i need for you to know if you don't mind begin with the fact that many many years ago this court upheld this exact tax from this exact county and raised by your client and so we have to be persuaded i think that there is a subsequent supreme court her own bar solution that requires us to with respect to the fact that where the ninth circuit held in one thousand seventy one that a tax on the use of land is not a tax on the land itself mescalero tells us that's no longer the law it's also the fact that in both a the fact that an argument wasn't addressed or a piece of reasoning wasn't addressed doesn't necessarily mean that we don't follow something enough if i case hold squarely that x is true and they have three reasons and the fact that they didn't consider a fourth reason or didn't really explain any reasons doesn't mean we don't have to follow it so why does the absence of a discussion of section four sixty five mahar it's involving this tax used not by that name of course but used to brecker analysis already so if that's correct why would it have to be done again only to be done again then because of the adoption of the twenty twelve federal leasing regulations which this court in did waive versus the part of the interior review those regulations do gus the eleventh circuit under under the new framework the new statutory regulatory framework that was created by those leasing regulations that were adopted in december of two thousand and twelve units by taxing possession a right that is intimately connected with the land the possessor interest is taxing agua caliente trust land itself and as applied in this case that means that on the reservation the p r t is being applied over twenty thousand leases on lands that comprise seventy percent of the reservation as a matter first of federal common law these are the indian trust lands were exempt from state and local taxation when the restoration was first established by executive order in the eighteen seventies that's recognized by the us supreme court in re kansas extended by congress and section four sixty five to apply right like here the lands in mescalero were not acquired pursuant to section four sixty five the supreme court noted in mescalero that in fact the lands were not technically acquired in trust for the indian tribe at all under any statute and that's because the land that issued mescalero this is one forty six of the opinion was offered servatius land and was land that was owned by the united states forest service that was leas tribe for the ski resort activities is it your position that any land owned by the tribe no matter how it may be used or lease is exempt is exempt from taxes that apply to those lands or rights and land yes yes so it's a very broad application and there is no scenario you can give me that would suggest a different result let me answer your question in two ways around the first would be a state tax that would be perfectly acceptable under under this legal landscape is where the tax is being assessed on some non indian activity taking place on the la have it's not a tax on the last owner or or on the value of the land itself it's a tax on the value of the last sees can trust which might be small or large depending on how you phrase it because it is they were last seen may choose to make no use at all it's a tax on they would value to the last c of having that option well i think your hypothetical never visits the reservation they pay the same amount of possessory interest tax value notwithstanding right as a as a lessee who makes daily use of the reservation how the tax is not an activity how is the tax calculate it's one percent of what about one difference because it puts at risk the the indian trust land itself even even though it's down the road and here that is not an option as i understand at this tax if not paid cannot be collected ever from  or in any way create a lean upon the land america about that you know wrong about that but i think that's a distinction without difference and that's because that that the fact of the fact that the florida could conceivably go after the tribe if  the if the if the tax was not paid was not a dispositive factor in the eleventh well i'm not asking about the eleven circuits recently i'm asking you just as as a straight up question where that is the case where it can never never become a lien on the indian land and where it can never be collected from the tribe that seems to make a difference to the analysis but it can never be collected from the tribe any way you could that the state cannot impos land that's right and they haven't that's exactly my point you know and i ask you the question i don't understand why that doesn't sort of create the appropriate distance and  lands and the supreme court had no difficulty finding that that arrangement between the united states and the tribe was sufficient to bring it within the taps immunity that was afforded by section four sixty five and if this court applies incident taxation falls on a non indian engaged in on reservation activity it must be up held if the balance of interest justifies the tax to the state's interest but there is no instance in which attacks the instance which falls on and on and is there a categorical or per se approach in this case the use of the land if you will it is a property right that is carved out of the beneficial interest in trust land in the indian holds in other words the indian less sure creates and conveys a property right an indian it's perfectly appropriate unlawful to tax that non indian on that property right but i don't think there is any reason the way of claiming that that is a tax on the land or on the indian because never is that tax assessed on the indians beneficial ownership if the indian leases land as the tribe does lease from its members there is no possessory interest tax assessed on the india and leases it and there is no way that the falls there's no question here the insoles taxation falls on and on indian so the per se law of either the common law doctrine enunciated by the supreme court and oklahoma tax commission  tax upon the property itself you really need to flesh out a few more details behind that broad statement you do that is a perfectly sound statement but its who is it use is being taxed if it's the in the news is being taxed it's probably unlawful agreed that it couldn't tax software but they got this idea that the permanent promise on that land a lodge were owned by a joint venture so it's at a how we can tax a joint venture but it's not because it's not the tribe but the court in the case rejected that argument rejected the distinction from mescalero by saying the tax immunity does not depend on the form of business that the tribe chose to organize and it was in that case the court said it is a preemptive tax because the tax is on the joint venture created by the tribe fifty one percent owned by the tribe controlled by the tribe it is a tax on the wasn't on an indian but it did say that both subsequent ninth circuit cases have applied prescott in the community salt river indian community healer river indian community at all ply brocker grazing cattle on reservation were taxes on the personal property and the court again balance the interests and said that the state interests were great enough to sustain the tax which is exactly the situation here when you get into the brecker analysis it really boils down to whether the tax is justified because other states regulation of the tax payers activity or the services are rendered to the taxpayer  ugh on a limb here and say i do not believe there is a case ever been decided on whether the state interests or more clearly are soundly existing as in this case all of the everything that the state provides and there are no services of any matter provided by the federal government or by the tribe so the state's interest is absolutely paramount judged in the district court found that th federal interests were great but they were clearly and easily overwhelmed by the interests of the state here the interest is taxed is the private use of taxes and property and is used for residences and for businesses in that sense it is not any different from the use of the variety of other ninth circuit cases that have helped upheld taxes against non indians who were in possession of leasehold of trust where some of those were for to run a hotel or to run retail establishment but in all instances the tax was on a non indian and all instances significant government services were provided by the staff in us addiction and all instances those taxes were up i find that the confederated tribes case supports a lot of what you argue in your brief your opponent says that the discussion in that case of pick in section four sixty five is direct comment does that case control the outcome in this case or not i would concede that it does not control in as much as the determination cited i go folly and they won the support for that and it also could rely on the definitive interpretation of those re interest tax by the california state courts in the city of fresno of the united states that case was upheld in the supreme court quite clearly found it was just read interest tax was not a tax on indian ladder actually in that case it was federal land or a federal function just as it is not a tax on indian land or an indian function in this case i would like to quickly address seminal because mr smith claims that that's on all fours the seminole case quotes the the florida rental tax  beginning of the opinion and i'm quoting this it is a tax on the privilege of engaging in the business of renting or leasing real property in that case the entity with the gauge in that business was the seminole tribe of florida when you asked the question where's the answer taxation fall it quite clearly for that case tells you two things if it's on the business operated by a tribe on reservation it is per se on lawful and the outcome of that case i submit is correct the way the court got that outcome i would suggest to you isn't all respects wrong first of all it's said that four sixty five apply well if it's a tax on the business of leasing property it is not a tax on the land so for sixty five shouldn't apply secondly if the ensign of taxation falls on the tri law that rather articulated the principle that the supreme court had always applied in past cases in fact the brecker case itself said at the outset quote we have examined her past cases and here's the and be done ok because i think the analysis we went through there does not map on to the balancing analysis that brecker requires and obviously brecker came down after both of the decisions that you are relying on so i'm  i'm asking is why don't you respond to that because i am not persuaded by the argument you made in your brief that we are a bound by our prior decisions well i i think that the answer to that question analysis in balancing the interests and then the supreme court's decision later in bracher which basically summarized what the court's jurisprudence along these lines had been and of course the case before this court to it seems to ees of otherwise exempt indian lands are not are subject to are subject to taxation income so the court in mescalero specifically said that this kind of tax is valid it's not remarkable proposition of course as we discussed your honor that there are certain taxes that to apply to non indians with an indian country and would continue to even under our construction of section four sixty five other issues legal incidence here is not dispositive at least as to respect to section four sixty five right for sixty five is concerned with the status of the land itself not the identity of the taxpayer the identity of the of the of the taxpayer is relevant when it comes to when it comes to brac or balancing  panel of this court has so held in department of water agency versus department of the interior in forty nine if there are twelve fifty six with the little bit of time i have off they want to briefly talk about rocker because here's here's here's one of the more significant errors that the district court made to my knowledge it's the first time that a lower court has found that there is an exclusive federal regulation when it comes to the leasing of of in the interest loans she found it was exclusive in pervasive but nonetheless found that as mr sharp said these generalized state interests the fact that the services are provided to everyone everywhere in the county can still nonetheless survive on balance and that's not the law of the circuit i