was closer to a court trial then motion to dismiss at the motion to dismiss phase we should be accepting as true the allegations as pled in the complaint and construing the allegations liberally in favor of the nonmov do with the factual allegations here well i think it's all intertwined your honor and because yes the jurisdiction is a legal issue but you have to look at the underlying facts to determine do those facts short she obviously when she was the administrator she worked on the main reservation land right that is correct and when she was doing administrative work she worked in the building i forget the theme of the town but she was involved in the purchase of it and she worked there too right that is credit is also part of indian land the reservation yes right the tribal office in all tourists was not on the reservation understand it but it was owned by the  authority and what we know from these supreme court cases is even if there is some some measure of jurisdiction it's adjudicative powers cannot exceed the regulatory powers and that's why it's important to look at the facts powers cannot exceed regulatory authority but i do think it's a very hard for one that's why we look at the underlying regulatory authority what authority did the tribe have at the time my client was employed by the tribe the authority it had was delineated in its personnel policies it was needed in its constitution and bylaws nowhere in the constitution and bylaws is there any sort of civil authority any  over any sort of tort measure in the guidelines for the personnel policies there is a very limited regulatory authority over employees there's an expansive authority over its members that's how they govern their members but with respect to employees it's very limited to key factors a discipline that if there is some sort of discipline that should be measured  measures of disciplinary action or are limited to five distinct options a verbal warning written reprimand suspended without pay demotion or involuntary terminations now march of two thousand and thirteen ms knight and had resigned none of those options were on the table at that point going forward it was in december of two thousand and thirteen when the tribe first in access judicial code worked first and axed some sort of civil authority to have jurisdiction or authority over non members including employees for torts for breach of contract for the things that they allege in this complaint related to tribal land that there is jurisdiction in this case as the administrator indeed that one of the allegations is that she got a piece of the action in connection with the purchase of the  the land where the headquarters was she worked there and so on she was fairly involved with the tribal land all along so doesn't that give them jurisdiction some measure of jurisdiction and in this case we have to determine on these facts what measure of jurisdiction in this case and we look at we take water we'll for example water we'll as the case that the district court relied upon and whether we take water will or montana my say that in terms of the inherent powers of the tribe correct the inherent powers of the tribe are not unlimited i think that's universally understood in every and every circuit but the water we're talking about allegations of that and self dealing that's not much of a stretch is it i think almost any organization needs to protect itself from that kind of thing it's not like you're inventing some wild new toward that nobody's ever heard thought i would agree with you your honor so the question is where can they vindicate that right and that question i think is resolved in water will at page eight seventeen where it says the supreme court has indicated that tribal jurisdiction depends on what non indians reasonably should intice a page from their dealings with a tribe or tribal members on a reservation and she falls right into it i mean here she's worked for years with the tribe she probably wrote some of the regulations she violate she couldn't be much more international to try much she was a member but it's the question is is what could she reasonably anticipate would be the remedy or the procedure that the tribe would follow and in this case no tribal court existed there were no measures for the tribe to exercise that jurisdiction internally she could reasonably anticipate being held into state court or federal court on those types of allegations i agree with that but there was no reasonable anticipation of being h into a court that didn't exist all the tribe existed the court is the mechanism by which the tribe carried out its inherent authority right it i would agree with that existence there was no measure of obtaining monetary damages punitive damages or any injunctive relief the tribal council before december of two thousand and thirteen did not have that authority fortunately we have a colleague here from south dakota the two thousand and three cause of action of rose two thousand and four the tribal court was established and in two thousand five the action there was brought in tribal court that had to do with the casino and a prayer that arose and assaults on people and so on but anyway there was a  hear on or at unfortunate i don't know the facts of that case inside and out i know it's a gaming case and so i presume there were regulatory authority that they had in place i can't commit to that but my presumption is that if they had a casino in place they had operating procedures here we have operating procedures that are very distinct in nature for personnel policies that limit any sort of remedies to those five scenarios i've already outlined i would like to reserve stablished federal indian law or actually the law to the facts of this particular case jurisdiction can be found under any test that you apply irrespective of whether you call it consent irrespective of whether you call it special effects in herent authority or waterwheels land based analysis we can find jurisdiction under any of those tests and it is that unquestionable that the tribe the decision of tribe requests the district court  opinion to be upheld by this particular court starting off with the strada a case we understand the application of of montana in that particular instance jurisdiction was not found  strike case because the road upon which the accident occurred that ran through the reservation was controlled by the state and the tribe had no gate keeper responsibilities over that road however in mcdonald  completely different situation involving a b i e road jurisdiction was held over those defendants for merely travel lien on the road and having that accident here we have a complete different facts with regards to ms knight and where she had that fifteen year relationship both on and off the reservation that touched every facet of the tribes lives most importantly its land she dealt with  she dealt with the tribes finances she dealt with tribes housing funds she actually used a portion of the housing funds that she received from the government to pay herself in excess of hundreds of thousands of dollars for  under established law under both the marin case and salt river in those particular cases we had tribes that had entered into contracts with existing inventors and later on one tribe in marin decided to  in ordinance and the other tribe in salt river decided to put an employment appointment ordinance in place after having an establishing that relationship the court in both of those cases upheld the tribes inherent aut hority to apply those particular ordinances and grab the tribes authority to establish both the tax increase and establish both the employment ordinance now you hear me ask you this yes or i'm the one troubling a little bit if we're talking about civil actions that's pretty clear but in this case you really got criminal complaints effectively does that make any difference in terms of what rights ms knight might him well i think i think in a criminal context it would because under appeal to wady we know that the state of california would be able to have jurisdiction over those particular claims here but we're talking civil claim to not understand it yet but i don't know that it makes a difference as early but if you have a court of record that makes certain findings that are you know very clearly also criminal violations that make a difference in certain cases it might make a difference but in this particular case it wouldn't and with regard to because the tribe is not  criminally exactly right right now with regards to inherent authority also we were talking in prison councils talking about these administrative procedures all right the administrator procedures and you know was using did not exist before miss knight you work for the tribe so by actually imposing those administrative procedures on the tribe she has already demonstrated the inherent authority for the tried to create processes and procedures over its own employees without having to consent to them so if the tribe can implement these administrative procedures which held her responsible to the tribal council let me ask  the you know these are called mail you not regulation local regulations were not created until after she finished her employment right and the court with the brought out in the marion case there was also an ex post facto argument made in that particular case about the retroactivity of the tax ordinance upon the vendors and the court said no the at the original point in which the relationship started with the tribe the tribe always had the authority to establish a tax ordinance at any time now in this particular case what the what the the guidance that the administrative procedures give us is that the tribe in actuality could have created a court could have in that court could have been either the executive council or the tribal general council they could have convened a court they could have had a trial they could and if she was found guilty of those civil charges and damages were awarded they could have issued a damage a damage award the tribe could have then taken that award under the two thousand and two or two thousand and twelve tribal money judgments statute in the state of california converted that award judgment into a california state in forcible superior court judgment and enforced against mrs knight so the tribe had the same powers it just decided to utilize a court as opposed to the general counsel or its or its executive council now when you look at it that in that context where is she getting more substantial justice from an independent jewish member of the judiciary that works for the tribe or having to actually face the tribes governing body in its membership for which she committed you know these these unspeakable things  taken any result and judgment and under federal law or state law applied those judgments got the benefit of california courts and others to enforce the judgment i don't have a case on point your honor but i have seen tribal judgements converted under the uniform monetary judgements acts across the united states but you are going you're reaching for more than you need in order to lay out his case i'm just i'm just giving an example of how this could happen but what i am saying is that the tribe has the inherent authority to have created in convened a court at any time and that what she is being asked to compel to the tribe could have taken care of  its own processes without a court which it actually did when it was utilized to take when this knighton discharged members of her staff when this night in assisted the tribe to dis l half the tribes membership in two thousand and eight she knows exactly what the powers of the tribe were so you're saying basically she got a better if you will due process havingness occur through the tribal court and through exactly and i'll say one other thing what we're not saying your honor is that there isn't concurrent jurisdiction outside the tribe in state or federal court but what we are saying is we is the tribe can't be forced to go to those forums if it decides to utilize its sovereignty in its own court as your tribe used in appellate court in conjunction with some other tribes that work yes exactly what happened in this particular case your honor is after the the lower court handled the case and went to a three judge panel similar to what we are experiencing here they made a decision they upheld our lower court's findings and then at that point it certainly questions other question i submit to the court have a little rebuttal time counsel and just two real quick points here and i think your honor touched on it already is there any case on point that allows the court or allows the tribe to sue a spontaneous creative court and i haven't i haven't been able to find that case and when we look at the record notes that he cited i misspoke in the record in this case there is nowhere in the record that allowed this proceeding to take place here we have a record personnel policies and that's it and i would agree with the comment that was made that it probably is a better process to go to the tribal court than to be held accountable or have a case tried in front of the tribal council but it's also a better process for a united states citizen to be held in the state court or in a federal court that is open to the public or her rights to a jury in a civil authority case or civil case matter is upheld as well