tribal lands and interpretation that stretches the term enhancement far beyond its normal meaning and that effectively eviscerates the apparent intent of congress to provide a limit on the tribes ability to acquire new purchase both rulings by the district court run counter to the most reasonable interpretation of these two provisions based on their text and their context the interpretation proffered by the tribe and adopted by the district court would provide this type uniquely unfettered ability to acquire new trust lands without a chair graphic or functional limitation and without any oversight by the interior department all absent any indication by congress that it intend interpreted at all if i district court did interpret that language and i reach the same conclusion that the district court did in this case however that decision was later vacated  interior part of the reason that interior reached the conclusion that it did in this case about the meaning of the word and hence meant was because it had already reached a conclusion about the meaning of the word enhance with regard to section one of seven and a different tribes or costs so starting with the section where i am sorry one you're discussing the two different provisions can you tell me what is the difference between if there is any between tribal land holdings and tribal lands and also the term land hells held as indian lands are held are those distinct terms or do they they have the same meaning i'm wondering what your understanding is of that well i'm not sure that the secretary reached a definitive  it's not entirely clear whether a man tribal lands and tribal land holdings need something different i think they probably mean the same thing meaning the let us secretary have to have an understanding of what tribal lands means in order to determine whether they were and hants i'm not sure how that question could be left open well the tribe here was arguing that sort of interpretive enhancement in two ways the primary way that we're talking about here in this appeal of course is they had survey a quantitative interpretation of that term but the tribe did also try to argue eight is that correct yes but that i mean primarily what we're talking about is the meaning of the word enhanced men and other enhanced enhancement means just any increase in acreage or whether it means you are doing something that improves the value or the functioning or the quality of the existing lands i think it actually makes actually some difference though the given how the provisions read five you know i guess there's not a part of this which is that there is still pending before the district court or there would be if you agreed with the interior department here the question whether the tribe has has shown that what they have done here this acquisition would be a an enhancement of tribal lands and it may be that the right time to answer that question would be on remain and with my district where it can assess whether the interior department correctly determined that this acquisition did not enhance tribal lands whatever that means and that will land held as indian lands are held what about that term does that is that equivalent to either trust you know indian lands or you know indian land holdings i did not some separate research and i couldn't really find any definitive understanding of how these terms interact fall and concludes that it doesn't mean anything in particular your research do not lead you astray it's not a defined term and it can mean sort of a variety of different things so in other words we argue of course that the term enhancement the plain meaning the ordinary usage of that word has a sense that relates to the value or the function of something the the the language in the major crimes that make eighty eight that makes give criminal jurisdiction to the tribes on the reservations that you trouble and you know what i'm wondering is if there is a parallel interpretation of that anywhere i don't know or i should know so one of the reasons that we think i have spent must have this more limited sense is because congress has decision to write this provision in section c it indicates an intent to provide a limit if congress intended any acquisition to qualify as an enhancement it seems congress should have chosen a word that that means acquisition and congress didn't they using interest or from income is clearly a reference back to section c incorporates those requirements and of course the united states when taking the affirmative act to take land into trust to fundamentally alter the relationships between the tribe the state and the united states with regard to that land of course the united states may verify that the minimum standards in the statute have been met before doing so taking land into trust that has significant consequences and the united states takes title it takes on all kinds of responsibilities about proving uses of that  so we do not think that this is not something that congress would have taken lightly and just assumed that that interior would not be able to verify that the requirements of the with michigan mean ordinarily with the department of interior need to read the statute also to be consistent with the compact since  both laws that the department of interior is charged with enforcing well i don't believe the department of interior directly enforces the compacts the compact is essentially a contract between they are i mean i don't know what status do they have are they do they have the same status as other federal laws and you know i mean i don't i don't know i mean that's that you're correct that that's not why interior light i'm here interior did not friends blindly take into trust those lands could be anywhere i mean not just down states in michigan but you know across the country and then hatton why not there would be really nothing there would be no limiting principle to stop that from happening and as i mentioned to fundamentally change the way that plan on actions so we you know we think it will be very strange  congress or written a statute with that effect where there's really no indication by congress that it ought it was doing so this that would be you know as far as we can they're reading the text of the statute and the context in which it comes can support a reading as extreme as that right unless my colleagues have further questions it will give you some trust lands or other lands in which indian jurisdiction is exclusive and so that in our view underscores the interior department's meaning perhaps you would be to the same reading if you used the term brought in the broader term tribal land holdings which would occur anything they hold title in but certainly if you're talking about consolidate or enhanced tribal lands then you are talking about the tribes trust lands that's a term of art and so congress had in mind something very specific it didn't have in mind a right to acquire any lands that would simply add to the sum total of the tribes land holdings it had in in mind a particular phrase consolidate or enhanced tribal lands that is the acquisition has to either consolidate which is a strict geographic limitation bring together or it has to enhance the value of improve the existing value of of the trust lands what they would be acquiring are not automatically trust lands we think that that distinction that congress years there actually underscores our reading now of course your honor we don't get it is it your position that they to not become tribal lands and tell the government takes them into trust correct your honor it can't enhance something you can't enhance the tribal land because that hasn't already been taken into trust that right your honor and we don't understand anyone disputing in fact the sioux filed an application to have the lands taken into trust and that's why we're we're we're on here the other point i would make on one o eight c five as i don't think you even need to think you don't even need to resolve that although we think it cuts in our favor because congress this is not the st time congress has used the terms and hants we're consolidate when it's talking about lannes or in fact the term acquisition f four c i know that's a mouthful but it's reprinted there on page eleven and i think that's a good example because what that does that was a land management statute motlanthe conservations dot unit said it referred to quote  associated with land acquisition and enhanced meant so here you have congress using these words if it handsome it means acquisition period then that means acquisition in that statute is which means consistent with ordinary usage and handsome and cannot possibly include all any and all acquisitions and of course in this particular statute i have a question for you about that argument because the michigan act here is not codified right so this is the kind of you know there are a number of public laws that are not codified so the michigan act is not appear in the us code and i'm wondering with statutes that are not c whether or that means that we can't apply a whole code presumption because there's a presumption that congress legislates terms in a similar way should we read acts that are not c to be consistent with other modified statutes does it make a difference oh i'm at absolute i don't think it makes a difference at all your honor these are acts that congress passes they pass them all in the same way the fact whether they're later c call that that it provides a limit it doesn't give a license to acquire any and all acquisitions that increase sacred recall our position isn't that no acquisitions are on the table is just has to be a subset of those acquisitions if i can turn briefly i know my time is running but on one away death because i think it's critical i think it's important to start from the common ground on one hundred and eight everyone here agrees that there are certain preconditions that have to be satisfied before the mandatory trust duty kicks in everyone agrees for example that the land has to be acquired with funding that's explicit in the statute everyone agrees that interior has authority to do a title check to make sure that the tribe has clear invalid title that's not in the statute that's that's an implicit precondition the only question here is whether as another precondition interior can act consistent with the government's fundamental duty to avoid a party to ealy galad particularly when taking on affirmative sovereign obligations of a trustee nothing in section one hundred and eight strips that basic authority and that makes particular sense here the united states should not be compelled to take on the burdens of trust obligations for b a for lands beyond those that congress carefully delimit the limited in section one hundred and eight c five it just wouldn't make sense to think that congress thought that us has to assume the significant burdens of trust obligations if the tribe is acting entirely outside of the lands that it authorized to be taken into trust the last point  textual structural one and it goes to section each to the immediately preceding section before one away after in the statute the district court seems to think that that provision supports its reading but it actually cuts exactly the opposite way in section two the immediately preceding section congress drew a clear line it precludes interiors review it says interior hands off when you're talking about the spending or management  nd guess that but significantly each to says nothing about the interior is own compliance duty with respect to its own sovereign act of taking land into trust in section f which comes after each of you and that distinction clear in the text of the statute texas structure of the statute makes sense you have different trustees the tribes board is the trustee for the spending of the in the united states is the trustee for man's taken into trust you have an affirmative obligation on behalf of the tribe with respect to spending spending and management makes sense that they have authority in that area but if the united states affirmative trust obligations when it comes to land taking into trust criminal prosecutorial jurisdiction mineral resource jurisdiction environmental cleanup all of those things and of course the background principles that we've talked about i know you're on be explicitly numerated in statute otherwise it can't be enforceable in hc or rio what was that issue was an exception to the attorney client privilege and what the supreme court said there is when the united states is acting a trust as trustee there are certain occasions in which the united states role is different than a private trustee and that was a great example of one because a private trustee you can imagine when it's invoking the attorney client privilege of private trust is only acting on behalf of its its beneficiary so there isn't a good there's a there isn't a good reason to preclude exercise of it to allow exercise of the attorney client privilege to shield the beneficiary but with the united states it is not simply acting only blindly for the beneficiary it has a lot of different interests and so that exception to the attorney client privilege the supreme court house should not apply you would have expected congress to make it and in fact the united states has a greater interest as a sovereign in making sure that it's not running afoul of any federal law so the reasoning and hipaa riya pagination i think the district court's reading was superficial if you look at the reasoning it strongly supports that you would be applying that fundamental duty here of any trustee which applies in spades when the sovereign is acting as a trustee in this capacity mr shah let me ask you one question about want to wait two maybe i missed it but you skipped over notwithstanding any other provision of law sure your honor and the we don't dispute that notwithstanding any other a provision of interior cannot do the things they didn't need to do that is you're not nd guess how the tribe spends the money distributes the money from its fund in ministers it's fun and all of that makes sense because the scheme that congress set up was that the tribe would be the trustee of this fund and it gets to monitor and makes the decisions how to spend it but that's in contradistinction to after that's when the united states comes into the picture the tribe can spend the money and acquire any land at once interior isn't stopping that what interior is saying before we put the government's imprimatur on that and take on the significant trust obligations we at least have our basic duty to make sure that that land was acquired lawfully so that's that's our meeting of how to fits with f your honor all right if my colleagues have here each of which independently invalidates its order st congress didn't give interior the authority to override the tribes determination that its purchase was an enhancement of tribal lands to make an acquisition but we are talking about whether the infected area has the independent duty to comply with the law in making it or heard well let me go straight to that point that this statute meek's it perfectly clear i think in multiple places that congress has not giving interior the authority at any time including when it is reviewing a trust submission by t they are not terms that connote a geographic limitation of the type that interior intervene or why would they be a target at all unless their terms of limitation they are they are they certainly but that first there are two questions here st we think the statute makes very clear that interior does not have the authority to interpret that language the warden has the authority to determine whether or not a purchase consolidates or enhance is tribal lands and that is clear not only from section eight th to which says notwithstanding any other provision of well the approval of the secretary for any payment or distribution or from the principle or income of the self sufficien expenditure of the principle or income of the fund now before we ever get to what does consolidation and enhancement you know we have to reach the conclusion that  something about consolidation enhancement that i do think there are q separate questions here and the court doesn't need to get to what consolidation and it has meant me if it agreed with our fundamental mandatory duty to take into trust and the lands of choir using amounts from interest or other income of the self sufficiency it has to take into trust any land acquire land using interest or income from the fund is for the consolidation or enhanced man of tribal land so i mean isn't that implicitly part of and you know not not at all ju but if one looks at the rest of this statute including i think it's very clear that it's not so i think the distinction so what then what about that the government's sovereign obligation to ensure that it properly in force is the law which with respect to japan i think that way of putting it by interior and intervenors just begs the question of who gets to decide whether something consolidates or enhances tribal lands our position is that if the board is me to the determination as it is here and no one is disputing that this purchase enhances tribal lands because it increases the total amount of land so under your interpretation and if this land instead of being near detroit was near milwaukee they could still take it in that they will buy it and the perhaps it's a possible interpretation i don't believe it's a reasonable interpretation and it's certainly not one that could overcome the indian candidate which requires statutes to be read if they are  they're not they're not saying that we do away with the indian and then they're saying that applying it here it doesn't work because it doesn't control the humidity work it doesn't control because we have to look at the statute st well i think there is no i really really think that there is no possible argument that the statute only ambiguously it requires a geographic limitation both district courts that have looked at this issue you have found that enhanced meant simply means to increase it can increase it can meet including your member of quality if that's what you mean here allows the try to improve its existing lands and in another context perhaps you know that would be the only thing enhancement means is improvement in this context we know that that's not all it means that we know that it includes acquisitions of land both interior and intervenors have conceded that and they have to because i have provided for taking such land  a land specifically which is what we have in the statute the enhancement of land isn't and hance much more akin to what you just said which is an improvement well i don't think anyone would say an improvement of land would include acquiring tribal lands and i think that goes to the discussion that you were having with ms kranz about what is the meaning of tribal lands the way to ensure your revisit is that it has to be a specific parcel of land major crimes act i believe they're tribal lands means land it's held in trust well you know actually so so just just to talk about that i mean the major crimes act uses the term indian country and indian country is defined lands within the limits of any indian reservation and which include feel lands it's not just trust lands it includes dependent in the hit indian communities and it includes interpreted that in the b mills decision that essentially you know those lands have no special status at all we're not saying you agree with that but interiors reasoning was tribes can have lands tribe already owns on the upper peninsula lives for burning to the tribes lands left dibley and that makes sense because this statute was intended to allow the trying to make a plan for the use of money that was given to it in compensation or at the lance that were on lawfully taken away from it which were in both the upper and lower peninsulas of michigan a rd of the tribes population is in the lower i actually think the use of the tree of the phrase tribal lands strongly supports our meeting a trying to collect the lands are much more than just the specific parcels that it already owns especially in this context they determine the extent to which the try thing exercise its sovereignty and achieve self sufficiency pursuing economic development and providing jobs and other benefits to its members so it is also interesting because it i mean is there any part of what eight c that suggests fund income can be used for economic development i mean see for talks about educational social welfare health cultural or charitable purposes whereas under one away be it does talk about economic development where you can use the principle of the fun right i actually believe c is much broader than b that with respect to economic development i mean the specifically refers to economic development where i don't i mean is there any language in see that you would read to include economic development i mean i i think that four or five could potentially include economic development because that's one of the many purposes of acquiring tribal lands in order to use it for economic development and it doesn't say that in this statute it doesn't say that in principle from the fund could be used for economic development and then see they talk about a list of quite specific things that might be used for by the interest or income from the fund none of which at least to my reading  indicate economic development i think economic development is is absolutely possible for interest i mean i think if you look at principle and interest it's very clear that principle can be used more narrowly than interest so there are structural in principle was that it has to be used for in the documents that the board determines are reasonably related to economic develops this plan in conjunction with congress wanted to ensure that the principle wasn't wasted so that's why for instance you know b three specifically says you cannot use principle to ma per capita payments then if you look at c c says you can use interest to make per capita came that uses of interest are broader than the uses of parents i'm not sure if i agree with that to be honest i mean being talked i mean be you know economic development beneficial to the tribe reasonably related to that i mean that is a very broad term whereas under sea i mean it's quite specific addition to the in a way it doesn't matter the question at the question is st of all does interior get to decide what consolidation or enhancement means that they have to determine their lawfully taking in to try to judge judge central imo i would say this question of whether it's this this argument that interior is somehow be forced to do something that is the source and interiors authority here i think everyone agrees so what one only half says any lands acquired using amounts from interest or other income shall be held  trust by the secretary for the benefit of the tribe right next to that is a provision that says notwithstanding any other provision of law but the approval of the secretary for any payment or distribution from the principle or income some not be required in the question it is not withstanding i mean we have which makes it very clear that the secretary does not get to decide and does responsibility overland so i think it's consistent to say the tribe can acquire lands for consolidation or enhancement and it gets you know broad deference over what that means in terms of using its interests but there really is there is no distinction between approving or disapproving expenditures and deciding that in the context of taking land and to trust that that land  decide no the board was wrong this does not consolidate or enhance tribal lands that acquisition was own lawful but in a word is bound by that no way forward how would the government though put it imprimatur on something that it thought was unlawful right and how do we expect the department interior to do that you know for instance mr shot you know says it's implicit that you know that they have a valid title right that's not mentioned in f right but so what if they determine that the tribe did not have valid title to land it was a meal be forced to take it into trust no i did not i'd say so no and that is an app if if the tribe does not have valid title there is no way the united states can take title from the tribe and hold it in trust for the tribes benefit that that is inherent in what it means to land into trust for the benefit of the tribe and that is within the language of the statute but there is nothing at all inconsistent with having there's nothing at all strange about having a statute that says the secretary  trust without letting the secretary go back and determine for itself whether the board was correct that taking this land into trust serves  purpose that the board itself set out in the plan that it developed for the use of it settlement money what about this language for from heck or real apache nation right i mean so there the the court says that  fulfilling its statutory duties the government acts not as a private trustee but pursuant to its sovereign interest in the execution of federal law right so here it is also acting in the software and interest in the execution of federal law i mean can't even read out that obligation of the federal debt not at all again i really think this begs the question of whether interior gets to decide whether something is a consolidation or enhancement of tribal lands nothing in the statute requires or even permit interior to decide that question interior would not be doing anything on a lawful by taking this land into trust which the word has decided that it benefits the try by increasing its total lands by hansing its tribal lands for the benefit of its members which right now have no plans to meet their needs in that area spinelli let me ask you i read want to see five very simply we were talking earlier about geographic limitations that's consolidation you can't consolidate lands that are non contiguous so that if this tribe bought lands in the upper peninsula they'd probably be contiguous and be consolidated on the other hand if say by land in the lower peninsula which is not consolidated and not can not consider consolidation they would be enhancing that is increasing the worth to be enhancement means worth very simply and when judge rouse said where is there any authority to economically improve under this statute i think that comes from and ham smith agreed increasing the worth so my question is this which i don't think  goes beyond this case and that is if you're right that interior has no business nd guessing the tribe in the purchase of land that either consolidates or enhances who does have the authority to challenge that would members of the tribe have the authority judge sent tell us talking about buying land in los angeles and so forth i came up with what if they decided they wanted to buy an island in the south pacific what you know would anybody have the authority scuse me the authority to challenge that tribal members i believe could challenge it sort of for one thing there is a provision in the tried constitution which allows try tribal members by referendum to undo any resolution of the war so if that if the tribal members believed b and c are both created by administered by and are for the try span of that so yes the tribal members certainly expansive reading of tribal lands to also eviscerate the limitation that congress clearly intended in the statue add nothing would stop congress from amending the statutes that happen i suppose that's true i think well of course it's true right politically difficult i'm sure but you know no other statute has been read to give a tribe the kind of  sweeping trust land acquisition authority that this tribe is claiming here that the tribes have you that interior can't even and ensure that the most basic requirements in the operating quickly here we think interior has the best reading up both of these provisions clearly it has the authority which the tribe invoked to to ensure that the conditions in the statute have been met before taking them to trust an interior has a reading of the word enhanced that both respects congress's manifest intent to provide a limitation and extends from the ordinary usage of the word enhanced meant