your we're ready to hear your counsel morning the most important in this litigation the protesters have been charged with crimes not really spend a trial the court then applied to in custody requirement the other here statutes the facts of the case and held that although the petitioners in that case were free intensity requirement of the other he gets that she is to be applied but it held that the pick because the petitioner quote had not shown that he is currently prohibited from entering the pueblo and therefore could not show quote suffering from an individual isn't custody is determined by quote the nature rather than duration of the restraints the converse of watson is true here the petitioners were and are currently booted from entering the reservation one the point being is that the length of a petitioners detention is irrelevant the fact that in this case indians are involved should not be dispositive of whether or not their liberty was severely restraint the tri of searching those three and when you do so becomes clear that the intent of the legislature was to provide a writ of habeas corpus and these exact circumstances so taking a look at that just briefly there were some early balance between individual rights and tribal autonomy required that all the trouble courts are subject to the restrictions of the indian civil rights act the limit the remedy to be imposed was very limited and it was only to imposed in those places where there were severe restraints on the on the individual member that were being imposed in other words where the traditional requirements of habeas corpus review would be treated and that's exactly temporary banishment would meet that standard absolutely that the th circuit abides by general he'd be a swell that restraint is severe and constitutes custody if it's not one shared by the public generally that's from  court decision and dry and it's also held on multiple occasions that forcing a person to quote remain in a particular community or under the command let me stop you there because this not happen as you know this is a little different because spanish minister gestating you're not supposed to remain in a community your remain out of community but there's no restrictions where you candy i guess except for that talks that are held under conditions that they're not free to come and no one will miss the intensity threshold and i think that again this is fifty percent of the state of utah they are unable to really come and go to or from  and again it involves the the implication of severe restraints on the ability to travel freely again fifty percent of the state of utah cannot travel to or from and again specific house i think that that would be restraints on liberty but i don't think that it would be a severe restrictions again saying that you can't the you're not allowed to visit the specific home you're not allowed to be within thirty feet of a school that's different from being essentially banished from fifty percent of the state of utah and and it's different in the specific circumstances involved in indian cases i think because not a criminal a mission to restrict a sex offender to prohibit the sex offender from being in certain areas right i think that's just if given that i think you have a significant burden to distinguish that from benish it's ok i think that the what this pertains to more is as the court held them who as you look at the underlying the underlying issue is is this a civil or a a criminal punishment and this you know i think that's the essential issue here when when trying to distinguish  whether there's a restriction on movement or not and if the hague b s standard of custody which you cited before is rather your movement is restricted banishment which ultimately led to the banishment and what was the nature of the proceedings that led to that banishment judge hart test with whether it was criminal i'd like to ask the same question but back to the tribe until what some x amount of time expires well that's right and i think whether we characterize this as civil or criminal the outcomes the same it doesn't distinguish between criminal and and in civil what it says is your your honor section thirteen over three as the applicable section of the civil rights and it makes a b s relief and i'll quote here available to any person in a court of the united states to test the legality of his detention by order of an indian tribe and it is it's the only remedy the courts have made it clear that the only remedy under this is an indian civil rights act for this kind of ofan ods is a b s corpus proceeding and we certainly did not ok however this court in dry said that the detention language in section twenty two in section one thousand three hundred and three is analogous and i think in custody it does not follow that a five year banishment imposed by the youth indian tribe constitutes his being in custody to do well i think you can see that permanent banishment would qualify correct this court has never decided that it should and i think that's important too but we would we would concede that i would say the permanent ban is that not our case i mean i think the this would be quite a different case if it were permanent the point is well i'm just trying to test the point at which to enter judge not to answer but to tell you is that we're only dealing with a five year banishment here and the end to various case that this court relied upon in o b i there was a ten year marriage in the court need to various is of questionable authority because it rejected the th circuit equation of custody with detention so they start out by saying we got it wrong the tenser got it wrong so i don't see how we can rely on to vera's as telling us what detention means when it rejected the th circuit conclusion that detention under the under is something is custody if it's if it has some temporal extend it's long enough but not custody if it's shorter i'm not aware of any where we say oh that was if you were you were put a mental institution for just the weekend so that's not trustee it has to be a lot of the period of time i'm not aware of any a b s case that makes a distinction on that ground or am i missing something not only know of your honor but that's why i think that these that those cases are not analogous to what we have before the court today what we have before the court today is the question of whether eight temporary banishment a five year was was a permanent case i know i think the number of cases that have specifically addressed a temporary banishment is quite limited but again you're you're not really responding to me you say when in fact the hague use cases never draw such a line as far as i'm aware why why should we draw a line here when we've been in the analogous hideous situation never draws a line  very court on the same issue a couple of years ago and in that case the the court said in our quote here a tribal member is complete imperfect analogy between these the court says that they are and now i guess but it hasn't said that that that they are down it called the section of the indian civil rights  totally i argument is specifically in this case i think that in this case the new you're on the opposite you're on the opposite side of my continuum question if i if temporary banish ok but you're going to find out a something more than a day then it seems to me you're basically arguing for a pace from our circuit  or declares unconstitutional practice that that's not at all argument not an argument as then it's meant is detention which is jurisdiction under the indian civil rights act good determination to be made whether or not they were due process under the indian civil rights act would be the answer that the court below of me would need to make we're just trying to get up to the jurisdictional threshold which is why they