please the court after bay mills concession on the first question presented the only issue is whether bay mills enjoys blanket immunity from suit when it engages in illegal off reservation commercial conduct and the answer is no for at least two reasons first it makes no sense that congress intended states to have a federal injunctive remedy for illegal gaming i reservation that no injunctive remedy if that gaming takes place on land that is subject to the state's exclusive jurisdiction second tribe should not have greater immunity than foreign nations there's no dispute that if france opened up an illegal business in michigan casino or otherwise it would have no blanket immunity before you  jurisdiction question for me i'm not sure why you're here the only injunction that i see was centered on behalf of liberal little traverses and not on behalf of the state that and so the counts that you're arguing about were added after the injunction was issued but how do you have jurisdiction at to argue someone else's injunction and that's not quite correct justice sotomayor originally this case was filed as two separate lawsuits michigan was a plaintiff and then the other tribe was a plaintiff in a separate case those cases were consolidated and then when the motion for an injunction was filed michigan joined in that motion filed the brief supporting it and everyone proceeded under the assumption that both the tribe and the state were asking for the injunction that in fact is not what the district courts that the district court explicitly said in his order granting the injunction that the state hadn't filed an injunction hadn't intervened and had only file supporting papers in support of little traverses case i'm a little i'm very very confused as i look at what the district court said it explicitly said you were in part of the order well again they were consolidated cases we were supporting the and i think consolidated can have two meanings and to be heard together or to be joining together i don't think the district court understood that this was going to be joined together why did it say what it did but i think it was everybody's understanding that these were joined together because the parties were pursuing the exact same issues and so then once this went up to the six circuit that there was no question of what is or if it's violent injunction why did your briefs say that you filed it only in support of the little traverse and not on your own hand because once the cases were consolidated and at that point you were even using the same documentaries there was already a motion on file and so there was no need to have a second motion it was clear to everyone that the state of michigan and the tribe were both pursuing that injunctive relief to get the last back to the way lester opposition but i don't see why the district or it would have made the point  lead that it was with both of us parties well everyone has proceeded up the chain including in the six circuit opinion on the assumption that it was consolidated that michigan was requesting an injunction and in fact that kind of a procedural objection order you cited jurisdictional objection or procedural on your honor it's a procedural objection the only jurisdictional question in this case is whether they're schedule question jurisdiction of thirteen thirty one which has been conceded and the united states agrees to that and so i'm not going to spend my time on  what i would like to spend my time is on the scope of tribal immunity before you do that can you can you tell us why michigan  the first is that that provision was only discretionary as we explain and i reply brief but even more important the compact also makes clear that the tribe did not waive its sovereign immunity for purposes of arbitration so if we had gone to arbitration and prevail when a trial agrees to arbitration it is waved at sovereign immunity for that purpose in that proceeding are you saying that there was something special i am disagreement as to skate and i'm glad you brought up c n n al because there you had a construction contract where there was in vocation of an arbitration remedy and it didn't specifically preserve tribal immunity here we have the exact opposite in the same paragraph seven of the compact where we have an arbitration provision the tribe and the state agree that notwithstanding the arbitration provision both parties sovereign immunity is not waived and that it's preserved so if we took a successful arbitration judgment and then tried to reduce that to a federal judgment in court they would have asserted immunity and we would be in the exact same action concerning the status of those lands because again it wouldn't have done any good for us to stipulate to jurisdiction on the tribes claim about the status of the lands because simply having a declaratory judgment wouldn't have given us any relief we would have had to file a counterclaim judgment it would have had to stop there gaming activity you know it you wouldn't have gotten their property isn't that with the suit it's about trying to take over the casino now we don't want to take over the casino we want to stop illegal gaming land subject to michigan's exclusive jurisdiction so why not explore to younger you point to one or two cases in the lower courts that suggests there might be explored a younger jurisdiction but those cases are distinguishable so why way after just the officials but two responses to that justice sotomayor one kind of a practical consideration and then one a broader federalism principle that i want to emphasize the no practical point is that ex parte young is an imperfect remedy for lots of reasons as we express in the brief it's well settled that you can't get specific performance of a contract you can't enforce state law in federal court you can't get money or seize assets in ex parte to young action and  doing the gaming casino well it's not going to be that it's not clear at all to us that we would be able to get that relief based on the lower court holdings now that the bigger sovereignty point is that if a foreign country or france or haiti came in and open the same casino the state would have of remedies available to it and it should have those remedies because any additional immunity you give to the tribe when it's engaging in illegal conduct on land subject to michigan's exclusive jurisdiction you are necessarily taking away from the sovereign private party plaintiffs it did not involve a sovereign state and this court has stated repeatedly that states are different we are constitutional sovereigns and so we are treated like ordinary business plaintiffs in that case the fact that the plaintiffs could different i wouldn't say that it's a lesser bird but i think you need to analyze this as a zero sum game that when you're talking about activity taking place on sovereign state land and you're not allowing the state to have its whole panoply of remedies that you've taken away an attribute of sovereignty speak reading assignment but with the question is this three situations i think it's the same question justice kennedy was driving out one friends opens up a casino yes to california opens up a casino yes three indian tribe opens up a casino croquet now what is it that says that the state where the casino is located can sue france what is it that says you can sue california all they all object what is it and says you can sue the indian tribe that they can just prior and justice kennedy hopefully this will be use the reading assignment the case that says we can sue france for dunhill which was this court's decision that first recognized the commercial distinction for foreign nation immunity now kind of statute or common law that was common law common law development an effort dunhill now shortly after that congress did enact the foreign sovereign immunity act which essentially  once that happens then the common law development in california so california the case is nevada v hall in which this case said that a states sovereign immunity from suit does not extend when it's got actors in another state their nevada's agent was acting in california and the that basis and if you disagree with me and you think that sovereign states should be treated the same way as private party plaintiffs then we would ask you to overrule that part of it which suggested that tribes can engage in illegal commercial conduct on land subject to exclusive state jurisdiction but i didn't but i think this is what justice kennedy was getting at when he asked you for a case because what you are saying now is that when the state is the plaintiffs yeah the sovereign immunity of the suggest that when the plaintiffs the sovereign immunity is goes away this court case that would suggest that is the oklahoma tax commission case because that was a case where a state not exercising a police power but one of its lesser powers the power of taxation was attempting to tax cigarettes that were being sold on indian trust land by a tribe and in that case the court acknowledged that even on trust land so this isn't on land that subject to state exclusive jurisdiction that the state would be able to maybe i was wrong to assume that when i read those cases i will see although a state can sue friends although nevada can sue california a private individual could not i'm i going to find out when i read those nevada could sue california but a private individual could not i think the oklahoma tax commission case would be the closest because even if you had a private individual who was trying to sue a tribe for conduct that was taking place on trust land they would not be able the reservation the state it's so complicated that i'd like some good authority for it because a private person couldn't but a state could sue and it's only in certain places well there's lots of places that you could draw the line in this case if an ex parte young action you could certainly arrest people who were running what you believe is an illegal casino in the state can't you but there are at least two reasons why that is also an imperfect remedy the most obvious one is that it creates exactly the kind of inner sovereign conflict that congress was trying to avoid when allowed under it for states to get injunctions even from the resurvey in addition to that couldn't you have stopped this before it even started by insisting in the compact that the tribe waive sovereign immunity well that's  a great question and the answer to that is twofold first when the compact was negotiated back in one thousand nine hundred three this court had not decided that came five years later in one thousand nine hundred eight and so congress and the states reasonably assumed at that time that if a tribe was seriously i think into a more a more difficult issue right well if i can finish answering justice alito question you ask why we can't just go in and arrest and the second answer that besides the conflict of going in with armed police guards and a november just a few days ago although it has a an evergreen clause that allows it to continue while the parties try to negotiate a new contract and as you would imagine the very first thing michigan asked for in its proposed amended compact was to waive tribal sovereign immunity to deal with issues like this and unsurprisingly the tribe said we're really not interested in that we kind of like the way the sovereignty issue is preserved in the existing compact now that the question about whether this has an impact beyond tribal gaming the answer is just pursued that impact has expired and there's so then how can they be determined as a matter of that's a lot that's a federal question in this case and i ask you a compact refers to any on land surely you could take the position that there is a waiver of immunity to determine whether or not these are indian lands under the compact i don't think we could respectfully justice kennedy because the compact does not envision that the tribe has waived immunity for any purposes if you look at section seven of the compact it's really unequivocal about the tribe not waiving immunity could i ask you question what what would happen if this were indian lands and they went ahead and did exactly what they did the there was no dispute that these were indian mines would you constitutes indian lands is between the federal government and the indians pursuant to the land trust settlement i disagree with that because i know you do and i know why you do that but but but but what defines the lens is the settlement trust correct federal court interpretation of the michigan indian land claim settlement act yes we determine the status of these lands the reason why it's not just between the tribe in the federal government is because michigan has a huge interest in having lands that are currently under its exclusive sovereign jurisdiction to determine to be indian land where they live circular diver of gambling let's assume that it was just there buying this land yes could you have stopped the buying of this land or unravel it we have a recent decision that said no i mean if you're referring to the pageant case yes in that case you held that  the plaintiff could quite a bit after the fact follow a lawsuit to unravel that transaction if the lands were not eligible for indian gaming if i'm remembering the holding correctly and michigan does have a substantial interest not just in the gaming would have to follow if you were going to object to this land being taken into the truss wouldn't you have to follow the ministry to process we would but the land has never been taken in trust even the federal government the national indian gaming commission has concluded that these are not indian lands for purposes of the settlement act and so we never got to the point where they got in patrick where they went through the administrative process to take billions in trust general if i could assume that this is not indian lands and just ask why you need for sovereign immunity to go away and so you have the ability to arrest people you have the ability to bring x party young actions presumably you have the ability on nine indian lands simply to shut down the scene now presumably you have the ability on nine indian lands to condition any licensing of a casino on whatever you want i guess the question is indian lands you have a thousand ways to stop the scene oh that you don't want why do you need the amputation of sovereign immunity because we tried to take the least intrusive means necessary to stop the casino to not go in with the tribe ear would say that no it's an affront to their sovereignty to take to strip them of sovereign immunity and none of these other options that you have are that right but again arresting the other sovereign officers is with all respect not respectful to the tribe which is why that's the course we pursued and the change we're asking for here is not as big as the tribe makes it seem because enigma section twenty seven ten we have the ability to get an injunction to stop illegal gaming taking place on a reservation and so it's really not that big a leap to say if they're engaging in illegal gaming off reservation likewise there we should be able to get the least intrusive remedy the one that is most respectful of the tribe sovereignty and frankly we're kind of surprised that the united states would take the position that we're better off going in and arresting or suing individual officers because that's the way sovereigns are supposed to interact and it would be a big deal if france opened up a casino in michigan and rather than seeking a civil injunction we tried to arrest the french president and throw them in michigan of israel is it not correct that the people who work in these casinos are just them there they have no other connection with the tribe my wrong on that i believe some of the employees are tribal members some are not a number of cases in our reply brief for tribal immunity has been extended to tribal employees whether they are members of the tribe or not can you prosecute people who frequent this illegal can see you know to michigan citizens you know yes we could do  that but you know again i want you to understand the scope of the invasion of the states sovereignty here if any other entity for a nation another state an individual set up an illegal business whether it's prostitution underage drinking gaming you name it we would have the full panoply of state civil and criminal regulatory remedies available to us and could pick the most appropriate one and somehow because this is a tried even though they're out operating on michigan's land where we have exclusive regulatory jurisdiction somehow all those remedies are circumscribed to imperfect remedies like ex parte young which may or may not be successful or arresting our own citizens and that's not respecting the constitutional sovereign that michigan represents in this case and to get back to  question a number of you had about the implications of this aside from gaming this happens in all kinds of other contexts off reservation you just had a case in two thousand and eleven involving the united tried in new york where they failed to pay their property taxes in new york and so the state moved in to foreclose for nonpayment of taxes those off reservation properties and the second circuit interpret in kiowa reluctantly concluded that the state did not have the ability to enforce by foreclosing on that property because the tribe had immunity and invited this court to review this court granted cert eventually search was dismissed because the tribe waived immunity and they were able to go forward and pursue that remedy but you know whether it's in the tax context whether it's the gaming context whether it's criminal context you know the briefs of oklahoma and alabama are replete with the issues that they're having as sovereigns in running up against the tribal sovereign immunity when it comes to these contexts there are no further questions i will reserve the balance of my you mr chief justice it may please the court i'd like to begin where my friend did not with the texas statute congress and acted subsection eight to like the rest of a grant to address gaming solely on indian lands in fact congress use that phrase on stop illegal gambling on indian lands but not to have the power to stop illegal gambling on state lands is that is that is that the law you think congress wrote i do think so say it if i could say first of all i would expression of purpose of congress before tribal immunities abrogated and we don't get into this kind of question of what congress might have thought which creates a guessing game but just to answer question why would congress thought it you think that rule would apply even seventy seven your honor precisely said that that involved both on and off reservation activity was commercial activity it was fishing and this court said that tribal immunity protected against that and so so so i do  that was just a little reservation you think that was going from it it is a page one sixty seven your honor it says that the injunction is both on and off reservation and then inquire what page seven fifty four of this court made clear that that's how it read the guy was later of course of course but it but i think that congress and wanted in the text uses on indian lands twenty four times in the reason for that the reason why there's not an absurdity is twofold first congress and i agree it was reacting to this court's decision in cabazon the year earlier which it ousted state state regulatory jurisdiction entirely from on indian lands activity so it changed the game entirely absent did nothing with respect to off indian lands activity it left entirely intact all the remedies we've been talking about justice  employees and so on and that's why we would not operate this casino without a square ruling and it is shuttered justice alito right now because we need to square ruling that says this is on indian lands activity when you don't have it you don't have a square ruling so you know i want to make clear because both human solicitor general have suggested this is an option you think it is all right for the state to go in and arrest every employee management you know labor who's participating in this casino  subject them to criminal sanctions civil penalties and injunction no problem with that we think that that's a consequence of tribal immunity that is that it when you're when the when they are seeking relief watch tribe that's a different thing and that's i think a standard principle and tribe would have no objection to that well your honor i think if that the certain circumstance unfolded we might say let's try and figure out a different way to deal with that first of course the most primary ways the compact itself and many compacts for very squarely that this is on indian lands activity and what about x party young are you you willing to win the tribe sovereign immunity in an x party young action because in your opposition to the complaint in this case you refused sovereign immunity as an objection to the x party young sure sure is probably in the district court as part of ordinary discovery is part of ordinary litigation and we said that ex parte young wasn't a political but we do think and our brief in opposition said this our merits brief says this the united states says this that ex parte young actions are available against tribes just the numbers are available that you would not be search sovereign immunity if they brought in x party young action well your honor we would not assert it to the limits of ex part young so for example ex parte young doesn't doesn't permit reaching into the state coffers and here count five of the complaint tries to reach into the tribes coffers and so we do think that that type of ex parte young that's not permitted by x party and that would be impermissible if i could return to the second reason why i think what congress did was into route wasn't you know creating any sort of anomaly like my friend says the reason is this all it great did in eighty two is empower compaq's it didn't abrogate immunity by itself directly it requires the tribe to affirmatively buy into the idea of state law applying on the reservation so if we could just imagine a casino justice opened blatantly on a reservation a casino without a compact that was absolutely illegal we'll call it casino rat a two would not abrogate immunity in that circumstance the state would have no when i thought the statute says that all your honor all eleven sixty six does is bring federal that's about federal enforcement not at all about state in force and it michigan's own position in michigan supreme court said eleven sixty six is nothing with respect to state and you do not take the position that this  orbital judgment you would assert well to respond to that on a first of course that's the remedy they say they agreed to in the compact itself and of course they should try and second if they are i mean that's not an answer it well it is a dancer in the sense that your honor how they asked it we and i can tell you i've discussed it with the tribe that they would of course not when they would of course not assert sovereign immunity to enforce the arbitration agreement we how do you know when in our preacher ation when the gaming commission has said it's not big i mean i actually not sure that the ruling of the district court was right on that's ok but putting my own beliefs on are questions about that ruling how do you win if the federal government has said it's not  we think that that isn't a final decision is wrong for any number of reasons on the merits that you know it laid out in the joint appendix and so we do think that b the argument that we would make to the arbitration board that we should have gone to the senate arm and tradition board change the mind of the gaming commission aren't they the final deciders of whether this is trust lands or not well as you know i think that i think that that isn't itself a final decision and there are any number of mechanisms that may be available to try and get the issue properly to get up to the n i t c i don't see how an arbitration works the federal government has a very keen interest in whether this is indian land or not and the arbitrator is going to decide that in a way that's going to bind anybody we're  going to i think the parties before it and that's what the parties agreed to in many council on the ongoing as far as the tribe in the state is concerned they proceed from then on as if this is indeed lance even though the federal government is saying no it's not well i think that we would still have to deal with this question including the question you've asked really the declaratory judgment action which we've brought against michigan there's lots of ways to resolve the underlying indian lands question the last thing i think this court needs to do is entirely change the rules of the game with their spec to tribal immunity oklahoma city oklahoma tax commission both did deal with injunctive relief and both were against states to deal with his argument now he has said my friend on the other side has said well look to the foreign sovereign immunity contacts and that's what's giving him his reason for saying it wouldn't be such a big change and we think that's wrong for two reasons number one what selfish page seven fifty nine dealt with this and said that it was the political branches that led the change on commercial immunity not this court and number two my friend is quoted alfred dunhill and i think that that everything about bill is that right and then distinction between commercial and governmental it was court made in the first  a governmental compact justice ginsburg the majority of page seven fifty nine response to that and says that it was actually the political branches that led with the tape it was wrong on that apparently but what he said and i thought of it if we look at the case what we will see is it was the court's right that said there's a common law abrogation of quants is sovereign immunity and when they go into business in downtown iowa in just one thing with same thing with the state he says in the vote in california and then he says it would be totally anonymous to think that an indian tribe could go into downtown des moines and open up a clearly illegal business and you could sue france the state which was not kyle they could sue for could they the state could sue france a could sue california but it couldn't sue the indian just described we would encourage the court to look at precisely the case he is citing for this proposition which is alford on hold because as the case was vigorously argued by justice department attorney and what what my friend doesn't tell you is that the pages he is citing actually don't command a majority of the court they're about not commercial and they're not about foreign individuals who are not the state yes exactly but i think this court has recognized in blatchford and in kiawah that in nevada versus whole situations which is what i dissent in cairo what raised what my friend is trying to resuscitate that's a difference in circumstance because there concessional i'll look at so it's here that it now assuming you're right on that is the question in front of us on the assumption that these are indian lands does the indian tribe have sovereign immunity the indian tribe refuses to follow the compact but i want you to answer on indian lands exactly why no but you said to decide this on the assumption that it's on indian lands if i make that assumption and then i look over and read roman position is that you can look to our in search of determine whether or not there is a tribal immunity in the case that is not something my friend has argued it's outside of the questions presented entirely which both proceed on the assumption that this is off of indian land so for them so  purposes of sovereign immunity doesn't make any difference that you have at least a colorable claim that this is on indian lands well i think that it i don't think it matters either way our position is one way or the other that well so if your if your client or another tribe just decide to go into the gaming business all over the country and began opening casinos in places that clearly are not indian land use that still would have sovereignty and right there be tribal immunity for that just as if they had played into casino on indian lands opened a casino the tribe opened a casino with thought without a compact the state would not have an eighty two injunctive remedy and that's why there is no anomaly that's why i want to i'm trying to get what question i'm supposed to answer if i'm supposed to answer sovereign immunity question on the assumption that these are indian lands contrary to what was decided to lho i might get one answer but if i'm decided supposed to do it on the assumption that they're not in the inlands i might get a different answer and what assumption am i suppose glad you're on it for two reasons number one that's what the questions presented say a number to one of the most venerable precedent of this court is that is justice holmes opinion and colored i would say if you don't look to our answer to determine what happens if you convince the federal government that these are indian lands and despite the gaming commission's final ruling there is no other way to overturn it you decide to operate the casino it's not indian lands by the federal government you haven't convinced them otherwise what occurs at that moment where i thought i would stop you and using what mechanism the federal government has a variety of mechanisms available to it in that circumstance including closure orders and the like and i suppose even the state may have any number of actions both many states will have this worked out in the compact but if they don't have it worked out in the contract then there may be the part of by criminal process in your shoes play if it's indian lands but if the federal government has said it's not indian lands that's what i'm asking right i think that still the state may have any number of criminal or civil remedies available to it that is off indian lands and this is why there isn't an anomaly in a two off indian lands the state has vast regulatory power ignore was reacting to a circumstance in which this court ousted state regulatory jurisdiction on indian lands and so the state has a whole know the difference the state can really can shut down these gambling operations easily if it's off indian lands what the state can't do is get any kind of damages or money remedies isn't that really the difference i do think so i think that that's i think that's underlying some of this absolutely well you see that's an important difference i mean maybe we should give the state the ability to collect damages well i certainly would disagree with the idea that the court should i think the proper response would be exactly what this court said in kiowa which is if there's a dispute about the contours of community commercial off land stay does point to all of that those are all things that congress is well suited dealing with  remedies and reliance interests of the parties and i know picking up on your question to my friend earlier that after kiowa congress hasn't been silent congress has reaffirmed tribal immunity and patriot act extension in two thousand and five and the cigarettes of two thousand and nine they've cut it back in the arizona water act in the sunni acts of two thousand and three this is not a circus but if the tribe takes such an obscure position it's such a change in position as it were that we're dealing with federal lands here i mean with the indian land maybe that's the reason that we should confine and limit kyle a slogan doesn't apply to indian indian gaming and we won't have this problem well i think that is because i'm sure i want to get the answer the justice branch question or is it your position that these are indian lands and i still don't understand your position our position is that strew then maybe this who idea of immunity doesn't work very well in the context of gaming our position just kind of is that they are indian lands th lots of different remedies available both on and off indian lands and that this court in kiowa set out that way to deal with any sort of cutting back which is to leave it to congress what would i do i guess what remedy would a private person ask pose a a contract with its eyes open that not just didn't say anything about tribal immunity it we affirm tribal immunity it petition appendix page ninety now michigan doesn't like the terms of that deal and so they're coming in trying to renegotiate that now we have so there may be twenty plaintiff i understand there may be any number of arguments available but this is so far are from that we've talked about this prosecuting the employees i says suppose if you bring a criminal action against one of the employees the state would have to prove beyond a reasonable doubt that this was i think ties in with what the questions about foreign sovereign immunity in this court's decision and blatchford the court held that the state of alaska could not been sued by an indian tribe complaining about the distribution of state some state funds in alaska which does not have indian country the court held that the suit was barred in doing so the court recognized that the eleventh amendment had originally been understood to bar suits only by individuals but relying on this court's decision and principality of monaco the court said that the eleventh amendment also bar suits by foreign sovereign rights and the court's rationale in principle ality of of mon sovereigns were not parties to the convention there was no reciprocal abrogation of immunity between foreign sovereigns and states and in fact the court specifically pointed out that the state of mississippi could not sue monaco and in this case monaco could not sue mississippi the court applied that very same reasoning in blatchford to an indian tribe the court said we have held in the past that indian tribes may not be sued and they cite a few wallop which was a suit by a state and the court said logically it follows that case that a tribe may not sue a state where you're prepared to live with the following is it the case that if california opens a business in a commercial activity beat but that's because in about a versus hall where the reports where the court drew a distinction between for states and the states there was the so so what what what what the opposition says in your in your view is absolutely correct that  a foreign nation opens up an illegal business in the state the state can sue them now because of a treaty but previously because of the common law you've made in california opens up an illegal business the state can put them out of business by bringing a suit but an indian tribe they can't that's the united states for california in the state the state situation it is because of the reciprocity i'm saying that is your immunity that the government recognizes prior to one nine hundred fifty two in the united states adopted the restrictive theory of sovereign immunity foreign sovereigns were absolutely immune from suit unless the political branches said otherwise in the  that the executive branch adopted what was the developing a body of international law for foreign sovereign immunity and said that commercial activities could be the subject of suit that was codified but the court did not take it upon itself to modify that foreign sovereign immunity and this is the this is the point that the court made took i wanted to accept the executives determination to go to play well it yes but it didn't treated just as a matter of common law that it that like a a maritime common law claim or something like that it treated it as structural under the constitution and the same thing is true of indian tribes that the constitution refers to indian tribes most of vs georgia announced indian against this casino yes if any by a letter government at the solicitor of interior has said these are not indian lands the n i g c has adopted that interpretation the end i do you see has said but we can't do anything because they're not indian lands we work on indian l and the move referred to as i understand it the matter to the u s attorney who has thus far not done anything right well because so basically as i see it the federal government is saying states you can't take action against this illegal casino will be the only ones who can we agree that but this court did not do it as a matter of common law like did it by looking to the constitution we have treaties with indian tribes we have the commerce clause don't do we do virtually nothing as a matter of common law we do we do virtually everything on the basis of the united states you have you understand indian policy this case has permitted if we follow your approach it seems to me well beyond anything to do with gainey i my belief is indian tribes all over the country operate businesses the reservation and businesses all over the country are regulated and does the state i guess in your view does not have the power to enforce the regulation against the indian tribe not you guys that in the against the tribe itself why is that in the indian tribes interest and is it a trap for the unwary lawyer and how is this supposed to work out in your view congress has addressed this problem in numerous ways for example the and in deciding whether to abrogate immunity their complex decision should it be under tribal law should it be under state law should it be under federal law should the suit be in federal court should it be in state court what about what about private individuals who may have a claim against as a result of the operation of the casino vendors idaho the court reaffirmed that reciprocity in principle of monaco point but also pointed out the tremendous reliance interests that have grown up on on the basis of foreign sovereign immunity it pointed out that for example four fifty and of title twenty five which specifically preserves immunity something that was reiterated in no child left behind act but it also specifically pointed out that congress has sometimes created narrow exceptions to the immunity and critically one of the ones that  went through the development of the foreign sovereign immunity and whether the courts were influenced by the government was the courts that recognize this distinction between commercial activity and mental activity and not others it may not lend itself to one principle answer which is why the court in kiawah said it's up to the legislature of congress to weigh the various pros and cons or up to the private self in deciding whether to waive thank you mr nadler mr bush you have five minutes you mr chief justice i want to clarify just two things about the court's precedent and then get back to the remedies issue which has taken up so much of our time this morning first the the state of the law when it was a cop in one nine hundred eighty eight again that reservation conduct but as we point out in our reply brief this is that pages one sixty seven to sixty eight of that opinion here the tribes contention was that the fishing activities on its reservation were immune and and justice stevens wrote that opinion and then only a few short years later in kiowa wrote his dissent where he said we've never before drawn that on off reservation distinction so that's what it says with respect to alfred dunhill and the evolution of foreign sovereign immunity as a common law doctrine for justice agreed or signed on to the entire opinion where that discussion was held one just disagreed only with parts one and two but part two i'm page six ninety four draws the commercial line and says the problem here is that the district court found the only evidence of an active state as opposed to a commercial act was a statement by counsel that the cuban government and the interveners denied by a bill city and that's not enough and the court did reference the tate letter but that's not why the court changed the common law of foreign nation sovereign immunity it gave respectful consideration to the executive branch's views and then it reached its own conclusion about what the common law should say and justice ginsburg exactly right to say if it makes sense in the formation context and it makes sense here apply it to both if we  make an exception for commercial activities over as we could congress reinstitute would be no question they could just like when this court in cabazon said that states didn't have the regulatory authority they thought they did to regulate illegal gaming on reservation and this court said you know states can't really touch that congress immediately jumped in and corrected course you know conversed with alfred dunhill when this court drew the line that commercial conduct of congress and immediately jumped in and it put its stamp of approval on that actually is something one seems something sort of strange about that general because as i read what it was was an invitation to congress it was saying you know we have some concerns about this we're not sure it makes sense we are dropping a very broad hint that congress should change it and fifteen years later congress has done nothing and then to come back fifteen years later and to say you know congress didn't really accept our hand so we'll just do it ourselves and make congress reverse it wouldn't you think that that's a strange procedure to use  either way and the suggestion by the tribe in the government that somehow this court lacks the power to define common law tribal immunity with it i would have thought general birch that one of the principles behind indian law in this country goes something like this congress can do pretty much what ever it wants with respect to indian tribes but we won't not lately assume that congress means to undermine tribal sovereignty and sovereignty we will we will insist that congress says that before we put it into effect and here it's not just i mean congress has given every indication that it does not wish to change this notwithstanding our hints that it should i respectfully disagree and the best evidence of that congressional intent is in a great itself where congress abrogated immunity even for on reservation conduct think about what an extraordinary remedy that is that even on the reservation a state would have the ability to go into court and get a federal injunction rather than try which is that you just heard that the indian tribes are in the same eleventh amendment type position as the principality of minako before the treaty right they didn't participate in the convention to put it this way because it sounds like a joke but it isn't meant to be in this case if it's a wash follow the precedent i think alfred dunhill makes clear that this court can change the stream of the common law when it comes to him unity really quickly on this remedies whether they're available to us and if this court issued a definitive opinion that said we have each one of those remedies that would do great good in this area but the reason why we think that you should go farther than that is because if  anything it means allowing people to define what is illegal on their own lands whether it's prostitution gaming or underage drinking and being able to use the for enforcement power of the sovereign state civil and criminal to enforce those laws thank you counsel in the cases submitted