and what happens when the district court declares what genes are permitted under this compact these provisions are particularly important because this compact is unique in my experience and i would think at least unusual in that it does not name by name any particular class three game that is the subject of the compact instead it has two provisions to belt and suspenders provisions if you will that turn to other sources of law for the term and what games are allowed under this compact the first provision is in section four point eight of the compact and that just mirrors the language of agra the indian artichoke show has been decided that indian tribes are considered other persons organizations remedies for purposes of vigor and it would seem that these two are now somewhat of belt and suspenders with regard to other tribes the question is that you may have one question you may have about this compact is why where the state and the shawnee bennett tribes are unable to agree on a definition of what games of the compacted and the that they could conduct any class three game other than sports betting so all what the parties finally agreed to and this is laid out in section five of the compact in section five point be the parties agree to give the contract they agreed to give to the federal district court for the district of vital the right to issue declaratory judgments either side can bring the  court to declare what games are or are not permitted under the contract and then and five points to be the party set out a mechanism for what happens after the federal district court issues this declaration consolidated indian gaming cases out of the state of california included negotiations over things such as number of games that is size of facilities and the like but how does this all tie into this case now i need to get sides filed suit early in the year two thousand and one at that same time there was a bill in the idaho legislature which addressed compact with three vitalism of the i three northern idaho tribes the cooney the courtland and as person those contacts contain the definition of something called a tribal gaming device and you know those co the three northern tribes would have agreed to limits on the number of games the number of tribal gaming devices well the governor didn't have the political wherewithal to get those contacts to the legislature they were defeated by the sen in the meantime while there had been a stipulation of the parties which is document five on the record that agreed to put this case on pulled to see what would happen with those contacts and that was one of several stipulations earlier compact amendments and they contain provisions saying that the tribes may operate these tribal video gaming machines and also contain limits on how many machines they had the northern tr baseline from which they could grow by five percent a year and up to twenty five percent over ten years that initiative was pas there were challenges to it the idol supreme court rejected the challenges not on the merits and i perceived them and so about six or nine months later that it worked its way through the state court system and we then have the question of agreed to the limits if they got most favored nations clubs like shawnee that cost twenty four in their contracts to my knowledge and that's what we're asking for we're not asking that they be prohibited from operating in these particular games we're asking to accept the terms the other tribes have or to negotiate alternate terms supposed terms of the big question whether those are negotiable items i would say both are now weather and negotiation what addressed both of those is really up to the negotiators really up to the bargaining and i don't know if you go she asians are in the gov stands and idle there is a governor staff that is always delegated down we're going to have three governors an idol in the next nine months and i can't tell you what structures negotiated under egress there arbitration there's a whole fast faith procedures to follow at that point and we don't need twenty i don't think we should anticipate the state or the tribes will misbehave or negotiation had fa should be put in its in its historic contest the dispute between the shown band of tribes in the state of idaho regarding the scope of permissible gaming is a very long one that goes back to the early those early negotiations ultimately ended up an agreement the three of the tribes signed citing the games that mr gilmore cited in his argument this morning lottery bingo  passage of proposition five or proposition one and since its passage is always been that if you apply the public policy scheme of the state of idaho regarding gaming activities and look at what the what the lottery offers the the what what is offered within the context of state law that there are machines gaming opportunities available for trucks and because and in negotiating a compact the question is what does the tribe have a right to do in terms of by federal law the state law determine to determine the scope of permissible game but once you've signed a compact it's a question of contract law what did you agree to do and therefore the chacham band of tribes did not sign the same compact that the three northern idaho tribes and signed instead we state that the negotiation table stayed there for several years we went through a couple of different governors we went through a state wide commission that actually rule made recommendations in favor of the tribes but still did not get into a compact sole timidly we agreed to disagree over what the scope of p we felt that we finally had a platform on which we could resolve the issues then the three northern idaho tribes who by ruling affirmed by this court their current compacts or the existing contracts that not allow for machine games government's brief that is a bit frustrating is the compact which is an exhibit two to the brief and in the excerpt of records laid out a very extensive comprehensive scheme and the way the gaming was going to be regulated and the way the background checks and licensing would be done what the interplay between the tribe in the state would be in terms of regulating games and it's a patient of either winning or losing and that declaratory judgment actions over the of permissible games it can get it a regulatory scheme that would apply to an unlimited number of gaming devices and yet the state now is arguing in its appeal that  should go back to the negotiation table and talk about those kinds of issues when we sat down and the proposition want to do a went into effect the state said well we're not going to sign off on your operating these games unless you agree to the five percent tax that goes to educational and it is and you agree to the arbitrary limits on the number of the games now this was even inconsistent with the prior the prior stipulation  gilmore speaks in correctly when he says we agreed that we would limit the show van agreed that would limit the number of devices and then first if you lation in the same manner that the other tribes agreed that they would limit the number of devices the way it works in idaho is that you have a very small tribe in northern idaho in that funded this initiative and during that time took a number of gaming devices that the state contends were illegal and put eighteen hundred devices and its facility and said well we're going to use how many devices you're operating on the games certain and that's how many devices you can play what's shown bannock drives said in the stipulation is we w agree to that threes of operating the number of devices you have on a certain day and increasing them five percent a year after that what we agreed to was parity and the says the show and tries will not operate any more devices any other tribe operating in the state because we were being conservative when these issues resolved one of chordal one tribe had gone through this huge expansion so if you simply took proposition one and imposed it upon the show then it tried you would have a tribe that has by far the largest land base largest stewardship responsibility largest to roam in the state be relegated to the opportunity of operating less than half the number of devices that a much smaller tribe in the northern reaches of the state were able to offer so when the states sat down and said we've got to read two to two what what these other terms were no way you know the how far can it go and the case law that we cite quite clearly in and even the state's own revision of or version of the case of that case law says that a regulatory scheme is not imposed upon  a less the tried specifically agrees but that regulatory scheme is to be applied to that tribe in the context of a tribal state compact show manic signature is not on proposition one it was not a sponsor proposition one it did not assign a proposition one compact it had previously signed the contract that you have in your record and expressively provides for what circumstances dictate what games the tribes are able to play we felt the proposition one mooted this long standing dispute between the tribe of the state because now the state no longer contends that these devices these tribal video gaming devices are permitted have a good question asked back to the state because it's one that we did and we tried to ask in the context of the spirit is there a regulatory concern that the current scheme overlooks in terms of of the integrity of the game the internal controls the game the manufacturing and the licensing of the manufacturers of the game you know if there's if the if there is something that they can come forward that is a legitimate regulatory issue to protect the integrity of that game that's something that even to this day you know we're willing to sit down with the state and talk about about those issues a limit on the number of machines is one where if they were to trigger that section and they were to say we think everything's fine except the number of machines well first it's difficult it's a spade what our response would be because we're not in that context but secondly you know the the limit on the number of machines if they're going to present it th should present it in a way that has some connection with protecting the integrity of those games the state of idaho doesn't tell the idaho lottery company how many outlets the lottery will have the state of idaho regulatory basis for trying to impose a limit on us then they should trigger section that that the section that you refer to sections that they can trigger either other section five or there's a general provision that i dislike master renegotiation raise the argument put up the argument that they believe justice buys a hard line of position on a limb in a number of games and if we have this agreement then we go forward with the dispute resolution mechanisms in the compact agreed to are compact doesn't doesn't contemplate limits on the number of scenes are compact contemplates payments to the state under very limited circumstances we negotiated those the fact the proposition view that how quickly how can they do that if they think that limiting the number of users there's a state interest they can trigger the provision under section five that you mentioned and if you give me a loan and i can identify the other that i meant apart from the argument you know one truck shouldn't be treated differently than these others is there anything like opinion of an economist or opinion of some expert by saying that you know that if we can use this litigation to resolve that the trouble gaming device is a primitive form of gaming then we don't have to pursue the remaining issues on the declaratory judgment actions regarding regarding you know the full breadth and fine line drawing of where where you draw the line between permitted gaming and and prohibiting gaming in the context of the regulatory and that's why the the the argument presented by the state is that it should be imposed upon shawn granik because it was opposed to ponder created in grade two by three other trucks as their the framing the issue that way i think the answer is very clear is is what constitutes a privilege gave me an activity is separate from what's required by the state for others in terms of a regulatory process or regulatory concept and you have you have the definition of what a tribal gaming device is and and then you have this other provision that says and you have to pay this five percent tax and you have to agree to this limit limit on the number of those that regulatory scheme was not part of what shown banning tribes agreed to the game is the tribal gaming device the regulatory scheme is something that only applies to tribes and their compact have agreed for it to apply and they have not number of games there's clear night circle lausanne that's a proper subject to negotiation as far as the educational contributions i would say we have an analogy with the consolidated games out of california because the educational contributions are to educational facilities on or near the reservation that is not disconnected you don't have to ship it to the university of vital for example my final comment is that the obligation it's authorized to conduct the gaming using video gaming machines as defined and that the machines used in their operations and the twenty four hour travel video gaming machines there's certainly gives you what kinds of games you can play yes and we're not going to test and the right to this particular machines and fact what you're saying is that that what kind of games they can play as a party get that contract and you may be able to do things with that contract authorizes if you have this group's about the contract but i don't know that the district court