morning your honor i am most william johnston i represented mr wilson and i also represented him in the law me tribal court and in the walk in county district court on his criminal dui i should also note that i'm the attorney for the related cases scandi washington jordan scott and susan pierson all of which would have been dismissed now are similar to this case of course is unique because at least from our perspective what took place  here was a seizure off reservation inside bellingham i'd like to brief lee just go through a few points of fact which i think are relevant to the issue of exhaustion the first is that on october twenty second two thousand fourteen mr wilson became intoxicated at the let me see you know it was a study writing like a history thank you became intoxicated drove his truck on the let me because you know it was stopped by after mr wilson was arrested for dui he was taken to the county jail when he was released he went to horton's towing and the truck was gone because the truck had been seized and this notice had been given now what's interesting from our perspective about this notice is the representation that the property was seized during the traffic stop or investigation and then it goes on it says after initially seizing the vehicle rummy nation permitted the state patrol to impound  vehicle then it states the nation is now at the time they seized the vehicle season that vehicle now in e r forty five forty six you'll see officer us explicit report and you won't see anything in that report relating to the contention that he sees the car forfeit the night in question or that he gave consent to the state trooper to take the car into bellingham he just simply took the marijuana to destroy it statement is inconsistent with what officer did infest a fight at a pretrial hearing yet nothing to do with any forfeiture and we think that's important because when to understand the case when mr atsic was subpoenaed to attend the district court criminal trial as witness to be cross examined on this the woman nation cost the subpoenas by asserting their sovereignty which is the explanation for the dismissal of mr wilson's d y so we never really know the full background as to how it came to pass that these representations were stated in this written notice of seizure form but one could speculate that the trial well deputies were attempting to create some sort of long arm jurisdiction so with that statement we perceive the issue to be in this case what was not addressed by judge  our which is first do the tribes have inheritance already to confiscate and forfeit cars but more importantly even if they do do they have the power to go into the state of washington to seize property and we think they clearly do not if that issue is addressed we also feel that the issue of whether the tribes have this civil power to bring a civil suit against the property of a non tribal member is controlled also by straight v a one contractors which in which case the supreme court held that exhaustion was not required to the tribal court to determine whether they believe that a forfeiture action is more properly characterized as a quayside criminal action because its purpose is to punish the person and therefore it's controlled by the all funked case it's just one step over it was denominated by judge cohen our as a civil case and if that's true a state straight was also a contention by a tribe that they had serious civil jurisdiction over not indians on what took place on a state highway inside an indian reservation and we think the principle fits there is no state tribal jurisdiction over non tribal members for actions that take place on highways inside indian reservations and i ask you just right and i assume he drove the same truck that ultimately was stopped on the state highway right and so i assume that also or at least it's reasonable to infer that the marijuana was already in the truck when he parked it at the casino right he didn't just acquire it between the he left the casino in the time he got on of the state highway right i don't know ok well i'm just saying it's a fair inference from the complaint that you drafted that the marijuana was in his truck on the reservation not on some state highway on the reservation land and that he transported it from that point to the state highway and that seems to me triggers the loony nations whatever that provision is i don't remember the specifics right but it's like transporting some illegal substance on our on our reservation  and so i guess i don't see this is being controlled by street at all this is not something it's not just one of those cases where someone just driving through happens to be driving through an indian reservation seems to me you're quite committed misconduct on the reservation land and that's what triggered think would be appropriate but the question really is whether or not another case i think that controls is the tenneco oil case and i think i've argued this no once addressed it but it's very similar  passed an ordinance that invalidated the property right of the teleco company jurisdiction lied in the federal court in the tanach ok's and i think and where the issue is clear cut  right the factual scenario that i would go back to the point that i made in opening that the lemming nation on the facts that are in this record misrepresented the basis upon which they sought to forfeit this car they said that they seized that on a in in the lobby nation and that is not the truth we think that's bad faith under the exhaustion factor and for that reason the court should throw out this claim that they should go back to the would be tribal court i neglected to mention that with respect to the claim against horton's we don't think that exhaustion has anything to do with that the question there is whether or not horton's gave the car away inside washington and it occurred in washington  basically emphasis on the straight cases and as i read that hayes and this point there made a number of finances to how much control the indian tribe had over the facts all the actual facts in this case well with respect to my analysis as to whether indian tribes can take property owned by non tribal numbers i got in trouble with this before the district court but the miners electric case the district court case that was overturned by the tenth circuit on sovereignty grounds is the most scholarly analysis of the question and that's our position on the most on point analysis as to whether the tribes possess this power i excited straight because straight to way of my reading announced that on the state road there's no jurisdiction but but there is there in lies the prejudice if there is to be dismissed been without prejudice and why well first there's two questions and i haven't really talked about the united states a substitution but there's really two questions here we're suing as i mentioned simply because they committed a tort inside washington i don't think they can be pulled into the tribal court and i don't think horton's can assert the defense smith plumbing is the case on point and another ninth circuit case the indian jurisdiction immunity defense is not available to horton so horton's we think you should grant summary judgment because we asked you to review the merits of horton's claims that this was legal justification i know w abandon that now but that's how we see that case should be handled as far as the government's case the question there is whether or not they we believe that the shirt case is the case that controls that a requirement for tribal officer to be a federal employees that they must carry out the compact there is no case that authorizes an indian tribe to go off the reservation in our state washington erikson cases the jurisdiction stops at the border not in the city of bellingham so we can't perceive how the compact would indorse the government to approve the tribes doing this action number one in terms of  forfeiture and number two expanding their power to go into the state that clearly is beyond any case that i've read in our state state versus erickson one seventy two washington second five zero six is the law along with settler versus li so if they would have seized the car on the tribal land and not had it towed that would solve that issue no we don't believe that for the our position is the tribes do not have the political integrity you can make an argument and that's why maybe there's plausible jurisdiction because we don't have a fully developed record the economic security this is a seizure or the health and welfare of the tribe so shouldn't we well the for that first instance under comedy grounds to the tribe to allow them to fully develop the record on that issue they might decline jurisdiction they might not but at least the record will be fully developed i don't think so because i think that there is no basis there is no montana's second exceptional case and i'm going to reserve after this whatever too little time i have left but there is no case and the only case that exists with respect to for the cure is the minor electric case and it's of note in that case that they invited mr miner to come back on the reservation they didn't go away which means that the conduct impacts the political integrity the economic security or the health and welfare of the drug that was considered in montana as well as in stray and the court found in those cases there the state of washington is perfectly able to forfeit cars on state highways in the reservation and there is a remedy there so i position is what it is i might note that even though we've lost all these cases the department of licensing no longer honors these orders so the reality of the so called record it's in the record of the candy washington case which is mentioned but but but anyway that's our our position is i reserve whatever time i have left yes thank you  two reasons on the scope of employment component of it hasn't been challenged on appeal so the question is was he carrying out the the compact and the answer to that question the shirk case makes clear is was this the type of jurisdiction but it was the tribes interest in it was a law enforcement interest in keeping marijuana which is an illegal substance on the reservation off of tribal land and as your honor noted that the record makes clear that the plaintiff was at the casino and although this isn't in the record both the casino and its parking lot are tribal trusts lan doesn't does the compact mention law enforcement it doesn't the only relevant ok so if it doesn't what about the multi year funding agreement with a multi year expressively contemplate law enforcement isn't that  sufficient it is sufficient the multi year funding agreement says one of the programs that the tribe is taking over is law enforcement now if you compare the multi year funding agreement on the compact in this case to that insurer you'll see that in shirk the compact was actually more complicated and it had four separate law enforcement duties that the officers took over and other duties were not part of the compact in this case all law enforcement duties are part of the compact and that's why everything the tribal officer does is within the compact and that's why the scope of certification is it expressly stated that the law enforcement functions are in the in the the multi year funding agreement says one of the programs the tr taking over is law enforcement and then the compact page two of the contract says the duly elected laws of the tribe so be applied in the execution of this contract i see so you believe that that incorporates the agreement and i think i think the the way to think about this is the example that the court gave in in the short case about a auto mechanic who is working both within the compact and servicing fleet vehicles that are funded to  are the tribal officers have taken over the role that was formerly held by bureau of indian affairs officers on tribal land and there they're carrying out and and forcing the ordinance of the tribe and he was doing that and so i've knowledge that there it's theoretically possible to imagine a tribal officer who was doing something that wasn't law enforcement but here this is within the scope of on foresman and or i guess even if you think that that's questionable once the attorney general certifies as we did in this case and of course this case is distinct from short because in that case the attorney general didn't certify and so there wasn't a private session evidence that this was within the scope of employment paper well he also prepared to notice a seizure which i think is part of his a law enforcement duty and i think that when you're looking at scope of employment questions on the federal court claims act you're you're you have the respond to peer test which this part of what was this in service of of his master and here it clearly was it clearly was contemplated by the tribal ordinance and there isn't anyone else in within the tribal government who would have taken this function that you would say oh no this is naturally more a different kind of function that isn't to exhaust couldn't well we substituted in two thousand fifteen and more than three years have passed since then and he hasn't felt it notes in a sort of claim i'm aware of but that can be raised later so dismissal without prejudice just keeps the doors open for not abandon any of its merits arguments the posture of the case now before the court is that the district court dismissed this case without regard to the merits on the issue of his guilt and his exhaustion and  so the argument that horton's is somehow forfeited its right to assert the merits of some later date is not correct secondly the court had asked us to be prepared to address the montana exceptions i think that the first exception is not a political in this case because of the circumstances the second exception as judge purgason has indicated may apply from the standpoint that you have an individual who is a non indian who has gone on to indian property and has committed a crime on indian property and so and i can get into that further if the court wants to but for purposes of horton's position in front of the court that really isn't an issue because again what we're dealing with is he issue of exhaustion and the district court correctly dismissed with prejudice because what was offered to the court in summary judgment was whether or not the case was appropriate for dismissal in its posture it did not bar the appellant from pursuing an action in tribal court by dismissing with prejudice because if the tribal court ruled that it had jurisdiction and the appellant didn't agree with that ruling then the challenge would still be available to go to the federal court and challenge the jurisdiction of the tribal court and others and law just harking back to the indicates that when you dismiss something with prejudice that it can be construed as being on the merits and addressing judge nelson's question about whether or not the dismissal with prejudice was proper or not i don't think that the dismissal meant dismissal forecloses the appellant from bringing the issue back before the district court on whether or not the tribal court had jurisdiction to  make a decision but there is a concern and i recognize that but with regard to the exhaustion issue the problem is and judge cohen our got it right when he indicated in his ruling that this is a civil ordinance having to do with forfeiture and the cases are clear the marceau case the judge can are cited the national farmers union case the window rock case all of those cases indicate that when it has to do with a civil matter in the tribal court under the principles of comedy the federal court is required to allow the tribal court to address that issue first and develop the record and then if there is a challenge to what the tribal court decides it's proper for the federal court to then make an analysis and in this case that didn't happen in each of those cases that have been referenced it was an issue where it had gone before the tribal court and there was a question about the tribal court's jurisdiction this case never went before the tribal court for a determination of whether or not the tribal court had the jurisdiction on a civil forfeiture ordinance to seize the vehicle and so the judge correctly indicated that the plaintiff in that case had not exhausted his her middies he had not gone to the tribal court and therefore the matter was not properly before the district court and so the judge properly dismissed on summary judgment i would also point out that the the elephant case that is cited by the appellant has to do with a criminal issue not a civil issue and in fact even there in subsequent cases particularly in the  more so case in the window rock case the courts indicated that in a criminal context there is a strict construction but this is not a criminal issue it's a civil issue now the problem here is with regard to horton's the argument is that what is converted the appellant's property one of the elements is legal justification so if orton's had no legal justification then it was  it could be held hilti of prefer conversion the problem in this case is this civil rule eighty two point five indicates that state courts will recognize a tribal order or tribal ordinance if if it's a proper ordinance and so what's happened is the helen is arguing that horton's should have just said no we're not going to honor this notice of seizure but orton's really cannot be put in that position because horton's is presented with a notice from eight reported to be from a tribal court that says we want to seize the vehicle that was impounded after it was taken off the tribal land orton's is not in a position to make a legal analysis of jurisdiction if the let's say that the state court recognized the forfeiture as a proper civil procedure in tribal law that would be legal justification what appellant wants his court to do is say that horton's has some legal duty to make that analysis of jurisdiction and the state law indicates that horton does not have that obligation or that duty and so horton's would be in a rather impossible position if the court were to say well horton's could have said no should have said no and should have challenged legally the notice of seizure and so we have this connection between potential connection between trouble and state law and if the state law  you have a little bit of time left for a bottle brief remarks first i note that orton's doesn't mention smith plumbing vietnam casualty and white mountain apache b smith for me they have no standing to assert indian sovereignty so that's our position on that those cases are on point the other thing is this is a tort the took place in washington between gordon's and mr wilson both not indians and washington sovereignty is offended if that case goes back to tribal court that's our position the last thing i'd like to say is if the court overturns the certification of the united states that puts brandon gates back into court and as the court knows with lewis because just being decided last year sovereignty is not implicated in a lawsuit for money damages against a person in their individual capacity so that would provide a basis for state jurisdiction we believe so thank you very much and thank you counsel the police just argued