May I please the Court? The district court made four fundamental errors in this case. First of all, it took a statute, Section 479, that's clear and unambiguous and found it to be ambiguous. Second of all, in adopting its interpretation of the statute, it adopted an interpretation that is in direct conflict with the very regulations that the Secretary has promulgated to implement the statute. Third, the district court's decision is not supported by evidence in the record. And finally, the district court erred in finding that the United States government's immunity borrowed my clients' claims. So what I'd like to do is address each of those errors. Can you just to give an overview, though, can assuming you win and you are correct and we would say that the government should have proceeded, what at the end of the process do your clients wind up as? Well, they effectively recognize crime? Yes. Okay, and then therefore they would achieve the status of a government. A tribal government? And they would be treated as the larger occupants who have already been said really recognized of that reservation? No. This is a statute that was passed by Congress in 1934 to allow two types of groups to organize tribal governments. On a reservation. Even if it's the same reservation. You can have multiple tribes on one reservation. In this United States there's 483 or 486 federally recognized Indian tribes and on many of those reservations you have more than one tribe occupying the reservation. But the one that... By the way, this particular provision is written. It doesn't seem to be written that way. So, but I understand that so that leaves me to try and understand what actually happened here. I mean, I gathered that there is another tribe, but that they're not on the reservation. Is that right? Well, there are... And this was faster evidence that was not before the District Court, unfortunately. We tried to put it in the sentence afterwards. But from what you tried to put in, I understand is that although he was speculating that you could have two people in a tribe on a reservation, what you're prepared to show is that basically this is the main group that's on this reservation. This reservation was terminated illegally by the United States government. And when the reservation was terminated, a lot of the reservation lands fell into non-Indian ownership because of course tax sales and for a number of reasons. So when it was restored or unterminated in the Tilly Hardware case, there was very few Indians left residing on the reservation. It just so happens that the vast majority of those Indians happen to be my clients. The full list.
.. So the tribe that was federally recognized that was originally connected to this reservation is not living on the reservation? I mean, that's what you would submit to the District Court. Well, a tribe is a collection of its members and very few of the Pinot Levelle Pomo Nation's members reside on this reservation. Yes, that is correct. The statute allows two types of groups to organize. One is recognize tribe now in the Federal jurisdiction, which my clients are not. And the Indians residing on a reservation, which is the issue at this case. The statute is clear and ambiguous. In fact, the United States Supreme Court, in the Cartheteria case, specifically stated and I quote, we find that Section 479 is clear and unambiguous. It leaves no room for even a second time in the history of the statute. When the regional director said, you know, I can't do it except for a federally recognized crime. Did he... I'm tribe. Did he mean I can't do it? I either regional director can't do it. You have to go to the secretary or did he mean it can't be done? Well, you'd have to ask Dale Ristin. I understand. But by understanding, by understanding, I'm wondering whether the problem isn't that you just did this wrong. No. My understanding was he was saying the statute imposes a duty on the Secretary to call the election. So, suppose you were suggesting that... In an application to the Secretary. We shouldn't do it. Well, the Secretary is back in Washington, D.C., so he delegates certain responsibilities to the statute. That's right. And my understanding is that what he was saying was they didn't delegate this one. Not so much that you have to be a federally recognized tribe to get an election, but this wasn't delegated to me
. He said two things. Mr. Ristlin said, I haven't been delegated the authority to call this type of election, and I've only been delegated the authority to call an election for federally recognized. Right. So, if you had simply filed a formal request with the Secretary or with the head of the BIA instead of with him, would we not be here? No, because under the statute, you submit your petition to the superintendent of the agency that has jurisdiction over that reservation, which in this case was the Central California Agency. My client said it, but the point is that it's in Sacramento. No, where is this provision that says that this particular request is supposed to be made to the regional director rather than someplace else in the hierarchy? It's in the regulations that were promulgated by the Secretary to implement Section 476 of the statute. Okay. What's going on here is there's a confusion in my mind, and I think all of it. I'd suspect all of it. Was it a question of who you had to apply to, or was it a question of you're not having the status of a tribe so that you could process because the language of the 476 is that you apply as a tribe. And you say, well, you're not a tribe. And you're saying we have enough status in order to initiate a process. We have organized a proposal because the petition that is being filed and the election that is being called for is to ratify a Constitution which you have all developed. So presumably you are a qualified group of other persons of one half of the, or more Indian blood. And you have created a Constitution and you have applied to the regional director or whoever. And you want them to validate your Constitution and then hold in a light that is hold in elections for the group that has set themselves up as a potential federal recognized tribe. Is that what's going on? Or you have to be a tribe in some form, some definition before you can even initiate the process. You got it, Your Honor. First of all, you don't have to be a tribe. That's the, that the statute was designed for Indians of the half blood that reside on a raise of interest. You have to be a tribe. You even bring the case that you brought here. If you've got a tribe, you're out of court. So you have to look. No, when I, if you're a, there's what are called historic Indian tribes that were, that were groups of individuals that the United States government carried on government to government relationships with. No. My clients, yeah, Navajo, you know, callville. My clients aren't a recognized tribe that was under jurisdiction in the United States government 1934. The statute was designed to allow a separate entity. That is the half blood Indians that resided on a reservation. But it calls for the tribe
. I mean, they're called for the tribe. Yes. So if they, if, if you're a Indians of the half blood, you reside on a reservation set aside for you and you submit a petition signed by 60 percent of the half blood Indians residing on that reservation, you're an Indian tribe within the meaning of the statute eligible for an election under 476. And then if you get the election, you could presumably apply for federal recognition at that point. No, you become a, the government, the, the, the, the secretary of the interior calls that election if the constitution is adopted. The, the secretary is required to approve that constitution unless the secretary finds the constitution violates federal law. And with the approval of that constitution, the United States starts maintaining a government to government relationship with that entity. They were recognized try. Now, who validates your status? When, when does your status as a tribe get validated? That's what bothered the district judge, you know, a group of people get together and they decide they want to be a tribe. And they submit the evidence that they are more than one half Indian blood. And therefore, when you applied to them, you were already, quote, a tribe. Well, the, the, the secretary, my reading of the statute is the secretary has to do two things. The first thing the secretary has to, has to do is to see if we're eligible for the election. Yeah. And the secretary's got 180 days under the statute to do that. And that's, first of all, what the secretary didn't do. This isn't rocket science. Since 1934, the Department of Interior has called hundreds of these elections, including elections to organize half-blood Indian communities. The petition comes in. All of the information necessary to determine whether my clients are eligible for the election are in the record. So the petition comes in. It's got the names of the individuals. It's got their addresses. They state what reservation they're from. The secretary goes through and takes those names of those individuals. And he looks at what are called certificates of Indian blood. To determine whether or not they have the one half blood quantum requirement. The next thing the secretary should do is he looks at the address that's on the petition. To determine whether that address is a residency on the reservation. And then third, what he does is he looks to see whether or not these Indians are actually from that reservation. And in this case, because this tribe had been terminated, the United States government prepared a distribution plan to determine the time of termination. Who's an Indian from that reservation that gets a piece of the property from the reservation? So he had a distribution plan
. He had a list of what are called distributes and dependent members. And all he needed to do was go to the distribution plan to see if the names on the petition were the names that were listed in the distribution plan or their manial descendants. The statute requires him within that 180 days to provide technical assistance to my clients, even if they don't request it. And what are the main eligible for the election? Well, you say this isn't rocket science has been done frequently. I mean, I gather that what's been done frequently is to hold elections for recognized tribes, but has it been done frequently? No, that's incorrect. I'll give you an example. I didn't finish my sentence. Okay, I'm sorry. I apologize. What I was going to ask is has it been done frequently or are you at ever at the regional director level to hold an election under these circumstances? I'm so glad you asked. Good. This very regional director, not that long ago, held in an election for the Hamul Indian village. In 1978, the Secretary took a piece of property by accident, but took a piece of property into trust for individual Indians, okay? 40 individual Indians in San Diego, California. Those 40 individuals were put together a petition to organize as a half-blood Indian community, as a secretary. And in that case, the secretary did his job and went through, took a petition, determined how many of those Indians actually possessed one half, Indian blood, and called an election, conducted the election, after the election was completed, and it was approved by the secretary. He added their name to the list of federally recognized Indian tribes, and it's in the record. We put information we cited to the cases. Is not a rather back to the way of getting federal recognition. I mean, the typical way you have a petition for federal recognition, that's an alternate way of doing it. True? True. All right. And what seemed to bother the regional director here is that you hadn't followed that optional provision. No. That wasn't. We've bothered the regional directors. He went to his delegation of authority from the secretary of the interior, and it says, you're here by delegated the authority to call elections for federally recognized Indian tribes. Well, nobody says this. Please be advised in order for the bureau to initiate federal action, blah, blah, blah. A tribe must be listed in the federal register as a federally recognized tribe. That's what he said. Well, that's what he said. The second there's two letters, he denied the request twice
. The first time he says, I don't have the delegated authority, the second time he says, you're not a federally recognized Indian tribe. Right. But as the first one, which is where I started my questions, okay, you seem to be saying, yes, for some reason it was written that way, so it didn't seem to be delegated to him. So therefore it would seem that the sensible thing to have done would have been to just apply directly to the secretary for election. Well, I guess what I'm wondering is, why don't we just do that now? Because the, we followed the regulations. The regulations say that you submit your request to the- But apparently not a parent, the it wasn't delegated to him. And I know, in a statute, it imposes the duty on the secretary of the interior. Okay, so why did you just file a petition with the secretary of the interior? Well, why don't we stay the proceeding- We don't let you do that. Well, we actually contact the assistant secretary of the interior. But not formally. So suppose we simply stayed this thing now and said, go file a petition with the secretary. Well, works transferred under the dark and a primary jurisdiction. We set up a meeting with the superintendent of the agency and with the regional director. We met with them. The regional director acknowledged receipt of our petition that they were the appropriate persons that we should be submitting the petition to. They also acknowledged that the submission of the petition started the 180 days running for their time to call the election. They also specifically told us that don't worry all of the information necessary to call this election. We have in our records because we recently called an IRA election on this reservation. So we got the certificates of Indian blood. We know who's residing on the reservation. We'll go through and verify, you know, whether or not you're listening to the file petition on this reservation. They had conducted an IRA election on that reservation recently right before we submitted our petition. Of different Indians? No, the Indians from the Ponoleville Pomo Nation. Who don't live there? Most of whom don't reside on the reservation, yes. Okay. So can I just, Thomas, ask you a question and I had the same one. But I don't understand the distinction. There are two processes to get federally recognized the one you pursued. And then the 25 CFR, the Section 83 Federal Recognition process. Are those two different ways to address this? Yes. Okay. What's the difference between the two? Well, Congress made clear in the List Act, which was another amendment to the Indian Reorganization Act, is that there's actually three ways that Indian tribes can get recognized in these United States
. One is through the Federal acknowledgement process. The second is through Federal statute, which is the way we're pursuing the Federal statute, in this case, being the Indian Reorganization Act. And the third way is by court decision. I personally have- I think you're missing Act of Congress before. Well, that's it. But on the third one, court decision is- Court decision is pretty deferential to the executive branch on Federal recognition for a whole lot of reasons. I've brought the tele-hardwood case that unsurmanated and got a Federal recognition to 18 Indian tribes within the state, so it can be done. And Congress has specifically acknowledged that process through the List Act. You're too over your time. I'm sure I'll have some questions for you. I'm Rib<|de|> I hope you can straighten this out or educate me. My name is Tech News Committee. I used to oversee the ENRD and I had the Indian affairs under my jurisdiction. And I never confronted anything as complicated as this. This is a pretty unique situation. And I think- One point of view, I'll state your name for the record. Sure. My name is Tech Lance Nyong and I represent the United States. Your honors are asking all of the right questions here. And the problem initially is that there's not a lot of information in this administrative record for the court to actually look at these things. It would help to- I believe to give the court a little bit of background first before I talk about the waivers of cyberdemunity, both on the history of these folks and on the difference between the Part 83 recognition process and the Part 81 regulations. Let me just ask one preliminary question. Is it the government's position that they have to be recognized, tried to get an election? It is the government's position that the agency needs to make a determination that the group is eligible to organize as a tribe before they can take advantage of Section 476 under the IRA. So that amounts to either finding that they're eligible to organize under- a finding that they're a tribe under 479 or previous placement on the list of recognized tribes or recognition through Part 8. But in so far as the regional director was saying that they had to be a recognized tribe before they get an election, he was wrong. If that's what he was saying, as opposed to it's not delegated to me. That is correct. And the agency never got a chance through the IVAA to really address that issue or the scope of the regional director's authority because the petitioners never who are different from the plaintiffs, the petitioners never appeal the regional director's decision. Okay, now let me talk you there. Do you agree with the plaintiffs that if they are allowed to organize, then that is automatic. Federal recognition. The net effect of the organization process is that these, that these plaintiffs would become a tribe that is federally recognized, both eligible for the benefits under the IRA, which are not limited to organizing, the government can take land into trust on behalf of the tribe and other things
. And so what should they have done? What, what could they do now, more practically? More practically, it looks like they're, and I spent a lot of time with the agency, of course, the agency didn't get to issue a final decision about what the plaintiffs should have done, but it looks like the plaintiffs could have pursued two options. One would be to go actually through this Part 81 process, petitioning for an election, and then they're, and providing all the information that the regional director asked for, which they didn't provide. And then once the regional director issued a decision, or the regional director wasn't sure if he could issue a decision or not, or if he had afforded up to a higher authority, but presumably the regional director would have issued a decision, and then these folks could have appealed that decision to the IVIA, which can take, which, the scope of the review of the IVA is not limited to the exact issue that the regional director decided. So for example, if the regional director decided that he didn't have the authority, the IVIA could, under the regulations governing the IVA appeal process, look at other issues to correct and manifest injustice. So the IVA could look at the issue of whether these folks were eligible to organize under the IRA in the first place. The IVA is also authorized to refer the question to the Assistant Secretary for a determination. So the IVA could have done that. And the Assistant Secretary's also- But the statute was amended in recognition of the fact that there are long delays in this process and essentially gave them a right of action if nothing happened in 180 days. The position that your, the suggestion of a process that yours indicating could take many years, is that right? Well, the waiver of sovereign immunity in 476D2 is only triggered upon the request from an eligible tribe. It is not triggered at the 180-day time limit. But that, that's that. I mean, we have many situations in which the jurisdiction of provision depends on deciding a piece of the narrative. So that's really what we have here. If they, I mean, does not simply lead to the conclusion that we then decide whether an eligible tribe? Well, the, the, the first issue is that we, the United States believes that their claim isn't really to enforce their, require the Secretary to call an election that claim is really seeking the Court to establish their eligibility to organize under the IRA. But to the extent- And which we do not think the Court should make in the first instance. That's not, that's typically a decision that's made by agencies and then it's reviewable by courts under the APA, which is illustrated by the fact that their complaint only brought an APA claim. This IRA waiver, Sabred Immunity, immunity only came in on the briefing as a way of them explaining that they didn't exhaust their administrative remedies under the, under the APA and the district Court construed the, I don't know the question. Okay, because, can I? Sure. Let's get the process clear. You said one thing they should have done, response to Judge Rizant's question was what should they have done was go under CFR81.1, right? That's one process. Okay. And there is another process. Okay, and so the other process is- Would be to follow the suggestion of the Regional Director and petition the Assistant Secretary directly for federal acknowledgement under the half-blood provision of Section 479 of the IRA. So presumably if this group is- They are not going to be reported to do. They did not- I don't think they reported to do that. No, I think they took this other route and I can understand why I think that you- Let me ask the question. Let's assume that they have petitioned for federal recognition for getting the organization. That petition would go to the Secretary or the Secretary's delegate. Right. And then the Secretary would make a decision, true? That is correct. And I understand the government's position in other cases
. The Secretary does not- The government does not believe that we have jurisdiction to review that decision, etc. The government does believe that the Court has- Can review an agency's decision on recognition? I mean, and there's lots of cases, for example, the Seven Circuits case in Miami Nation that talks about when the agency issues a decision on recognition, it is judicially reviewable. The government does believe that there is an appropriate time for judicial review, but it's not appropriate for this Court in the first instance to make a recognition- In effect, a recognition determination. It would be- Well, the arguments made to me in another case involved, I federally recognize, right, a group of individuals who wanted to be federally recognized as a track, that the courts have no business reviewing government to government decisions by the executive branch, which essentially federal recognition was. That was the argument to me. There is an argument which has to do with- That has to do with whether it's a political question or not. Yes, that's exactly right. And our position here is that if this group went through the process, that would be a reviewable decision under the APA, because it would either go under the Part 81 process or under the Part under this petition for an election process, or it would go straight to the Assistant Secretary for Indian Affairs. But so long as there are regular reasons- I might be recognized without having the election, without having a Constitution, so to speak. I mean, isn't that a prior step to being aware- There has to be a government body, so part of the process- That's what they're trying to get. So isn't that prior to any application for recognition? Well, what happens under the organization process set forth in the IRA is that you would have a group of- I understand, but if they went directly to the Secretary for Recognition, went to recognition so you don't have any governmental entity, you're not up-drive, I know I recognize you. Well, they wouldn't go to the Assistant Secretary for Recognition. They would go to the Assistant Secretary for Petition for a finding of eligibility to organize under the IRA. But that's a different- I thought that's a different process. So it was like not the Federal Recognition process in the kind of utilization process. Oh, if they went to the- if they went- well, the Federal Recognition process under Part 83 is another- Right, but what I'm saying is my understanding of- Is that this is logically prior? If the- if the group went to the Part 83 process, through the Part 83 process, they would have to assert that there was- again, I'm not- We got the heavy governmental organization in the- Right. And that's why you have this other provision. And that's what it really is you haven't. No, there's not- because the- the Part 81- Tribes can organize outside of the IRA. A tribe doesn't have to organize under the IRA before it can have a- a governing body that the United States can decide to have relations with. So this- the Part 81 organization process is not a prerequisite to having a- a government- to government relationships with the United States. It's a- and- No, they could- they could just have their own election, my constitution, and then go to the Secretary and say we wanted to recognize. Yes. Outside- And do you- and do you view that the city is reviewable? If- if the- They organize, they go to the Secretary. The Secretary says, no, we've decided not to engage in a government- a government relationship, you're not listed. You've been misjudicial and reviewable. Is that- under the Part 83 process or under the Part 83 regulations? Well, I mean, I'm just getting- I'm trying to take the different avenues here, but my understanding is that it could be completely wrong. If they organize, they go to the Secretary. The Secretary says, no, the government's view is that the judiciary can't get involved because that's a political question. The government's view is that it's not appropriate for the judiciary in the first instance to make recognition decisions. However, at the second instance, when- I'm talking on F2, made your decision. Yes
. In the second instance, and- and we say that in our brief, that once the- and- and again, I can't speak to this exact situation here, it might be unreviewable for some other reason, but assuming that everything proceeds correctly, the government's position is that once the agency issues a decision, it is reviewable under the APA. Because it's fine. Right. Okay. So now there are three options that you've discussed. First was Part 81. And that's an implementation of 4.79, isn't it? Yes. Okay. Well, Part 81 is- sorry. We're using the terms and I want to understand- Sure, what they are. Yeah. What we're referring to. Part 81 refers to the regulations that set forth a step- set forth a process for organizing a tribe under Section 476 of the IRA. Yes. Okay. But Part 81 also defines tribe and Indian in 4.79 as well. Yes. Okay. So then you talked about the- the last option was the Part 83. That's correct. Okay. And that- It's unlikely just so the Court understands, unlikely that that would be an option for these folks, and that gets back to the history of this group of individuals, because what appears to have happened in the record is that these individuals were a part of the Pinoli-Vell Rancheria that was and is federally recognized. And what happened in 2005 is that the Pinoli-Vell Rancheria reorganized under the IRA, adopted a new constitution, and it's not clear what happened at that point if these folks who appear to satisfy the- the membership criteria under that constitution, it's not clear if these folks were disenrolled or never applied to be a member of the- of the reorganized entity formally called the Pinoli-Vell Rancheria. And there's also in the record a decision at ER 284 from the IBA that is addressing leadership disputes within the Pinoli-Vell Rancheria and actually talks about one of the name plaintiffs here. So it appears as though there were leadership disputes or membership disputes in the Rancheria. The Rancheria reorganized and these people are no longer a member of that Rancheria. So this kind of a situation hasn't come up before. Planoff's Council addressed other situations where interior has organized groups of half-globe communities. Well, those folks were never a part of a previously recognized tribe. And part 83 actually states that splinter groups or factions of previously recognized tribes can't qualify in part 83
. Okay, so we've got 81, we've got 83 and the second one you mentioned. It's sort of a- it's sort of following what the Regional Director advised, which is to petition the Assistant Secretary for an eligibility determination. And that's under one part 81. It's part 81. Part 81 and it's- it's part 81 not petitioning for an election, but part 81 asking for a determination that they're eligible to have an election. This is the Federal Recognition. It's not- it will- it would be federal acknowledgement, but it wouldn't be federal recognition under the part 83 recognition. And it is found where- is this in your brief where that's found, where that process is laid out? Well, and this gets back to what the Regional Director said. There's actually no process. There's no regulations. That's the problem I've been having. Yes. So what is the process, only what the letter said in the Regional Director said? Well, as I explained, the process would be presumed- the process would be fault doing what they did and then appealing all the way up to the IBI and planning of final aid. So that's taking the administrative process that they initiated and falling through the administrative process. To get it right. The option B, you say, is direct petition. To the Office of Federal acknowledgement. And there's no governing regulations, true? That's correct. So is this the circumstance that I've been asking you about where you would say that that decision is not renewable? Potentially. Okay. So I think I finally got the answer to that question. I probably wasn't asking it the right way. So of course they took the process that has- this government by regulation. Right? So under the doctrine of primary jurisdiction or our way of structure, it wouldn't be the preference of the government to say to the Secretary, let them finish the administrative process. That is correct. And that is- if the Court views it as primary jurisdiction and thinks it was appropriate for- thinks this claim can be properly brought in the Court in the first place or if the Court thinks that it couldn't have been brought in the Court in the first place, either way the Court should not be making this decision in the first instance. And part of the reason why that's important too is because this group might actually be a tribe, but we don't know. And as a practical matter, I mean, if we have the case stage, does that matter whether it's a state or whether it's dismissed? What would be the basis for dismissing it? And what specifically should they be told to do next? Well, there's no basis for staying the case because there's no penny- Well, primary jurisdiction is often a state because primary jurisdiction is not a declaration that they had an obligation to exhaust. It's really merely a preference for getting an agency to termination first. Sure, but there's no pending administrative procedure right now. No, no, that's what primary jurisdiction is all about, is that we say, but this- really we should defer to the agency. We're signing it to the agency. We're keeping jurisdiction in the case. The agency is finished and will hear the appeal or with the results. And that's- There's a big difference between primary jurisdiction and dismissing for failure to exhaust and detour revenues. And the government's position is that the claim that was brought here is seeking a judicial determination that the group is eligible to organize, which is not that kind of a claim that doesn't properly fall under the waiver of sovereign immunity in the IRA. What does- Then I ask this question. We are demonstrably the least qualified to organize and implement this process. We can declare principles. You were in the courtroom, I assume, when we suggested mediation in another case. At least in terms of what I'm hearing from both sides, you agree that they have a right and a likely- perhaps some likelihood of success, getting to where they want to be, as I understand, with their claim. But maybe not. Maybe not. But would there be any possibility of you both sides getting together and getting in a green on what process ought to be followed through mediation or narrowing the issues so that what we would have to deal with would be more defined. Maybe this argument today has been the first time you've gotten together and shared your respective views. I don't know. But it seems that you're saying there's a process that they should have followed and they're saying we thought we were following it and we've got to referee it from our position. So if there's any possibility of mediation or otherwise you can narrow the issues, it would be the least for this judge of comfort to have you tell us what's in dispute after today or what is not. In terms of process, not outcome. We looked at mediation as a possibility when this case was initially filed and the agency did not think mediation would be useful because the issues that need to be resolved are so fact intensive and really- That's why I have a mediation, if there are particularly other fact intensive, you know, it's not to mediate the merits of the question of whether they're a tribe, as I understand to have a Fisher's suggestion, it is to mediate the question of what, what process should be followed to get the answer to whether they're a tribe, what administrative process? And that was not something that we addressed in mediation because what the planists were suggesting is that there was no other option besides the Secretary simply calling the election and holding the election and the Secretary had to do that. But I think just to- So I don't know that mediation would be particularly helpful. The process available to the plaintiffs or the petitioners is as I have laid out. They should go out and be- Because if they go to the Secretary directly and ask for a petition, they say you're not organized and they want to end up. Well, the Secretary has the authority to- The Secretary wouldn't say you're not organized, the Secretary has the authority- They have no government, they've got this. I mean, I've been through this before and that's- I mean, I'm guessing. But I- No, but the Secretary doesn't- They don't have to be organized for the Secretary to find that they are eligible to organize as a tribe under the IRA. So let's say the Secretary directly says they're not eligible to organize. Do they have the option that they're pursuing now or not? If the Secretary says that they are not eligible to organize, what I would imagine could happen or would happen is that that decision could be made appealable to the IVIA. If- If there's procedures for that decision being appealable or not appealable- And- But that's of course. No, no, no, no, no, no. I must ask a different question. Let's assume they go through that whole process in the Secretary IVIA, no, you're not eligible on the basis of these facts to be organized. And then they take the- they follow the procedure they're engaged in now. My guess is that's a dead end for them, right? Not- I would imagine yes, it would be because if they're not bound to be eligible, then they can't organize under- Right
. We're keeping jurisdiction in the case. The agency is finished and will hear the appeal or with the results. And that's- There's a big difference between primary jurisdiction and dismissing for failure to exhaust and detour revenues. And the government's position is that the claim that was brought here is seeking a judicial determination that the group is eligible to organize, which is not that kind of a claim that doesn't properly fall under the waiver of sovereign immunity in the IRA. What does- Then I ask this question. We are demonstrably the least qualified to organize and implement this process. We can declare principles. You were in the courtroom, I assume, when we suggested mediation in another case. At least in terms of what I'm hearing from both sides, you agree that they have a right and a likely- perhaps some likelihood of success, getting to where they want to be, as I understand, with their claim. But maybe not. Maybe not. But would there be any possibility of you both sides getting together and getting in a green on what process ought to be followed through mediation or narrowing the issues so that what we would have to deal with would be more defined. Maybe this argument today has been the first time you've gotten together and shared your respective views. I don't know. But it seems that you're saying there's a process that they should have followed and they're saying we thought we were following it and we've got to referee it from our position. So if there's any possibility of mediation or otherwise you can narrow the issues, it would be the least for this judge of comfort to have you tell us what's in dispute after today or what is not. In terms of process, not outcome. We looked at mediation as a possibility when this case was initially filed and the agency did not think mediation would be useful because the issues that need to be resolved are so fact intensive and really- That's why I have a mediation, if there are particularly other fact intensive, you know, it's not to mediate the merits of the question of whether they're a tribe, as I understand to have a Fisher's suggestion, it is to mediate the question of what, what process should be followed to get the answer to whether they're a tribe, what administrative process? And that was not something that we addressed in mediation because what the planists were suggesting is that there was no other option besides the Secretary simply calling the election and holding the election and the Secretary had to do that. But I think just to- So I don't know that mediation would be particularly helpful. The process available to the plaintiffs or the petitioners is as I have laid out. They should go out and be- Because if they go to the Secretary directly and ask for a petition, they say you're not organized and they want to end up. Well, the Secretary has the authority to- The Secretary wouldn't say you're not organized, the Secretary has the authority- They have no government, they've got this. I mean, I've been through this before and that's- I mean, I'm guessing. But I- No, but the Secretary doesn't- They don't have to be organized for the Secretary to find that they are eligible to organize as a tribe under the IRA. So let's say the Secretary directly says they're not eligible to organize. Do they have the option that they're pursuing now or not? If the Secretary says that they are not eligible to organize, what I would imagine could happen or would happen is that that decision could be made appealable to the IVIA. If- If there's procedures for that decision being appealable or not appealable- And- But that's of course. No, no, no, no, no, no. I must ask a different question. Let's assume they go through that whole process in the Secretary IVIA, no, you're not eligible on the basis of these facts to be organized. And then they take the- they follow the procedure they're engaged in now. My guess is that's a dead end for them, right? Not- I would imagine yes, it would be because if they're not bound to be eligible, then they can't organize under- Right. So you wanted to take the director approach and they say, no, we've got a statute. We want- We prefer this approach because it's confined by statute, a regulation, and there's a process. But there's no- Are you referring to the approach of petitioning for an election? Yes. And that's fine. That is one possibility and that might not have been futile. We don't know because they didn't appeal that decision to the regional director. And to just go back to the question of whether the court- should they- should they re- petition? Yes, supposed to just file into the same petition again and then file an appeal from it. It would- It's possible that there would be, but it's not clear that there would be because of the nature of the- of the regional director's decision. But that's not something that I am prepared to bind the department on at the stage. Right. Now let me ask you this then. On the final decision, the first decision of the regional director was that an election could not be held because they were not further recognized. And you said that was an error. That's a- That's wrong. Correct. The first letter. Yes. Okay. The second letter says that he didn't have the authority. He hadn't been delegated the authority. Does the government support that decision? It's not clear that that is correct either. Which is why- and- and when- and speaking to other folks at the agency what they said was we would have known what the position- Well, he was given- he did not file a formal document, but he was given the impression that the agency was going to be looking at this and it never did anything. No, the agency did look at this issue. But it never answered him formally as I understand it. Or it didn't- It didn't answer the merits of the question. And to the extent that the plaintiffs or the petitioners believed that there was a failure to act, the agency actually sets forth regulations to obtain an appealable final decision for a failure to act claim, which the petitioners didn't file. But he's saying he's coming in here. I mean, he does- there is a statute that says that he can come in here after 180 days to court. I mean, I don't like that statute, but here it is. And we don't like it a lot either because it means that we have to decide who's a tribe. So we're trying to find some alternative- way to work that together with the fact that the statute exists, and the right exists, with the acknowledged fact that the agency has expertise on this and we don't. So therefore, one way through it all is a primary jurisdiction approach, which says, yes, he had the right to come here, but where could ask the agency for its views as to whether this is a tribe and whether I can proceed? Now, if we wanted to do that, how would we do it? The home, what would we do it? You're going to tell us that I can't be done? No
. So you wanted to take the director approach and they say, no, we've got a statute. We want- We prefer this approach because it's confined by statute, a regulation, and there's a process. But there's no- Are you referring to the approach of petitioning for an election? Yes. And that's fine. That is one possibility and that might not have been futile. We don't know because they didn't appeal that decision to the regional director. And to just go back to the question of whether the court- should they- should they re- petition? Yes, supposed to just file into the same petition again and then file an appeal from it. It would- It's possible that there would be, but it's not clear that there would be because of the nature of the- of the regional director's decision. But that's not something that I am prepared to bind the department on at the stage. Right. Now let me ask you this then. On the final decision, the first decision of the regional director was that an election could not be held because they were not further recognized. And you said that was an error. That's a- That's wrong. Correct. The first letter. Yes. Okay. The second letter says that he didn't have the authority. He hadn't been delegated the authority. Does the government support that decision? It's not clear that that is correct either. Which is why- and- and when- and speaking to other folks at the agency what they said was we would have known what the position- Well, he was given- he did not file a formal document, but he was given the impression that the agency was going to be looking at this and it never did anything. No, the agency did look at this issue. But it never answered him formally as I understand it. Or it didn't- It didn't answer the merits of the question. And to the extent that the plaintiffs or the petitioners believed that there was a failure to act, the agency actually sets forth regulations to obtain an appealable final decision for a failure to act claim, which the petitioners didn't file. But he's saying he's coming in here. I mean, he does- there is a statute that says that he can come in here after 180 days to court. I mean, I don't like that statute, but here it is. And we don't like it a lot either because it means that we have to decide who's a tribe. So we're trying to find some alternative- way to work that together with the fact that the statute exists, and the right exists, with the acknowledged fact that the agency has expertise on this and we don't. So therefore, one way through it all is a primary jurisdiction approach, which says, yes, he had the right to come here, but where could ask the agency for its views as to whether this is a tribe and whether I can proceed? Now, if we wanted to do that, how would we do it? The home, what would we do it? You're going to tell us that I can't be done? No. Before I answer that, I just also- I want to throw out for the Court's consideration an eight-circuit case called Shikopi, and I can get you the site. It's 107 F-3rd-667, where a group challenged- I believe it was actually found to be a tribe, challenged the Secretary's eligibility determinations, and the Secretary didn't approve the Constitution, and it didn't disapprove the Constitution or the document that had been voted on. It said, I'm not sure about whether the people voting were actually eligible, and what the Court found was that kind of an eligibility decision wasn't subject to this waiver of sovereign immunity, because there wasn't- it wasn't subject to that time requirement set forth in the statute. So that kind of a claim wasn't subject to that timeline, and it wasn't brought forward. So it's similar in the sense that the agency here has identified an eligibility issue, namely whether this group is eligible to organize. So this is- No, I have work. It hasn't really done that either. It's made- I mean, the only extent are- the decision is plainly wrong. I even have to be a recognized tribe, that's wrong. Well, what the- The first of the first decision you said is wrong, and we appreciate the concession to the second decision is likely wrong. Well, let me- Of course. Let me say with respect to the first decision of the Regional Director, it wasn't- To the extent that the Regional Director was saying the group needs to be acknowledged as a tribe in some capacity or eligible as a tribe. That is correct. But to the extent that the Regional Director was saying the tribe had to be federally recognized under the Part 83 process, that is not correct. So I just want to make sure that there's that distinction that I'm making. Okay, I'm not sure I understand your answer, but I'll go back. That's not important for the- Okay. I'll kind of think about that. So- But the question- I guess what I want to avoid is- I guess sending this back for- And I guess it comes back to Judge Berzons' worry about administrative race due to Coddy. You go in, you've had a decision, you say, well, you didn't appeal that decision. That's the final, that's the end of it. And I don't- I can't say that the government wouldn't take that position. I don't think you can make that assurance here to us. No, I can't make that assurance. And- And that is something that the agency has thought about and hasn't come up with an answer because it hasn't been presented with a subsequent petition. Well, on your brief, at page 34, after you're arguing why we shouldn't do this, you say, although the time for appealing the Regional Directors' October 2010 decision has elapsed, there is no reason why the plaintiffs or petitioners cannot submit a request for a determination that they are a tribe under the IRA. Okay. What process should- Or does that refer to? No, that would be- They would either, again, this gets back to the- They would either refile the same petition or petition directly with the Secretary. So you can- That's what you had in mind in that statement. They have those two options. They could re-initiate and start all over again. That's correct
. Before I answer that, I just also- I want to throw out for the Court's consideration an eight-circuit case called Shikopi, and I can get you the site. It's 107 F-3rd-667, where a group challenged- I believe it was actually found to be a tribe, challenged the Secretary's eligibility determinations, and the Secretary didn't approve the Constitution, and it didn't disapprove the Constitution or the document that had been voted on. It said, I'm not sure about whether the people voting were actually eligible, and what the Court found was that kind of an eligibility decision wasn't subject to this waiver of sovereign immunity, because there wasn't- it wasn't subject to that time requirement set forth in the statute. So that kind of a claim wasn't subject to that timeline, and it wasn't brought forward. So it's similar in the sense that the agency here has identified an eligibility issue, namely whether this group is eligible to organize. So this is- No, I have work. It hasn't really done that either. It's made- I mean, the only extent are- the decision is plainly wrong. I even have to be a recognized tribe, that's wrong. Well, what the- The first of the first decision you said is wrong, and we appreciate the concession to the second decision is likely wrong. Well, let me- Of course. Let me say with respect to the first decision of the Regional Director, it wasn't- To the extent that the Regional Director was saying the group needs to be acknowledged as a tribe in some capacity or eligible as a tribe. That is correct. But to the extent that the Regional Director was saying the tribe had to be federally recognized under the Part 83 process, that is not correct. So I just want to make sure that there's that distinction that I'm making. Okay, I'm not sure I understand your answer, but I'll go back. That's not important for the- Okay. I'll kind of think about that. So- But the question- I guess what I want to avoid is- I guess sending this back for- And I guess it comes back to Judge Berzons' worry about administrative race due to Coddy. You go in, you've had a decision, you say, well, you didn't appeal that decision. That's the final, that's the end of it. And I don't- I can't say that the government wouldn't take that position. I don't think you can make that assurance here to us. No, I can't make that assurance. And- And that is something that the agency has thought about and hasn't come up with an answer because it hasn't been presented with a subsequent petition. Well, on your brief, at page 34, after you're arguing why we shouldn't do this, you say, although the time for appealing the Regional Directors' October 2010 decision has elapsed, there is no reason why the plaintiffs or petitioners cannot submit a request for a determination that they are a tribe under the IRA. Okay. What process should- Or does that refer to? No, that would be- They would either, again, this gets back to the- They would either refile the same petition or petition directly with the Secretary. So you can- That's what you had in mind in that statement. They have those two options. They could re-initiate and start all over again. That's correct. The- The thing is that there's no- They're not be blocked by anything that's already been decided. Well, to say that there's no reason why they can't do it doesn't mean that they're going to get- No, they could be able to say you- You should have done that before. I've raised you to counter-party. Right. So- Well, then the statement- The statement in your brief was there's no reason why they can't do it. The implication is they could re-start. And so I want to make sure that having done what they have done, that the reason that they can't go back and restart is that- It's futile because inevitably they'll be blocked by some doctrine or something that's already happened. And therefore they ought to fight like heck to win on this appeal. As far as I know that the agency hasn't identified a doctrine that would definitively bar their claims- So the answer is- I mean, you're saying you- You cannot assure us of that despite the statement of brief. Is that the answer? No. What I'm saying is that they're- I took the statement of brief to me referred to the separate process of direct application. That's correct. Which hasn't been- Which hasn't been initiated. You weren't talking about restarting. Who were you? Oh. Right. Right. So the second process, which is petitioning with the Assistant Secretary directly, has not occurred. So there's no reason why that would be barred by- The petitioning directly for an election or petitioning directly for recognition. For an eligibility determination. For an eligibility determination. For an eligibility to have an election. Yes, that's right. And this is the- The route that has no regulations or no recognition anywhere, but they can just try it. It's not that there's no regulations anywhere. There are regulations defining what a tribe is. So the agency would look to some- And there's also- Essentially you're saying you're kind of- There is no- There's a route for applying directly for recognition from the Assistant Secretary. But that's not what they're- They're- They're trying to get an election. They're- What they're trying to get is a determination that they're eligible for the benefits of the IRA. No, they're trying to get it right now in determination that they're eligible to have an election. And if they were eligible to have an election, they would also be- They're trying to get a determination that they are a tribe under the IRA, which allows them to have an election. It allows them to have land be taken into trust
. The- The thing is that there's no- They're not be blocked by anything that's already been decided. Well, to say that there's no reason why they can't do it doesn't mean that they're going to get- No, they could be able to say you- You should have done that before. I've raised you to counter-party. Right. So- Well, then the statement- The statement in your brief was there's no reason why they can't do it. The implication is they could re-start. And so I want to make sure that having done what they have done, that the reason that they can't go back and restart is that- It's futile because inevitably they'll be blocked by some doctrine or something that's already happened. And therefore they ought to fight like heck to win on this appeal. As far as I know that the agency hasn't identified a doctrine that would definitively bar their claims- So the answer is- I mean, you're saying you- You cannot assure us of that despite the statement of brief. Is that the answer? No. What I'm saying is that they're- I took the statement of brief to me referred to the separate process of direct application. That's correct. Which hasn't been- Which hasn't been initiated. You weren't talking about restarting. Who were you? Oh. Right. Right. So the second process, which is petitioning with the Assistant Secretary directly, has not occurred. So there's no reason why that would be barred by- The petitioning directly for an election or petitioning directly for recognition. For an eligibility determination. For an eligibility determination. For an eligibility to have an election. Yes, that's right. And this is the- The route that has no regulations or no recognition anywhere, but they can just try it. It's not that there's no regulations anywhere. There are regulations defining what a tribe is. So the agency would look to some- And there's also- Essentially you're saying you're kind of- There is no- There's a route for applying directly for recognition from the Assistant Secretary. But that's not what they're- They're- They're trying to get an election. They're- What they're trying to get is a determination that they're eligible for the benefits of the IRA. No, they're trying to get it right now in determination that they're eligible to have an election. And if they were eligible to have an election, they would also be- They're trying to get a determination that they are a tribe under the IRA, which allows them to have an election. It allows them to have land be taken into trust. And that would be a separate request. They haven't brought that in. This goes back to me. I guess we're going a little bit around circles at this point, but I thought that in order to have the ultimate recognition, they have to have- Be organized and they have to have a constitution and they're trying to get a constitution. Tribes don't have to be organized under the IRA. But they have to be organized. They have to have some governing body. Right. So therefore they're not going to get recognition through this route unless they without- Attitioning for an election, have their own election. I guess- Could you repeat the question? My understanding is that they're not going to get recognition through the route that you're now suggesting or direct appeal, a direct petition to the Assistant Secretary unless they already have a governing scheme. Possibly, but they may have a government. I mean, they've asserted that they have a tribe and that there is a- I mean, they have asserted that- They might be a tribe. But here is that a group that is large enough to petition is trying to get the assistance of the agency to have an election of all the people that they are eligible to have. So that there is a constitution that's viable so that they then can be recognized. And you're basically saying that's step will not exist. They're going to have to do it themselves. They don't have to do it themselves either. They can organize under the IRA, but they can't organize under the IRA until they're found to be eligible to organize under the IRA. Does that make sense? Like, they're- They can't- Organization just refers to a way of establishing a government body. It doesn't- The tribe can establish its own government bodies separate from the IRA. And- And- Petition- The government body unorganized under the IRA. So this petition- This petition we're talking about then is a different petition than a petition for recognition. It's not a petition for recognition. This is not a petition for recognition under Part 83 under the Part 8. So where does this petition exist in the regulations? This petition directly to the Assistant Secretary? This kind of petition doesn't exist in the regulations. That's why I started a program. It doesn't exist. Right. And the reason for that is because the IRA was enacted before Part 83 and regulations- You're here to assure us that if they file such a thing that it will be processed even with no regulations. That is what the Regional Director indicated in his decision that wasn't appealed. That- That the appropriate thing is- That the Assistant Secretary has the authority to do this. So working off of that decision, that- That would be the process
. And that would be a separate request. They haven't brought that in. This goes back to me. I guess we're going a little bit around circles at this point, but I thought that in order to have the ultimate recognition, they have to have- Be organized and they have to have a constitution and they're trying to get a constitution. Tribes don't have to be organized under the IRA. But they have to be organized. They have to have some governing body. Right. So therefore they're not going to get recognition through this route unless they without- Attitioning for an election, have their own election. I guess- Could you repeat the question? My understanding is that they're not going to get recognition through the route that you're now suggesting or direct appeal, a direct petition to the Assistant Secretary unless they already have a governing scheme. Possibly, but they may have a government. I mean, they've asserted that they have a tribe and that there is a- I mean, they have asserted that- They might be a tribe. But here is that a group that is large enough to petition is trying to get the assistance of the agency to have an election of all the people that they are eligible to have. So that there is a constitution that's viable so that they then can be recognized. And you're basically saying that's step will not exist. They're going to have to do it themselves. They don't have to do it themselves either. They can organize under the IRA, but they can't organize under the IRA until they're found to be eligible to organize under the IRA. Does that make sense? Like, they're- They can't- Organization just refers to a way of establishing a government body. It doesn't- The tribe can establish its own government bodies separate from the IRA. And- And- Petition- The government body unorganized under the IRA. So this petition- This petition we're talking about then is a different petition than a petition for recognition. It's not a petition for recognition. This is not a petition for recognition under Part 83 under the Part 8. So where does this petition exist in the regulations? This petition directly to the Assistant Secretary? This kind of petition doesn't exist in the regulations. That's why I started a program. It doesn't exist. Right. And the reason for that is because the IRA was enacted before Part 83 and regulations- You're here to assure us that if they file such a thing that it will be processed even with no regulations. That is what the Regional Director indicated in his decision that wasn't appealed. That- That the appropriate thing is- That the Assistant Secretary has the authority to do this. So working off of that decision, that- That would be the process. And- And- And- And- And- And- And- And- And- I'm just beginning back to the primary jurisdiction which I realize I haven't answered. I- I caution the Court to, um, I- The government's position is that it would not be advisable for the Court to retain jurisdiction, stay this litigation pending resolution by the agency, because it has to do with the nature of the claim that's being brought here. The original claim that was being brought was an APA challenge- on their petition. The original claim wasn't a claim invoking the, it wasn't a claim brought by an eligible tribe invoking the IRA's 476-D2's waiver of sovereign immunity. And the re, and there, if it was that claim, this court would be able to stay the litigation under the doctrine of primary jurisdiction. But it's not that kind of a claim. And it's important that I'm sorry, but I don't understand why it's not that kind of a claim. And to say that kind of a claim, exactly what's that should be cited at the answer doesn't matter. I mean, in fact, there is a provision for such a claim and they've brought it. It's not that kind of a claim because there is an initial eligibility determination that has to be made that hasn't been made yet, that they are in effect asking the court to make in the first place. We're saying the agency should make, if primary jurisdiction says we refer that to termination of the agency, you make a decision, we retain jurisdiction, I've done it over the belt process. And I understand you don't want us to do that, but that's why primary jurisdiction works. And we would make a decision we have in yet about whether to apply the doctrine. The reason why this claim isn't properly cognizable in the court in the first instance is because the decision about whether a group is a tribe under the IRA doesn't only apply to 476, which is where that waiver of sovereign immunity is found. It applies to also Section 465, which allows the Secretary to take land and trust for a tribe. So in effect, this Court for this Court to find and has primary jurisdiction over this. No, no, no, no. The doctrine of primary jurisdiction means that there is at least concurrent jurisdiction or arguably concurrent jurisdiction. And you see to the authority as a matter of deference, you let the agency decide the question first. We're not saying that the Court has primary jurisdiction. In fact, we're saying the opposite. And that's the way the doctrine works. I think I know you don't want us to do that. I think we understand your position. We may ask for briefing, but I think we've gone way over time for that. And we need to ask some rebuttal and we have a final case. We appreciate that. I know you have a lot more to say. Yes, thank you. And if you're more- I'm sure we have a lot more questions. If the Court wants supplemental briefing on any issue, please just ask us to do so. So we usually do
. And- And- And- And- And- And- And- And- And- I'm just beginning back to the primary jurisdiction which I realize I haven't answered. I- I caution the Court to, um, I- The government's position is that it would not be advisable for the Court to retain jurisdiction, stay this litigation pending resolution by the agency, because it has to do with the nature of the claim that's being brought here. The original claim that was being brought was an APA challenge- on their petition. The original claim wasn't a claim invoking the, it wasn't a claim brought by an eligible tribe invoking the IRA's 476-D2's waiver of sovereign immunity. And the re, and there, if it was that claim, this court would be able to stay the litigation under the doctrine of primary jurisdiction. But it's not that kind of a claim. And it's important that I'm sorry, but I don't understand why it's not that kind of a claim. And to say that kind of a claim, exactly what's that should be cited at the answer doesn't matter. I mean, in fact, there is a provision for such a claim and they've brought it. It's not that kind of a claim because there is an initial eligibility determination that has to be made that hasn't been made yet, that they are in effect asking the court to make in the first place. We're saying the agency should make, if primary jurisdiction says we refer that to termination of the agency, you make a decision, we retain jurisdiction, I've done it over the belt process. And I understand you don't want us to do that, but that's why primary jurisdiction works. And we would make a decision we have in yet about whether to apply the doctrine. The reason why this claim isn't properly cognizable in the court in the first instance is because the decision about whether a group is a tribe under the IRA doesn't only apply to 476, which is where that waiver of sovereign immunity is found. It applies to also Section 465, which allows the Secretary to take land and trust for a tribe. So in effect, this Court for this Court to find and has primary jurisdiction over this. No, no, no, no. The doctrine of primary jurisdiction means that there is at least concurrent jurisdiction or arguably concurrent jurisdiction. And you see to the authority as a matter of deference, you let the agency decide the question first. We're not saying that the Court has primary jurisdiction. In fact, we're saying the opposite. And that's the way the doctrine works. I think I know you don't want us to do that. I think we understand your position. We may ask for briefing, but I think we've gone way over time for that. And we need to ask some rebuttal and we have a final case. We appreciate that. I know you have a lot more to say. Yes, thank you. And if you're more- I'm sure we have a lot more questions. If the Court wants supplemental briefing on any issue, please just ask us to do so. So we usually do. Thank you. If I could make three points, and I'll be really brief. Number one is, we dotted the eyes we cross the teeth. We comply in our submission with every provision of the statute and the regular. One thing you didn't do was file it a P.L. which would have made our whole lives in the whole lot easier. Okay, but let me make my three points. And then let me respond to that. The second thing is, it's a little scary, but I agree with the government. There is no process. The Secretary should have probably given regulations established in the process for what he's going to look to in determining eligibility. But it's implicit in the statute. There's three things. We have to prove or have blitz. We have to prove residency on the reservation. And we have to prove that this reservation was set aside for us. Well, we went to the second, the regional director and the superintendent of the agency. And we met with them and we discussed these issues with them. And he said, don't worry about it. We got certificates of Indian blood for you. So we can, we'll go to the certificates of Indian blood. We'll look at the names on the petition and we'll determine whether you're hapless. The petitions contain addresses. We can look at the addresses in terms whether there is residency on the reservation. In fact, the United States government, for all. Well, it's all fine, but we can't. And then District Judge doesn't get to do a whole lot better. I know, but the fact that the Secretary hasn't promulgated regulations to establish the process doesn't mean that if we meet the criteria, the statute is mandatory. The Secretary shall call an election for an eligible tribe and that he shall call that election within 180 days. So implicit in the statute is he's got 180 days to sit down, determine who's eligible. Not only that, call the election, complete the election process and get it done in 180 days
. Thank you. If I could make three points, and I'll be really brief. Number one is, we dotted the eyes we cross the teeth. We comply in our submission with every provision of the statute and the regular. One thing you didn't do was file it a P.L. which would have made our whole lives in the whole lot easier. Okay, but let me make my three points. And then let me respond to that. The second thing is, it's a little scary, but I agree with the government. There is no process. The Secretary should have probably given regulations established in the process for what he's going to look to in determining eligibility. But it's implicit in the statute. There's three things. We have to prove or have blitz. We have to prove residency on the reservation. And we have to prove that this reservation was set aside for us. Well, we went to the second, the regional director and the superintendent of the agency. And we met with them and we discussed these issues with them. And he said, don't worry about it. We got certificates of Indian blood for you. So we can, we'll go to the certificates of Indian blood. We'll look at the names on the petition and we'll determine whether you're hapless. The petitions contain addresses. We can look at the addresses in terms whether there is residency on the reservation. In fact, the United States government, for all. Well, it's all fine, but we can't. And then District Judge doesn't get to do a whole lot better. I know, but the fact that the Secretary hasn't promulgated regulations to establish the process doesn't mean that if we meet the criteria, the statute is mandatory. The Secretary shall call an election for an eligible tribe and that he shall call that election within 180 days. So implicit in the statute is he's got 180 days to sit down, determine who's eligible. Not only that, call the election, complete the election process and get it done in 180 days. What did he do in this case? He didn't even send a letter to the Secretary asking to clarify his authority. He fell after the 180 days expired. He started to look at the eligibility criteria. In fact, he went through it. He acknowledges that 20 of the 43 petitioners were hapless. He found a- Yes, now the regional director is talking about that. We're talking about the regional director. He saw that 14 of the 43 were elinealed to sentence from distributes. He was a resident who was set aside for it. He started to verify the addresses. He didn't come back to us and ask us for any information and to laugh to the 180 days expired. And if we've got a wait and go through an appeal process to the IBIAA that will take 24 to 36 months, then you've just rendered the 180 day time period in the statute of nullity. It's meaningless. What Congress wanted to have happen in 1988 is they wanted to remedy the issues that were- that arose in the Coyote Valley case. An issue in Coyote Valley was the Secretary refused to call in the election. The Indians argued he had to do so within a reasonable period of time. And the second issue in that case was whether or not they had to exhaust their administrative remedies. The Indians in that case, they didn't exhaust administrative remedies. They went directly in the Federal Court and they filed suit. The government asserted sovereign immunity and said we had to exhaust. During the litigation, the Secretary actually made a final decision rejecting the Constitution as being a violation. Let's go back to not filing the appeal. Because see, there they did file an appeal. There was something pending. No, and Coyote Valley did not file an appeal. I thought they did file an appeal. I'm the attorney of record. I eliminated that case. They did not file an appeal. What happened was the Regional Director forwarded the Constitution's up to the Assistant Secretary and the Assistant Secretary of Regretum and said these are in violation of Federal law and I'm denying them. So the issue of exhaustion of administrative remedies became moot. The party stipulated to the fact that there is a process of urgency decision
. What did he do in this case? He didn't even send a letter to the Secretary asking to clarify his authority. He fell after the 180 days expired. He started to look at the eligibility criteria. In fact, he went through it. He acknowledges that 20 of the 43 petitioners were hapless. He found a- Yes, now the regional director is talking about that. We're talking about the regional director. He saw that 14 of the 43 were elinealed to sentence from distributes. He was a resident who was set aside for it. He started to verify the addresses. He didn't come back to us and ask us for any information and to laugh to the 180 days expired. And if we've got a wait and go through an appeal process to the IBIAA that will take 24 to 36 months, then you've just rendered the 180 day time period in the statute of nullity. It's meaningless. What Congress wanted to have happen in 1988 is they wanted to remedy the issues that were- that arose in the Coyote Valley case. An issue in Coyote Valley was the Secretary refused to call in the election. The Indians argued he had to do so within a reasonable period of time. And the second issue in that case was whether or not they had to exhaust their administrative remedies. The Indians in that case, they didn't exhaust administrative remedies. They went directly in the Federal Court and they filed suit. The government asserted sovereign immunity and said we had to exhaust. During the litigation, the Secretary actually made a final decision rejecting the Constitution as being a violation. Let's go back to not filing the appeal. Because see, there they did file an appeal. There was something pending. No, and Coyote Valley did not file an appeal. I thought they did file an appeal. I'm the attorney of record. I eliminated that case. They did not file an appeal. What happened was the Regional Director forwarded the Constitution's up to the Assistant Secretary and the Assistant Secretary of Regretum and said these are in violation of Federal law and I'm denying them. So the issue of exhaustion of administrative remedies became moot. The party stipulated to the fact that there is a process of urgency decision. There is a process for an appeal and you didn't file it. Is that right? You said you were going to tell me about that. Well, but in 1988, what Coyote? Not now, I wonder now. We don't need to. Congress said, look, we want to implement the Coyote Valley decision. We're going to correct the two issues that arose in that case. Instead of a reasonable period of time, the Secretary's got 180 days to call the election. If he doesn't do what he's supposed to do without 180 day time period, you don't have to exhaust your administrative remedies. Directly in the Federal Court. You don't have to not have this problem of whether they were a tribe, right? It was whether they were all on the list of federally recognized. All right. So when we got an additional problem here, which was no piece ever decided, whether you have a Coyote Valley decision, they did it in the St. Coy case, they did it in the Humble case. I don't know if you say that. The air company has ever decided, even the agency has not decided it. You're saying the court can decide it. All right. Is there a case in which the court has decided this? What I, what this court in my opinion is? What's the answer to my question? Is there an instance in which a court has decided whether it's a tribe, that a group of people who claim they're a tribe or a tribe that a purpose is of this me organization permission? Well, when you say tribe, you mean a half-led Indian community? Yes, not a recognized tribe, but a group of people of this kind. No, I know it in the court decision that's addressed this issue. This is a case of first impression. Okay, Council, you were going to conclude by saying what we should do, and I'll let you do that, and then I think we're finished with the case for today. You have to remember, this case started because the 180-day time period had lapsed, and the agency hadn't done anything. Okay, the 180 days went by, and then finally, after the 180-day period, they came back and they said, right, so what's the remedy to seek? Well, I think you should find that the, that the district court aired. First of all, he, he, the district court said the issue that the district court hung its hat on was, I don't, how many Indians have to, be from the reservation, signing the petition and requesting the election? He said the statute was ambiguous, and therefore I'm going to interpret the statute as requiring all or almost all, you know, 90 to 100 percent. When, in fact, there was a regulation directly on point of death with the issue. So you find that, I was hoping for a sum up, as opposed to a new one. Oh, sum it up. You reversed the district court with instructions to order the Secretary to make the, to determine whether these Indians are eligible for their election, and you, and you, and you, and you direct the Secretary to do that within 180 days, and if they find that their hat blubs resided on a reservation set aside by them, ordered the Secretary to call the election. Thank you, counsel. Obviously, very interesting issues. We will mold them over. I'm not sure whether we want a supplemental briefing or not, if we do, we'll let you know
. Thank you both for your ordinance. Very illuminating