a violation or an alleged violation of the constitutional amendment to hear a liberty interest we have your honor we have just we have requested a stay of the trial the trial went to trial and it was a two days in trial and then the memorandum appeared of which i asked residing off the reservation and that's why mississippi should have jurisdiction over this matter the holyfield court disregarded that argument saying we don't care where the she has a matter of fact from off our thoughts rational statute and  we don't care where the parents domicile we care where the children are now residence and when and then when holyfield looked at nine hundred eleven name it said we don't care what the allegations well that was the argument so that we bring back an investment that was my argument but but during the june sixteenth theory that was vehemently argued against that it was not foster care placement good afternoon there please the court i'm tom christy representing the confederate tribes hotel reservations and for the purposes of the arguments here today i'm also arguing on behalf of the wilders as the federal district court properly determined this court this case is not yet right professor review while the appellant has alleged that there have been some civil rights violations and challenges the jurisdiction of the tribal court the appropriate forum for these complaints in the first is the father was on her a restraining order prohibiting him from any contact with the mother and daughter the grandparents the maternal grandparents immediately on the mother's death because the child needed to reside somewhere needed to have some supervision and obviously there was still this existing court order that prohibited contact wasn't that the only thing that should have been determined number one they should have dismissed the divorce action as there was smoke good and then they should determine whether there wasn't any reason to deprive this father of his parental rights and in fact as far as i am concerned your hon that's exactly where this case is now no one has said that he's an unfit father no one is started in any kind of deprivation proceedings is that correct currently the father has supervised visitation and that's pending the resolution of the hearing or hearing which has been interrupted now but there's never been any determination that he's an unfit father to my knowledge no i do not see how there could be any jurisdiction for a guardianship proceeding other than the fact that at the time of the mother's death there was an existing restraining order that prohibited the father from having decide between the grandparents and the father was that it was better for the child you know has she between parents sort of a role and complain about that if that's if that was a time well certainly it would be a situation where the father could make that kind of an argument that that was inappropriate under u s constitutional law now of course when and where we make it certainly could make that to the well the tribal court the trier of fact as well as to the called the  of appeals and if in fact it is a deprivation of due process assuming that that's how it comes to pass the federal court review would also be available at that point there is a green court decision that came from from not an appeal from the stand supreme court decision of the state of washington and the supreme court of the united states to stand when parents in effect don't have any right that's correct they made that conclusion under the federal the u s constitution right however one of the issues and one of the reasons why i hate vs it is the remedy is that it's well settled that the u s constitution doesn't apply the indian tribes that's what the indian civil rights act was was asked for is to provide that mechanism for redress for procedural issues now whether a tribal court would reach the same conclusion that the u s supreme court r i don't know i assume it would but that would be an issue that certainly could be raised in a at a  this particular instance is supervised and has an appropriate home life is critical and that's one of the issues that has been hurt there was a hearing that occurred i want to say three weeks ago it went on for two days at which point the father mr bowser moved to stay the proceedings pending a motion for a mistrial as well as to recuse the judge and since that point i've not seen any pleadings now one thing that i would like to note is that the problem government itself is not a party to that action i'm here today  almost exclusively to argue on behalf of the tribe for maintaining and continuing its jurisdiction the ultimate result is something that i'm sure the grandparents and the father will argue that particular issue for the purpose of the argument today i have assumed that if there is a civil rights violation that mr bowser can demonstrate then in fact it would be appropriate and how we know she's fine yes and the case of santa clara pueblo versus martinez the u s supreme court left it up to each individual tried to define tribal membership in this particular instance the call they'll tribes have defined proble membership is being an individual who is effectively one quarter blood quantum in this particular instance that would be taken  three thirty it would be a violation of the father's civil rights to have deprived him of the custody of his child without any determination for over a without having a full record in front of me i would have a hard time answering that question one where the other if you're asking that whether a determination should be made rapidly in such cases the answer is of course yes which should have been tried out court remedies doesn't have a timeliness component certainly in the case of mr bowser he has made substantial and significant  use of the tribal court proceedings if he wanted to have an expedited hearing i'm sure he could ask for one if he wanted to seek for example review of the determination that the problem court made in jurisdiction that's reservation both before and after her mother's death and has significant ties for the reservation the i c w a and congress recognition of the importance of trouble culture and heritage is only simplest the simplest answer perhaps of the day there is no clear guidance with respect to the indian child welfare act as to what residency means i have to assume that it means living where certainly and that would be an issue that and this is one of the frankly this is one of the difficulties with this case it would be nice to have a full record where all of these issues had been explored at the present time those issues are health there there isn't a record out there on which to make that and easy decision another reason why exhaustion would seem to be appropriate i want to show understanding of the consequences of exhaustion suppose they're finished exhausting and never come back to state court federal court and let's assume point it would be appropriate to see whether the federal or whether the tribal court in the process of making the determination violated one of the constitutional rights outlined in twenty five u s c thirteen zero two that's where the heaviest for tribal court now of course that doesn't ignore the fact that an appellant always has the ability to seek an appeal based on subject matter personal jurisdiction providing that all of the  information and the ability to make those arguments have been maintained in this particular instance i haven't thought about whether this would be subject matter or personal jurisdiction but assuming that it's subject matter jurisdiction for a moment s don't follow necessarily the united states constitution mr was or is not an indian he's not a member of this trial and if we were to take your statement at face value you're depriving him of his federal constitutional rights recognized that the u s constitution didn't apply to tribal government again the question is and perhaps it is a reflection on how jurisprudence this changed since the crafting the constitution but the craft but the constitution originally was a document to restrain government the fact is that does the u s constitution restrain tribal government the answer from the u s supreme court has been no which has caused the passage of the indian civil rights act which is twenty five u s c thirteen zero two i understand the misgivings that that may present however that is or has been and what the u s supreme court stands aside i focused earlier on the fact that the question the fact that he's being out i understand that issue and it's a discussion that i've had with others who have been wondering the same thing but the fact is that has been the holding of the u s supreme court in this particular a straight versus a one a one contractor's that was a united states supreme court decision and more recently in in the in nevada v six which was a two thousand and one