very different sort of case than what we've been hearing today of which goes over my head but what we're what we have here is something that is very difficult for any court to do clause refers to wrongs and then it refers to criminal acts but it's not limited to criminalize and this is where we need to go and not be trying to  the sentences as attorneys would today but the case law from this court and from the supreme court is very clear that what we need to do is say what did what did the ute indians in eight hundred sixty eight understand here there what this court has generally done his look back and say what was it what was this statute trying to remedy and the united states has come in here repeatedly  something different as to why they don't have liability under this statute under this treaty for is can i ask you could you have named either the federal officers that are more involved that but whether we could have brought the officers in under a federal tort claim  interpretation of the bad and cause that i know you dispute namely that it requires some sort of criminal and then on that assumption the only way you could provide a deal the new york court of federal claims to is obtaining a finding there mr murray did not in fact true himself and then you don't know i did not see at least in your great grief or maybe i think you also in your brief an argument that aside whether he killed himself or was killed we have an independent basis for recovery under the bed and then cause like you know the finger in the narrow to the question can the utah and tenth circuit determination on summary judgment that mr murray killed himself and wasn't killed by somebody else has to be that that question is could not be overturned and there's a there's two separate parts because there's different claims here and the one part of it is that it would not for clued claims for the wholesale failure of the united states to document what happened to mr maher well here you let me just say there's a limited amount of time and then unfortunately this is the one in which i have more than the usual number of different topic question ok and it seems to me your primary contention primary contention about the role of the federal officers was that they either did things like destroyed one of the two firearms right i guess with court approval but destroyed one of the two firearms firearms and then fail to do a bunch of things that have they done might have court there shouldn't be issue preclusion yes that are on issue preclusion and that is the other part or so the first part is whether what we are alleging against the united states independent of that that the killing of mr or the the tenth circuit was very clear that it was making its decision based upon the actions of the state officers and it was say these federal officers were the we don't have the guns this gun that supposedly mr murray somehow did this and shot himself in the back of the head and i can't even do with my finger with only a gun somehow he did that and shot himself in the back and well states was responsible for determining that they didn't do the test they didn't do a test of either gun and so we don't have that and so what the court below should've done we say ok we are in a different court conspiracy and it's a criminal act right question is conspiracy to cover up what to cover up the bury the proper shooting or murder and you would have sent that that the state officers engaged in by the tenth circuit has confirmed that there was no actual operation to cover up the facts of the case that would make it a crime it doesn't have to be to cover up a murder it has to be to cover up the  or what happened so that we can have those adjudications destruction of evidence is a crime it doesn't have to be then we can say it's that it has to be destruction of evidence of this say failure to investigate a conspiracy to do not investigate is one kind of wrong making the federal agents bad men they also say that the state officers including the one that they say shot mr murray was not ad man and he can and he committed a wrong and we do not take the utah litigation as determinative of that because that litigation would have been different it was not the defendant's problem namely the defendants in the you talking and now in the united states is is the defendant here and the question is does the allegation that the federal officials committed kind of full and fair opportunity to litigate that issue and i think they're really their only contention is no we didn't because potentially very important evidence that could have changed the result on that wasn't those issues in front of a utah district court or by the tenth circuit and having these issues tried again by the court federal claims there's no whether or not evidence was lost there's no more evidence for the court federal case to consider it's going to have to hear from the same with the agents united states are responsible for when that happens in a case there are a variety of spoliation remedies adverse inference permissive or compelled to record a verdict on an issue a number of things where they might actually be able to prevail in the absence of evidence that is determined to have been have had a serious potential to have mattered while i don't think anything less than an adverse inference or a director a correct decision would would get them anywhere because  even if everything they say about the federal agency is true that wouldn't be smelly ation or it wouldn't generate a possibility a real possibility of really the kind of remedy that trial courts give when there is spoliation any of those potential yes that addresses what they would say what they characterize as and that's like filing a corpse i mean they've based game they argue that in fact these officers even if even if you accept  affirmative act it has to be a criminal act that's what occurred on the resume get you know i understand the distinction between something that started off their reservation and off the reservation but to have something that that is it can tin you that begins on the reservation that the heart of the activity is on the reservation and it just simply be there because the more it happens to be off the reservation that that that you somehow draw the line that that it's not this activity didn't mean of course be on the reservation but whatever happened in the mortuary that didn't begin on the reservation those attacks occurred tyrell independently inside or trade off but i guess i'm having a hard time with your entirely independently concept i mean it is a continuum of the activit the same officers that that engaged in the arrest and and and seizure or i tempted seizure and and ultimately then who are in charge of his body why don't we say that today main cause applies only to criminal acts yet one needs some sort of body of law to refer to it as to what's criminal do you rely on what is it eighteen u s c eleven fifty two the indian country that the one that i guess we never actually had common law crime in at the federal level but it is a federal criminal off through the indian country crimes act it's not to be perfectly honest here it's not an issue we briefed as far as i know that makes me what you're saying makes sense to me left with are allegations about negligent acts or failures to pact and those don't they're not just not affirmative acts they're not criminal acts and many of them didn't occur on reservations so it's not just they can't show that these are firm about so for example if you take the three eighty pistol which is you know the center of the case agent ashdown took possession of that pistol at the scene and then he secured it and then he retired and then his successor was involved in the securing the gun but failing to test i think what this all sounds like to me here are these are allegations of negligent acts and wrongful omissions this sounds like a federal court claims act this this all fit story could then bro worried talking about the word toward i have a question that gets and what's the relation between tucker act jurisdiction which i gather is the jurisdictional grounds under which that men clause claim has been brought and the final words of the tucker act about not claims not even if insufficient examination of morgan's gun may have prejudiced plaintiffs the district court did not abuse its discretion in finding that none of the defendants here had a duty to preserve it the person with the most obvious responsibility for preserving that evidence agent ashdown and chief jensen are not parties to this litigation and therefore cannot be subject to cannot be the subject of sanctions that's why they didn't impose while the nation sanctions even though it was pretty clear there was substantial destruction of the evidence what we have then is a case where in this court and  claims it can impose significant spoliation sanctions against the united states and that would change the result and that is something that the united states did a very good job in their priest of discussing the utah court saying mr murray killed himself and then spoliation sanctions don't apply but then they in their three face then keep coming back to that and each time do it being a little stronger until they say that they've said that spoliation sanctions that it didn't apply to the united states many of the things in this case would have potentially given us the ability to prove criminal acts would have given us the ability we believe for through acts to come within the bad bank fossils and maybe you know argue against off three of you but we would ask that you look carefully at what did this mean to people on the reservation in one thousand sixty eight we don't believe it is it limited to criminal act in fact although almost no crimes but you also have the reference to under the laws of the united states most civil torts other than something under the federal tort claims act are state law are governed by state law correct yes so what badmash and that's what it's talking about and what if you look to the purpose of it it is to say to the indians don't go and do something yourself let us take care of it we will compensate you i don't see any reason that that would th be limited to criminal actions it's limited to things that are wrong that the indians at that time would have seen as wrong and there were plenty of those going on that were not crimes or that would never prosecuted as crimes and that we believe