there were instructors and clinical coordinators and mentors for students sandy ove it was the grants coordinator and they were terminated after they reported that grades of students were being changed students were being improperly retained and it appeared that all of this was being done for purposes of preserving and obtaining federal grant funds for the nursing program as a result of this conduct by ask a c these students were not being adequately educated such that when they graduated they were unable to pass their nursing boards many of them and ultimately as casey was put on probation by the montana board of nurse nursing in recognition that there were these problems with the students they were graduating and so when that was reported by my clients they were summarily terminated resulting in the filing of the suit under the false claims act the suit was filed in two thousand and twelve and then was later dismissed upon the motion of the defendants that motion was based on tribal sovereignty grounds and that was the basis upon which the district court dismissed the case now you've got a pending suit as against the individual defendant still the next question is not in front of us ruling as to the foundation and then they also the court also dismissed claims to the extent they were construed or could be construed as claims against the individual dependents in their official capacities but the court the first issue i wanted to address and i'd like to reserve three minutes for rebuttal but jurisdictional discovery was not allowed in this case there was some exchange of documents and the court during oral argument offered what would you have discovered that would be relevant to the question that we have in front of us well that is a very good question and one that i can only partially answer obviously i don't know what all is out there but there are facts that continue to arise today that i think are relevant to an arm of the tribe or eleventh amendment arm of the state style and to your question judge fletcher facts continue to arise even as recently as the supplemental material submitted by the up defendants before this court they submitted a title report that showed leases to s k c now they did that for purposes of showing that s k c is located on tribal land but what that title report also showed were separate leases to an entity known as s n k community college and that is one of the issues that we raised as the identity of the college itself its corporate identity there were tribal articles of organization filed for an entity known articles of organization were filed subsequent to the color of the tribal articles and they were different in a couple respects one they were different in the level of control maintained by the tribe over the s k c and two they were different in that they had a much broader waiver of sovereign immunity contained within those state articles now the question of whether these two entities are the same and how they are related is an issue that i think is important to the question of the arm of the tribe analysis there are other issues as well i think that were not considered by the smith court which is the basis upon which the district court said i'm just going to assume that this is an arm of the tribe versus the tribe the state entities continue to have been maintained they updated the articles they amended the articles to reflect the new name they continue to maintain that organization filing in your reports there's been no amendment with respect to the tribal articles for this older community college entity and these leases that were recently raised by the defendants those would be terribly interesting in terms of determining the financial relationship between the tribe and the college which i think is one of the critical factors that are considered in f c a sovereign immunity analysis is functional and direct liability would a judgment against s k c b effectively a judgment against the tribe and so that type of financial relationship i think is one that should be explored for purposes of determining whether s casey is an arm of the tribe we didn't have an opportunity to do that or had a very limited opportunity to do that the smith case never addressed the fact that there was a waiver in this in this state the state articles of incorporation for the s k c but isn't that just a pro forma requirement that you have to do in order to register with the state i don't believe that it is it's it doesn't have to be in the articles of organization there's no requirement or articles of incorporation there's no requirement to that effect that i'm aware of and the the articles before the tribe i mean they had a waiver in there so there was an intent even as to this community college entity to waive sovereign immunity to some level they waived it to allow suits to proceed in tribal court then it was subsequent to that that the articles of organization were filed with the state of montana they contained a broader waiver that was not limited to tribal court and that waivers meaningful that that document is meaningful it has to it has to be given some effect and there anything in that document beyond the phrase agreeing to be to sue and to be sued with anything beyond that indicating a waiver no that was the extent of the waiver in that document and i believe that is an express waiver your honor it says that they're consenting to sue and be sued and that's not limited to sue or be sued waiver question is i think somewhat different from the question as to whether or not the college is an arm of the tribe and indeed if there's a waiver of sovereign immunity as to the college that rather's suggests that the college is an arm of the tribe otherwise you don't need the waiver but i have a  is even if there is a valid waiver of sovereign immunity that doesn't tell us whether the false claims act intended to subject the tribe to suit  say if the statute doesn't intend to subject the tribe or its to suit whether the charge as a way of sovereign immunity makes no difference i think those issues are related and i understand your question and this is an issue raised by the defendants in that they say the false claims act definition of person does not include a sovereign right well and if that's so irrelevant i don't i don't necessarily agree with that and here's why when you look at the cases that examine the arm of the state issue with respect to false claims at cases because that's what most of them are terms of the state that arm of the state analysis six specifically includes as a factor whether there's been a waiver of immunity so that issue comes back again and is important to determining whether as casey is an arm of the tribe when you look at those factors now if you look at the standard arm of the tribe analysis the breakthrough management factors that were used by this court in the white case they're a little different they're not the same as the f c a examination under the eleventh amen the arm of the state analysis and it's important i think to think of the context in which you're examining the issue of sovereign immunity this court's case law says that and it cited in my brief and so when you look at  these are economic issues in the direct and functional liability of the tribe or the state is the primary consideration now when you look at the arm of the tribe analysis that's not specific to the f c a and hasn't been used as frequently in that context it doesn't have that same focus and i think that that context is important here because under the f c a what we're really talking about is the financial liability for a potential judgment for defrauding the government and the issue in the smith case relied on by defendants and relied on by the district court was one of civil jurisdiction over a motor vehicle accident personal injury claim different context spaces anywhere that apply the arm of the state doctrine to tribal sovereign immunity that i located your honor but there are the cases are i think much more prevalent in terms of explaining the arm of the state analysis is a is a political two false claims that cases and it's that economic issue which i think is present here and i think those factors are more appropriately considered by this court in determining the arm of the tribe issue but i  immunity that means there's already well i think it may be that the waiver of sovereign immunity is unnecessary because they're not the solver but the fact that they waive sovereign immunity doesn't tell me that they're not the sovereign doesn't quite the opposite i understand what you're saying your honor and i would just point to the issue in i'm sorry i'm looking for the case here tribe of oklahoma said that as a matter of law and indian tribes subject to suit when congress has authorized suit or there's been a waiver and so i think it's an either or situation there and the waiver is an issue thank you your honor i'll reserve the rest of my time for about john harris and rhonda sweeney from the confederated sealy scrutiny tribes i will be sharing five minutes of my time with mr harrison to argue on behalf of the tribe as your honour's clearly recognize this is a case concerning the false claims act and specifically whether or not a sovereign is a person as defined under that act and can be a defendant under that act judge morris united states district court judge from montana determined rightfully college my client is an arm of the tribe and if it is it shares in the sovereignty of the tribe visa v the false claims that they get the scope of i'd as judge morris pointed out i'm not sure anymore discovery would the relationship between the parties but they were provided not sure research a tentative answer i mean if you're not sure maybe we'd better find out well let me let me restate that i'm absolutely sure and what if i'm not ok well let me try and assure you if i can the the fact is the relationship between the tribe and my client has been litigated repeatedly even know that the smith case had to do with civil jurisdiction this court examined in length and in detail the relationship between news those two parties and actually did they have for example the lease arrangements in front of them at the time of the smith case i don't know that they had all the lease arrangements but they had virtually every other document including the articles of incorporation that were filed with the tribe and with the state sounds like those leases a pretty important i don't think that they are your honor because what they show is this i don't dispute that silly scrutiny college owns real estate but the fact is the location where their college is is on trial property on the reservation and that the documents that we submitted show that those are leased from the tribe by the college for basically no rent on an annual lease what do we know about the budget of the college who pays and so on well most of the most of the finances that the college obtains it pertains to grants and i don't know know that there's evidence to suggest that the tried pays for the college but they is there evidence that the tribe receives money from the college i think the tribe receives other benefits from the college primarily education of tribal members when you say i think well again i know i'm sorry absolutely receives a benefit from a lesson for what you think or know and more what's on the record what's in the record well i think it is under the first element of the white test is how that was created that's element number one and what what happened was not sufficient obviously pardon me not sufficient obviously well for four element number one under the white do so at the discretion of the tribal council their admission as board members are decided by the tribal council their removal from board members is decided by the tribal council the third element or the second element has to do with the purpose behind its formation and here clearly the purpose was to educate tribal members and to further the the culture of the flathead reservation tribal members as set forth in the mission statement for the tribal college as i said the structure and ownership is controlled by the tribal council is there some dispute as to how many students in the college or tribal members and how many are not i don't think there is a dispute your honor the mage the majority of the members of the students in the college are native americans and more than fifty percent are flathead indians are members of flathead reservation in which the charge out of the false claims in the tribal membership of how many students i thought that the false claims act charge had to do with how many of the students were in fact tribal members my wrong about that not entirely i think the charge is more i know that the charges more accurately that they claimed that the college misstated retention rates grades and the status of the point where there was a presentation asked of the composition of the student body not to my knowledge and did the grading system have anything to do with whether you were right whether the college was retaining native americans and therefore keeping up a high in a percentage to be eligible for the grants in so far as there were or grades for native americans yes it had some relevance to that but the grades allegedly were enhanced in order to keep them in school and keep the  requirements is not correct in that the allegation namely that allegation is not correct but that is the allegation they were finally getting to the answer the question that i thought was the answer was going to be the answer but then the reason i ask that question is going back to purpose so what is the purpose and you say the purpose is to provide education for tribal members correct and i'm trying to figure out ok how many tribal members are properly in the school and it turns out that part of the fight is how many tribal members are in fact properly at the school well there's how many tribal members are in this school of nursing or the printer scene program but as far as the allegations giving rise to false claims that's not dependent upon how many native americans are in the school it's a general allegation about how the grades were provided and what representations were made to the granting authority secure well the point i was trying to get out one of the white factors which is to say purpose and those may be relevant only at the margin ok i'm with you so anyway to close out with my time judge morris examined not only the previous decision by this court sitting in bank and smith relative to the relationship between the tribe and the college judge morris also went through of a detailed analysis of the white factors any analysis of sovereign immunity did it it not directly although it did analyze the civil jurisdiction and if you look at smith it decided to look at other statutory schemes as it pertains to relationships between tribes and arms of the tribe and one of those cases that it looked at was the pink versus mo doc case with had to do with the modocs housing authority and it equated sale of college to the modocs housing authority in numerous times before this court the montana supreme court and the tribal court and judge morris looked at those other cases but in addition did his own analysis under white as to whether or not it's the arm of the tribe and i think really there's no doubt that it's the arm of the tribe and shares in the sovereignty of the tribe under the false claims that thank you so much for considering my case and i'll turn my time over to mr harris my name is john harrison i'm here with the trans managing tourney want to sway me this case does hinge on the status of the college if the stat if the college carries a tribe sovereign immunity it is a sovereign is not subject to false claims act that's a matter for any law and the the tribes are here there's no need to plow new ground with regard to the status of the college the smith court had an extensive record had the benefit of the proposition i understand that your honor i think what they would be looking for would be some kind of document that shows there's a broad waiver of the tribal corporate capacity not something that allows them to would just pass on that one if you show a waiver that doesn't tell you anything right and that would be our argument frankly i'm not sure what they would find because their argument is in this context to have found a lawsuit that was are not we are a separate we are the tribal government that is an arm of the tribe you would sue them separately as an arm of the tribes but in this case you can't just name the tribes that was examined and it was still deemed that the church that college is an arm of the tribe is not the tribe itself but is an arm of the tribe under an arm of the tribe analysis and to speak also to the functional direct to begin with i'm not sure they would get that discovery if they pulled up that case i think they would have done that already the montana supreme court is still fighting the hypothetical he's ok you're what you're doing is saying oh boy this is so farfetched i can't imagine and i'm  not collateral estoppel it's got to be a story decisis and they were deciding for size for the same question and if it turns out we have a different record in this case from the record they have there we have a different record and we might get a different answer so you've got a foot up with  that if we get facts that really point to a different answer we get a different answer so you've got to say it is so unlikely that there are facts out there hiding in the bushes that we can safely from the district court i mean that's what we have to be honor i am not sure that the status of the college has been you would you want to get a drink evidence out there that we don't that we don't know about yet i think your honor there was a lot of discovery already in this case and i think they got the discovery they asked for if there's any further questions on discovery i would certainly defer to the college's attorneys judge moore says well reasoned decision we do think that smith is going to college is the product of a long record it's been the status of the college has been examined by numerous numerous  session of this court and the status has always been clear in the context of a defendant in a lawsuit it's been deemed an arm of the tribe and it should be seen as such on the false claims and i can ask one quick question maybe it's quick you know the  for some reason the college the same year decided they would cooperate under state law for whatever reason i don't know i would defer to the colleges attorneys on that i don't think that there's any real difference because it's still the same entity and the montana supreme court directly or functionally liable for monetary damages but they would be harmed in the sense that the college would be if some catastrophic lawsuit occurred and colleges go on it would deprive the tribes of their only or you don't think that's significant i don't because it's under norm of the tribe analysis it's still an arm of the tribe and we look through a sovereign stone or from the ninth circuit court says we look towards sovereign immunity analysis to determine whether something is an entity an educational and is covered by the sovereign sovereign immunity the eleventh amendment functional liability arm of the state analysis in stone or well if it is a mom of the time then i that the tide will not stand behind all liabilities of the college doesn't matter no i don't think it's relevant in its sovereign immunity analysis it doesn't matter though well that whether it's whether the college is an arm of the tribe is the question with regard to the false claims act the public well why we're trying to figure out whether those anomalies time yes one the district court looked at white looked at the factors of white whether it's stands and i'm asking a specific question the court take what you have now this is known as the liability of the time into account  long argument in front of judge morris with regard to the application the white factors his opinion simply says i don't think it me i think it meets the white factors as an arm of the tribe so judge kozinski your response is financial responsibility of a time for for for the activities of the college and you've just sort of conceded the whole issue away you said well no need to look because one of those possible the tribes are responsible for a judgment but the tribes are connected with with the collars that's always been our argument and that that's something that's been examined in smith it's an even though the tide is not  at the white decision says whether it's a factor or whether whether it's financially liable is a factor but it's not the spas and that that's all we would say so i'm sorry to continue to take you over time what do we know about other faint aspects of financial arrangements between the tribe and the college is there money that flows in either direction between the two entities i know that this is nothing in the record i  tell you that the council loans and provides loans to the college i know the college leases tribal land for a nominal sum in perpetuity i know that the tribally control community college act requires that there be an entire set of factors that connect the tribe to the college but require an arm's length arrangement things i'm talking about were all part of the record smith received scrutiny college they were all examined the dual incorporated status to judge to time and with regard to other speech they've also had a lot of discovery as you mentioned before they have the opportunity to ask for things and finally i would say if we really want to get into more details about the arrangement of the college and its and its what it is i might at that point for back to co thank you your honor so you always do the two opposing counsel i never have before but i'll try to refrain in the future as well and i'm glad that mr harrison is ok and appreciate his willingness to get back up here i think that shows a lot of character and it's like riding a horse your honor so i think it's important to recognize that the mr harrison was asked you know what what might there be out there before i apologise for interrupting but i want to make sure i understand where we are is it true that you have conceded that the tribe is not a person with respect to the statute it was  don't believe that issue has been resolved and i don't think it's been adequately briefed in this case i understand that there is a lower court decision out there the question is whether or not under the court elaine case statute of general pluck ability is not conceding that the tribe is a person within the meaning of the statute i am not you do not concede that i'm sorry i don't know ok i think we might have misunderstood what with what might have been conceded before i thought i asked you a question and you said yes and judge kozinski i apologize i must have misunderstood and thought that this was an issue as to whether we are contesting that the tribe sovereign immunity which i was off misunderstands with i apologize it's not it's not uncommon but so that's back on the table ok i got it ok getting back to my point i think that the tribe has conceded that if there was a smoking gun out there it might look like a broad waiver and i think that we have such a document here i think that's what the state articles are i think the tribe has also conceded that there's not the level of director functional liability that is important in order to determine their  under the f c a analysis i think there's also the issue of control which has been conceded here which is that the tribal community college act requires some separation and so that there can't be the level of control i understand that arm of the state and arm of the tribe well related are not precisely the same question but it is very familiar territory to me that the university of california is an arm of the state of california but a judgment against the university establishes that the s k c is an arm of the tribe for purposes of an analysis under the false claims act i think that in the context is important and that that was a different context and i think we've identified several issues here today that would merit against a finding that s k c is an arm of the tribe in this context and i think that the waiver in particular has to has to mean something and it is in a sewer be sued clause in documents of any kind of tribal entity all was a waiver of sovereign immunity it is under the marceau case found that a soon to be sued claude clause was a waiver  this court confirm that the issue of whether a soon be sued clause in the tribes enabling ordinance effectuate a waiver of tribal sovereign immunity remains a live issue for determination in the circuit now i've said this before and i'm trying to figure out what your position is on the line my instinct is that whether or not the tribe has waived sovereign immunity is really not relevant to the question is whether the federal statute attempts to impose liability upon the tribe i mean the statute either does it or doesn't how do i think as to the tribe that is correct but as to the analysis of whether it's casey is an arm of the tribe that waiver has to be considered why because the waiver i tried to  these corporations have to have the ability to waive their immunity for purposes of grants contracts and other range ment's in the tribe conceded that in the briefing at the lower courts say is that why does that matter as to the coverage of the statute because if i'm sorry you're on i didn't mean to interrupt interrupt because in determining whether or not s casey is an arm of the tribe i think that's that's where the waiver issue enters into there and whether or not the tribe is a person subject to the act i think as you recognize is a separate situation and that's this tension between the stevens case and the court elaine case but i think the way to resolve that as to the specifics in this case is to recognize that if s casey has enacted a broad waiver of immunity then it should not be considered as an arm of the tribe for purposes of the f c a ok thank you thank you you