the first is that mandatory exhaustion of remedies principles articulated in martina's case in the same issue indian nation necessary legal element precedent we believe both established at the san carlos claim crew two thousand and six and therefore its recent filing was indeed timely the tribes loss of that's water rights that underpins its claim was not permanently objective way or knowingly fixed until two thousand and six the fixing a vent was the necessary legal determination that the global equity decree to which san carlos was not a party was binding on the tribe and the previously unfixed on result scope of that same decree was  the tribe the court also then fixed some of these unresolved scope issues for example the first time that the decree was alleged to be binding on san carlos was in the two thousand and one motion before private the fende and in the state's heel river adjudication and that was what was ultimately resolved by the arizona supreme court until the two thousand and one motion by those private parties there had been no legal allegation that the tribe was in fact that owned by the decree of course the tribes position that was shared by the united states always through the arizona supreme court litigation was that because the tribe was not a party to the decree because there was evidence of an adequate representation by the united states that the decree was presumptively non binding on san carlos and therefore it was free to pursue its full in title meant of winters an aboriginal water claims to be healing river and only when those rights were cut off by the two thousand and six ruling had the tribe in fact lost its water rights for which it now seeks a compensation what is your understanding of the reason for the government's change in position your honor we do not know it all we know is that the united states filed over one hundred thousand acre feet of water claims on the human river in the state education on behalf of san carlos in one thousand nine hundred five in the us was owned filings it said that essentially the global equity decree was not limiting on the tribe and did not bar the tribe or the united states from the tribes they have from securing for a full complement of winters reserved words in aboriginal water rights hundred thirty five and really left the tribe now of course for rift of water because of the two thousand and six to terminations by the arizona supreme court we think that there's an important exhaustion of remedies aspect to this that needs to play in the mind the the tribe of course filed its full complement of rights claims in one thousand nine hundred ninety u s district court the state of arizona immediately moved to have the  what similarly important is just a few years later the neighboring white mountain apache tribe which did not want to go to state court and resisted the united states representing it on its behalf filed a series of unit mismanagement claims regarding water rights in us court that went to the ninth circuit night circuit told the neighboring white not dried any of these collateral or ancillary water rights mismanagement claims are untimely you need to go back you need to participate in the state's adjudication on until the results of that adjudication are complete and we know whether or not your water rights have been mismanaged you have no right to bring any of these ancillary claims they are premature obviously san carlos took cognizance of that and diligently pursued it swept water rights if you will for all these years in the arizona adjudication only losing its rights permanently in definitively an objective leak in two thousand and up the i think that the u s flip flop if you will about the binding effect of the decree in the scope of the decree also spotlights the underlying unnecessary legal issues that make this a samaj indian nation case and not necessarily a case you know the fundamental issue here of the really two of them number one was the decree in fact binding on the tribe not withstanding the fact that it was not a party and the decree itself constitutes in our mind prime facie evidence of an adequate representation and then of course the second question was what was the full scope of that decree it used only the terms irrigation water rights it never mentioned winters never mentioned aboriginal rights never use the term federal reserve water rights in the tribes mind under the indian canon of construction that meant pretty clearly that that decreed did not reach those standard federal indian water rights in until those two issues were resolved its water rights weren't lost in any form of compensation claim for lost rights would have been completely untimely and of course it pursued those rights the decision came down adverse to it in two thousand and six and shortly thereafter the tribe filed its claim in the court blow for the now lost water rights in that sense we believe that this case is clearly governed by the samaj precedent because they're the sandwich tribe spent nearly thirty years in court seeking to get a determination made on whether or not to be i e had wrongly denied it recognition and therefore wrongly denied it access to be on a benefits of thirty years had almost thirty years had passed before that necessary legal element did b i a cop can make an error in failing to recognise the tribe only when that issue was resolved in a court of law was the the dischord hold that the sandwich claim accrued i think that that same type of thirty year window we point that out just because i think a lot of people have it in their mind which the question what why things took so long to work out and obviously took a long time to work out there it took a long time to work out here as determination which doesn't necessarily require that the queen was clear your honor we would submit the decree was not clear and that there were two separate legal issues in clear there was on the supreme court well not really it made two separate findings it said that it was going to find the decree binding on san carlos as a matter of comedy we would notice we pointed out in our brief a main stand we disagreed with that finding at the time and would note that the court looked through the actual language in the decree and it found that the decree did in fact reach winters in aboriginal rights not based on the language within the four corners of the decree but based on language in the us complaint filed in about one thousand twenty five in addition to that there were under assault scope issues up the four private parties of course a two thousand and one with the first to allege that the decree was in fact binding on the tribe but many of those same parties also allege that the decree reached the tributaries to the hill river that were on the reservation and the arizona supreme court decision not only resolve the binding issue but it also had to look at the scope issues and resolve to scope issues one against the tribe saying it did reach your winters writes on the main stem of the eula but it ruled for the tribe saying that no the globe equity decree did not reach the tributaries as alleged by other parks and so i think that there was enough fundamental ambiguities built into the global equity decree along with the presumptive non binding effect that's  say is that did other parties to the human river to the global equity decree and remember to remind the court that the tribe was never a party to the decree as represented by the united states other parties vociferously argued that that language  tributaries and that issue was finally resolved by the supreme court we only point that out just to demonstrate that the decree was beset by a whole set of fundamental uncertainties both but one of the uncertainties it doesn't seem to s is whether or not it resolves all of the water rights for the buell river for the people who are affected by this decree that's the one thing it doesn't seem at all well that's certain that was on the scopes side which was one of the issues that was of course finally resolve by the arizona court but if you are such a court concluded that the language was quite if look at region ila yet you light up all of that it's hard for me to understand your argument that you could bring the claim or you would have known you had to bring the claim back in hundred thirty five but the united states joined us in the one nine hundred eighty five in its claims to the humane stem on behalf of the tribe argued that the human language did not reach the main stem of the river and did not foreclose the united states from claiming over seventy thousand acre feet of water to the main stem under the winter's right on behalf of the san carlos tribe so the party that negotiated the decree on the tribes behalf believe that it did not reach those water rights and did not for was for both winters writes irrigation land and aboriginal rights which is general use on the reservation for tribal homeland in the united states contended that the global equity decree that it negotiated did not foreclose either the united states or the must at the threshold agree with all of the things that have happened since that the tribe was in adequately represented at the time of the globe settlement no your honor the that issue was on resolved until two thousand and six and only in two thousand and six was the decree made binding on the tribe and therefore its water rights laws actually definitively fixed until then this was an unresolved issue and as i indicated any action by the tribes seeking compensation for threshold question you have the the necessary legal element that remained unresolved as did the decree bind the tribe in a secondary capacity what was the scope of that decree and until those two legal elements were fixed in two thousand and six any the first is that the complaint in this case demonstrates that the tribes claims are predicated on the terms of the school act which the global equity to agree to create and that those terms were in place and in effect as  thirty five but what about their claim that in one thousand eighty five the government who negotiated the decree on behalf of the if americans didn't itself believe that the decree would prevent them from getting these additional water rights i  apologize in advance i feel uncomfortable articulating the government's thought process and its position in that litigation but my threshold answer to your question is number one what the government thought or did in one nine hundred eighty five thirty fifty years and now has taken a different position and so this claim ripened six to seven years ago is something that i think we cannot ignore i don't believe there is any document where the government said that the tribes current claim didn't right been in one nine hundred thirty five what the government stated i believe in the one nine hundred eighty five litigation was that to the extent the tribe believe that they are they were entitled to additional rights other than what we're able to do so do so in the ongoing state court proceeding but the government i don't believe ever stated that the decree did not address their aboriginal and federals or water rights and the government never said it inadequately represented the tribe what they simply said is to the extent there are are issues in the tribes mine they may litigate those that's all that was stated but what we need to first focus at is can by looking at the four the the too crazy will to to back up the united states when it brought the globe equity litigation made it clear that was representing itself other parties and the san carlos apache tribe and the decree itself indicates that the united states was representing the tribe i'm not really certain that i understand how it is and the tribe wasn't bound by that to crete and to the extent the tribe felt that it wasn't or that the united states should not have been representing it in  thirty five that cause of action to accrued in one nine hundred thirty five the time for the tribe to challenge the united states representation in the global equity litigation was indeed in one nine hundred thirty five but i asked the court to look closely at the tribes complaint here and if for example the court were to look at page a two of the read brief which is the appendix and it's the tribes complaint at paragraph two of the complaint and states united states under the decree for other parties to the degree similarly for the court looks at page eleven of the appendix at paragraph twenty eight the complaint indicates the tried to satisfaction because under article example it indicates that the tribes current complaint is turning to the terms of the decree itself and saying the government's representation was inadequate it's also indicating that the decree itself indicates that the tribes only get six thousand water indeed if the court examines the decree there is no provision in there that indicates that in addition to the six thousand apra feet of water that are expressly referred to a decree the tribe gets an additional it gets additional water right in the form of either aboriginal rights or federal reserve water rights or you are to me so if the government changed its position in one thousand need no no no the government didn't change its position the got the government the government didn't take any particular position in extremis litigation with respect to the nine hundred thirty five degree at the time of the decree what the government's position if you will was in one thousand thirty five was is what were the terms of the decree itself and the tribe looking at the to the decree of the tribe or anyone else looking at it and that isn't the question i asked the government's position in the nineteen eighties diverge now from an initial position eighty five litigation as i said the government simply said in eighty five and thereafter that if the tribe wanted to pursue aboriginal and federal reserve water rights that it most certainly could attempt to do so in the state court proceedings that simply and that can put to rest what the government's position was in one nine hundred eighty five but clearly your honour's must understand we can't get to nine hundred eighty five until we first address what was present in one nine hundred thirty five and looking at the complaint it's clear that the complaint is based on honor yes it's my position that the the court can ignore everything after night scene forty one which is when this cause of action then the statute of limitations expired on this cause of action and that's that i'm sorry i'm not following your line of questioning trying to understand these various changes of position i'm trying to understand retrospectively if during these various intervening stages as the tribe perhaps moving to the tried to establish or recover rights that they thought that they should have had and they are moved from court to court the litigation proceeds from court to court and they say and it does look as if everything was finally resolved in the arizona state court but you're telling us now it was finally resolved fifty years earlier as to the water rights of the tribe in the healer mainstream yes the matter was resolved in one thousand nine hundred thirty five and as that's what the decree states a judge moore indicated if one looks at the language of the decree it quite clear that the decree attempted to assist was intended to settle all of the claims and rights of the parties involved and if the tribe were to look at that language they would realise that if they felt the decree should have included language that expressly addressed aboriginal infill reserved water rights the time for them to complain about that was in one nine hundred thirty five but the going back to the point as i was about to make the corner ped claims raised a very important point in reaching its decision here the tribes are taking issue with the government's role in litigation in one thousand nine hundred thirty five the tribe does not have a problem there is no fact that  es that the tribe is challenging the government's action in any litigation subsequent to one thousand thirty five it's the allegations of an adequate representation and breach breach of trust are based on the government's actions in the  whether they knew or should have known they had inadequate representation right that's the question that really why did they knew or should have known that the government's representation of them was inadequate i'll offer you an example and you answer my question yes  and i was going to offer you an example from the it is the question before us when they knew or should have known they had inadequate representation in one nine hundred thirty five based on the language of decrees and i didn't you can't answer the question but i'm sure if the question before  are did they know or should have known that they had inadequate representation if they knew or should have known in one nine hundred thirty five then we affirm if they shouldn't have known in one nine hundred thirty five but yet shouldn't have known until the arizona decision was made then the cause of action would accrue till then right because the heart of the legal issue we have to decide the legal issue here is when did they know or should have known such that the claim would occur they knew or should have known in one nine hundred thirty  understand that's your argument but that's that's what we have to decide right isn't the issue before this court for us to decide when the us either knew or should have yes they had it out of the representation yes ok so if that is their issue when they knew or should have known yes if i were to look at the and if i were contrary to the arizona supreme court to conclude that i don't think the decree is clear at all suppose the degrading fact used irrigation water throughout it supposed the degree throughout its entire preface every time it's in water talked about and under those circumstances there would be no reason for them to know or should have known back in one nine hundred thirty five if the degree on its face  believe i believe if i followed your hypothetical that would be the case in this case however to the extent one can say that the decree is ambiguous for example it may be because it's subject to for example two interpretations one being the fact that there is not a provision that says in addition to the six thousand acre for you know water the tribe gets in additional gets additional water rights in the form of aboriginal rights are federal so i guess here's my problem you point to language in the complaint which i think it's very fair by you to do that points to their dissatisfaction with the six thousand feet and i think that was plain as day in the one nine hundred thirty five to curry so i'm very sympathetic to your argument it seems hard for me to accept that they didn't have to argue about six thousand feet of water you know back in one nine hundred thirty five but to the extent that there are between but wait a minute the document itself was ambiguous and while we may have only been entitle to six thousand square feet for irrigation uses i know they dispute that but they should have got more in there if you know the question is the document told them what they were getting so it's hard for them to argue today about that but what about the non irrigation and winter's aboriginal water rights to the extent that there is  y over those why don't they get the benefit of waiting until arizona resolves that no you don't have coverage or or the document doesn't affect coverage because simply because the document or an instrument is ambiguous doesn't necessarily mean that one can sit on their rights and just wait until something else occurs in the future to determine if they can bring the cause of action if the decree could be read as not providing aboriginal rights of federal reserve water rights to the tribe it was incumbent upon them to bring a cause a bring a lawsuit at an alleged sadly what they're alleging here what a but what about their argument that they actually didn't think it was ambiguous they never they didn't argue was ambiguous and they did at some point probably but their initial argument was this decree doesn't cover non irrigation uses of water so their argument wasn't there's ambiguity and that's why we should bring our ineffective assistance of counsel argument my understanding is there an initial arguments in arizona were that this decree only applies to irrigation waters and that right there their claim in the arizona litigation was that that what they saw to a stablished aboriginal and federal reserve water rights and under the theory i suppose that they felt that the decree their lawsuit now they're saying in fact that exists now there's only a legal determination by judge and as your honor pointed out it's a judge who found that the the decree was anna and it was not ambiguous as to the fact that it settled all of the parties claims or rights to water in the healer it isn't at the heart of what we have to decide because the issue here is when should they have known that the government's affect assistance that was provided to them was in effect i mean you're not arguing the government's assistance in fact adequate you're not taking that argument on appeal you're arguing their time so the question is we assume for purposes of these facts of the government's assistance was ineffective and then the question is at what time should they have known  such that they could assert it and so isn't the heart of the question is whether i don't have to look at this decree and and independently make the same decision the arizona judge did i have to look at this decree and say should they have known in one nine hundred thirty five when this was signed that the government was in effect that's part of the analysis and the court can look to the complaint to determine the complaint will assist the court and in looking to those elements of the decree that the complaint based on the complaint the complaint refers back to the decree time and time again even for the aboriginal rights and the federal reserve wrote a writes and i draw the court's attention to page a fifteen of the read brief and it starts a paragraph from the complaint all of it goes back to the decree what the government did or did not thousand thirty five as i said all of the facts on which this case is predicated existed in one thousand thirty five there are no set of facts that have changed or have come to light since one thousand thirty five that this lawsuit is based on approximately twelve thousand one hundred thirty three acres of land along the healer river that is the winter standard of measurement until the federal court with jurisdiction over the decree finally determines the scope of the decree and the r that decree the united states considers this claim to be an appropriate part of the tribes reserved water rights claim that was there one thousand nine hundred five filing in the arizona due to cation where is the you said you provided that to us but  according from page seventeen of our opening brief and it's also found at the pending thirty eight ah in addition when the case was being litigated before the arizona supreme court united states stated as we explained under control in precedent of the ninth circuit the inadequate representation exception to raised judicata as set out in section forty two one of the restatement second of judgment is available to the apaches for citing the truckee carson irrigation litigation apaches clearly raise this exception in the proceedings below and the superior court clearly failed to address it either on the law or the facts of the united states basically agrees that number one the decree was  judicata effect and the binding nature of the decree had not yet been resolved and that the tribe as a matter of due process under federal president was entitled to a trial on the merits to resolve this fundamental necessary issue about whether or not it was limited by the decree i think second counsel tonight of states makes lots about what's in the complaint we presented the issues the evidence and the information in the complaint because it constitutes crime of facie evidence of an adequate representation which under the second restatement and nevada versus us and recently enunciated by taylor versus sturge will clearly demonstrates that the global equity decree was presumptively non binding on the tripe that's what that information is presented for to demonstrate that under the objective standard it was reasonable for the tribe to conclude that it was not bound by this decree because of the inadequate representation presented by the united states and therefore it was able to pursue its full complement of water rights which it did in tandem with the u s until two thousand and six i think that the other aspect is that what is the knowledge  mean the knowledge goes to that it's not only the knowledge but it's the consequences the tribe began to appreciate how badly it was represented in the one nine hundred thirty five to treat to which it was not a part the consequences of that lack of representation were its conclusion objective leigh and reasonably that it was not bound and therefore could pursue this full entitlement of water rights above and beyond the six thousand acre feet and it pursued that full complement of rights in good  per the us supreme court and per the ninth circuit in the state education until those water rights were cut off in two thousand and six only after its rights to pursue a full compliment of what water was gone did it come to the federal court of claims seeking monetary compensation we would submit that if we had come into court any time between one nine hundred thirty five and two thousand and six the united states would have stood here and argued that the claims are premature just like white mountain you have to go back into the state education and play it out and until it's resolved in the status of your water rights is definitively fixed it's premature to consider compensation claims because we don't know what your water rights are and that's all that's transpired in this case the tribe in good faith standing arm in arm with the united states until the present litigation pursued in good faith it's what water rights pursued it in the forum in the forest to which it was directed by the us supreme court and only after the guillotine came down on its full complement of winters and aboriginal rights that it come to the federal court of claims seeking compensation for those lost rights