and that review was denied of overview my clients are federally enrolled tribal members and as such the department had an absolute duty to take certain actions and scaife my client's injuries occur because the department did not act in good faith in this case and within the scope of their authority when my client's first appeal had the department acted in good faith we would not be here today i've asked the court to take judicial notice of several documents that we discovered after a briefing that our internal records of the agency there is there is four decisions by the department of interior that states that the band is operating under its articles of association and therefore meet i just want to say i mean from a personal perspective it's very sad to me the situation that you're dealing with here but we're doing with the matter of law here and the first one that comes to mind to me is the fact that your challenge is one of the merits of whether the ninety nine constitution was properly ratifies correct that's correct and yet we've got a statute of limitations into the injuries incurred and my clients would not have even known about the injury this enrollment ordinance is a void in roman ordinance and it was void ab initio because this constitution was never ratified did they they didn't have any power became they discovered this information actually back in june two thousand and eleven when the first and they were attempting to dismiss all that him so what your position is that that statute of limitations is told it then we've cited in our brief in our reply brief that whenever k states that the statute of limitations begins to run when an agency a plays a role in a manner exceeding constitutional authority that was when they recognize that void in rome an ordinance that's when that injury occurred in fact my clients would not even of been able to challenge that constitution until they suffered an injury in fact because they would have had standing even if they'd known about it they had to suffer they were tribal members a right there nobody knew that it was in existence that's right nobody nobody nobody other than the tribal executive the executive committee and the group that voted on it yes nobody else knew about it nobody knew about it they they they they didn't know that there is a declaration in there from elsewhere in the cerro who said be i as an employee that's in the record that states that you know she did work there and she was in charge of membership for the last something like twenty five years and she said that that constitution was never ratified and that the articles of association controlled and that's in the record so you know nobody knew about it and that's that's the p i a s on employee and she she worked there until two argument here that there was some that the agency misapplied the law against further made erroneous legal determinations or is that there if you take a look at the entire record that there are there decision secretary never explained away elsie list sarah's declaration that's the p i m ploy that said that constitution was never ratified they don't have to address every piece of evidence that's presented to them that's a critical piece of evidence right there that saying that this constitution was never ratified and then there was also meeting minutes in the record your honor that showed that they were trying to adopt they were trying to amend the articles of association and adopt this new constitution at the same time so those two pieces of evidence were in the record and there was also another critical piece of evidence in the record that the assistant secretary didn't address and that was the band's own website that admitted that they the band was operating under the articles of the socialization so we've got three pieces of critical evidence that that system secretary ignored completely that that's support this the position that this constitution was never ratified and was never adopted do you agree that under the indian reorganization that the tribe was trying to adopt its constitution and bylaws subject to the approval of sector of the interior they never got secretarial approval your honor i didn't ask you that yes  you agree that that's what that law provides yes i do ok so your perspective is that the what the agency did least the claims that the agency did approve it i'm also saying your honor that under four seventy six they had to have secretarial approval that is not secretarial approval that they when they issued that retroactive document that was in two thousand that dates back to nine hundred ninety seven that was not secretarial approval you're saying that even though the secretary said then that it approved admittedly retroactively what they had done you're saying that's invalid it didn't go to the secretary only went to regional as a have to go to the secretary  because it's under four seventy six it's got it right in here yeah it's in the reply brief on page six and it's california valley me walk tribe five fifteen federal third twelve sixty twelve sixty four there's two ways to it's got to have secretarial approval and we know we don't have that in this case so that's another piece of evidence that this is the ban never ratified this document other than those that you are quoting for seventy six of the statute you're saying that your interpretation is that the secretary him or herself must personally ratify it not the head of the bureau of indian affairs running like that's that's that's that's at sacramento level it's got to go up to washington d c yes because you're talking about you're talking about a whole new governing document it needs to have the band as a whole approval you can't be you can't force a document on these tribal members that are it by a minority of tribal members you have to be able to put it out for election and allow all the adult voting members to vote on this constant means if this let let's just say argue when though that the secretary had approved this constitution based on what happened would that be acceptable not in terms of the result but would that have satisfied the law well then i think the constitute the constitution would have been you know if they still needed secretarial approve what they want they still need to know action on this ok well i think that the tribal members never got to vote on this constitution they never got to see it ok just listen to me but my question is this if the secretary of the interior had personally approved this then don't you have a situation where under the law the tribe is entitle to interpret its own laws in its own documents you agree with that that is that is true that they do have i of the case and the tribe through its executive council says the election that we held complies with our law what's the secretary and the agency to do in that situation again assuming argue one dollar put his secretary had personally approved the constitution well there's various there's an injury in fact allan so the federal government has a duty to recognize what was a legally approved document and they and to look at the legally approved document they have to look at their own records and they have to look at the process that it's going through and they have to ensure that that document that they're saying that the band says is my legal document is the legal you for giving counsel i either i didn't explain it correctly or you're not understanding me what i'm saying is if if it was if the constitution was legally approved and i think you agree that under the document and under federal law the tribe is entitle to interpret its own legal documents if that's true then what role  secretary had approved it would the government have in making a determination of whether there had been a proper election they they have to ensure that because they their role is to ensure the political integrity of the ban been approved by the general council meeting and you're going away from my general hypothetical you're just saying let's put that aside i'm telling you that it did get validly passed and you keep coming back to that and i just took a while you're doing that i mean that we have to interpret the law based upon the case law and on the statutes and what troubles me i'm sorry to say is that if my understanding of the code and the regulations is that when the department the agency has approved the constitution that then the tribe gets to interpret its own laws that it interpreted what happened as being sufficient and and if that were correct just the purposes then your claim would be within the tribe you're saying i gather that notwithstanding its ability to interpret its own law there is an overseeing overarching role for the government to play to integrity which includes ensuring that the will of the tribal members is not boarded by rogue leaders when it comes to decisions affecting federal benefits and that case also involved  effect i think it was adopting a constitution in that case and and there's other cases that we cited were the overall authority i think it's babbitt i cited in the opening three but think it was  case where they have to ensure that those elections because they're enforcing a governing document that they're that this legitimately adopted by the band as a whole so the executive committee for instance could say ok we're going to pass this constitution and and look like it's passed but to inforce our constitution you can see any of the tribal members the federal government has a duty to ensure that that constitution is being passed by the whole body by the whole tribal body with there's two there's two ways to approve constitutions because we're talking about a whole new car governing document as elsie le sara said this took away from the articles of association and gave all this power to the six member committee so  when you're adopting a whole new governing document that you have to go through a four seventy six process and that doesn't mean that the tribe cannot adopt its own constitution means that it needs to have secretarial approval and there's a review process for these constitutions to go up and they have to go up the chain of command so you know they're going into this they start with the agency and they move up to resettle and then they get to washington d c and that is the way these constitution each indian tribes will retain inherent sovereign power to adopt governing documents under procedures other than those specified in the section referring to for seventy six then if try to follow this option it is not guaranteed approval by the secretary but the secretary may approve it in previous cases the agency has taken in courts of affirm the position that it has discretion to not approve a constitution that does not reflect the involvement of the whole tribal community right so yes no i want to know under the under the articles yes do you define as a member of the council every adult member who made up the voting body it was the adult members of the tribe that used to be able to vote on everything under the articles yes right so when they adopted when they adopted the the constitution and they had their between a general i thought the general council consisted of all the voting members of the tribe you have to look at the she have to look at the governing documents and both those documents whether it's the articles of the so she ation or this this constitution that we're talking about meetings a meeting is not an election you can't vote at a meeting maybe twenty people will show up at a meeting or forty people will show up at me election has a whole different meaning in the general election of the tribe voted to revise the p this way that's correct because it's a big should have dug in deeper and said what did you really have an election or did you just have a meeting well that the secretary had the meeting minutes there and i think the meeting minutes or in front of th was where in front of the secretary the meeting minutes were like it at the exit exits of record one ninety eight or around there we had the meeting minutes that show what they were doing was a corm and that and that the constitution was approved no evidence to the contrary and that it was approved by a majority well act actually not your honor that the meeting before the meeting which was held on nov twelfth which the meeting before the meeting said that we're going to m there was another nov twelfth meeting minutes in the record and that meeting said that we're going to we're going to vote on the articles of association that's all it said and then seven days later what they had was this meeting and they said well the general counsel's been working on this constitution for the last couple of years and we think that this can work for the band that's all that says and so we're going to go ahead and we're going to vote to put  these constitution in rather than the articles of association that they've been working on to and was that ever ties to the members of the tribe not the constitution just the article that associates there was going to be a vote on the constitution  there was no sure yes it's in the it's in the record it's in the meeting minutes so the certification that's attached to this resolution ninety seven point three six is is it worth the paper it's written  those what they say is all that was was a vote to start the constitution process to go to have that be i approve it it wasn't a vote by the vote of the band as a whole it was not an election all it was was to send it up for approval  that this in rome and that remains the department's position on the merits but is this court has recognized and is the supreme court has recognized the ability to determine tribal membership is fundamental to tribal sovereignty and to tribal self determination and is generally reserved to tribes under federal law congress has not specifically provided for the courts or for the b i a to review tribal membership decisions and for that reason the secretary  secretary here determined not to get involved in these essentially internal tribal dispute and we submit that should be affirmed for two separate reasons first because any authority that the assistant secretary had to intervene in this dispute comes from the general authority of the b i a to manage tribal affairs and there anytime a  opposition indicate that the decision by the agency to approve the constitution as a rat that allegedly ratified by the tribe must be made by the secretary of interior personally is that correct that that is not correct and let me what what is one of the law say about that issue well let me back up an address on the seven of six or four seventy six of the indian reorganization act seventy four seventy six eight specifically says any indian tribe shall have the right to organize for its common welfare and may adopt an appropriate constitution and bylaws in any event it's there too will become a fact of upon secretarial approval so that has a what the california me walk case says is a safe harbor for tribes that choose to follow the secretarial procedure and then there are regulations or federal regulations agencies law there are regulations within the department delegate to other people to act on behalf of the secretary i suppose on the theory that the secretary would never go home if he or she were constantly having to prove everything that the department the interior proves their right that's correct justice but that provision didn't even apply in this case because it's section four seventy six h which is also which i believe you cited quoted from in the california york decision is where the statute says that the fact that we provided an approval mechanism does not mean the tribes cannot do their own thing and and and follow some other procedures for for adopted  indian reorganization act that allows tribes to vote against the application of this particular statute to those drives this tribe voted against the ira so the none of these provisions even apply to this tribe and that's part of the complexity of this case the b i a has an obligation to conduct government to government relations with this tribe but the specific procedures that are set out in the indian reorganization act and in the regulations governing the indian reorganization act do not apply to that approval process so basically once congress passed the iras the agency really had no ability to veto what the tribe adopted is correct  wouldn't put it in that stark terms either your honor it the department has to ensure that government in conducting government to government relations that the government of the tribe is the legitimate government  legitimate government of this what's on the station you gave me again please section two of the twenty five us code that's just that that is the political statute here and it's a very broad statute and all  department clearly has the authority to say no you know you're a minority you don't represent this tribe and i believe the california me locked case was a circumstance where that minority had brought an action against the department and said look you have to recognize this because you know we did this constitution and and what that court said the d c circuit said is look the department doesn't have to acknowledge a tribe in a circumstance but what this points to is that the  broad of the authority that the the assistant secretary has under section two is authority that the system secretaries generally exercise only in these contexts where there are circumstances where the determine you know who are they going to deal with and in those circumstances they have authority to say no we won't accept your representation that you represent the tribe and not happen in this case that's not this case this is a case of a membership dispute a dispute over who can determine who is legitimately a member of the tribe and iraq rose on where the tribe had applied a two thousand and nine ordinance and the complaint is purely under tribal law the point is that the tribal officials here did not act in accordance with their governing documents and didn't apply their ordinance properly and we submit in our enforce the tribal law and that ties into our argument that there is no governing standard there's no obligation under federal law for the federal government to get involved in these sorts of disputes and the federal government did get involved with respect to this drive early in its organization and did approve their constitution and did as part of the in an early  to government affairs and so wanted to prove it and i gather it's your position that the secretary in this case her did not have to do it personally it was the assistant secretary or that person's agent wright was it was done have for approval and in the record the discussion from the federal officials was do we even have to approve this now part of the history with this tribe was they had an articles of association that said in amen s needs be i approval because initially b i approved the articles of association so the b i said look we've got a history with this tribe we've we've said we need to approve amendments so we're going to look at this for approval what  it when you say they were going to look at this what does it mean well the record shows that in in the period when they were reviewing it for approval they looked at it to ensure that the substance of the document was not contrary to federal law conditioned on acceptance of it you know well let me let me step back and give you the process in one thousand nine hundred four and there was a tribal election on a constitution after that tribal action then it was submitted to the b i a the b i made some changes and then they provided that to be a again the the i said well there's still some other things we might recommend you can do try to that point said look we were not making any further changes we want you to approve it and b i had to put their final look and they determined that it assistant secretary where the assistant secretary essential to explain provided a statement of reasons for why the regional director was correct in not getting involved in an unforced ment of internal travel affair so what was our fundamental point is look the two thousand and thirteen decision was just a statement of reasons for not acting pursuant to general authority foresman authority that might exist for example if there were a constitutional crisis or some problem with figuring out the  government of this dr and that's not something that this court can review because there's no standards in federal law that governs that and so that's the fundamental problem that they didn't bring in action against with respect to  the approval of the constitution what it would who would have had standing to challenge that determination any member of the tribe presumably anybody would be impacted by it you know if there had been a you know back in two thousand two thousand and after that approval decision had been made and that's where the statute of limitations issue that i mentioned earlier perhaps comes right yes although as i said your honor and i don't want to speak against interest but the they didn't challenge that and what they did is they asked that the assistant secretary dri consider an approval that had been given and the assistant secretary didn't have to reconsider it even if it was in the statue innovations right because it's a question of when does that an agency approval of that constitution i think that would at least raise some issues about those that tried have a governing document that just revert back to the articles  but if you know if the court determines that it has the authority to sort of look at the constitutional ratification process and whether it was sufficient we do think that the reasons that the assistant secretary gave or for not approval were perfectly appropriate and the one relating to the statute of limitations was look this is this is too late to come in and try to redo a document that they tried has been operating under since two thousand and again in two thousand and these this isn't secretary approved or the i'm sorry the regional director approved it retroactive to one thousand nine hundred seven which was a signal to the band that you know you can go forward and but they also certainly put the plaintiffs on notice that the van was operating under this constitution and of course the decisions in this case were made under the constitution under the they were made and did the two thousand and nine ordinance the provisions the terms of that ordinance responses and specifically cited by the executive committees of the executive committee clearly was operating here and in other actions under the two thousand just clarify it just i want to make sure i understand the government's what is up for our review here what what is what is your understanding they're asking us to review our understanding is they're asking you to review the decision not to take enforcement authority in our position is and we want u b i to say no band you can't do that you violated your law that we won't accept that then what we're saying i says where we were staying out of this that's right and they would intervened under section two had they done something right well any any authority to intervene would have been under section two because this is  and that's your position is that's a very discretionary determination yes i mean it's again that the case law in terms of authority to review decision not to act is that there is no that is the  said in the in the brief as well i think those cases are not in the context of the indian affairs and section two necessarily but we believe that this particular request for this type of enforcement action fits within that when does the government believe that this statute of limitations the general one for six years began to run in this case properly would be if it's an action  a action against the department officials for the approval it would be as soon as anyone had constructive notice of the decision two thousand throughout asia thousand well the record isn't fully developed on when somebody first knew but what the assistant secretary pointed to was that at least by two thousand and three when their the amendments to the constitution were voted on and referendum election the members of the tribe would have been on notice at that point they would have gotten this to two thousand and nine or two again if if there had been but there you know the complaint in this case was not a complaint against the b a s approval actually what the what the plane is not really necessarily even challenging that substantive review they're just saying something additional had to happen under tribal law in order to give this effect it has to be a further referendum election and we submit that's not how the tribe interpret it or the tribes  elected officials because we're here because the tribe operated under the nine hundred ninety seven constitution and the two thousand nine ordinance in making this a neural net decision  ok well for one thing we did ask to rescind the that prove all we asked in the agency appeal it's it's in the record it's that we are one seventy five so we asked the court to rescind it and as to the secretarial approval when you were asking him a question up here under the articles of association that the original governing document every choir secretarial approval so they could not just have this whole new governing document without secretarial approval because under the original governing document it requires secretarial approval and what he's talking about about discretionary i think if you go back in and look at that me walk a court of appeal is saying there's no same harbor here when  the department of interior approves or even you know when there's a constitution that comes that has to be adopted by the band as a whole by all the adult voting members because you can't just shove the was very familiar with all the voting that went on and she was at the i a s own employee she stated that there it never went out for the whole band to vote on let me just ask you this counsel i'm just i'm looking at your complaint right now and your prayer is that after hearing grant this declaratory really even plans favor and set aside the a as high a june twelfth two thousand and thirteen decision which was that the memory decision right no this this was the system secretary's decision that found that constitution was illegitimate in the docket this was two thousand wasn't no that was twenty thirteen that was the this is when the assistant secretary took  action over this case and he made certain rulings in this case in two thousand and thirteen the assistant secretary said at that time what happened in two thousand in two thousand there was this retroactive approval that nobody really knew about ok so you're saying because nobody knew about that and you're also saying nobody knew about the two thousand and three amendment either right that's that's correct they what they used to do was they used to use the word constitution and articles of association interchangeably and i think if you look there is meeting minutes that show what we're saying that they at the same time they were adopting the articles association they were also working on this constitution but they were still governed by the articles association it wasn't until nine hundred ninety seven they put the this completely new document and that got retroactive approval by some regional employee in two thousand that's correct in two thousand and did they know about it could they have challenged that not until they suffered an injury in fact and that's when they didn't suffer an injury in fact intil it was imposed on him this this was yammers of the try at that point the fact that the constitution was allegedly ratified would not have given them standing to sue until they injured intil they had an injury in fact that's a grandmother you're saying that in fact it was approval that's that is correct they would have been yes they would but they didn't know about that injury and that's what the wind river case says this is not until you learn about the injury until that doc till that  governing document has been imposed against them that's when they knew about the injury so no member no member of the plaintiff class knew in two thousand or two thousand and three  decisions of the secretary or not nor did any of them know about the decisions made by the tribe however that's not was correct or not the original decision nine seven general council meeting where you've only got a minority president and his declaration is in the record so he knew about it because he said there wasn't anybody just a minority was there you know he's he's not a plaintiff to the case we've got we got him after the fact there are any plaintiffs in the case who complained about it at the time you know nobody knew about it in fact one of my clients was on the general counsel one out of the six people they recused her but she didn't know about it so i mean the first time they knew about it was in tw eleven when they started this whole thing against some other the disagree ollie's but so they did it so they were using the words and the terms and you have to look at the tribal members themselves are very unsophisticated they're not educated people and they use the terms you know articles of association and use of words constitution and you just you know as interchangeable words and they're thinking you know that's their governing document they're not sophisticated people so they wouldn't be able to challenge anything unless they knew what was going on and they didn't know about that until twenty eleven but they were sophisticated enough to do they've been disenfranchised they're sophisticated