strong possibility that that case is going to be reviewed by the united states supreme court a couple of cases already ruled that it should be the first component of the bruce test should be related to federal recognition so i think personally that there's a possibility that the supreme court's going to grant cert but the status of the law now in the ninth circuit is that there's a two part test under bruce them why doesn't the supranational simply put that question out of contention because i don't think that it's there's a nuff there under the pure the court clearly said that a person can be an indian for purposes of in an anthropological sense in a racial sense in a cultural sense an historical sense but did didn't he and he deployed to being an indian within the meaning of section of know i don't think that that says that the stipulation of the plain language is simply that john mature is an indian person while that might be the language of the statute i think in order to satisfy the jurisdictional component in order to satisfy the bruce elements in order to satisfy magill as it existed at the time there had to be something warded then the conclusion of the statement that he was an indian person i mean the government without additional language just what without language that says he's an indian as a matter of law or he's an indian for purposes of fulfilling the elements of the offense or he's an indian and a member of the federal at the very least unchallenged instruction and this piece of evidence consisting of the stipulation why couldn't ever actual jury use this even if it does not itself stipulate to that home and why w think so and the reason that i don't think so is because again the conclusory statement the instrument took is an indian person is insufficient i think is a matter of fact as well as a matter of law to establish the federal recognition component i mean this it's not enough in the government has the burden of proving the elements of the offense beyond a reasonable doubt  well i guess the question becomes one of a matter of fact and first under bruce the question is whether there are some quantum of indian blood clearly i think that there was and that was satisfied by the roman certificate  racial you know tendencies aside the fact that it's entirely based upon race of sight i think that the certificate in and of itself it clearly states that you know he's a member of the wa tribe and he's fifteen sixteenth's indian satisfies two things that satisfies the quantum requirement and also a moment requirement right yes but it does not satisfy the federal recognition component and i think that that is where the government's i'm so why is that because of the slight difference in the names yes i mean i think that why can't the joy find of those two things are equivalent i mean and it's just small difference because there's no testimony there's no proof to establish that you know i think that the district judge could have told them that of course it's this is pure speculation because it didn't happen but the district court could have told same thing with a slightly different words our official name in united states court of appeals for the ninth circuit by the somebody says ninth circuit that's with enough people who have no doubt as to whether it's the me talking tribes and the me walk tribes there's a difference in the language and i think that it's a significant difference and there's a reason why they're listed in this manner  maybe the government would not present evidence in light of a stipulation last possibly let me ask a question from my perspective does your client have a claim of fifty five is why we we don't have that issue before us but could your client bring a b s case making that claim and making a record why there's some problem with the stipulation yes your honor he could have for your side of the case is seeing insufficiency of the evidence challenge in light of the stipulation yes i think he could definitely bring a twenty to fifty five petition or motion but again i think that the stipulation in and of itself to an indian for the purpose of establishing federal criminal challenges so you you need to respond i would like to address that your honor if you look at exhibit one and bearing in mind your honor that there was no objection raised obviously the party stipulated to this exhibit at trial and that's important here because if there had been an objection raised as to the author authenticity of this as coming from the federally recognized tribes i think the district court could have made certain findings in judicial notice type findings for instance  on the certificate bears the seal of the hall of my tribe i think the court could take judicial notice that that is the official seal of the tribe it appears in all their documents louise benson is the chairwoman  tribe that is the whole applied tribe of arizona on the arizona reservation and the court could have taken judicial notice of that as well so had there been an objection and in addition peach springs arizona peach springs happens to be the headquarters of the tribe on the reservation that is the tribe that is listed in the federal register and just a cabin that issue as the court did inza paida we would ask the court to take judicial notice of the federal register here volume seventy five number one ninety an established is that that tribe the well by tribe of arizona is listed in two thousand and ten prior to this offense and and then volume seventy seven number one fifty five establishes that they were still listed in two thousand and twelve well what about his argument about the discrepancy in the description of the tribes your honor this actually this very issue did come up in this a paid a case as well and i listen to the oral argument in that case and much was made in that case about whether to hona oldham there was the to one autumn of mexico and other places we simply don't have that problem here there is no preamble at trial to the enrollment form itself and that's at volume one page six so just a few pages past that you'll obviously it was trying to get stipulations to various pieces of the evidence yes is the court asked as to whether there's a stipulation and counsel for the defense agreed obviously there was no objection later during the what the government needs to prove and that is membership in a second last time and that that issue was not raised blow it at all your honor and that's exactly the posture put in let's say it's a bank robbery case and government has failed to put in a certificate the bank is for the insured and you know rather than raising it and giving the government a chance to fix the if they only have raised that the government could have gone in and filled its gap right true so if this is insufficient if this is not enough not there it's not there i grew case will tell me why it's there well tell me you know i'm sure if they had to raise it and you pointed it out the government could have gone and put another witness to actually draw much attention to this at all and the defense it appears wanted this in like the government that officer on the stand to say these are the same thing but the party stipulated in that's what stipulated as to the indian person  element and that's why in the larger sense there wasn't any discussion really about this form it appears from the record your honor that the defense and the government both wanted this for more information that it contains in the record because if you look at the indian personal situation and off yes i mean some one can be an indian person and not be a member of a includes several things first the defense submitted an upset and instruction on the elements of the offense and that instruction was that the indian that the the first elem of the crime was the defendant is an indian person they did not instruct on the bruce test or or the blood quantum that's required in maggi or anything else and that this lens the strong inference here that they meant to stipulate to the entirety of the element later the government argued in closing that th stipulation and i want to i want to read it so i don't misstate it but it it was quote and this is page five seventy four of the record that the defendant is an indian person that has been stipulated to by the parties as a fact the government has proven that again there was no objection there was there was no statement from the defense that we hadn't met our burden of establishing that establishing that element as a matter of stipulation so given the larger context in which the stipulation was entered here and given the fact that the parties the that there was no disagreement that that element was met you can even look at the defendant's closing argument here he relies on the fact that he's and maybe you were misled but so what well we weren't misled we agreed that the element of the crime is that the defendant is an indian person and that's what we stipulated to in this appeal a stands that's enough all right well stands we think the in roman form is enough and that's a separate issue but the stipulation itself was we agree the element of the crime is he's an indian person and by the way we've stipulated to that that's what was presented to the jury there was no objection from the defense that he didn't meet blood quantum or didn't show federal recognition or anything else and so you are one or both should satisfy this case if it's a pita stands the roman form came into evidence it was admitted it was admitted there was no is a listing in the b i a official listing of this tribe but what's the connection how do you how do you respond to your opposing counsel's argument our position column one two three four five from the top is there who are la pai indian type of the who are pa innervation yeah all right so now let's look at exhibit one and see how that the maps in obviously it says well the pie tribe in that in its says on the certificate on the certificate ok and we think that that certificate it was a fair inference from that certificate that that is the very same hall applied tribe that's listed in the federal register because the whole apply tribe of the whole apply indian reservation arizona is headquartered in peach springs and it's chairwoman is louise benson and we think that the court should consider that as evidence that there's a paid a test is met here i'm looking at the federalist page and i'm looking at exhibit one and tell me where it doesn't that we're out of first there's absolutely no evidence in the record you know you want to talk about something else but i've direct specific question to you yes ok you can say whatever else you have to say after you answer my question but i've asked you a question you want to play along or i'll play now i can't remember what your question and apologize because you want to listening because you want to say yes ok so tell me where it doesn't that's when your honor set forth in our brief it doesn't match in that the specific language of the federal register is not anywhere in i don't think that they can make that inference i think it's an evidence you're a gap the government had the burden of proving that all they down to do was put a witness on the stand to say that it was the same they didn't and we don't know as a matter of fact that that's correct because the record doesn't that can be drawn rather than a feeling of the evidentiary gap i think there is a difference between the two and that's what the subpoena the panel first in its original opinion said i don't think that there's a proper inference i think that