case turns on the same issue that the first major indian country jersey signal case turned on back in eight hundred eighty three when the supreme court decided x party crow dog and the issue is the ability the congressional authority to act in the requirement that congress provide a clear statement before jurisdictional be assumed particularly in indian country as the court said it in one thousand nine hundred three intrusions into tribal sovereignty should not be based on argument inference and a court will only find jurisdiction exists based on a quote clear expression of the attention of congress if you fast forward one hundred thirty five years to cases like dean and honey cut the clear statement rule has only been strengthened nowhere in the a similar crimes act is there any clear indication that congress intended for it to apply the need country in fact if you look at the purpose of the in the context of the symbol of crimes act the stronger evidence is that congress inte consider well settled well settled as ship so williams was united states the issue presented in that case was whether or not the state crime could not be assimilated because a federal statute already defined the crime no party brought up any of the jurisdictional issues and as the court said but it didn't apply to ending country they wouldn't have gotten where they were right well as as the amicus argues that williams did not decide the question of whether the a c is a political will to indian country we disagree why hasn't this court already decided and rejected the argument you've made such that we're bound to that result sure how that tells us we're not bound by a decision of our court because a district court in washington d c opined contrary the stade were you accept the proposition we're bound by the president of our own court yes how is it we're not bound by williams decided but we got a panel that said they view it differently and in that footnote they go on to explain and and elaborate on its conclusion as to why it reaches that result well  i'm not sure they provide much explanation i believe that they may not provide much explanation that satisfies you but you don't have a hard time denying to me that this footnote exists i agree it exist reservations mean that tax laws apply to indian reservations that language is far clearer than the language in section seven of the defining which laws where the ac applies to and yet this court said that that language was not specific been cited by the supreme supreme court that i'm aware of i just i don't think that the and how does that affect this to whether i'm down by it i think it's speaks to the fact that the mainstream for doesn't often cite ninth circuit decisions except when it's getting ready to overrule them so but that it doesn't answer my concern as to whether or not i'm bound by march since i don't think you are because of the intervening already because of the lack of coherent reasoning within it and because gap there was no federal law on fireworks there was no libel law prohibiting the sale of fireworks and so without federal prosecution the defense in that case could have gone around away with a crime with impunity which is what the is intended to prevent in this case mr smith was subject to criminal punishment i have a i have a question on that at that i want to ask it because i am a kiss brave seems to say that that mr smith fact has been punished under the warm springs tribal code for these same offenses and i can't find that in the record so what she's referring to is mr smith was prosecuted for a number of crime compas all of the conduct with in a criminal act which would  that congress be clearly on issues of jurisdiction particularly in indian country i don't think any court has ever addressed this issue explicitly and we are asking that the court do that if the court does do that but i think the evidence is clear that the assembly of crimes act does not apply the indian country there is no clear statement from congress that it does so and congress knows how to write these laws they deal with the major crimes act which they said state law crimes are going to be a political the indian country they did it with public law to eighty in which they said that with the consent of tribes tribes can consent to state law jurisdiction they want to save any time i'd like to say two minutes why  is the reasons it would not apply to the through the indian country crimes act is there a number of reasons for that first brian v a task the county united states supreme court case which interpreted the phrase general laws of civil application said that that was not specific enough to warrant an intrusion in tribal sovereignty and tax matters the phrase general laws of criminal laws is virtually identical to that phrase in the united states supreme court case and it's a bigger sovereign issue when we're talking about stripping somebody of their freedom as opposed to merely taxies taxing them it also makes much of the country redundant if section seven which the government can send contents list the places that the plies to and they contend it applies to indian country then that portion of the indian country crimes act would be redundant things that is important to the government and frankly is important to this circuit is to not create a circuit split where you don't have to and i think in their brief defendant argues that  marsay is the footnote in marsay is dicta and although it was not argued this morning that they did they dwell on that significantly that marse a footnote was not argued there it was actually conceded by the defendant that there was jurisdiction in marsay although am a kiss raised it the court felt necessary to respond and did so in that footnote that we've been discussing this morning but i would note and we do cite to thunderhawk in the eight circuit pino in the tenth circuit and so sir in the seventh circuit all those circuits apply a to indian country as the government has done here the government did so the court correctly found at trial denying defendant's motion to dismiss the plain language of the statutes working together here allow for federal jurisdiction in this case so is there anything in the legislative history of the  expressly indicates congress intended the law to apply to indian country i pay i'm unaware your honor this morning off the top of my head to answer your question but i believe the plain language of the statute that congress uses talks about  the general laws of the united states and certainly the the case law that interprets that applies to the a c a as a general law of the united states through the indian country crimes act to general crimes of the united states within the bounds of the indian country crimes act also bounded by the major crimes act so laws of general uplift ability do apply in indian country unless the  it's an indian against indian crime that is not covered by the major crimes act unless the individual has been punished by the law of the tribe or it is a crime that is expressly preserved to the tribe exactions yes your honor ok so if we i mentioned i asked of appellants counsel that the question about whether smith's offense were already subject to warm springs tribal code and whether he'd been previously punished by the tribal court for similar offenses why the federal government is exercising jurisdiction over these state defined offenses the government the federal government's exercising here because the law allows for it although not in the record your honor and i'm happy to not go into things that are not in the record but i think to do so i are to answer your question squarely i would have to crime that that you're prosecuting him for and what i understood counsel for the appellant to say was well no not exactly but for things that happened on that day but not that crime the tribe did not prosecute him for alluding the police and there were two instances of eluding the police the tribe prosecuted him for dui and reckless and dangerous and the defendant did not preserve or raise below that any of the exceptions to the indian country crimes  applied to him in this instance and and the government's position is that those exceptions wouldn't have applied because he was not prosecuted for attempt the two crimes that he is charged and alice is to get to your position is the way you're saying or whatever marci is it says it does apply and you're arguing that it does so then under i c c a there's no exceptions is what he doesn't qualify under the three exceptions and then you go to what subsection eleven fifty three b of the m c a allows the federal government to assimilate state law definitions for certain crimes that are not defined in federal law is that is that how we get to this or we're not proceeding under eleven fifty three jurisdiction in this in this case your honor we're proceedings upon jurisdiction granted under eleven fifty two as a general law of the united with the assimilated crime  act acting as a general law of the united states the simulative crimes act then operates to incorporate the law of oregon as a federal law so to provide uniform and foresman and protect in of the warm springs community by enforcing that law that the defendant would be subject to had the crime and not occurred on the reservation ok and unless the panel has additional questions for me i'm happy to you i'd like to begin with the argument that there's going to be a circuit split in the government right like gave you two minutes so you should two minutes wisely thank you there's not going to be a circuit split here if you read establishing why the defendants in court they mention that the ac a is one of the general laws the political of any country and generally cite directly to williams which of course never decided that issue so again there are cases in which the jur simply is not presented to the court so i don't think it would create a circuit split because frankly the closest the court has ever com to explicitly addressing the jurisdictional issues raised in this case is mar we've discussed and we've been in the do that in a footnote finally as to the i'd like to say two things briefly about one the general counsel's argument that the phrase general laws said general laws of civil application was not specific enough to warrant an intrusion in tribal sovereignty and finally yes question about eleven fifty three the major crimes act we can see that it has nothing to do in terms of the way the government prosecuted mr smith in this case however as the court in quiver said the explicit enumeration of state law crimes that can be assimilated into any country carries with it ok thank you both for your arguments this matter will stand submitted as indicated the court will take a ten minute recess and then will resume with the next cases on calendar thank you