ok it looks like your colleagues are settled go right ahead please may please the court scott behalf of the pranks landing in the community i would like to reserve five minutes for rebuttal the district court erred not applying the plain language of the indian gaming regulatory acts games this is different than the type of full blown casinos that are being operated nearby by than a squally scattered island tribes when the community submitted its class who only game in ordinance for approval it was denied because the sporadically by regulation it has its own minute before you get too far it seems to me that your whole argument boils down to the fact that you would in twenty seven zero three five a eliminate the words as eligible by the secretary no your honor i believe that as eligible by the secretary you know still has significance but what does a significance if i'm going to go to the one nine hundred ninety four active by i'm going to go to the nine hundred eighty seven act of i'm going to go to any of these other acts the big part in those acts is that nobody says it's got to be as eligible by the secretary and that's the only way you get around it is trying to come up with some act if you will that doesn't have anything about eligibility by the secretary in order to say i get it no i believe that that that you know there are certainly circumstances where they may be presented where the secretary may may properly determine that well but honest truth is the indian tribe as under twenty seven zero three five says has to be as recognized as eligible by the secretary that's the first clause there off otherwise for the special programs of services provided by the u s to the indians because of their status is in these other zax that you want me to look at but you continue to ignore this if you will clause as eligible by the secretary and frankly that's why it seems to me that i worry about your argument because i can't find any place where the secretary would have made ul and you will i can't find any place where a court would have made you eligible i can't find any place where the suggest you're in your ian or if your hand by the court you're in but none of those are there and so therefore i'm not elegy i'm not recognizing you what what what what is that that's what the department of interior told the secretary what again you know that there are there are criteria and parameters that the secretary must abide by he must determine that women abide by now you're talking about two to recognize it five or two to kno to determine whether the tribe is eligible for gaming under the in the ok regular rating i just want to be clear about it identifies two criteria one does it doesn't have the special status because of its status as indians and the franks landing that says you are a dependent self governing indian community and to is you do do you have the powers of self governance including the power to contract and as a as a tribal  given that and the prince landing act says yes if but thanks frank slammed again does not say as i read it i don't see anything in there that says that your specific group of indians is a tribal it's but that's not the definition of the india where regular talking about the indian tribes in twenty seven all three five in the in the band are organized which and so then i tried to go find out well how do i get to be a tribe i can be a tribe by an act of congress i can be a drive by the secretarial knowledge learned under par three regulations which is the list or i can be a drive by a decision of the u s court and there isn't one so then i say well then i guess they're not recognised as a dr but that's completing the definition of a federally recognized indian tribe with the definition of an eligible in a t under you ought to be a federally recognized tribes your argument has to be that the franks landing act as amended gives you the right to to engage in class three gaming that's correct so that's why judge smith says where does it say that the because twenty seven twenty seven zero three sub five says says you have to be an indian community which was a is recognized was eligible by the secretary for special programs and services provided by the united states the indians because of their status as indians frank's landing meets that qualification and b is recognized as possess empowers the self governing doesn't any example in a case like anywhere where a court has directly taken this i don't think there's a lot of entities with the status that frank's landing community has is that right if it's we believe it's unique we don't put you know as we can't find you know as we look to other circumstances we're not aware of any other entity that would meet this definition but not meet the definition act and i go to ten a one it says subject to section subsection b the community is hereby recognized and here's all the language you want to bring up but then there's a clause under the that goes after that it says is eligible for programs of services because of their status in the under the indian self discrimination and education assistance act for such services so it doesn't say that you're eligible for everything credit just says you're only eligible under the sell indian self determination and education act no it doesn't so that's what it says as eligible under the say indian self determination and education assistance act for such services then i look at the indian self determination education act and under that act it says that it's an indian community are recognized eligible for some special programs and services by the u s to the indians because of their status as the same language is under the franks act however significantly under the indian self determination and education assistance act it does not require that the secretary recognize the community as eligible for the programs it grow is different than that says as i tried to point out to you it's got to be eligible by the secretary and therefore you don't meet the definition and again you know what we would take we would take issue with that i know you take issue but tell me why because because the this because the authority of the secretary is not unbridled if if if the evidence is clear that the end it he meets the provisions of twenty seven to three does five and you just read from the franks landing act you know the statutory foundation that i need that then then the secretary cannot is that this wall that says you say it's automatic for every program but it doesn't say that it says  it's valuable for programs of services under the indian self determination and education assistance act and then when i go to that act it says the same thing with says under the franks land exact but yet significantly a great throws in this extra clause eligible by the secretary i'm just trying to i'm trying to give you some of what i'm reading in the statute and you to tell me why i'm wrong if if if if the duwamish nation made an application it would be appropriate for the secretary to fine that he would that they were ineligible because the congress never recognize their ability to self self government at the virginia tribes had not been formally recognized at the time that they had so had made a request they wouldn't they the secretary would properly disqualify them as not being eligible well but for the secretary was not but honestly that  says that makes a great argument to the jury but we're talking about statutory construction near not only that but when i read ten a which is the very part where you're going it says nothing in this section may be construed constitute the recognition by the u s that that community is a federally recognized tribes it says that community shall not engage in any class three gaming activity therefore there is war a right on i don't have to bind them as a tribe and right on i don't have to give them class three gaming activity but now you want class to gaming activity and you want me to find it based on this ten a which doesn't say anything about recognized by the secretary with all due respect at the if your interpretation were correct it would be giving the secretary unbridled discretion to deny any try the ability to game under hink unbridled and i i don't jump to an bridled but but why would this interpretation be unreasonable sir as recognized by the secretary seems to me to become term of art because his parameters of sled are laid out in twenty seven  know so so so forgive me but is that does that mean you think the secretary had no discretion here the secretary doesn't have discretion to deny a tribe that clearly falls within the parameters of twenty seven zero three five or tribal in it he clearly falls within those but i'm just trying to get at it i'm not trying to be tricky here is it your position that when we look at it and frank's landing at that is it your position the secretary had no discretion to deny this here under these circumstances no because because  been trying to get you to tell us what about the frank's landing act is so clear is it that is it the phrase that says that the that the community is self governing eligible to participate in is that what you are responding to that and it's eligible for special programs and services provided by the united states to indians based on their status as india but on the same day the franks landing act was amended congress also adopted right essentially forever and the the requirement that the secretary had to maintain a list of course dates back part eighty three dates back to the late seventy's i think that i've been a long time policy in practice and then congress  codified it so at that time it's it seems to me a really glaring omission that if congress intended for the franks landing community to be able to engage in gaming class to gaming which is what you're after that they wouldn't have said so in the amendment of the franks landing act can you respond to that please i look at the other way first judge subtle made clear that there's no way you can take the tribalist stacked and read it to rewrite every definition of indian tribe did you find the title twenty five the fact of the matter is that congress use different definitions for indian tribe in different circumstances in a variety of different different ways that has congress used as recognized by the secretary differently in different places i don't know if it exists in other statutes there's a minimum doesn't this really almost this problem that you presented only appeal really teaches that the franks landing act is a that we're obligated to defer to the agency's interpretation of but so long as it's reasonable thereby making the key issue is that interpretation reasonable no we don't believe that it's ambiguous the franks landing act clearly says the frank the secretary i'm looking at to decide whether the whether frank's landing looked at it took a depp and different definition of indian tribe that found in the tribalist act as opposed to strictly applying the clear unambiguous language in the indian  in fact the fact that the two statutes were done on the same day i think works to frank's landings benefit because it would be an absurd result to say at one moment congress was granting frank's landing these rights indian tribe definition requires that a group or community of indians be recognized as eligible by the secretary etc this the group was enacted in one thousand nine hundred eight at that time the requirement that a group of indians be recognized by the secretary could only have one me it could only mean recognition under the eighty three federal acknowledgment and listing process because that was the only means at that time by which a tribe could be recognized as a group of any as could be recognized as eligible there's no other plausible interpretation nothing else that congress could have meant by that phrase and the petitioners never offer any contrary and her potato congress could a ed correct and say we're suggesting that this tribe is eligible yes and actually your honor that's an important fact that's what he's arguing but i'd swap adding go through the statutory interpretation he's saying congress by enacting the franks landing acts said this tribe is eligible actually your honor i don't think that is the argument in fact it's not the argument they are not arguing that the franks landing act independently vess them with gaming authority regardless of what it was definition of any in tribe as their sole argument is we fit the definition of indian tribe in agra and that argument fails because it requires secretarial recognition under the park eighty three process which equates to federal recognition a term of art well but it seems to me that they go just a little bit further because they start quoting this language which is in ten a one which is eligible for special programs and services there suggesting that that somehow makes them eligible under rigorous that's what they're arguing the so they're really arguing a statutory amendment if you will that makes them eligible well yes i just wanted to clarify that they're not arguing that they have that frank's landing acts vested them with authority to go to game even though they don't meet definition their argument is simply that qualify them as an indian or a group and that argument fails because it requires federal recognition if there's any doubt about that it's eliminated by the legislative history i think you have a strong argument what about the fact th statutes of the list act and frank's landing amendment happened on the same day and that congress did this chose to specific to specify the franks and lending community can't engage in class three is there if we if we accept your statutory interpretation that phrase does seem to be superfluous because your argument is the can't get engaged in any two or three so why include that phrase well i think the district court got it right on that it's not superfluous because it continues to function to preclude the community from engaging in class three gaming if the community pertains federal recognition under an other provision of law which is the language mean even if the secretary when they were to recognize frank's lending community as a federally recognized tribes exactly but i still intended then that frank's landing not be allowed to engage in class three gaming that's your position exactly right yes and that's why the three that come from the notwithstanding any other provision in the law exactly as opposed to the more limited not withstanding this section in the preceding section is that where you that's that's an important component of the argument subsection section b of section ten is divided into three subsections the first two are limited to the rest of section b whereas the third applies to any other provision of law just like your honor mentioned so it indicates that congress was aware of the possibility that under an other provision of law the list act in the port eighty three regulations the community could one day a chain eligible for gaming and even in that scenario be three functions to prevent them from engaging in class three gaming so it's not superfluous even under our view is that i thank you for that answer is that is the community banks lending community in an entirely unique entity as  any i just can't find case law like this at all and i'm missing something i think we're unaware of any statutes that are comparable to the statutes that define the communities legal authority to  and then there's frank's landings unique status and we don't know of other entities like frank's landing well we've cited the kohen treatise on federal indian law and section three zero two that bribes recognition and that that section of the treatise also indicates that there are other tribes that have been recognized for limited purposes but as far as statutes are directly comparable to this we're not we these are unique ok when i first turned to these briefs i thought oh of course they have to be federally recognized this is sanction and i was really challenging find a case that really squarely says that there are a whole lot in as a holding as opposed to indicate that there are lot of cases that assume that federal recognition is required it has as a circuit court of the supreme court circuit case that squarely and then district of alabama cases these are cited in our brief that i think i believe squarely held that it was definition requires federal recognition but you're correct your honor that most of the cases simply mention in passing take it as a given assuming and that's consistent with the legislative history which unequivocally indicates that the definition is intended to convey federal recognition as evidenced by inclusion on the list that the secretary publishes under the party three regulations in effect in one thousand nine hundred eight one nine hundred eighty eight and under the lift list act since then since ninety four there was one other issue the district court that issues appealed here is that your view that's correct the claims against the n i g c have been dismissed and they're not the subject of the community and therefore waived well i just want to make sure you felt that way because that's what i was thinking you know the briefings pretty clear that the appeal is limited to the decision regarding interiors conclusion and just briefly to go back yard to the caruthers case which is a very thorough explanation of the federal recognition requirement federally recognized tribes are dependant sovereign nations they have inherent sovereignty and they're their right to game on indian lands under their control is part of their sovereignty and it's actually not conferred by and because of their sovereign status when one federally recognized tribes authorize gaming on indian lands they're not subject to state regulation so the entire point of the statute as the caruthers decision makes clear is to fill what congress power perceived to be a regulatory void congress perceived that in addition to tribal regulation federal regulation was required of of tribal gaming on indian lands because fairly recognized tribes are immune from state laws so it's to accept the government so it's a fundamental underpinning of the statute that it only applies to federally recognized tribes who are dependent sovereign nations and to accept the government's argument to accept the communities argument you'd have to the court would have to find that the statute doesn't just apply to friendly recognized tribes it applies to other entities and that would essentially and more of the statute from its entire objective because non recognized tribes like the community they are not sovereign entities so they are subject to state law state law restrictions on gaming so there was no need for congress to  like to make three quick points in my rebuttal first despite not being listed by the assistant secretary as a probably recognize drive this system secretary continues to fund frank's landing programs every year including by the school many examples of support in the brief to the district court's analysis regarding class re gaming is really a stretch in saying oh well that's in there because maybe some an into an some time in the future there may be another statute that provides them formal recognition and it would apply under that that's really a stretch an indignant words the fact that an amendment was proposed and rejected by cook by the ninety four congress where it would have restricted frank's landing from offering any type of gaming whatsoever number three there are many examples as we cited in the brief where tribes that are not or in indian groups that are not properly recognize indian tribes and get wire opinion pointed out that there are restrictions they're subject to the criminal laws of the state of california they can only do class three gaming not i mean class to gaming not not class three they would be they wouldn't be able to take advantage of retrocession under under public law to eighty even pointed out that under state law under washington state law only federally recognized tribes could compact for  cigarette for cigarette tax compaq's but this quality or its french landings ability to contract allowed them to contract with squawks an island which was through squats and island then operated the smoke shop on frank's land in indian lands