good morning may please the court my name is ken williams i represent the whole action committee the whole community church and several residents of move her challenging the casino in a mall one of my clients glen rebels here today traveled up in san diego because of the importance of this argument and like to a possible reserve about five minutes ok for rebuttal keep your eye on the clock we'll try to help i do my best that the my clients in this lawsuit  challenging the approvals of the national indian gaming commission of the gaming ordinance in the gaming management contract under era because for because for a half blood indian group known as the moon indian village who chose not to seek party three recognition and who built a casino won for parcels of land none of which are a reservation under the indian gaming regulatory act for all the reasons outlined in our briefing i think we have the court to reverse the district court and grant judgment in our favor depending on the court's questions i'm going to focus on two issues which i think if the court rules in our favor would dispose of this case for the opponents the st the judge mueller dismissed her case based on a rule nineteen necessary indispensable party on the claim on not claim on the finding that the move indian village was a entitled to sovereign immunity and couldn't be joined to that in this lawsuit our contention is that they are not entitled to sovereign services from the bureau of indian affairs that is that's what the list is call their on that list no question about it is there some other list of federally recognized tribes there if list of there should be under created the list well if you if you look at the one thousand nine hundred and eighty four act and i think that is probably where we should start and this statute that called the list act it says that three categories of tribes three categories currently are recognized his tribes those by congress those by court and then they quote they specifically reference in the quote and i'm reading from the statute  tribe that is congress telling the department of interior that the only administrative way to recognize a tribe is through the party three procedures the year before this is when the director bacon found that they were not a party three tribe they were not a historic tribe they were a created tribe with delegated powers at best and if you want sovereign immunity under the united states versus wheeler case the supreme court case in many cases after you that you have to have been a historic tribe in existence before the united states became a country and you retain that sovereign immunity as a part of your inherent sovereignty we don't have that here under yours theory how many federally recognized tribes comparable to this tribe would no longer be in your view federally recognized tribes how many tribes well i haven't calculated that i know that there was shortly after the party three regulations and this is outside the record but i'm aware of it that there were certain i think senator feinstein's office asked the department of interior that very question is not you know how many are what they would call created tribes or administrative leave created tribes and how many are actually part eighty three recognized america that's my question and that's my question and you don't know i don't know the answer i can is a more than one or two i don't know the answer to that and i don't i don't want to speculate because because many there are other ways to be federally recognized that many california tribes were seventeen i think were recognized under the settlement in the tillie harwood case so they're even if they didn't go through the party three they're under a category that says court approval some of the tribes like the united are born and great in grants rio were federally recognized by an act of congress the rd way you can be recognized and the only administrative way you can be recognized is through the party eighty three process and there's a reason behind that is that because then you have a process where the public can people can comment you can contest you can have issues there's no administrative process for a bureau of indian affairs employee to put your name on the list what's interesting here is the whole indian village was told you've got two choices here you can organize as a half blood indian community you'll get financial aid a lot quicker or you can try the part eighty three petition and it's going to take time and there's no guarantee they said make us a half blood indian community  we need the this of course was you know seven years before it grows so doesn't the tribe have an interest in whether they are in fact a federally recognized tribes have sovereign immunity they have a legitimate interest in that issue but yet they're not parties to this lawsuit so why was the district judges rule nineteen ordering correct is incorrect because this is a question of law and in the undisputed facts as we have alleged is  they're not an historic tribe so they're not a but it doesn't answer my question you want to litigate that in argue that but they are a party that seems clearly to have an interest in that they will be tremendously profoundly affected by resolution of that issue but they're not here to present their argument so why are they not a necessary party and a rule nineteen well they were here they were here the i'm all in the in village actively participated in front of judge mueller as a unfettered rights to participate in a litigation well it's a debatable issue whether it's limited to parents but i thought let's assume it is they were allowed to file it in the form of a fortune motion to dismiss judge mueller said disagree with my contention and agree with them and so we're appealing on that very issue they had an opportunity to litigate the issue as a litigator in amicus if they had never been part of this case i think you have to say i have to interrupt you they're not that you are arguing to us this morning which is whether they are a federally recognized tribe entitled to sovereign immunity what they were litigating before the district court was whether they are a necessary party because you've named tribal officers which is another issue as to whether those people could adequately represent the tribes interest here so as i understand what happened procedurally they came in to say whoa whoa whoa you know you can't litigate the substantive issue because we are profoundly affected delay they were going to file a motion to dismiss i'm sorry based on the the necessary party issue they asked us to delay so that the village could file an amicus at the time they filed a five hundred page amicus not only arguing that they are they are recognized tribe historic even though historic tribe in title to sovereign immunity they argued the merits they argued they that's why i call them litigating amicus so they put it in an issue so there is an issue when i say there there there is a they brought in evidence on the merits and so the when when i say that's a debatable point as to whether or not they waive their immunity or appeared specially i don't think they did they could they appear generally and litigated the case if they had just filed the friend of the court case and said your honors you can't do this we're very concerned because we're recognized tribe and when we have an interest in what you're litigating now let's assume that was the case let's assume that that's all they did what we have here and then at best is we have  administrator's procedure act case where the federal government now has conceded that even if they were a federally recognized tribes that they're not a necessary and indispensable party for our a p a action against the  indian gaming commission challenging the gaming ordinance in the gaming management contract that whole indian village is not a necessary party to that issue even if you assume that they  the indian village is not a necessary party to the nepa action and the reason is according to judge mueller in the cases you read are that if the the even federally recognized tribes have no interest in  in how a federal agency in ensuring that a federal agency complies with the procedures so you have the macaque you have a whole series of kootenai county case that we cited in our brief where the courts have said the only necessary party in an a p a case is the federal government that's because you are trying to enforce and protect procedures and that very issue was admitted by the federal government in their answer in brief and their position is well yeah that's true but there was no final agency action here that's their position in their answer in brief and there are two final agency actions here which were specifically  knowledge in the indian gaming regulatory act to be final agency actions the approval of the gaming ordinance and the approval of the management agreement and the collateral agreements so we we don't need the indian village even if they are federally recognized tribes aren't my group my contention is wrong there we don't need them to litigate those issues and that's why judge miller was wrong on that and i think that the federal government concedes that now that there were  wrong the other position that the other big issue that i wanted to bring to the court's attention which is that none of the four parcels from which this land is constructed is a federal reservation none of the four parcels have been due to what to the question is whether the state has this land it's the same reason and because it's the rd in addition to the gaming management contract in the gaming orders ordinance a predicate to even hat for the energy seed even have jurisdiction under the bay mills case is that you have to have indian land and so the it's all it's part of that determination and that implicates a determination under the indian reorganization act the feeder trust procedures the cart's years decision and all of that comes in there but that is just ends up being another a p a decision necessary party to a a a challenge to a fee to trust challenge or to a reservation proclamation under the indian reorganization act to an a p a challenge i might say that certainly they have an interest and they certainly can intervene some tribes waive their immunity and say wait a minute you're not going to litigate this without us some tried to actually file a true amicus some tribes like here file what you call a litigator in amicus where they're like a party  but i'm not saying they don't have an interest i'm just saying they're not a necessary party under rule nineteen so if your claim is an e p a claim what about the six year statute of limitations why does the statute tribe there applied under part one hundred and fifty one dollars to have lands taken into trusts that allowed california and everybody else to participate in that process they did california did participate in california objected but what california didn't do was litigate so that this court in its own bank decision said wait a minute california you cannot raise that basically the carcieri issue you cannot raise that as a defense to to a lawsuit by the big lagoon computer trying to compel negotiations the reason that doesn't apply is we've never had a part one hundred and fifty one process here we never had an opportunity to provide comments what they what they say in their answer in brief they talked about one parcel in one thousand nine hundred and seventy eight a deed was conveyed to individual homo indians that wasn't never taken into trust pursuant to one hundred and fifty one and it was three years before the indian village was even created now you're down to about three and a half minutes do you want to say yes your honor i would say that thank you i'm sorry if i'm speaking to left so i know you're doing just fine thank you loud is better for some of the points made but st i think the way that federal government looks at this case is that you can and before i before i start i want to note that this is the whole indian village is a federally recognized tribes it was placed on the list in one thousand nine hundred and two it's been on every collateral a belated collateral attack under big lagu so a lot of the case in this particular case i think dictates the outcome and it wasn't a preliminary ruling it was a very clear ruling by this court in the unpublished opinion as to big lagoon and two that is way outside of any statute of limitations to try and tuck try to attack that underline decision big lagoon i think forecloses this entire case and i think you can get rid of the entire case based on pick lagune because each of the claims in their complaint that survive are all essentially underlying attacks to any so called indian land determination and the basis for those attacks are completely that that they are they're attacking how the tribe was recognized and the basis for the initial and trust me decisions which all happened in one thousand nine hundred and two now if you got past all of the case if you got past big lagoon there's another problem here there is no final agency action there's no final agency contract as a district court concluded the management contract here was approved in two thousand and sixteen the operative complaint was in two thousand and fourteen therefore as a district court said the court lacks subject matter jurisdiction over the management contract so any decision that was made with respect to approving that management contract any challenge to that is effectively moot and even if it were not my co counsel provided this quarter the twenty eight day letter which stated that in two thousand and eighteen the tribe terminated its management contract with the private companies of the tribe is now managing the casino itself so there's no management contract approval that's really on the table as for the gaming ordinance there's a two thousand and thirteen gaming ordinance that is the final agency action but the gaming ordinance made no indian land determination the gaming ordinance here was not a site specific to gaming ordinance it's simply referred to indian lands and describes the it was a mother's lodger maybe but it's a it's a good decision it says that the gaming ordinance that it's not site specific doesn't have to contain an indian land determination and this one did not so there's no final agency action here within any realm of the you know statute of limitations period now i think that all disposes of the case but i'd like to address a couple of the points that the plaintiff had made with respect to how this tribe w brief that at the time tribes there are a number of ways in which tribes could be recognized and also section one hundred and three dollars of the idea of the ira as amended the section that the players council is talking about which refers to the different methods that is talking about methods that are presently recognized that was in one thousand nine hundred and four but pit repr made clear that there were other methods and in this case this tribe was recognized through organization directly privileges and immunities that are given to tried and congress made clear that they were terminating this policy over there were a few dating a policy of terminating tribes and they said at this point we are no longer going to differentiate between being on the the list of recognized tribes in the federal register does not make you a federally recognized tribes how do you respond to that what federal recognition i think this court has long said is a decision that the executive branch makes and the federal congress in the list act specifically gave to the secretary the decision to articulate in the federal register which tribes the federal government and executive branch was recognizing in that when it recognizes the tribe it is then effectuating a government to government relationship with that new political entity and the i would also point the court to the the federal register the most recent federal budget store notice and those going back from  privileges and immunities clause congress itself said that all federally recognized tribes have the privileges and immunities and that's why i think on the question of sovereign immunity that's that's would be my answer to the question of whether the tribe has sovereign immunity here  you know we don't think you need to reach the rule one thousand question because there are other threshold decision threshold reasons for dismissing the case but what we as we said in our brief because we don't view there being a proper  a challenge the tribe would be necessary in indispensable party as the district court concluded unless there are any further questions i would leave the balance of my time for ok thank you indian tribe in quotes means any indian or alaska native tribe and nation village or community that the secretary of interior acknowledges to exist as an indian tribe and then requires a secretary to publish that list that is federal recognition as a political relationship a government to government relationship between united states and the tribe and that's how it happens the that might have existed in the law prior to that time between federally recognized tribes on any basis and i think its worth according to statutory language because it goes directly to the plaintiff and opponents claim that this tribe is not a not a historic tribe or not recognized to that part eighty three dollars and that that somehow diminishes their sovereignty and their sovereign immunity congress said departments or agencies and reading from   as amended or any other act of congress with respect to a federally recognized indian tribe that classifies and hansen is or diminishes the privileges and immunities available to the indian tribe relative to other federally recognized tribes by virtue of their status as tribes that's very clear what i think of as nondiscrimination language we don't have two classes of federally recognized we need to do we need to reach that question in order to decide you don't your immunity so then then you have to decide whether dismissals appropriate so the factors there and the district courts analysis included the decision that this is a federally recognized tribes sovereign immunity as this court has decided twice previously your hon r in the case i mentioned earlier results versus the us seventy three federal appendix nine hundred and thirteen two thousand and three i'm quoting the village enjoys sovereign immunity from suit and cannot be forced to join this action without its consent unquote and and continued quote the village is a necessary party elipse sees the village is also an indispensable party and the federal court of claims and result us versus united states eighty nine federal court of claims five hundred and sixty five in two thousand and nine quote the village is therefore an indispensable party to the instant action that attacked the tribes ownership of its lands the of california in those cases where the courts deciding that the village was an indispensable party because the issue of their sovereign immunity had been raised where did the court affirmatively decide that i'm not suggesting that the court suggested or held that they were not a recognized tribe but it seems as if those cases are not squarely on point that the court reaching this now that the issue would be force it would be a useful thing to do well this is come up for decades because the plaintiffs have continuously claimed that the appeal in this case i think you did it in the two thousand and three case that i cited the district court in the district of columbia did it resolve versus united states in two thousand and seven as i was starting to say the federal court of claims  it in two thousand and nine they they held the villages a tribal governmental entity of community indians which congress recognized pursuant to the ira i how many times and how many courts have to say that i would welcome another opinion so your honor i'm not sure it would some of those things are on to the authority for tribes to file an amicable brief to simply say hey we are a tribe we claim an interest in the subject matter that litigation we can't be joined because the parties don't always necessarily raise that that threshold issue and that is not a waiver where under well settled supreme court and circuit authority waivers of the any government's immunity have to be clear xpress  valid it's a high bar and there and the supreme court has said over and over again there are no equitable exceptions to that rule there is no him way for by implication courts may not infer a waiver by conduct as that or etc i think we've cited probably a lot of those cases in our briefs i would just say that that from my perspective we agree with the government's representation about the lack of any finally agency action on and in the decisions that are that are here they're only basis for bringing the suit is to try to stop the tribe from having a casino which is dry under tribal federal and state law and their only grounds that they raise is that it's not a tribe and it's not federal indian land and as i said we've that's been litigated over and over and over again ok ok thank you anderson you save some time i save time i fly list to sort of long but let me see sort of go in reverse order here about that decades or guess and many lawsuits where in the rizal us lawsuits which was a disagreement among them all indian tribe my client home all indians as to whether or not who some of it involved the beneficial ownership of the one parcel some of that involved a lot right to election my client was not a member of any of those and when you read i'm there and i don't know that the issue is worse were disputed or conceded i don't i haven't gone through all of those but it's in recitals they sort of open their federally recognized tribes and what they are and we don't contest so you wouldn't mind an opinion addressing that question directly as question i was thinking about how many other tribes would this affect and i think you know we tend to get sort of we tend to all to get a little bit concerned about the broad impact i think the impact here would be narrow it would only apply to communities that are arguing that their half blood formed after the united states became a state i don't know there may be one or two other california tribes that did that this morning's case was an alan was very revealing to me that was i've never seen a group of indians who are not tribes i mean section sixteen talks about requesting of tribes requesting elections not half blood individual indians requesting elections by don't want to do it they'll buy into that but other than to point out that the impact may not be as great as this court might think if you if the ruling is where you have a did statement by a federal entity that a group is organized as a half blood indian community they're not a party three tribe and perhaps even more than that they're not a historic tribe there it created a tribe with delegated powers i don't know how many tribes in california or groups of indians claiming to be tribes meet all of those criteria so i think director bacon gives you sort of a roadmap to draft a very focused opinion just with this group that wouldn't have brought implicate i don't think you need to say if you don't get part eighty three you're not a recognized try because there's a lot of tribes in california ministre to be created tribes that some quick cases have held where you are historic tribe there's  you're down to about forty seconds oh ok you're on a i think to address the federal government the big lagoon did not involve a challenge to federal recognition involved the challenge to defeat a truss and we're not challenging their whatever we acknowledge that there are a half blood indian group the north coast case that was said that just non site specific ordinance need not you don't you don't need to have an indian lancet germination but this if you look at the of the record fifty eight this gaming ordinance was specifically tied to what they claim was the reservation this was a site specific regulation and it i'm not quite sure that the federal government sort of doubled down on there's no final local time i prefer a thank you very very much for i would recommend a request respectfully requests that the court reverse the district court decision because the half blood indian group which the federal government has said is not a party three tribe is not intitled to a casino especially when they want to build a casino when they did build a casino on an indian land and there are a lot of other issues but i won't i won't try to