respectable and considering reversal of the lower court decision we ask the court is typical in cases involving allegations governed by a law that the court first determine what the law is and then whether the government violate the law the government just can't commit say this is what we did it's ok right so if you play mary points the federal law we want defended are basically found in the agenda it's the indian child welfare act thirty nine hundred forty the regulations which are the agency directs this court to give maximum protection for printing rights under federal state law and at a denim forty one then public law to eighty a dent and forty two the new child welfare act as congressional acts signed by the president is a rare exception to sort of race neutrality but only in specific circumstances is applied because it protects the rights of children parents grandparents and others in ju minnesota department human services indian child child welfare manual was a result of a negotiation an agreement between minnesota tribes in the agency children are advocates for children parents disrespectful of federal law now let's get to the argument under the indian child welfare act the secretary of interior has prerogatives under dent of page forty we have  tribe and then there's this thing about concurrent jurisdiction as best i can figure it out that's when both parents agree so we compare that to page thirty six and we look at the note on page thirty six which is that page twenty five the manual and the note is very critical because it reflects a fallacy imagine a state agency document including fallacies and at least two of them here the note jurisdictional conclusions i mean what they're doing here in this document is saying that the state agency transfers all the indian children to the tribal social service providers in the this is a federal court and we have equal branches in the it's very important the federal court preserve the parag a to vhs of a sectarian cheerier to make these conclusions another fallacy the phrase child is a ward order is a ward of the tribal court and the circular reasoning is once that first orders issued in the state agency has to transfer the case to the tribal court but just because a tribal co parent objects there's no transfer so why can't the child advocate to appear it to exercise that right to object in state court can i go back to a basic with you sure if the child here in this case resides hundred that says there's a process for a public law to each try to reassume jurisdiction and that process when read with nine hundred eleven a which is judge benton you mentioned the ninth circuit as interpreted exactly or whatever the exact words are the parent consent is required for the transfer so the agency has attempted to obey literally parent consent required to transfer these tribes to public public law to eighty tribal courts on the question of exclusive jurisdiction for the nonpublic law to a tribe involved read like nation we can see the read like nation has exclusive jurisdiction but c p never reside on the red lake red lake resulted in a transfer from the shock b court to the red lake nation's tribal court which is also troubling so the parent has an image right to object in a state court proceeding and when we look at the indian child welfare act we know why that has to be mistake for proceeding it's such a monumental thing having the case transferred to the tribal court because of tribal preferences for indian relatives in this case of course our position is the maternal grandmother and that's when the two grandsons should be raised by the same person clean dietrich has custody of one grandchild but not the other because different result of the tribe court i'm a notch important aspect for my client why isn't it moot because the child is even with who you want to be with right c p tell me if i'm wrong but the but the case that because of a court order the court order needs to be vacated there shouldn't be a quarter the court of my client's around the results good for you you don't want the order right that's what you're saying well there are two aspects one is the in the fourth amendment prohibition against unreasonable seizure that can be brought against c p s agencies by children so this whole process from the children's books respect was unreasonable my other point is under the indian child welfare act before a transfer or say court to a to tribal court there's an option for showing good cause to the contrary this gives an opportunity for the children if they can speak for themselves out the parents grandparents others imagine someone stationed at the southern military base you know under under this rule they won't get to object counsel before you go further into your rebuttal time let me ask you one question was your morning hours may it please the court my name is aaron winter i'm here in behalf of the commissioner of human services tony laurie i'd like to take to begin a step back here and have a discussion about the purposes of a quote for just a minute it was passed and the supreme court  of child welfare practices that this is be summarizing resulted in a large movement of indian children through child custody proceedings and adoption proceedings from indian tribes to states and that's memorialized in the policy sections of  which are ninety one in one thousand or two i believe and so that is very inconsistent it's actually diametrically opposed with what the plants are asking for in this case what the players want in this case is they they very desperately would like to read section nine hundred eleven as setting forth a structure in which indian child custody proceedings must begin in state court and then they can only move to tribal court in the event that both parents assent to that transfer so or i'm going to call that is presumptively state jurisdiction because i think that's what it is it would be very odd and there's an initial reason for skepticism of the plaintiff's position in light of the policy purposes because it would be very odd was by accident apparently if congress created us presumptively state jurisdictional scheme one it intended to prevent this move of children from tribes to states relevant time which is which is when the child on the reservation that's correct which would mean that nine hundred eleven a would apply council has argued in his reply brief at least that c p was in fact not  reservation on a reservation at the relevant time and so there to the extent that there is some ambiguity or some factual dispute about that on the rule twelve that's why every provision of one thousand eleven is addressed in the commissioner's brief and i do think maybe  is is a good time to note in in service of the goal to create this presumptive state jurisdictions structure the the appellant really jump around between one thousand eleven a so they like one thing about nine hundred eleven a day like the other federal law provision through which the ninth circuit has decided the public law to eighty can be routed but then they like the thing in one thousand eleven b that says in any state court proceeding which they read as meaning that there has to be a state court proceeding which of course it doesn't say so that sort of there's a lack of clarity there in terms of the analysis and this is it's really just sort of a general expression of the play of the kind of structure that they would prefer to see and then their argument with the hook for the liability with the would you agree with me that predator rights that are subject to being determined any custody proceeding are protected by certain fourteenth amendment rights under the us constitution but i would not agree with that particular phrasing and here's why as we know from substantive due process case law we can talk about in the print all rights context either actual cases they talk about parental rights and those have various tests that apply to them and they're much more specific than a general re suppose i have i'm at risk of having my children taken away from her do i have fourteenth amendment rights that are at stake what i i think that it depends on what i'm good enough counsel as i'm wondering if a non indian non tribal member can have can be forced by statute into defending those rights in a foreign jurisdiction the answer to that question is yes and the reason is that in order to have a servant of due process right it has to be the supreme court's going to get the language a little bit wrong but something that is so important and so fundamental in our nation's history that liberty and justice would not exist worth sacrificing and so the particular right there's also case law discussing how how in order to avoid expanding substantive due process unduly into a judge made doctrine it has to be very specifically described and so the right that it is you here and that is alleged here in the constitutional claim which is actually up for the court but if it were the right that is alleged here is that there is some right for forum selection some fundamental right to form selection that a parent whose child is subject to a child custody proceeding has and there's no authority for that whatsoever in especially not in support of due process case law and that's not surprising given  that you know that that is not one of the fundamental rights according to the tests that that the supreme court as articulated but as long as we're on the constitutional point i do also want to make the be very explicit about the fact that that claim is not before this court was not raised before the court if you look at the complaint the motion to dismiss briefing before the magistrate also the objection briefing before the article three judge the district judge you'll see that that issue wasn't wasn't discussed and that's also very clear in judgment gummer's order so  now with respect to the manual the manual doesn't purport to change anything about equal at least the portion of that that we're talking about is the only thing it's doing is telling is trying to provide a practical guide says here's how you apply section one thousand eleven and it does that successfully and an indian child who is a ward so it can't be that the that the child custody proceeding being referred to by the manual is the one that makes the child the ward the child has to be the ward already and so that is the situation in both the manual in which authority for that the only thing that mentions some kind of parental input is nine hundred eleven b which as i mentioned before has nothing to do with the residence and honestly larry says the trigger is nine hundred eleven a and then if we're in and eleven b really there's two points there one it doesn't say there has to be a secret proceeding what it says is it to the extent a state court proceeding exist here's the process for transferring it to tribal court and we know that no state court proceeding  has to exist there not only from the plain language but also from the fact that the supreme court in that same holyfield case i mentioned to open my argument said that nine hundred eleven be creates concurrent but presumptively tribal jurisdiction so again it cannot be the case that scheme the plaintiffs are interested in presumptively state jurisdiction it can't be the case specifically under the law that the statute provides that it can't be the case under the policy the congress was trying to effectuate that nine eleven provides it and i see my time is over i would ask the court to as my name is jimmy and green i've asked for a short minute to make three quick points first as scott county must it differs to the county commissioners argument that mr winter has provided but we agree with  his interpretation that the indian child welfare manual comports with federal law second that scott county did not place a hold nor transfer anybody in this despite what it says in the complaint because the exhibits in the complaint specifically exhibit three states that the shakopee police department place to hold and exhibit five shows the jurisdiction was already in the tribal court when mr card all wants you to suggest is that somehow scott county was supposed to initiate an action there's only two types of individuals who can affect a child's custody and that's a police officer and a judge and the police officer did with the police officer was to do scott county was not required to initiate a proceeding in this case thank you ron  appellants claims as to see p and finally the shockley sue court's jurisdiction over c h sovereign immunity is very simple under this court's twenty fifteen decision and forty eight public school against murphy tribal courts as an institution share the tribe the immunity of the tribe and opponents plead no waiver of that immunity therefore the district court's decision to dismiss the tribal courts as institutional defendants should be affirmed there's an ex part young though possibility here right ex parte young would only apply in theory as to the tribal judges and so what i'm saying is that the tribal courts have immunity and i don't think your honor needs to get to x party young in this case for the following defendants motions to dismiss the section nine hundred fourteen claim appellants neither cited nor defended the claim in the district court and they did not cite it in their opening brief to this court gets waived it's also facially defective under its own terms section one nine hundred fourteen applies to foster care placement quote under state law not tribal law so if it doesn't it does not equate does not create a cause of action against the tribal courts or the tribal judges so between the sovereign perhaps that would arise i guess i view the more critical point as the agreement of the appellant if you're saying a waiver sounds like waiver your say if it's if it's not moot it's waived i guess i'll phrase it that way i do believe it's initiated in january of two thousand and fifteen based on a child welfare officer of the tribe seeking a petition for custody of the children didn't the clacked judge john jacobson found the children to be in need of protection and he provided social services for the parents didn't take the children at the time provided social services to the parents and all this happens before scott county or the shakti police department get involved at the time ok the district there's concord jurisdiction at least and where there was no state court proceeding there was a preexisting tribal court proceeding there is no reason for scott county to initiate a redundant concord and child protection ward of a tribal court well the follow up question to expose the circular reasoning would have been well what you mean by word of a tribal court that normally think we're a tribal court as a result of a court order and so what happens when the state agency gets in of verbal subterfuge you know what do we do and i think that we have to do is just understand that hermie hermeneutic keys to reading this manual are the fallacies i described and then you go through the rest of it and you say well actually what you were doing was replacing what the secretary interior is intended to do and that is the sector interior has the power upon a petition from the shock even walking into community to grant exclusive jurisdiction but even then there would be jurisdiction beyond the borders of the reservation because that's what it says in one thousand eleven a so you have two problems one is that the problem of shoghi doesn't have any jurisdiction  court and then read like nation doesn't have a jurisdiction or children that are nonresidents and so i think the simplest way to proceed is to recognise that the state agency was attempting in a very indirect sort of sophisticated way to grant powers to the eighteen or so public law to eighty tribes in minnesota so that they could have tribal court jurisdiction over child custody matters without petitioning the secretar interior and they even went further because they gave basically jurisdiction beyond the reservation boundaries so what do you do with an agency like that what do you do with a die document like this well we have to read it as it reads not as the defense has suggested it's almost like there's a shrinking violet defense i mean when this was when this was became had to became the indian child welfare men with the force of law there was a lot of training the state that the regulations that implement the child indian child welfare act which include and i think the agencies have to be careful about providing instructions to federal judges but it only twenty three point one zero six a denim forty one under section one nine hundred twenty one of ice indian child welfare act were up the whole state rather federal law provides a higher state of protection for the rights of the parent or indian custodian than the protection accorded under the act i see a requires a state or federal court to apply the higher state or federal standard in talking about a federal agency saying hey these parental rights are important and so how do you how do we reconcile this argument jurisdiction exists everywhere and the state agency can transfer these children back to the reservation the tribal court with the parent's right to object and again there's a question of the seventeen year old child right some two year old child living in minneapolis number