with me at counsel table is george foreman and our clients are not able to be here today but we hope that they are and it was necessary for them to come we will treat them you know they're saying the kennedy  well the two grounds for which the united states and the bishop counsel claim that this case is moot are the passage of time and further elections carried out in bishop and the adoption for  the performer as adoption of a new temperature a constitution well we've had three elections since the election at issue in this case yes but the hour is no way in the world who regard as what we do that we're going to affect that first that that's what you're really after i don't see how you can go back and undo that one well larry alcoholic on did for five years worth of tribal elections by ignoring them so he can do his replacement can do the same at this point i did it from two thousand and six through two thousand and eleven there were a series of tribal elections held by the death valley tribal council which was the council recognized by the government  even after the government supposedly did not recognize them and continue to fund that tribal council continue to enter into six thirty eight contracts with that tribal council these are things that only these are funds and contracts that can only be entered into by indian tribes and so in effect the tribe the death valley tribal council was carrying out the activities of the tribe as recognized by the federal government through mid two thousand and ten nonetheless when larry alcoholic made his decision in two thousand and eleven he looked solely at the question of whether one person or two people could be removed from a tribal council and then whether the fact that they missed out on the last four months of their terms on the tribal council whether that was then the poisonous tree in that this the every election after that was the fruit of the poisonous tree that he could simply disregard and he did among other things that's why the decision that he made it was arbitrary and capricious because he pleaded nord relevant questions relevant facts on the record before him and as we have pointed to the parties at that point there was only one party to which was clients to brief the matter to address what his one sided view of things so the documents that he was  if even if you're successful on that point we still have the issue with the new constitution which sort of sets up a new program actually for the the tribe i'm not sure that issues before us in you reply brief the grey brief you indicate that the the lidia of the new constitution is not an issue in this case it seems to me that that is you've taken a position in as far as  clients are concerned that that is not an issue that we need to deal with that is the valente bed but the constitution itself is still a day issue so if you're not taking a position that the that that is an invalid constitution why doesn't that seal off your problem the difficulty here as far as even though you have an argument on the other side this constitution seems to me correct that at this point the we do not believe that the constitution is valid but the facts of the constitution are not before this court it does not have the and it can't simply state that based upon the word of the united states based upon the word of one of the interested parties in this case that a new constitution moots everything is not a fact of nature this is a constitution adopted at the behest of the tribal council that we claim is not legitimate if the tribal council was not legitimate the vote was not legitimate it's the same sort of unwinding that larry eka hoc did in his two thousand and eleven election can also be done to the constitution and if we are not successful here today that's why it's entirely our expectation that the next fight will be over the constitution but it is not a valid constitution even if it were valid however it doesn't affect the of this case because among other things this is the issue i want you to argue because a little hard to change your strategy at this level and at this level but why if it is a valid constitution why isn't this  i don't know why isn't this a minute case because of the new constitution is because among other things the the question is it begs the same question which is you know if the  if the constitution made the george golson and others new members of the tribe that's admitting that they were not members of tried to begin with and therefore could not serve on the tribal council could not call for the election cannot vote in the election if they were actually members of the tribe there before hand then the constitution changes nothing so that was can you tell me help me out what difference would it have made now that events have changed and the positions of the parties have changed why would it be any different why would it be any difference because  the department of interior did not one supply a reason to analysis of the evidence before it and soon because there are other facts that would be provided to the department of the interior and the fact that the department the outcome be the i take your honor to be asking about the effectiveness of relief which the this has serious implications for our clients most of who would we're not asking for this court or the district court to place anyone in power nor the department of an interior then this the judge below it such england the department of interior and the  premised their arguments law misunderstanding the relationship between federal and tribal law that federal courts the federal government has no ability to replace tribal governments it has the ability to recognize them and we are asking to go back make the decision correctly and you know perhaps we would win perhaps we would lose but at least we would have the procedural right which is a real right a real material right and  of this case the other issue we do need i would like to reserve some time so i'm going to wrap up this answer if you don't have more questions itself in two thousand and nine by holding a sui generous election there was a group and valley that had been holding elections over and over again overlapping elections for the previous at least twenty years under the constitution and then prior to that tribal government in death valley the department of interior said ok we're shifting from the death valley entity so the bishop and city and we are redirecting the funds we're saying that given the opportunity to have a valid administrative procedure rule is that what i understand among other things yes that's the one of the things the department of interior did during the chaos that it created from two thousand and eight through two thousand and eleven was relying upon this rule which says that it will recognize the last but that was that rule applied in this case there was not a law it was not applied in the two thousand and eleven decision but it was the one of the basis for that decision because of the chaos that that rule caused the switching back and forth between the elected tribal council switching back and forth with a i would not standing with respect to that narrow issue yes but we believe we have standing because among other things this has happened many times before to this tribe the department of interior has gone back and forth between which councils it has chosen  thank you your honor i'm mary gabrielle sprague representing the federal defender dance and our plan is for me to speak for nine minutes and mr burke when representing the tribal defend against to have six minutes  this suit challenging the assistant secretaries decisions in twenty eleven to resolve an impasse in tribal government that had gone on for several years has become moot as we argued in our brief the last november two thousand and six elected tribal council fractured in august of two thousand and seven whereas plaintiffs refer to the existing tribal government the death valley tribal government as the tribal government in fact as of that august two thousand and seven tribal council meeting three members left the meeting mr kennedy and another member stayed and that council never functioned again instead two factions held separate elections in november two thousand and seven separate tribal councils were elected they each had their own in roman committees and their own election committees and you had a dueling tribal government proceeding plaintiff's council focuses on the january two thousand and eight general council meeting the general council is a meeting of all adult members of the tribe and in their briefing they completely ignore the august two thousand and eight general council meeting which then voted to effective under the circumstances or are they able to point out the problems with the required to roll back and start all over again correct your honor and i think that  and secretary echoes hawke's decision will stand up for the reasons that have been brief the main argument of the plaintiffs is that the federal government should not under any circumstances interfere with tribal government twenty eleven decision authorizing a special election and then the july twentieth levin decision accepting the results of that special counsel election you mean it's an issue before us unless the whole issue is moot we have no we believe it is moot that that was what this lawsuit was about yes but we do believe it has become moot because there have been regular tribal council elections in november eleven november twelfth two thousand and twelve by twenty twelve the terms of all of the five members in the april twentieth levon special election had expired there were further elections in november two thousand and thirteen and november twenty fourth scene so the current tribal  council our members who were voted in november twenty third thousand and twenty fourteen there was no challenge to those elections by the plaintiffs nor does the department of the interior on itself observe any irregularity in those proceedings the constitutional the request for the constitutional election came from the november twenty thirty nine tribal council which was the product of the november twenty twelve november twenty third teen elections not the special election i understand what's the position of the admin of the department as far as the new constitution is concerned as to whether that makes the entire you r honor we did not move for to dismiss the case as moot until a decision had been made on the new constitution because we were concerned that the elections in and of themselves would not the tribal council elections in and of themselves would not have mooted the case because of the underlying membership dispute being considered potentially an issue capable of repetition yet evading review so in our view what sealed the deal and made this case moot was the secretaries assistant secretaries decision accepting the adoption of the new constitution in may twenty fourth teen which in our view does resolve the any membership dispute from the april twentieth levon special election now the plaintiffs i'm not sure if it's exactly the same plaintiffs but mr kennedy and some other tribal members did  challenge the file and the ministry of appeal of the sect assistant secretaries may two thousand and fourteen decision accepting the new constitution that is as we advised in that decision a final decision that is a challenge of all final decision they've made a number of challenges including that people who in their view were not valid members should have been permitted to vote the assistant secretary addressed that argument by pointing out that the thirty five members who voted who the plaintiffs do not consider to be eligible members even if you removed their votes the adoption of the constitution still carried us i understand your argument then that you you then believe the new constitution moved this case if it doesn't then the problem still is involved where we believe in tribal government and it takes an awfully long time to get that decided and so the very nature of the process being so slow that the department would because on able to move any quicker is essentially taking the situation whether it's right or wrong that the can you do have and not allowing them to ventilate it now assuming the case is not moot by the constitution which a set aside for now i don't think you have an argument there they don't have a voice in this because it takes so long to get their argument up there's bound to be more lections it takes forever to do these to get through the department and they're going to have elections if we accept your rule are we going to silence the tribes ability to challenge because they're always been more elections and we can say i'm sorry it's moot your honor i don't think in this case i think that's the thrust of judge white because in this case that issue that was so intractable was resolved by the constitution i mean there won't always be a constitutional moment in this case the tribe was able to resolve that intractable problem but that plaintiffs need to continue to participate in tribal government they need to continue to try to persuade their fellow tribal members of the rightness of their position they need to continue to run they need to continue to challenge the subsequent elections if they think there is some systemic issue that persists and in that way keep the election alive there was no challenge in november two thousand and twelve twenty thirteen twenty fourteen they just gave up so that they are not they are saying this is a tribal matter but they are not continue to have please a court james berkland on behalf of the timber sister shoni tribe and its elected council members i'm pleased to say that the tribes current chairman george golson as well as two of the other existing tribal council members are here with us in court and with that introduction i'd like to highlight the two points that the tribe thinks are very important to convey to the court today on the first point goes whether there's anything left to do or and whether this case is moot the tribe believes that their voices been heard not once or twice but six times since since two thousand and eleven when echo hawk decisions being challenged occurred and the difficult question for the court is when you have a political factional dispute like this how do you result resolve it we know that there are election politics going on into different factions and ultimately if there's no other way to resolve these this future past the come down to referendum the voice of the entire electorate and that's what happened here once that voice was heard the echo hawke decision is no longer have any impact the voice of the tribe trumps everything that happened before that so that's one point that the tribe wanted to make the second point that they thought was very important here is regarding the enrolment dispute in the fruit of the poisonous tree argument the kennedy faction says well if something was wrong in two thousand and eleven everything else falls but the problem with that argument is that in order to change the met that's based entirely on an intent to disenroll twenty five percent over twenty five percent of the tribe the kennedy faction tried to deceive people jury in a period of divided and when you don't have either faction recognised as being legitimate no court nor should interior allowed to sarongs to occur there's a simple rule that the ninth circuit could implement or any other court which is if there's tribal election politics going on and there's two separate tribal groups neither of them should be able to disenroll members during when no one is recognized and and it would set otherwise set a very negative precedent there would be no meaning to sovereign immunity if all a tribal faction had to do was say of all the existing council is not legitimate and therefore because we're contesting the legitimacy of the existing council they don't get protection of sovereign what the ninth circuit said in that case was if you have an a p a challenge you don't get a second bite at the apple if sovereign immunity is at play if you're looking for retroactive relief as they are here they want to just by looking at it it seems to me that if there is a disparate group that don't like what's going on their voice should be heard but it takes forever to get through the department of jury and i'm not being critical of department is just the way we know it works you could have five or six elections so why how do you solve that problem other than saying that it's one of those things challenges avoiding review and we've just a listen to well the answer is that sometimes it should avoid review by the interior and the courts they can have their voice heard the kennedy faction they're members in good standing of the tribe they can run for coun they can seek to recall existing council members they can attempt to amend the new constitution and they can challenge the new constitution in court so the the principle that applies there is that the courts and interior should do everything they can to support sovereignty and self determination if you have one tribal faction that's trying to get into control of the tribe that's fine the question is when when should it when should interior and the courts get involved and what the tribe strongly believes is they should not get involved during a period of darkness when the tribe is fractured and there is no political government being recognized on either side that should not be enough to get them where that money is properly used and it becomes a big issue tonight in a nice state who did the gambling in the rest of this so there should be some way to solve this problem better than we have been able to do before setting aside the mood was issue on the constitution which joinder stand your position well there is a way to resolve it and it was done in the eighth court it was a good face case where essentially the court said interior the bureau of indian affairs had to do something if there was if the government was divided interior had to recognize at least on an interim basis one side in order to hold an election result of the spirit and that's actually what echo h seconds so the last thing i would say in closing is that if if the court decides this is not news then clearly it impacts the tribe the this case is aimed at the tribe and its government even the  is not a travel case this is not a matter of arguing between two tribal governments the bishop counsel was only added to this case in order to attempt to escape the governments and judge england's insistence that they were required parties in this case we have no cripe with them our gripe is solely with the federal government and this is soley a federal case under the a p a yes that's how you get into the rule nineteen problem and you'd like skeptics came from that yes we would like to escape from that and we believe that the government has essentially conceded that the rule nineteen arguments below were incorrect the i think that it's a couple of things i would like to clear up are that you know there was a statement that our clients were heard up to six times i think that that's including a number of times when we were bad it out of court simply on motions to dismiss so we have not actually had the opportunity to brief the substantive matters of this underlying the echo hoc decision the second echo hoc decision the decisions that are encapsulated within that upon  decision to recognize that the bishop council and the bishop council has no vested interest in the federal government complying with its own regulations one way or the other we also like to point out that  council sprague mention of the you know if you kept talking about the tribal council terms but the and also talked about us completely ignoring the general council meeting in august two thousand  interior also decided to ignore the general council meeting in two thousand and eight in august two thousand and eight because it was so facially corrupt and invalid there was nobody in this case up until oral argument as argued that the august two thousand and eight general council meeting should be part of this part of this record the january two thousand and eight general council meeting which was every which was recognized by interior in two thousand and eight isn't right after it happened it resolved the issues that ms sprague brought up about the two thousand and seven elections and you know whether people had the opportunity to fill out their terms those were resolved under tribal law consistent with santa clara problem of a martina's this was a law applying body and this was the body that the assistant secretary echo hoch deliberately overturned as if he were a tribal supreme court and he inserted himself into tribal law and decided that his dictionary definition was superior to a law passed by the membership of the tribe there are no further questions thank the case just argued will be submitted for decision good argument