i will try to reserve three minutes and i understand that that the clock is full this case is the latest iteration of plaintiff's challenge to their legislative disenroll meant by the tribal council closed in a rico complaint it really remarkable and i don't seem much in the way of a denial so and we have some degree of cooperation from the department of interior so let's see if i have this right your clients postponed elections ported to act out be it is didn't have a legal core and dissimilar hundreds of tribal members having the effect of reshaping the electorate before the elections could actually be held a  plaintiffs from their homes including some who had substantial investments terminating health services cutting off educational assistance following the tribal court judge who was about to issue an unfavorable decision ignoring the orders of the court of the tribe tribe zone court of appeals which it said the rule of law had quote completely broken down withdrawing from the established appellate court and creating a new tribal supreme court to which they employed in the cells and their allies that's a record attempt but dictator of a banana republic might be proud of if any of that is true where did these people go for recourse first of all to say that they didn't answer that question for us where would they go for recourse they go to the tribe but the tribe is if those allegations are true just appointed its own court to make sure they can't go to their own tribe the exclusive jurisdiction to resolve actions of the port it leaders of the tribe are not recognized by the federal well you're talking i believe your honor about the b i a letter the b i a letters are limited they are not a resolution of the merits of this dispute they go to the relationship between the two nations it's sovereign to sovereign and the b i is role is to determine the right to federal monies and that's the limited scope that the b i e letters address it's pretty powerful evidence which the court in the district court could properly taken consideration at the stage of trying to ascertain jurisdiction which frequently involves factual questions and i didn't see any evidence submitted by your client to the contrary so it seemed to me that district court had a pretty ample basis for saying that things were not happy in mudville well since that time and the docket of the district court reflects that there has been a memorandum of understanding between kell need to do is go back to the district court and say ok things have changed and get the district court to change its ruling but i don't see how that causes us to review what he decided when he decided the thing that's on appeal and he differently but that but the court to recognize that the district court or even this court resolving the merits of that dispute the courts the federal courts do not have authority to determine whether the tribal council was properly constituted with a quorum that has to be done internally according to by whom because the federal government's position there is no tribal council because there's not a quorum well so that everything that your clients reported do up to and including appointing its own supreme court was be in the views of the department of the interior ineffective why should we decide differently because the precedents like santa clara pueblo and stock the west say that this court does not have jurisdiction  presuppose that there are valid and legitimate governments operating within the tribe what if we disagree with you regarding the import of the letter from the department of the interior do you lose i don't believe so for because the b a letters go to the issue of sovereign immunity they don't go to this court's fundamental lack of subject matter jurisdiction to resolve the intertribal dispute so you can't take what the b i a e a has said in their letters and that which is the second circuit case that we cited when there is a conflict over tribal leadership the b a s precluded from issuing a recognition decision except where a federal purpose requires recognition so again that limited authority of the  be worried about you're working it out district court to recognize that but the case we have to get up in front of us doesn't show anything with cooperation between the people while the people currently in power are your clients and the part of the interior well i think the cooperation is i mean the letters are good telling me it's getting better but i don't know how we can rely upon that that's something the district court will have to educate if the case continues but that's not something that's in front of us other than what you just said when you haven't submitted anything to us to suggest special circumstances have changed well the documents in the attached to the declaration of rick ricky armstrong include decisions by for example a pro tem judge subsequent to many of the facts alleged here working through these issues there is a tribal court is taking cases and resolving them there so what more do i turn to get this forty one to three twenty six i believe it's exhibit four or very close to that there is a decision by the pro tem judge so that so the tribal court is operated and yes there was a  again that is within the jurisdiction of the tribal council to constitute that court it's not a constitutional court and if you look at the constitution which is also in the record it's the first exhibit to ricky armstrong that tribal council has the right to establish a court to resolve disputes on the reservation between the indians it's not a constitutional court and that court has no authority over the tribal council itself it's the other way around and that is the way  that that this sovereign and its constitution is set up and it's an independent sovereign not subject to the jurisdiction of the federal courts i think up i will reserve the rest of my time thank you thank you immunity along with his associates to avoid the impact of a civil rico lawsuit brought against him in his personal capacity only now the law on that after louis b clarke and after this circuits decisions in maxwell versus county of san diego and to store versus garcia is abundantly clear it is clear that if you sue an individual even if they are employed by a tribe in their personal capacity sovereign immunity does not attach if the remedy is against the individual but  claim be adjudicated without delving into the legitimacy of defendant's action as the tribal council absolutely your honor how because this is not intertribal dispute unlike any of the other cases that mr kelly and his associates  cited to the court this does not require district court to choose between two factions there's no splitting of the baby those cases are typically well but but how how to how does that not the case because if in fact defendants are right in their position that they were the legally authorized tribal council then does an inherently that mean your client loses and if your client wins doesn't that require the court to say their actions as tribal council were ineffective no your honor and we need to be careful to not conflate the two questions here one is sovereign immunity and one is whether this is an interchangeable dispute on sovereign immunity if you sue an individual even if they are acting in the course  scope of their official capacity under lewis versus clark under maxwell under pissed or sovereign immunity is not out i'm more concerned about that the jurisdiction part of that is can this court or any federal court evaluate the action and i think the answer to that is still just as clear as the sovereign immunity question this is not an intra tribal dispute because it is not like any of the other cases cited by mr kelly and his associates for the proposition that the court is going to have to make substitute its judgment for the judgment of a tribal body regarding an issue of tribal law it's not smith versus babbitt it's not a case where the district court has to decide shall i put somebodies name on a membership role that is an internal tribal dispute all of that's somewhat academic because the department of the interior has already rendered all the decisions necessary in connection with this case well what gives it the authority the letters are careful in saying that they pertain to what the law is doing and the contracts and so forth it's not purporting to adjudicate for the tribe whether this government is legitimate so  that and i appreciate the question are here here's the answer we as so often is the case in the western district of washington we don't have to go past the district court's order the court relied on those letters it made explicit it was deferring to the judgment of the department of the interior on those letters based on twenty five u s c section two the interior the department of the interior has the authority to make internal decisions whether they are interest or not it has authority to make decisions on the reservation regarding indian tribes and let's talk about how you go there's a distinction certainly the federal government has the authority and eli has the authority to decide that we're not working with this group so the federal funding that otherwise would all but that doesn't say that department of interior is the great white father in washington deciding for the tribe who the tribal president should be and i think the lenders are careful not to lean into that decision and my concern is that i i can't i can't explain a court decision in your client's favor the doesn't ultimately say what defendant is purported to do as tribal government was ineffective and let's let's talk about a case that was just cited to the court over sustainer from the second circuit in two thousand and sixteen in that case the second circuit said federal courts stay out of intertribal questions you are not to be involved in a tribal questions but the b i a can the department of the interior can make decisions and all of the cases regarding faction disputes that the b i a when that was sort of the reason for the question i posed your colleagues and i'll pose to you as well what's the other recourse well it seems to me that federal courts are pretty low on the list of places to go for recourse well one the recourse for a rico lawsuit the jurisdiction for a federal rico lawsuit is likely exclusive to federal district court that is the recourse for this suit that is the suit we are bringing the question of exhaustion in other in other cases other tort suits that is not before the court that doesn't help if if resolution of the rico case requires the court to do something that it can't do in the same way as a wild analogy but i'm on a roll here state secrets doctrine frequently stops lawsuits in their track because the court can't adjudicate without risking the state secrets and i think we have some of the same problem here this is a question of just it's it's a question of and there are cases we're not arguing that there aren't cases of intertribal disputes intertribal disputes as as all of these cases cited by factions fighting district court you figure it out you tell us who's in charge district courts not going to do that that's the role of the interior and here interior interior made a decision that it was entitle to make again going back to interior can make decisions for reasons unrelated to the district courts question of subject matter jurisdiction so what happened in ca you got the department of the interior made a decision regarding leadership and the district court even though that decision was unrelated to the end in tears saying district courts have jurisdiction over this because one faction is correct one faction is wrong the second circuit said it doesn't matter why interior makes the decision if interior makes a decision regarding who is the legitimate leadership of the tribe or who is not district courts are entitled to rely on those decisions for purposes of formulating their own subject matters diction so there are no interest disputes in this case  of the issues that i have is you say and i think correctly that exhaustion is not presented in this case yet that seemed to be the entirety of the district court's analysis when they should have been the district court should have been analyzing subject matter jurisdiction but i would i would disagree slightly your honor and here's why i think the core in touching exhaustion was expressing respect for tribal governments that haven't devolved into a complete lack of tribal governing body it was saying there are circumstances out there where a tribal governing body will exist and in those situations we will defer to an actual tribal governing body but here it's clear the department of interior said there is no tribal governing body and let's be clear about it as long as we're talking about extra record material in in a case brought in the western district of washington which is cited throughout these papers in its called versus inky mr kelly and his associates attacked the department of interior determinations they said these into determinations are wrong and what did the district court say it said mr kelly and your associates you are not the governing body of the new and you have no authority to attack those decisions this is that on a pic is not on appeal no they failed to appeal and so and more than thirty days have a lapse so the key there is that if mr kelley and his associates masquerading as a tribal governing body have a problem with the united states that is a dispute under the administrative procedures act between mr kelly and the department of the interior it it has nothing to do with with my clients who are relying on determinations by the united states indeed in deciding who is who is in charge of your remedy as opposed to being in federal court again echoed clifton were kind of last to open doors what would that be judge freedom what remedy are you referring to believe that this there is no functional tribal government here they can assume the provision of benefits for the the plaintiffs in this case we believe that will happen but it doesn't take back the home that was stolen from my client it doesn't take back the equity in the home that she was locked out it doesn't take back the months of benefits to which my clients are entitled to that they were deprived of but still are we in order to reach those decisions aren't we still looking at the constitution the election ordinances and whether the holdover council was properly constituted no your honor you don't know did the district court has made very clear i'm not going to make a membership decision decision don't ask me to do it this is a rico lawsuit at the end of the day trial is going to show whether mr kelley and his associates defrauded mrs ribbing that's it it's not going to decide who's a member it's not going to decide which faction is in control unfortunately there is no relief available under rico that can resolve the disaster at all that is available all that is available to my clients at this point or damages under rico should we ask the united states for if you know you're on to the this this matter is really only before the court on sovereign immunity we would argue that this question of subject matter jurisdiction is not inextricably intertwined with this matter should be affirmed sent back to the western district of washington to handle in the orderly way that it has done already lewis let's remember lewis tells us exactly what we should do footnote two and lewis versus clarke says you don't have sovereign immunity for personal capacity lawsuits as much as those of us who represent tribes and tribal members don't like it louis versus clarke says underfoot no to seek to dismiss based on official immunity to dismiss based on legislative and and we ignore jurisdiction that's the first issue this case was this case the collateral murder in this case that is appealable is the so immunity question mr kelly in his associates have argued that the jurors that the just juice disability issue is inextricably intertwined with that it's not there are two different legal standards under wong but we still have the question we can't if we don't have jurisdiction over the case we're not supposed to proceed beyond that question so you're right the question that's teed up in front of us is sovereign immunity but i'm not sure how we can disregard the question of where you can order because denials of motions to dismiss based on lack of jurisdiction are always left until the end of the end of a case that would violate the that would essentially swallow the rule under vonne that only you know only questions that are inextricably intertwined with the collateral order are actually before the court but it's somewhat academic because this is not an intertribal dispute the federal government has resolved any question that the district court will need to answer i can't even see the  thank you this court should decide both issues they were in our opening brief and the other side never objected to this court's rightful decision of whether it had subject matter jurisdiction or not it goes hand in hand with the should we ask the government for view well i think the government's working on there right now according to the memorandum of understanding because there has been another election held and this is in the district court docket at one twenty one and the when this agreement was reached in august of two thousand and seventeen i want to point out that it was with chairman kelly as the chairman of this tribe and the funds have been flowing to the tribe from that date so to go back to the two thousand and sixteen v i i letters and say that this is all resolved and that councilman chairman kelly is not being recognized is wrong again and i'm not sure how we can act on i mean i've looked for the exhibit for you referenced and i haven't found it yet i'll keep looking but to the extent  you're telling me things that have happened subsequently that strikes me as something for the district court to act on i understand something that we can say but what should have happened later and that's that's just later you know i'd like to because i would say that the b i a is very cognizant of the limitation on their jurisdiction and they are not to decide these issues on the merits for the tribe going back to the nation in that case the second circuit did give deference to the b i a determination to allow one faction of the tribe to protect the tribes rights visa via third party so it was not stepping into the actual merits of the  membership dispute but it was recognizing one faction to to bring the lawsuit to protect the tribes rights and here we have the sovereign immunity issue of a tribe that according to its own before this court and it becomes circular for this court to decide the merits of that and then based on that say that they would not recognize sovereign immunity for example it's putting the cart before the horse to resolve those double jurisdiction away in me that prevents litigation of issues like this in federal court to reverse thank you thank you to both counsel for your helpful arguments in this case the case just argued is submitted for decision by the court