[00:00:00] Speaker 01:
The next case on calendar for argument is Chinook Indian Nation versus Burgum.

[00:00:32] Speaker 01:
Council for Pellant, please approach and proceed.

[00:00:34] Speaker 00:
Thank you, Judge.

[00:00:40] Speaker 00:
May it please the court, James Kuhn, on behalf of the Chinook Indian Nation.

[00:00:45] Speaker 00:
I'd like to reserve five minutes for rebuttal.

[00:00:48] Speaker 01:
Council, please be reminded that the time shown is your total time remaining.

[00:00:53] Speaker 00:
I will.

[00:00:54] Speaker 00:
Thank you.

[00:00:56] Speaker 00:
The Chinook, of course, are probably the

[00:00:59] Speaker 00:
most recognized tribe in the American West that is not federally recognized.

[00:01:06] Speaker 00:
They're the tribe that sheltered the Corps of Discovery of Lewis and Clark in 1805 and 06 when that winter was so difficult for them with food and with shelter at the mouth of the Columbia River.

[00:01:21] Speaker 00:
They're the ones whose language Chinook Wawa is still the lingua franca of Pacific Northwest native speakers.

[00:01:30] Speaker 00:
The question before the court on this appeal is whether a federal court has jurisdiction to declare them a recognized tribe.

[00:01:40] Speaker 00:
What we rely on here, as is clear from the briefing, is the third finding in the List Act of 1994, which says that Indian tribes may presently be recognized by an act of Congress

[00:01:56] Speaker 00:
by the administrative procedures that are set forth in the Code of Federal Regulations or by a decision of a United States court.

[00:02:05] Speaker 03:
So, counsel, you're not arguing that the List Act provides a cause of action for courts to then decide whether or not a tribe should be recognized, correct?

[00:02:14] Speaker 00:
We are, yes.

[00:02:15] Speaker 00:
That is the basis for our argument.

[00:02:19] Speaker 03:
That's what's unclear to me.

[00:02:21] Speaker 03:
To me, you could argue that, as I read your argument, is that the List Act says, as just a matter of fact, that courts can recognize tribes.

[00:02:32] Speaker 03:
And that's different than saying Congress provided in the List Act a cause of action for tribes to then seek judicial recognition of

[00:02:41] Speaker 03:
Do you see the distinction I'm drawing and I'm trying to figure out which one.

[00:02:45] Speaker 00:
I'm not sure I agree with it because it's not a matter of fact, it's a matter of law.

[00:02:49] Speaker 01:
But the question is, are you saying that the List Act gives a cause of action?

[00:02:55] Speaker 01:
Yes.

[00:02:56] Speaker 01:
And so you're saying because the List Act says, I'm sorry.

[00:03:01] Speaker 03:
Yeah.

[00:03:02] Speaker 01:
You're saying because the List Act says that courts may recognize tribes, then that gives a private right of action?

[00:03:11] Speaker 00:
That's right.

[00:03:12] Speaker 00:
That's what it says.

[00:03:13] Speaker 01:
Has any court interpreted that language in the way you are presenting it to us?

[00:03:22] Speaker 00:
There is only one court, excuse me, that has interpreted that language at all.

[00:03:27] Speaker 00:
And I will discuss that.

[00:03:28] Speaker 00:
That's the Shinnecock against Kempthorne case that the trial court relied on.

[00:03:32] Speaker 00:
Other way.

[00:03:34] Speaker 00:
Right.

[00:03:35] Speaker 00:
And it finds against us.

[00:03:36] Speaker 00:
And I think for a couple of reasons.

[00:03:38] Speaker 01:
So the answer is there is no

[00:03:40] Speaker 01:
court case that has interpreted the List Act language in the way that you're asking us to interpret it.

[00:03:47] Speaker 00:
Not that particular finding.

[00:03:49] Speaker 00:
But the next finding, finding four, which is that once recognized, a tribe's status cannot be taken away except by act of Congress.

[00:03:57] Speaker 00:
That's a finding.

[00:03:59] Speaker 00:
It was relied on by this court in 2020

[00:04:03] Speaker 00:
in the Jamal action committee case.

[00:04:06] Speaker 03:
I'm sorry, before you move on to that.

[00:04:08] Speaker 03:
So I'm still trying to wrap my head around this.

[00:04:10] Speaker 03:
So you're suggesting the LISAC has a cause of action, but I don't think you've pointed to any textual analysis that suggests that.

[00:04:19] Speaker 00:
The text is the finding.

[00:04:22] Speaker 03:
is just the finding.

[00:04:24] Speaker 03:
I mean, that's an odd way to read the GLIST Act, right?

[00:04:26] Speaker 03:
It's in the fact, in congressional findings.

[00:04:28] Speaker 00:
It's not in the operative part of the... It is true that things that appear in findings are more commonly things like, gee, it's a good idea to have parents participate in an educational program or that kind of stuff.

[00:04:40] Speaker 00:
But this is an enactment.

[00:04:43] Speaker 00:
And in fact, this court referred to it as an enactment in the Jamal case.

[00:04:48] Speaker 03:
OK.

[00:04:48] Speaker 03:
So I guess then, to me then, if you're making a List Act argument, then we would have jurisdiction to interpret the List Act.

[00:04:58] Speaker 00:
Yes.

[00:04:58] Speaker 03:
OK.

[00:04:59] Speaker 03:
So then if we do and we just disagree with you that the List Act does not provide a cause and action, then you lose, correct?

[00:05:06] Speaker 00:
The issue in this case, that's correct.

[00:05:08] Speaker 00:
That's right.

[00:05:09] Speaker 00:
And I refer to the Jamal Action Committee case, which is at page 24 and 25 of our opening brief, because it relied substantively on the fourth finding in the LIST Act.

[00:05:23] Speaker 03:
The issue was whether a tribe that had previously been recognized could be in effect demoted and made no longer Sorry, can I take you back to the initial because I'm a little I think I might have misunderstood the argument because I thought the argument was courts inherently have this authority to recognize judicial tribes and

[00:05:47] Speaker 03:
And that the List Act, when you're pointing to the List Act, is that's evidence to show that, like as a factual matter, that the Congress has recognized court's authority to have that.

[00:05:56] Speaker 03:
And so that's what I thought the district court said was non-justiciable.

[00:06:02] Speaker 00:
Right.

[00:06:02] Speaker 00:
That's correct.

[00:06:03] Speaker 00:
And again, it's a statement.

[00:06:04] Speaker 03:
But that's a different argument than what you're saying here, that you're making a cause of action argument under the List Act.

[00:06:11] Speaker 00:
Because the only way the judiciary can have jurisdiction, of course, is if Congress gives it jurisdiction.

[00:06:20] Speaker 00:
Because Congress starts out as the only one who has the power over Indian tribes.

[00:06:26] Speaker 00:
When Congress says this, and this is the only thing Congress has ever said about federal jurisdiction, whether a United States court has this power.

[00:06:38] Speaker 00:
And they say it has it.

[00:06:40] Speaker 00:
It is not ambiguous.

[00:06:42] Speaker 00:
It actually, I mean, there's nothing anywhere else that contradicts it, nothing in the List Act, nothing in any other statute.

[00:06:51] Speaker 00:
So Congress having said that, unless we're going to say that findings can never have substantive effect, which if someone had said that, and if the court had said that, someone would have cited it here.

[00:07:06] Speaker 00:
What we've got is courts looking a little like the Penhurst case on which the Shinnecock court relied.

[00:07:17] Speaker 00:
Said, you know, when we look at the legislative history and all the other provisions of this statute, which was a statute providing funding for schools for disabled kids, we look at the whole thing, the finding that

[00:07:34] Speaker 00:
These services should be provided in the least restrictive possible circumstances.

[00:07:41] Speaker 00:
That is the famous phrase, too thin a reed, on which to base federal court jurisdiction.

[00:07:47] Speaker 00:
But if the rule were that we just don't use findings substantively, the court wouldn't have gone through that.

[00:07:56] Speaker 00:
The court would have just said, it's only a finding.

[00:07:58] Speaker 00:
It doesn't grant jurisdiction.

[00:08:00] Speaker 00:
But it was analyzed, taking into account everything.

[00:08:04] Speaker 03:
I don't think we need to go that far than saying findings are precluded from substantive authority.

[00:08:10] Speaker 03:
I think we just have to just read what it says.

[00:08:13] Speaker 03:
And it doesn't say Congress hereby confers to federal courts jurisdiction to determine whether or not a tribe is entitled to recognition.

[00:08:27] Speaker 00:
Right.

[00:08:27] Speaker 00:
It doesn't say that.

[00:08:28] Speaker 00:
It says, Indian tribes may presently be recognized by, and then it says three things, Congress, administrative agency, or by a decision of the United States Court.

[00:08:39] Speaker 00:
I'm not clear how that is different than saying.

[00:08:42] Speaker 00:
I mean, how can a United States court recognize a tribe other than by if there's a cause of action for that?

[00:08:50] Speaker 00:
That's what it means.

[00:08:51] Speaker 03:
Well, traditionally, the way it works is wouldn't you challenge under the APA like that the bureaus, I forget what the name of the section eight or whatever, that the bureaus adjudication of the tribal recognition was wrong.

[00:09:09] Speaker 03:
And so the court can say,

[00:09:10] Speaker 03:
under the procedures provided by the Bureau, we agree it was arbitrary and capricious and we order the federal government to... Right.

[00:09:21] Speaker 03:
But that's not what you're doing here.

[00:09:24] Speaker 00:
We are doing that, but that's not the same thing that this says.

[00:09:28] Speaker 00:
It's true.

[00:09:29] Speaker 00:
This is a different way of saying it.

[00:09:31] Speaker 00:
It is not the common way of saying it.

[00:09:33] Speaker 00:
I'll say that.

[00:09:33] Speaker 00:
But it's impossible, I believe, to read finding three.

[00:09:39] Speaker 00:
and not conclude that a US court has the power to declare a tribe recognized.

[00:09:45] Speaker 02:
So what do you actually want us to do?

[00:09:48] Speaker 02:
You want us to look at the historical evidence of this tribe over the better part of two centuries and to conclude from that that it's a separate sovereign nation?

[00:09:58] Speaker 00:
Well, we're not asking you, of course, but we would be asking the trial court on remand to do that.

[00:10:03] Speaker 00:
And that is not something that never happens.

[00:10:08] Speaker 00:
The court might look at this and say, well, geez, how are we going to do this?

[00:10:13] Speaker 00:
But the fact is, it was done for years before mostly the administrative agency got involved in 1978.

[00:10:23] Speaker 00:
So courts were doing it.

[00:10:24] Speaker 00:
And courts do it now.

[00:10:25] Speaker 00:
There are other times when the question, is this a tribe, comes up.

[00:10:30] Speaker 00:
the non-intercourse act where certain tribal lands may not be sold because they are tribal lands.

[00:10:38] Speaker 00:
The question is, are these tribal lands?

[00:10:40] Speaker 00:
Well, is this an Indian tribe that owns these lands?

[00:10:44] Speaker 00:
And the courts go into those kinds of analysis.

[00:10:46] Speaker 01:
But usually we look at whether or not they're on the list of federally recognized tribes to make that determination.

[00:10:53] Speaker 01:
We don't make that determination in the first instance.

[00:10:57] Speaker 00:
That's right.

[00:10:58] Speaker 00:
Usually, because as we've conceded, no court has yet done this.

[00:11:04] Speaker 00:
That's correct.

[00:11:05] Speaker 00:
Only one court has even considered it.

[00:11:07] Speaker 00:
And that court has decided wrongly by analyzing the language that says the tribe may presently be recognized to mean, well, that was in the past.

[00:11:21] Speaker 01:
But what about all of the cases that say this is a political question?

[00:11:26] Speaker 00:
None of those cases, none of those courts was presented with the argument that the List Act says this and does this.

[00:11:34] Speaker 00:
It just, it wasn't.

[00:11:35] Speaker 00:
The Shinnecock case is the only one in which this argument was considered.

[00:11:39] Speaker 00:
And the court flatly misconstrued the language by saying that presently, really, as counsel and my friend on the other side would say, is best read to mean in the past.

[00:11:51] Speaker 00:
There is no dictionary that defines present as past.

[00:11:55] Speaker 00:
And if that were true as well, if presently meant only in the past, it would apply to the other agencies listed here, Congress and the agency itself.

[00:12:04] Speaker 03:
Do you think the district court understood your argument to be making this statutory argument?

[00:12:10] Speaker 03:
Because I'm just curious why the district court ruled it non-justiciable when it seems like all you're making is a statutory argument.

[00:12:17] Speaker 00:
The court did, the court relied heavily on the Shinnecock case and we argued about the Shinnecock case below and it was just about finding three.

[00:12:27] Speaker 00:
I think you wanted to reserve some time.

[00:12:28] Speaker 00:
I will reserve the balance.

[00:12:30] Speaker 01:
Thank you counsel.

[00:12:43] Speaker 04:
Good morning, Your Honor.

[00:12:44] Speaker 04:
This may please the court.

[00:12:45] Speaker 04:
My name is Ezekiel Peterson here on behalf of the US Department of the Interior.

[00:12:49] Speaker 04:
Issues of federal tribal recognition are quintessential political questions that are committed to the executive and the legislative branches.

[00:12:56] Speaker 04:
So the district court correctly dismissed this for lack of subject matter jurisdiction because Chinook seeks a judicial decree that it is a federally recognized tribe.

[00:13:05] Speaker 03:
But OK, that's how I might have thought of it.

[00:13:08] Speaker 03:
But it seems like today they're arguing that they're just making a statutory argument that under

[00:13:12] Speaker 03:
the List Act, it provides a cause of action for federal courts to then recognize tribes.

[00:13:17] Speaker 03:
Yes, Your Honor.

[00:13:17] Speaker 04:
So our argument is that the List Act, as an interpretive matter, the factual findings in the List Act don't provide a cause of action and don't change any of the settled lay of the land.

[00:13:28] Speaker 04:
This is a quintessential political question.

[00:13:30] Speaker 03:
Right.

[00:13:31] Speaker 03:
But he's making a very narrow claim that the List Act provides a cause of action.

[00:13:36] Speaker 03:
We may agree or disagree, but that's not something to political question, just doctrine, right?

[00:13:41] Speaker 03:
That's something that federal courts

[00:13:42] Speaker 03:
do all the time, interpret a federal statute.

[00:13:44] Speaker 04:
Certainly, and I think this court would have jurisdiction to make the

[00:13:49] Speaker 04:
to decide the interpretive question about whether or not the List Act confers a separate cause of action.

[00:13:55] Speaker 02:
I had not understood that to be the argument.

[00:13:58] Speaker 02:
I understood the complaint to just say we are seeking a declaratory judgment that under federal law, which does at a broad level recognize tribes, we are such a tribe.

[00:14:08] Speaker 02:
And I thought the import of the List Act was to say, don't worry about the political question doctrine because Congress has said that you as a court can go ahead and do this.

[00:14:19] Speaker 02:
That's how I understood the relevance of the List Act theory is to say that solves the political question problem.

[00:14:28] Speaker 04:
Yes, I think that's right and I want to touch on why that's wrong as an interpretive matter.

[00:14:33] Speaker 04:
So the List Act's factual findings, they certainly reference tribal recognition, quote, by a decision of the United States Court.

[00:14:40] Speaker 04:
But that language shouldn't be read as a newfound grant of jurisdiction to federal courts or a newfound cause of action that overrides this 100 plus years of precedent and gives federal courts jurisdiction to make these political determinations about which tribes are or are not entitled to federal recognition

[00:14:58] Speaker 04:
outside of the political process.

[00:15:00] Speaker 03:
So conceptually, I'm trying to figure out how.

[00:15:02] Speaker 03:
So the government's argument is, as a general matter, the question of recognition of tribes is a political question led to the political branches.

[00:15:13] Speaker 03:
But you agree that if they're making a specific claim under the List Act, we do have jurisdiction to interpret that and decide that claim.

[00:15:23] Speaker 04:
I think that's right.

[00:15:25] Speaker 04:
The court has jurisdiction to.

[00:15:28] Speaker 04:
reach the statutory interpretation question about whether or not there is a cause of action.

[00:15:33] Speaker 04:
Right.

[00:15:33] Speaker 03:
And if we determine that there is no cause of action, then anything more is political question.

[00:15:39] Speaker 03:
I think that's right, yes.

[00:15:40] Speaker 03:
But then if we do determine there is a cause of action, then we do have jurisdiction to decide that.

[00:15:45] Speaker 04:
to decide.

[00:16:02] Speaker 04:
Just briefly touch on the interpretive question here.

[00:16:06] Speaker 04:
Congressional findings almost never create a substantive right or a cause of action.

[00:16:12] Speaker 04:
I think the Pennhurst case is really good support for that.

[00:16:15] Speaker 04:
The Supreme Court looked at the congressional findings in an act that said patients have a right to a certain kind of care and said, well, there's no connection between that finding and the actual substantive provisions of the statute.

[00:16:26] Speaker 04:
So it's too thin a read to create any sort of substantive right or cause of action.

[00:16:30] Speaker 04:
the very minimum, be some sort of connection to the substantive provisions of the statute.

[00:16:35] Speaker 04:
But Chinook doesn't point any here.

[00:16:36] Speaker 04:
They read the finding in isolation, divorced from the substantive provision of the List Act.

[00:16:40] Speaker 04:
In the List Act, the actual substantive provision at 25 U.S.C.

[00:16:44] Speaker 04:
Section 5131A is really quite modest.

[00:16:47] Speaker 04:
It just instructs the Secretary of the Interior to annually publish a list of all the federally recognized tribes.

[00:16:54] Speaker 04:
There's nothing in that substantive portion of the act that suggests that it was meant to sweep away this 100 plus years precedent about tribal recognition being a political question committed to the political branch.

[00:17:06] Speaker 02:
So what does it mean when it says tribes presently may be recognized by a decision of the United States court?

[00:17:13] Speaker 02:
What does that mean?

[00:17:13] Speaker 04:
I think there are two possible answers to that.

[00:17:16] Speaker 04:
The first is it's a description of historical practice.

[00:17:19] Speaker 04:
So it's tribes presently in existence,

[00:17:21] Speaker 04:
may have been, in some cases, prior to the promulgation of the Part 83 regulations, recognized in limited circumstances by courts.

[00:17:30] Speaker 04:
The example we point to in the brief is the First Circuit 1975 Passamaquoddy case, where the First Circuit looked at a non-federal recognized tribe and nonetheless determined that it was entitled to, or it fell under the Indian Non-Intercourse Act.

[00:17:46] Speaker 04:
So that's like an ad hoc judicial determination.

[00:17:49] Speaker 04:
But it sounds like it was under a federal statute, you're saying.

[00:17:52] Speaker 04:
Yes.

[00:17:54] Speaker 04:
Yeah.

[00:17:54] Speaker 04:
Yeah.

[00:17:54] Speaker 04:
It was a limited determination for the purposes of a specific federal statute as to whether the non-federal recognized tribe.

[00:18:01] Speaker 03:
So that's like a similar situation here, then.

[00:18:03] Speaker 03:
They interpreted the statute, right, that whether or not the tribe fell within that or not.

[00:18:09] Speaker 04:
Yes.

[00:18:09] Speaker 04:
Yeah.

[00:18:10] Speaker 04:
I think that's right.

[00:18:10] Speaker 04:
But the difference is that here, of course, Chinook is seeking

[00:18:14] Speaker 04:
a declaration from the court that they are a federally recognized tribe entitled to all the benefits of that nation to nation.

[00:18:20] Speaker 02:
Okay, just to make sure I understand what you're saying on this.

[00:18:22] Speaker 02:
So you're saying basically, look, a federal court can never just declare this Chinook tribe is in fact a sovereign nation and the United States need to treat it as such, but there may be

[00:18:34] Speaker 02:
statutory schemes where you kind of need to decide is something a tribe and in that limited case you could maybe do that and that's what finding three is referencing?

[00:18:45] Speaker 04:
Yes, that would be I think our first argument as to what finding three is referencing.

[00:18:52] Speaker 02:
I guess the question one would have is is that really a fair reading of that finding because it says tribes may be recognized I mean it doesn't say for what purpose but usually we think of recognition as

[00:19:03] Speaker 02:
kind of like recognition as a tribe in the way that the plaintiff is asking about?

[00:19:08] Speaker 04:
I think that's fair, Your Honor.

[00:19:10] Speaker 04:
There's just nothing else in the statute that suggests it's meant to sweep away the history there.

[00:19:15] Speaker 04:
And then the second thing that it could be referencing, and Judge Boumante brought this up, is the availability of judicial review.

[00:19:21] Speaker 04:
We don't dispute that putative tribes can seek APA review of final agency actions to denying their petitions for federal recognition.

[00:19:30] Speaker 03:
Is that what you would argue, Colleantes, about that?

[00:19:33] Speaker 03:
Yes.

[00:19:34] Speaker 03:
Because it suggests that there is not a political question when there's an APA.

[00:19:37] Speaker 04:
Yes.

[00:19:39] Speaker 04:
We fully agree that courts have jurisdiction.

[00:19:41] Speaker 02:
Even the APA claim doesn't exactly recognize the tribe.

[00:19:46] Speaker 02:
It more says the agency acted arbitrarily in denying recognition on some basis.

[00:19:51] Speaker 02:
Right.

[00:19:51] Speaker 02:
So we wouldn't do the APA review and at the end of that say, congratulations, you're a tribe.

[00:19:55] Speaker 02:
We would say, go take another look at this.

[00:19:57] Speaker 04:
Certainly the government wouldn't argue that that's a possible remedy.

[00:20:00] Speaker 04:
court could impose.

[00:20:02] Speaker 04:
And yes, I agree that it's a little bit roundabout, that reading of it.

[00:20:05] Speaker 04:
I recognize that.

[00:20:07] Speaker 04:
So yes, we don't have a perfect interpretation of what this finding is meant to say.

[00:20:13] Speaker 04:
But those are our two best arguments.

[00:20:14] Speaker 04:
Either it's about previous historical practice, courts recognizing for certain limited purposes, or it's about the availability of APA review.

[00:20:24] Speaker 04:
Unless this court has questions.

[00:20:26] Speaker 02:
Could it mean that a court could recognize that the executive branch has already recognized?

[00:20:32] Speaker 02:
In other words, we could determine that, in fact, the United States has recognized somebody.

[00:20:39] Speaker 02:
I mean, that's not the case here, because the United States opposes that.

[00:20:42] Speaker 02:
But if that were the case, is that a plausible reading of this?

[00:20:47] Speaker 04:
I think that's right.

[00:20:49] Speaker 04:
I think maybe if there was a situation where a tribe had been recognized and then somehow there was some sort of termination of that recognition and then judicial review.

[00:20:59] Speaker 02:
I mean, even that, I think, would still encounter problems from a political question standpoint if the government's changed its mind.

[00:21:05] Speaker 02:
Right, right.

[00:21:09] Speaker 04:
Unless the court has questions about the statute of limitations or anything else about the List Act, we'll stand on the briefs.

[00:21:16] Speaker 04:
Thank you, Your Honor.

[00:21:17] Speaker 01:
Thank you, council.

[00:21:18] Speaker 01:
Your bottles.

[00:21:19] Speaker 02:
Can I ask you just before you sit down?

[00:21:22] Speaker 01:
Almost made it.

[00:21:23] Speaker 01:
You almost made it, yeah.

[00:21:26] Speaker 02:
Six and a half minutes left.

[00:21:27] Speaker 02:
We might as well use it.

[00:21:29] Speaker 02:
What was the tribe supposed to do here?

[00:21:31] Speaker 02:
Because they've come here on this theory saying, well, we want you to do this and recognize this.

[00:21:37] Speaker 02:
So what should they have done to try to make progress on this?

[00:21:40] Speaker 04:
Yeah, two answers to that.

[00:21:42] Speaker 04:
I think the first would have been to seek APA review of Interior's final agency action back in 2002.

[00:21:48] Speaker 04:
The other thing is that just in January on January 15th interior published a new final rule that allows for Repetitioning for federal recognition in certain limited circumstances that site is 90 Federal Register 3627 so that's the other Avenue forward for the Chinook Okay, thank you.

[00:22:07] Speaker 04:
Judge.

[00:22:07] Speaker 04:
Well.

[00:22:08] Speaker 01:
Thank you.

[00:22:09] Speaker 01:
Thank you counsel the bottle

[00:22:19] Speaker 00:
Thank you, Your Honor.

[00:22:20] Speaker 00:
I think the interpretations offered by the government do run into problems with the literal language of finding three in ways that I believe we've already covered, unless the Court has something else about it.

[00:22:35] Speaker 01:
What's your response to opposing counsel's listing of the alternative avenues you have to seek recognition?

[00:22:43] Speaker 01:
We talked about the APA, but what about the new regulation that he referenced?

[00:22:47] Speaker 01:
Do you agree that that exists?

[00:22:49] Speaker 00:
It does, yes.

[00:22:50] Speaker 00:
There's a new regulation out there.

[00:22:52] Speaker 00:
It's uncertain how that, of course, how that's gonna work, who's gonna be able to do it and when.

[00:22:57] Speaker 00:
There are some provisions about that, but yeah, that's a brand new thing that came out of a case.

[00:23:03] Speaker 01:
But would you agree that that's an alternative avenue for your client to seek recognition?

[00:23:09] Speaker 00:
It is an avenue that we might qualify for.

[00:23:13] Speaker 00:
And we're going to have to see if that's something that becomes necessary.

[00:23:18] Speaker 00:
But it is offered for that purpose.

[00:23:21] Speaker 00:
That was, in fact, that was our second claim in this case, that that was an arbitrary statute.

[00:23:26] Speaker 00:
It got sent, regulation, it got sent back, and the agency took its time but finally did change the rule so that it now allows for some limited repetition, which is their phrase, their way of putting it.

[00:23:42] Speaker 02:
Is there legal history showing that prior to 1978, federal courts did what you want done here?

[00:23:48] Speaker 00:
Absolutely.

[00:23:50] Speaker 02:
Okay, so what cases are you pointing to?

[00:23:52] Speaker 02:
Because there's also cases that talk about this as a non-justiciable matter even earlier than 1978.

[00:23:57] Speaker 00:
Right, Montoya in 1901, the Candelaria case, it's in the 20s someplace.

[00:24:05] Speaker 00:
Those are cases where courts just made decisions.

[00:24:08] Speaker 00:
There were also ad hoc decisions, just made the agency, somebody wrote on a scrap of paper, this is a recognized tribe, and I mean there were all kinds of ways

[00:24:16] Speaker 00:
We referred to a law review article in our opening brief that talks about that whole process.

[00:24:23] Speaker 00:
But so what Congress did was say, okay, this is a mess.

[00:24:27] Speaker 00:
We're going to send it back.

[00:24:28] Speaker 00:
In 1975, they sent it back and said, look, agency, come up with a, do something here, excuse me, study the problem.

[00:24:38] Speaker 00:
And so they did a study.

[00:24:40] Speaker 00:
And the study went, you know, for several years, and then it went up on a shelf.

[00:24:44] Speaker 00:
And nothing happened.

[00:24:45] Speaker 00:
And Congress never said anything about how recognition should work or anything like that.

[00:24:50] Speaker 00:
So the agency just came up with this on its own.

[00:24:53] Speaker 00:
And that's the process that now exists.

[00:24:56] Speaker 03:
Can I also confirm that you are disclaiming any APA challenge in this case?

[00:25:00] Speaker 03:
Because I think this is all about the list stack.

[00:25:03] Speaker 00:
Not an APA challenge.

[00:25:04] Speaker 00:
And we certainly agree that in an APA challenge, the appellate court does not recognize the tribe.

[00:25:11] Speaker 00:
It sends it back for further process.

[00:25:16] Speaker 00:
You know, the government says this is an important issue and the tribe certainly agrees because this is a matter of tribal survival.

[00:25:26] Speaker 00:
We are surrounded by tribes that are in much better shape than we are, everything from unemployment to discrimination to drug dealing to all the things that make it difficult for people to live in a land that used to be theirs.

[00:25:42] Speaker 00:
And that, with small compensation, no longer is.

[00:25:47] Speaker 00:
Thanks very much.

[00:25:47] Speaker 01:
Thank you, counsel.

[00:25:48] Speaker 01:
Thank you to both counsel for your helpful arguments.

[00:25:51] Speaker 01:
The case just argued is submitted for a decision by the court.