a couple of months so that the court of appeals could handle their case they had appealed directly to the court of appeals judge coppa not coke and mr granted their request for a continuance of the hearing but kept the temporary protection orders in place in the meantime eleven days principally still is but purely a land dispute in other words there are no no allegations about detention and so forth what court would have jurisdiction to hear that dispute it would be if so far as why there is not your argument as to why there's not a detention is what this is there's been no severe actual risk restraint which is something that is unnecessary when it comes to determining hey vs relief under thirteen zero three  o no no no restraint on their liberties what would be their liberties under the circumstances it's entirely contingent upon their position that they have rights to use and occupy this land none of  possess a grand a standard land assignment for this as a matter of fact four out of the seven individuals who are parties to this have grants the standard land assignments and so to say that they have grants themselves which they have houses built upon but then for some reason have a right to use and occupy this land with no grand standard land assignment in place that does not give rise to that does not can that does not contemplate severe actual restraint on any liberties of the defendants and as i said i want to i don't have any questions on quiet title do you have any questions so i don't thank you for being here indispensable party argument you have question and that is santa clara pueblo and that is the cornerstone for any of these cases with respect to the level the degree of salable relief under the indian civil rights act and thirteen zero three is the only relief  that's the courts have ever found so thank you thank you i'll give you two two minutes was one mandamus action that was withdrawn early on in favor of other recourse but in this time period that's relevant for the purposes of this detention we had gone to file a mandamus action and that's when we discovered that there was no longer appellate court and it's at that point with that court order that that temporary protection order that has those restricting measures and threats even a federal prosecution and acts and and full faith and credit it was at that point and the point when there was no appellate court to go to on that mandamus action that we filed this action and all of a lot of your questions go to things that have happened since and i would suggest that the record as it's been submitted is clear on the issue of detention and if there's remaining questions about exhaustion or mo remanded to the lower courts have less that out because there are a lot of different proceedings but i can attest i did want to ask you one question i know you don't have much time but him or me for just a minute but first you agree that the only way you're here is on the  absolutely and what you would like is for under thirteen zero three to be as extensive as he be as under prigs ample twenty to fifty four x or more restricted well let me tell you about a case i had about two months ago coincidentally and then to get you to tell me what's different about this case in rural county and there was a husband who had a life estate and an ex who had the remainder as into the divorce decree he died so she is entitled to the property the sheriff's a friend of the deceit it and tells her you cannot go on the property she shows her date and he says i know you cannot go on the property and if you do i'm going court if the sheriff had come in and said this is really a hevia you have to exhaust we would have scratched our heads and and almost almost laughed but that's the twenty me that's not a is that there was a court order that imposed those restrictive terms of superintendence and control and there's a whole line of cases that say that even even in this circuit fourteen hours of alcohol counseling order meets the requirements for haiti as corpus in another  that means versus navajo nation case the restrictions were simply that the petitioner not go within a hundred yards of his father in law's home not contact him and come back to court and all those cases because it's the court exercising its control and restricting the movement of the person all those cases independently meet the requirement for detention and in addition to that in this case we don't just have one sheriff going out one time we have lots of law enforcement going out and circling them every time and you can hear from the council's argument they're going to continue to do that unless there's some kind of intervention whether there's a tribal appellate court order in the end or not they're going to continue to assert their right and do that and when it happens there's been physical heavy equipment on the land there's been physical injuries which as they're as they're  on the land there's been a real apprehension and fear not just of arrest of but of some kind of physical harm because the law enforcement has their hands on their guns while they're going on they're being circle and apprehended right on the land they've been fenced out they've been served with multiple citations at home at work though those working for the tribe were either fired or put on disciplinary measures they were continually threatened with arrest and prosecution on the field and in these court orders and that's going to continue to go on that's a continuing state for them going all the way back since june of two thousand and fourteen and those are the conditions your honor with all due respect to the to the concerns about tribe tribes and their sovereignty those are exactly the circumstances that that reached the level of hey b s and i know the courts have been very restrictive in this measure but this is one that meets those requirements because of the totality of those circumstances combined with the fact that the  grounds for hesitating that because of concern for one tribe one tribe sovereignty are not present in this case and the only citation to the one case that the best case that supports your position that this conditions in these cases in addition to the permanent geographical restriction it's even more serious because they're on their own land and they expect i think you're entitled to some sort of security of of use and enjoyment and safety on your own land and they don't have that protection so based on all of these circumstances we believe there are grounds for detention to review the merits of the case thank you thank you your honor thank you thank you both for your presentations here today mr lawrence appreciate your coming here and being willing to answer questions regarding the quiet title but the matter of and the case of