this case is about application of the c c t recordkeeping to a sovereign nation at issue is whether a t f may reverse course without notice to my clients or any tribal instrumentality without awareness and without reasoned explanation this court and united states supreme court has on a quickly answered this question no such action violates records from my client's instrumentalities of the winnebago tribe of nebraska not once to our knowledge have they sought records from any tribal instrumentality do you clarify your status as a tr finding on on tribal instrumentality the argument that the person argument raised below was raised in a supplemental pleading due to the fact that the the  persons including corporations why isn't that the end of this case your honor we are not corporations as the e t f has asserted in their corporation whether it's organized under state law or tribal law or whoever is law and a tribally owned instrumentality it's like the example we made below the  but if you look to for example bain mills or in your county which we cite below it the arm of the tribe is in your county for example was the casino owned by by the by you tried i believe it was and the the finding is that they are government instrumentality is exempt from person under one u s c one and that's what we're talking about here is the exemption under one u s c one which is in the regulations and has been carried forward for approximately forty years mr know it seems like really more of the know of your case and the thing you have to contend with is the statutes different treatment of reporting requirements and record keeping requirements the reporting requirement expressly does not apply to the tribalism and ties the record keeping silent why don't we take a negative implication and say the recordkeeping does apply certainly your honor the a t f was given legislative authority to implement the record keeping requirement they jurisdiction over tobacco sales on indian country and there was an implementation of the master settlement agreement between big tobacco and states and in that context then in two thousand and six when the reporting requirements here to revise their interpretation through letters issued to three of several similarly situated regulated entities without awareness and without an explanation they in two thousand and ten they sought to revise their implementation their their regulations to implement the two thousand and six revisions on notice income as they know they required to do but this legislative rule they never deference is unprecedented do you see a difference between in the states as referring to a geographic space and the states which refers to them as a legal entity in the states i'm sorry i is as i understand the question i believe the states have there are not a person under one you'll see one but transactions that occur in the states are covered in the sense of in the states and the subdivision of the state or indian sovereignty within the state we certainly indian country is within a state but the decision is as never been please the court will have an in for the government and to begin judge randolph you're absolutely right that there is a factual question here whether the organizations whether the corporations at issue are in fact arms of the tribe or tribal instrumentalities such that they are entitled to the status of the tribe the district court decided this case assuming that that was correct and if if this court thinks that further proceedings on that question are warranted it can of course remain and for that just based in part based on the fact that the argument was made so belatedly but if you're the gore were reviewers i think that the problem may be that some facts are required to determine whether or not they are entitle to the status of the tribe and rather than getting into that factual question here we've just made the argument on that the district court's opinion can be affirmed on the basis that district court decided do you have any anything to point to that shows litigation over whether the c c t a applies to indians and in june tribal organizations and every court to consider the question concluded that it did now and congress in two thousand and six returned to the statute and amended it and if congress and believed that  those prior interpretations of the c c t v were wrong one would have expected congress to say so but in fact congress said the opposite and congress carved out other exemptions for indians and engine tribes that one can only make sense of it are only really coherent if one understands the c c t a more broadly to apply to indians and tribes well the petitioners also do point to this somewhat confusing history regarding the dictionary act and the request for an exemption i think it was not federal instrumentality in a military base exchange asked for an exemption from the record keeping requirement for federal instrumentalities and a t f a pint at that time and that a exemption for federal instrumentalities wasn't necessary but i think that that can hardly speak to the question of whether or not a tribal instrumentality or tribal government is governed by the c c t a and i think to the degree that a t f used broad language in that comment who was even though sometimes overlooked as such and they're saying a few treating sovereigns that way and we get that treatment and that they claim reliance at least the reliance ground there in your response to that  my i guess i have a couple of responses to that i mean first their claim to reliance interest on that is somewhat belied by the fact that they argue that they only brought it to the district court's attention because they found out about it so late but more to the point i think that read in context that comments can only be understood to apply to the federal government on a federal military base and to the extent that that comments used broad language it is it is in conflict with the list of entities that qualify as persons there is of course a presumption that the term person does not include the sovereign but that's a presumption and it can be overcome by evidence of congressional intent to the contrary and here there is strong evidence of congressional inten the not just with respect to the distinction between the reporting provision and the record keeping provision but also i mean i would direct the court to section twenty three forty six b here where congress said that states local governments and federal permit is federal cigarette manufacturers who have a federal permit can bring suit to enforce the c c t congress then the said they can't bring suit against an indian indian country or an indian tribe that exemption would just be unnecessary of congress did not believe the c t a applied to tribes in the first place i'm happy to answer any other questions the court house or otherwise eighty exempting government agencies and instrumentalities and that's that's all that that is relevant here before the court might be my friend points to our reliance interest that's like why is irrelevant there's there's a lack of even awareness or any explanation reliance just gets you to the more detailed justification that's required we have no justification zero  al government implication clearly being without exception the person in this statute includes tribal government and therefore that the recordkeeping or other provisions that are silent with respect to their reach in this statute apply to tribal governments certainly and that may be a test position and i believe that's what they're telling us here today in litigation but again our point is that if you read twenty three forty three a alongside the implementing right legislative rule it has the same effect for our purposes we are the implementing legislative rule you're talking about the i'm sorry the of federal that c f r as good as it has implemented to notice and comment in the federal register that is but the aspect of that that you think is in conflict with the record keeping  are not our clients are not unwilling to comply with the record keeping requirement it just has to be on notice and it has to have some acknowledgement of the long forty year almost forty year president of of of that's been affected here by a t f in the alliance on the we argue one nine hundred eighty of legislative rule and toes there they they are down with the tribes immunity from suit and in the heat so it's a contractual matter contract by contract if that if there is some unity is waived it yes it may be in certain instances and in other instances i actual records were attached and i'd like to point the court to break through management out of the ten circuit to distinguish the arm of the tribe analysis from the government instrumentality now says there's a separate line of reasoning cases on arm of the tribe which is a more nuanced and as i agree with my friend if that if that is an issue where i think it remained for a factual thing if there's no further questions we ask