agreed with it and we brought this appeal the peel really has to basis one is looking at the handbook and the language that's contained the handbook which say that that's an adequate basis the the court asked if you look at the complaint the complaint and you read it there is nothing in it that would suggest that there's anything type of federal jurisdiction so it's very difficult for me to talk at length about something that's not there it's simply not there there is some factual allegations in the complaint it is a casino so there are those type of factual allegations but it's far as  the criteria the issues that are raised in the complaint they're all california law so would you agree that there was no subject manager in the district court i would agree with that i what court saying is you don't even have a right to to decide whether or not there was a waiver of sovereign immunity because there's no federal jurisdiction the first place and you should send it all back to larry county superior act right and i would agree with that  the morning run a robber to elephant responding party if you agree that make it really easy for him to make it really easy there is a federal question presented in the complaint which is the immunity under the foreign sovereign immunity that is the supreme court  thirteen thirty five the exclusive jurisdiction of the district courts to decide questions of immunity under the foreign sovereign immunity sect and in twenty eight u s c fourteen forty one d expressly authorize strange i did not see it as foreign sovereign immunity is because it did not say foreign court in the complaint but if you read the first sentence of paragraph seven of the complaint which i believe is in the record at page and it is paragraph seven of the complaint first sentence the actions complained of here in involved commercial activity that occurred both inside and outside of the clary river indian reservation and he had direct effect in the united states and in california outside of the indian reservation if you go to the foreign sovereign immunity is the act section sixteen zero five one of the provisions is that there is no immunity from jurisdiction for a commercial activity of the foreign sovereign for instance the operative for that act that is correct and that gets to the merits of whether or not the their right and then you go on third sentence however paragraph seven of the complaint clearly alleges four different bases these are right that the acts of the tribe were commercial and had an effect outside of its territory so much that if the court had made that decision which it could have done under the supplemental drew stiction section it could have remained that but it didn't and you did have the right to make the decision as to the remaining claims of immunity under the supplemental jurisdiction statute that  enough i like to address that the fact that the tribe is saying that they are not a foreign sovereign immunity and that they are not a foreign sovereign and that the foreign sovereign has a different opinion he's right as i understand it that there is thinking about being staying in federal court arced trying to stay out of you know federal court so that it wasn't being fled for for the basis of trying to get into federal court  doesn't apply in the descent to foreign sovereign immunity act is raised and discussed there so this court doesn't have it's basically looking at this act and the question comes down now the employee handbook forms evidence of are part of the whole employment relationship contract the case law basically says a waiver has to be clear but the case law doesn't require that they wrote that  saumur immunity here we have a situation where we have a sentence that did not need to be in the handbook it's not a sewer beef stew type clause it's a statement that was put in the handbook by the indian tribe that says after you exhaust remedies you can file a lawsuit and it if you could you can file a lawsuit in california courts then i guess there's no place you could ever file lawsuit in the sen california or whatever area but there is a a court system that was set up where there is still exists i don't know two to provide a forum and that forum was completely rejected by the and we have a second action and then the second action the defendant says we don't want to have we don't want to be in court with you in any jurisdiction when they're not offering to go to an intern or tribal court they're not saying we have a never i don't think it was even questioned sovereign immunity wasn't an issue it was then stand by agreement to this intertribal court and then when it came back they said well we don't like the  litigation starts you're in the middle of arguing about it and say rather than file a lawsuit let's go to binding arbitration let's pick out this arbitrator let's pick out jams let's pick out american arbitration where we want to pick out this inner tribal court came out of they they they said we don't think we decide that the intertribal court did not have jurisdiction but we like we don't agree with their reasoning and what we agree with their court in justice bergeron's opinion just two years ago in crystal energy found that indian nations are domestic sovereigns for purposes of the bankruptcy code i don't think the supreme court in the  if you look even the kiowa decision which is the supreme court where the foreign sovereign immunity zakk was raised but not decided the dissent in that case recognized that the distinction that they were finding between the indian tribes and the result under the foreign sovereign immunity zach was discrepant but that it wasn't their decision or their job to render them consistent that it was up to congress to change the law and that's our position that the foreign sovereign immunity simply has no applicability to this case the fact that commercial activities of a foreign sovereign are not immune does not change the result in kiawah and c n n will specifically held that indian commercial activities i'm not sure you are because i was not involved in that and it never really got into the record below that was simply one of the allegations that was made i would note though that even if there was not another court this court has already decided in the de'monte  that the absence of a remedy in a federal court does not in any court does not give rise to a waiver of sovereign immunity but that's not the question a question is whether this particular language w and does not give that right to anybody else so you have a somewhat of a discrepancy you have a reference to litigation but you also have an explicit statement in the handbook that the tribe reserves to itself the absent an express waiver of immunity by congress i know there are in terms of housing cases i know that specially in the eighth circuit there are a number of cases which say that the housing discrimination sections do not decisions and every employee handbook that you ever will see in this court will have something to say that their act will that the employer doesn't have to follow the book that they can do step discipline or not to step discipline they always have to talk to language i don't know the answer to that and i'd also have to look at whether the something like the indian civil rights act would pick up some of this and answer the question and in a different way ok i just don't know i'm not sure