seven the secretary of the interior issued an order and in that order he as stabbers the boundaries of the chimley of the indian reservation and he explained expressly reserved and set aside the eastern one half of township five range twenty four dollars north san bernardino were in that eastern one half of the township included a number of sections including section thirty six the secretary issued that order pursuant to recommendations  report by the commissioner of indian affairs and c e kelsie a special agent appointed by congress to investigate a report on the condition of indians in california including the chima wave mr kelsey issued three reports after meeting with the chimney waves in person investigating the lands that they occupied and determining that the best thing for them was to establish a reservation for them on the lands that they had occupied since time immemorial including section dollars the secretary's order over the last one hundred and eleven years as then upheld confirmed and ratified by the congress of the united states by the united states supreme court and by the president of the united states acting to the department in the interior not once but twice congress has ratified and approved with the secretary did by issuing the order less than twenty years after the secretary issued the order congress an act of twenty five u s c section three hundred and ninety eight deed that expressly states that the boundaries of an indian reservation free aided by the president or in this case the secretary  exercising the inherent authority of the president under the midwest oil doctrine could not be changed not by the courts not by the president not by the secretary but only by an act of so i'm curious in this case what relief do you see from a service appeal well we brought this action ribs or your honor so i understand and then a summary judgment was granted against you but that enjoying  one reason i asked that is as i read your brief you suggest simply that fact issues exist and we should remain and this case to the district court or you instead of asking that we should grant summary judgment in your favor well your standard of review is to know what i understand are standard i'm not asking what i know what a standard you are asking i'm i'm looking at your brief and i'm trying to figure out what it is that you're asking us to do let's assume i agree with you about everything you've said so far should i should i should be remanding the case to the district court and tell it that it made a mistake in not looking at all your evidence or should are you saying that we should direct it had been previously by statute given to the state of california the land was belong to the state of california and it wasn't for the secretary to give away  that we there's no doubt us that that our position is that the state of california did not get a patent to section thirty six that the pot was you roni asli issued by that and all you have to do is look at the clear language of the eight hundred and fifty three statute but you don't need to go there this is not a case about title we never got a tie acquired a quiet title option that's something that the county raised this isn't the the issue in this case is jurisdiction which government federal tribal or state governments have the authority to enforce their laws against members of the tribe on the reservation and of section thirty six lies within the boundaries of the reservation that under twenty five us eighteen  my question is assuming we don't buy that argument is what you're really asking for is a jury trial on the issue of what the boundaries of the reservation are well before i answer that question let me just say this and that issued a patent to the state of michigan this president the united states then issued an order including the patent within the reservation and a crime was committed on that patent of land and the individual that was charged with the crime argued that it was an land the secretary then issued an order ending and drew the reservation boundaries to include section thirty six dollars within the boundaries and their argument that the secretary didn't have the authority to do that if they  debt you got from somebody that gave you a valid title to that land would you seriously argue that if that land was located within the state of california that the state of california does not have the authority to enforce its laws against you know the state does not because the state owns the land but because your land lies within the boundaries of the state that's what happened here i don't think they got title but assuming that they did and i don't think you have to address the title of the reservation or was very the county right the county claims that the state bought it the secretary and there's no doubts the secretary issued an order and drew the reservation boundary to include section thirty three act or patent appear to give title to the state of california i don't think it even appeared ok tell me why didn't well st of all it was if you look at the plain wording of the statute the statute was a conveyance of the public lands of the united states sections sixteen and thirty six of the public lands of the united states to the state of california ok the united states supreme court to answer this question in minnesota versus hitchcock they said that lands in the use in occupation of an indian right and see that was the question i was trying to ask you before and we missed each other your position no well maybe i'm wrong your position is that this land was never conveyed to the state of california by the and fifty three dollars patent because the government didn't have title because these were lands on which indians had resided from time immemorial is that not only that but also there's another section section six of the kentucky but it in a very expressive language when you look at the that the language regarding the conveyance of sixteen's and thirty six dollars to the state it says it's mostly says that it's conveying those lands unless those that we're talking about the patent from the united states government to the state of california the pat was for section all of section thirty six dollars to be used in schoolings the state would take those lands and so i understand that so that that's where we're missing each other you were talking about the mexican government and indian tribes lands they hold title through what's called aboriginal title through the doctrine of discovery and only the united states has the right under the non intercourse act twenty five u s c section one hundred and seventy seven to extinguish indian title indian title was never extinguished here because congress explicitly preserved it and protected it with section six of the eight hundred and fifty three statute the indians were under there were occupying that land as evidenced by kelsey and the district a number of errors here st it made an error because there there there was well st of all we argued our motion for summary judgment it was submitted it was under submission it was the court after we  the there's something about this case that strikes me as just odd like there has to be something real else going on here something behind this case and i mean how did it devolve into a question of who owns the land jurisdiction to enforce those laws we sought an injunction to and a permanent injunction in joining them from enforcing those civil regulatory laws against tribal members driving within section thirty six on the reservation and we bought an action under under the reservation to get down to where the tribe has all of its businesses where it has its grocery store where they can shop we're going to get medical attention working grab it's very the indians have to travel through section thirty six so any way they can get there but i think it's one of the reasons why i mean there's a number of reasons why the secretary included section thirty six within the boundaries but just because of the topography the indians need section thirty six to make their reservation a viable homeland they they can't get to their but me the district court found no evidence of racial animus and you you don't challenge that finding out if i do not but i we still believe we have a nine hundred and eighty three dollars called understand but is that the reason is that was that the are the words occupation and possession of any indian tribe terms of art that suggest title there are other cases dealing with similar language which say that deals with indian title yes those are terms of our it that you'll find that the president and the secretary and congress have used many many times when they were speaking of an indian tribes a title the right of use in occupancy which the supreme court is as sacred as the non indians feet time and that's what congress was trying to do there they were trying to make sure that the indians right  you're talking about a challenge huge title in california and whether or not the patent with properly issued the district court specifically remarked on this claim we had originally filed a motion on the rule nineteen to dismiss for failure well i just want to point out because in the argument that there is an argument that they are geo engine title well that i mean they're stopped from they're there they're not challenging title they're saying this is indian land correct order was invalid to the extent the secretary purported to include section thirty six dollars in the order is unlawful it does not i don't don't you have to don't you have to go someplace and attack that order rather than arrest people on the land no because if we look at the authorization in which that order was issued which is the mission indian really act the secretary was authorized to set aside particular my questions are very just a procedural one we have an order of the executive branch setting aside a reservation you're contending in this case that that order is invalid for various reasons don't you have to go into federal court and bring a suit attacking the validity of the reservation order rather than just simply arrest people on the reservation and force the other folks to fight on the and seven order appears to cover sex to section thirty six does it not it does ok so you may think it's invalid but it's sort of a strange way for a state or a count a subdivision of the state to attack a federal governmental order by disobeying it and forcing the people who are disadvantaged because of your disobeying it to come to court to assert their rights don't just in the state have to go into federal court and attack the orders making arrests because the one thousand and seven order of stablish is the existence of a rather vacation purports to set aside land which under that legal description once the boundaries are established would include section thirty six but under the mission indian relief act and the amendment to it subsequent you establish the boundaries by issuing a trust patent the secretary has to issue a trust patent that would not issued until two thousand and ten and orders never mention you one of those cases but what is mentioned is the court expressly saying that these boundaries are not established so you're coming into all of it on your own to your theory and i'm arizona versus california is a case i'm the the boundaries at the time would have been whatever the secretary had identified but if the court acknowledged the reservation boundaries changed frequently which is why they didn't acknowledge secretarial applies to this case your honor and if i can make a quick departure getting back to eight hundred and fifty three that statute did not create reservations and agree that statute simply prevented white people from squatting on land that indians had been on in order to establish preemption rights and then the act of one thousand nine hundred and sixty four extinguished all aboriginal rights except for the four parcels of reservation that works present created in that and there's significant case law on that issue eight hundred and sixty four extinguished aboriginal rights and all other reservations that had been in existence were ordered to be parcelled up and sold and three d conveyance to bernardino start arresting the indians i'm driving through section thirty six i don't know that all of the sudden started studying them for traffic violations but traffic violations were issued to those members  extent that people were ticketed inside not in section thirty six but the parts that nobody seems to dispute are parts of the reservation why weren't those tickets in appropriate they were think we addressed those outside of the context of the litigation in the well the county the county did not there were two types there were there were tickets that were issued for violations that occurred within the reservation and those were withdraw right there were violations that occurred on section thirty six and the person was stopped in a section within the reservation and you know so why do you want it why do your clients have authority to detain people inside the and what would you base that on while in in all honesty i don't have that answer because that's not an issue that we ever really discussed in the lower court nor is it one that is has been principally argued by so i'm quite used to the extent that constitutes a detention than yes your honor ok and i want to get back to one of the questions that you asked about where the appropriate venue is you know use the example that mr mar if i have a piece of property and it's been mine and someone is telling the public that the corner of that belongs to them i don't believe i have an obligation to go dispute that claim if they have a claim to my property then they need to bring an action to recover the property from me if this is a little bit different they have an order for that no no no just let me finish they have an order from the secretary of interior that says this is their property you have a legal argument about why it's not so i'm not sure who the burden rests here what troubles me is that the district court looked at the massey report assuming that where people resided from time i it's kind of two parts so in in eight hundred and ninety five when the land that surveyed becomes conveyed as a final conveyance to the state of california it's removed from the public lands the he reports that the land has never been surveyed when in fact it has been surveyed and i think had this case he makes mistakes doesn't mean that the whole document should be excluded from evidence and i'm not suggesting that you know you just to be fair you never argue that admissible the the point of his his comment about not being surveyed is more than a bit historical fact of interest with respect to the hearsay yes we would suggest that it is still hearsay because you have you don't have time did your family live here and from that he concluded that they've been there from time immemorial or in a certain point in time i mean native americans had the entire continent from time immemorial so when they're being granted reservation rights they're only going up time i'm back to your st point and this is what's troubled me about this case from the beginning we have a dispute about traffic tickets and inside that dispute we're being asked to adjudicate the lands dispute should we remain and and say bring the state of california and if the tribe in the state want to fight about the boundaries of the reservation they have to do so in a full blown title action  i know your position is the state would win that but this is this i must say i'm i'm i'm bothered by by the federal courts adjudicating the boundaries of a reservation in the context over a fight over traffic tickets i would say my st response was we filed a motion under rule nineteen to join and necessary an indispensable party and the court denied the motion because i do think the state should carry its own water but having the district title isn't the peril karts well i think some of the cases that have been cited you talk about judicial determination especially like in arizona versus california they talked about uncertain boundaries being judicially determined and in for that purpose the supreme court recognized those in allocating the water rights but for those that were secretary really determined they did not acknowledge those as the stablished boundaries because they were subject to illegal in the case between the tribe at a local sheriff bothers me puzzling this is not uncommon for one hundred and eleven years before before congress took away from the president of the united states the authority to create indian reservations the and fifty three and i think eight hundred and sixty six and in the one answer that question for one hundred and eleven years the president has been creating reservations including feelings within the boundaries  the reservation recalled in the holdings it was done all the time and if you look at the supreme court's decision the midwest oil what they said was you know there's no statute that authorizes the president to do this but congress knew the president was doing can answer my question is let's assume that these are not the lands are not owned by the are the indian lands for purposely in country for purposes of jurisdiction so that so that if you feel empty inside the boundaries of the reservation it's within the boundaries why isn't it is it surrounded by the reservation yes that with partners with the secretary did this particular piece of land this part of section thirty six dollars my understanding agree that that's federal law wouldn't apply but if that's not included in the reservation then it's not within the boundaries of the secretary withdrew it and said it's part of the reservation no i don't understand you that's a legal argument you've been making i understand it perfectly well i'm trying to figure out is where this land is and it's not within the boundaries if it's not in the reservation at the secretary put it in the reservation also the secretary didn't issue this order under the amendments to the mission in  opposing counsel just stated the minister the mission and the really fact were not even in acted the time that the secretary issued the order yes he issued it in anticipation of a new a bill was pending before congress but the secretary created this a state issued prior to the creation of the of the reservation and then included within the boundaries of the reservation later by a presidential order is indian country and that's or same we're saying you don't need to determine ownership for you to hold that this is indian country because the secretary put the land inside the reservation boundaries but if you feel that title is the determination of title is necessary then yes remain in the back to the district work we want our hearing we want our opportunity to prove our case and we believe we can prove it remanded should we also tell the court that it must join state well th where there's effect federal statute it isn't at issue and it isn't before you know it has been breached that status is who has the burden of proof in a dispute over title between an indian tribe i wouldn't be happy in that briefing are the arguments could have done and should've done knowing that there were indians occupying the land they say should have selected in lieu lands and i can tell you this will most certainly not interested in divesting anybody that's happened has a home out and section those individuals to ensure that they have title to their land for us it's a matter of jurisdiction to them it's it's government it means we have the right to govern ourselves you know her reservation under our laws it's indian country the secretary with your uuid he included it in the boundaries the supreme court of the united states has u