[00:00:02] Speaker 00: Case number 15-5118, Mackinac Tribe Appellant v. Sally Jewell, U.S. [00:00:08] Speaker 00: Secretary of the Interior. [00:00:09] Speaker 00: Mr. Wallery for the Appellant, Mr. DiMascio for the Appellate. [00:00:16] Speaker 01: Good morning, Counsel. [00:00:17] Speaker 05: Good morning. [00:00:18] Speaker 05: If it pleases the Court, I'm Michael Wallery. [00:00:21] Speaker 05: I'm here on behalf of the Mackinac Tribe, and I wish to reserve two minutes for rebuttal. [00:00:27] Speaker 05: The IRA was enacted to allow Indian tribes the right to reorganize so that they could adopt modern institutions to have a rational relationship with the United States government and also to provide for orderly government within their tribes. [00:00:51] Speaker 05: The Mackinac have requested to be reorganized, and they did not ask to be acknowledged by the Secretary. [00:01:01] Speaker 04: We say request to be reorganized. [00:01:03] Speaker 04: Are they organized in any form now? [00:01:05] Speaker 05: Yes, they are. [00:01:07] Speaker 05: What form? [00:01:08] Speaker 05: It's very much like the Merriam Report. [00:01:10] Speaker 04: I mean, they're not organized under the IRA, right? [00:01:14] Speaker 05: No. [00:01:14] Speaker 04: No. [00:01:15] Speaker 04: OK. [00:01:15] Speaker 04: So what form are they organized? [00:01:17] Speaker 05: They currently are composed of four different autonomous groups that have emerged over the last 100 years, essentially. [00:01:30] Speaker 05: But they have combined to create a consolidated tribal council for the purposes of reorganizing. [00:01:41] Speaker 05: Because as you can imagine, having four different groups out there, it's very confusing, which is what the Merriam Report was all about. [00:01:50] Speaker 05: reported that like, for example, on Cheyenne and Arapahoe. [00:01:53] Speaker 04: But they have a council that governs internal affairs. [00:01:55] Speaker 04: They tell me what to do. [00:01:56] Speaker 04: Hires council and things of that nature. [00:01:59] Speaker 04: Well, yeah. [00:02:00] Speaker 05: They kind of tell it. [00:02:01] Speaker 05: It's a litigation council. [00:02:02] Speaker 05: And they have a litigation chief, if you will, which is Darren Breguet. [00:02:08] Speaker 05: He's back here, who kind of keeps an eye on me and lets me know when I'm messing up. [00:02:14] Speaker ?: OK. [00:02:14] Speaker 05: So they would like to reorganize to actually have one tribe. [00:02:21] Speaker 05: Now, it's really important [00:02:25] Speaker 05: that the district court in this case never reached the issue as to whether or not the Mackinac were a recognized tribe. [00:02:33] Speaker 05: And she never reached the issue of whether or not they were illegally terminated. [00:02:38] Speaker 05: And what's very important is that she never resolved the issue as to whether or not they were a tribe for the purposes of the IRA. [00:02:49] Speaker 05: That's a very important issue. [00:02:52] Speaker 05: and consequently could not make a ruling on the plausibility of the claims. [00:02:57] Speaker 04: But why not go through the part 83 process? [00:02:59] Speaker 04: I don't ask you to reveal your litigation strategy. [00:03:02] Speaker 04: Well, your litigation strategy is apparent. [00:03:04] Speaker 04: You've chosen not to go through the part 83 process. [00:03:07] Speaker 04: Why not? [00:03:08] Speaker 05: Well, there's many reasons for it. [00:03:09] Speaker 05: There's been actual congressional hearings on it explaining that the part 83 process is extremely long. [00:03:16] Speaker 05: For example, in the case that is before the circuit right now in the Grand Rome case, it took 20 years for the calyx scribe to be recognized. [00:03:28] Speaker 05: But there's a bigger issue. [00:03:32] Speaker 05: And the question is the wrong question. [00:03:35] Speaker 04: Sorry. [00:03:38] Speaker 04: Forgive me. [00:03:39] Speaker 04: Tell me the right question. [00:03:40] Speaker 04: I need help. [00:03:41] Speaker 05: Well, I'll let you know if you pick the right question. [00:03:42] Speaker 05: But the right question is this. [00:03:45] Speaker 05: The right question is why are they being forced to do that when they have a treaty which recognizes them as a tribe and that the... Are you aware of any instances since 1978 where a tribe has gained recognition [00:04:02] Speaker 04: and has not gone through the Part 83 process? [00:04:04] Speaker 05: Almost a third of the 500 tribes on the list have not gone through. [00:04:09] Speaker 04: Since they were recognized since 1978? [00:04:11] Speaker 05: Yeah. [00:04:12] Speaker 05: Of course, my favorite one being the Alaska tribes, which is over 260 tribes, which came out of the no attack decision, which I represented the non-IRA ones in that one. [00:04:26] Speaker 05: None of them went through the Part 83 process, although it existed at the time. [00:04:33] Speaker 05: In the Tilly Harwood cases in California, 17 tribes were recognized by the courts and did not go through the Part 83 because it was determined... They had not been recognized by the secretary, but they were recognized by the courts. [00:04:51] Speaker 05: They were determined as the Mackinac. [00:04:53] Speaker 05: They were determined to be administratively illegally terminated, which is the Tilley-Harwick cases, and 17 rancherias. [00:05:01] Speaker 05: It's actually cited in the briefing on trying to anticipate your question. [00:05:07] Speaker 05: In addition to that, one tribe in Michigan, and that is the Sault Ste. [00:05:12] Speaker 05: Marie tribe, was acknowledged in 1980. [00:05:19] Speaker 05: The case cited in the briefing is City of Sault Ste. [00:05:22] Speaker 05: Marie versus Andress, and they explain in there that the Sault Ste. [00:05:26] Speaker 05: Marie tribe, which is the largest tribe east of the Mississippi, was not recognized [00:05:35] Speaker 05: through the part 83 process, but was recognized in a process where the secretary drafted a memorandum saying, oh, we made a mistake. [00:05:47] Speaker 05: And the tribe was a treaty tribe and recognized it. [00:05:53] Speaker 05: It was a treaty tribe under the same treaty that we're talking about with regards to the Mackinac. [00:05:59] Speaker 05: The Mackinac set up, the Treaty of 1855 set up seven vicinities and residency, and in Article 5 of that treaty, guaranteed to the tribes that the United States would deal with them [00:06:12] Speaker 05: not as the Chippewa Nation, but on the basis of their residency in either the vicinities of their lands that were set aside, which in the Mackinac was the St. [00:06:25] Speaker 05: Ignace and the Manistique Reserves, [00:06:28] Speaker 05: or their place of normal payment of their annuities, which was St. [00:06:32] Speaker 04: Ignatius. [00:06:34] Speaker 04: Could you help me? [00:06:34] Speaker 04: I had trouble understanding your argument about distinction between recognition and acknowledgment. [00:06:41] Speaker 04: Fascinating issue. [00:06:42] Speaker 04: Well, can you dumb that down for me and give me a short? [00:06:52] Speaker 05: Only Congress can recognize an Indian tribe. [00:06:56] Speaker 05: And actually, they state that in their brief at page five. [00:07:01] Speaker 05: And that is a normal rule. [00:07:03] Speaker 05: Only Congress can recognize an Indian tribe. [00:07:05] Speaker 05: And the way they do that, and it's explained in the Noatek versus Hoffman decision, you basically look at what are called the mentoya factors. [00:07:14] Speaker 05: And then you figure that out. [00:07:16] Speaker 05: And the mentoya factor looks at the way Congress has dealt with that entity in the past. [00:07:21] Speaker 05: If they have a treaty, they're recognized as a tribe. [00:07:26] Speaker 05: If they don't have a treaty, about half of the tribe, well, over half, about two-thirds of the tribes in the US are not treaty tribes. [00:07:34] Speaker 05: If they do not have a treaty, you take a look at whether or not there were statutes in which they were dealt with as tribes. [00:07:42] Speaker 05: For example, in the No-Attack case in Alaska, the 200 side. [00:07:46] Speaker 04: Who's doing the looking here, the secretary or the court? [00:07:50] Speaker 05: Because as it says in the Tribal List Act itself, three entities can do it. [00:07:59] Speaker 04: Right, the two. [00:08:00] Speaker 05: Congress can simply pass a law. [00:08:03] Speaker 05: which it does on occasion. [00:08:06] Speaker 05: There is a process where, and there always has been a process, where the secretary can do it. [00:08:11] Speaker 05: It's been formalized now into part 83. [00:08:14] Speaker 05: But it's acknowledged. [00:08:15] Speaker 05: It's not recognition. [00:08:17] Speaker 05: Acknowledgement is acknowledging what Congress has done. [00:08:23] Speaker 05: So for example, Congress can recognize, but acknowledgement is saying, oh, Congress recognized. [00:08:31] Speaker 05: And the other group that gets to do this are the courts. [00:08:34] Speaker 05: And that goes way back under the no attack decision or under Mantoya all the way into the no attack decision as an established way. [00:08:46] Speaker 05: And it is specifically referenced. [00:08:49] Speaker 05: in the Tribal List Act, Section 4 as a congressional finding, that that's the way it happens. [00:08:58] Speaker 05: Why does that matter here? [00:08:59] Speaker 05: Why does this distinction matter here? [00:09:00] Speaker 05: Because Section 4 also says this, if the tribe is recognized, nobody can take it away except Congress. [00:09:10] Speaker 05: Nobody can take away the right to recognize a tribe except Congress. [00:09:15] Speaker 05: And what you have here is a usurpation by the secretary, and a relatively new usurpation. [00:09:21] Speaker 05: A usurpation by the secretary saying, they have the exclusive right to recognize. [00:09:26] Speaker 05: And that's not the law and has never been the law. [00:09:30] Speaker 05: And it's actually in opposition to what the department has been arguing recently in Stand Up versus California. [00:09:36] Speaker 05: and in the city of St. [00:09:40] Speaker 05: Marie. [00:09:40] Speaker 05: Excuse me. [00:09:41] Speaker 02: Mr. Wheeler, are you challenging the new regulation from the end of last year that defines recognition basically as being on the... No, because I think as the government, as the secretary pointed out in her brief, [00:09:58] Speaker 05: They're not arguing that that regulation applies. [00:10:01] Speaker 02: Why doesn't it apply? [00:10:03] Speaker 05: Because we started this whole thing a long time ago, long before, and essentially the regulation was changed in response to this. [00:10:13] Speaker 05: See, because under the old regulation, when we filed the lawsuit, and that's part 81.1, [00:10:22] Speaker 05: What it says is that you are eligible for reorganization if you are on the list or eligible to be on the list. [00:10:35] Speaker 05: And of course, to be eligible to be on the list, you have to be a recognized tribe. [00:10:38] Speaker 05: And how do you be a recognized tribe? [00:10:40] Speaker 05: You have a treaty. [00:10:41] Speaker 05: If you have a treaty, you're a recognized tribe. [00:10:43] Speaker 05: Otherwise, you have to be somehow acknowledged either by the courts or by the department. [00:10:49] Speaker 02: Well, the government takes the position that eligible to be on the list means they only publish this list every so often. [00:10:54] Speaker 02: And so somebody who's already been determined by the executive branch to be [00:11:01] Speaker 02: recognized but not listed as eligible to be on list. [00:11:05] Speaker 02: I see that much more naturally. [00:11:06] Speaker 05: That's not been the practice of the department, as I pointed out, and has been part of the litigation history of this. [00:11:13] Speaker 05: And for example, Nolotac, where the courts recognized over 200 tribes in Alaska, Tilly Harwork, 17 tribes in California, and of course in Michigan, the Sault Ste. [00:11:25] Speaker 05: Marie. [00:11:26] Speaker 05: It's not done that way. [00:11:28] Speaker 02: So walk me through just this [00:11:29] Speaker 02: the statutory and regulatory path. [00:11:34] Speaker 02: Under which portion of tribe or Indian tribes do you believe the Mackinac are entitled to judicial recognition? [00:11:47] Speaker 02: You're asking the court to order that they are recognized. [00:11:52] Speaker 05: No, I'm not asking you to. [00:11:54] Speaker 05: I'm not asking. [00:11:54] Speaker 05: Nobody's asked the courts to order the recognition of the Mackinac. [00:12:00] Speaker 05: Because, and I don't mean to be insulting about this, but the Mackinac kind of think they've been recognized since 1855. [00:12:06] Speaker 04: Well, you're asking for a declaratory judgment that they are recognized. [00:12:11] Speaker 05: We did, but that's not part of the appeal. [00:12:13] Speaker 05: That's not part of the appeal. [00:12:15] Speaker 05: That was count one, which was. [00:12:17] Speaker 01: I think we still need to figure out what is the difference between being recognized and being acknowledged. [00:12:25] Speaker 01: And what flows from that? [00:12:29] Speaker 05: The difference is that acknowledgement is the acknowledgement or the declaration that a tribe is recognized. [00:12:38] Speaker 01: OK. [00:12:38] Speaker 01: And so in your view, that is something that the Secretary can do. [00:12:43] Speaker 01: It's the end of the Part 83 process, or is that recognition? [00:12:49] Speaker 01: Yes, if we had gone through the Part 83 process. [00:12:51] Speaker 01: So your view is, if you had gone through the Part 83 process, [00:12:54] Speaker 01: you would be acknowledged, but not necessarily. [00:13:00] Speaker 01: In other words, to be acknowledged means that you are recognized. [00:13:04] Speaker 05: Yeah, because, for example, tribes, and this is what Justice Breyer was trying to explain in having a similar problem with my explanation, because Indian law is somewhat obtuse. [00:13:19] Speaker 05: I think that's polite. [00:13:21] Speaker 05: What Justice Breyer was pointing out in his kind of become the big issue in this whole area is that the Bureau of Indian Affairs makes mistakes. [00:13:33] Speaker 05: No news, by the way, to the Indians. [00:13:36] Speaker 05: But he basically said the Bureau of Indian Affairs makes mistakes all the time. [00:13:41] Speaker 05: And that it's not a question that these entities were not recognized, because they were recognized. [00:13:51] Speaker 05: And all the acknowledgment process does is look back and say, over all this period of time, did Congress recognize this Indian tribe as an Indian tribe? [00:14:04] Speaker 05: And as I say, there are two entities that can do that. [00:14:07] Speaker 05: that at least Congress says in the Indian List Act, two ways to do that. [00:14:11] Speaker 05: You can go through the Part 83 and you can go through the courts. [00:14:17] Speaker 01: Now what's interesting about that... I want you to stop there because what I'm trying to figure out is when we talk about going through the court, what does that really mean? [00:14:27] Speaker 01: The way I read the List Act, [00:14:30] Speaker 01: Every branch of government can do this, right? [00:14:33] Speaker 01: Congress clearly can enact a statute. [00:14:37] Speaker 01: The executive can do it through the Part 83 process, right? [00:14:41] Speaker 01: Now, how do courts get involved in this? [00:14:44] Speaker 01: There has to be something... Where, in a collateral, where a collateral, where, where's a matter of collateral... So, like, ordinarily, courts would get involved because the executive [00:14:58] Speaker 01: process had been started, perhaps that did not work out as people wanted it to, and so that could be challenged. [00:15:06] Speaker 01: So my question is, if you're not doing that though, how do you get this to court? [00:15:10] Speaker 05: Well actually, that's not the way it normally happens in courts. [00:15:14] Speaker 05: For example, if [00:15:15] Speaker 05: If they have said, we're going to go through the Part 83 process, and then they start that Part 83 process, and then it doesn't go well, well, I hate to break the news to you, but you can't sue unless you go through that whole process, and that's a 20-year process, et cetera. [00:15:30] Speaker 01: Well, I mean, that's my question. [00:15:31] Speaker 05: But the way it's normally come up is as it was in like, for example, in U.S. [00:15:37] Speaker 05: versus Montoya, which is the [00:15:39] Speaker 05: which is kind of the seminal case in this area. [00:15:43] Speaker 05: That was brought up in a criminal case where I believe an Indian was being charged with a, is either a liquor violation of Indian liquor laws, I may be getting my cases confused, or it was another criminal matter. [00:15:59] Speaker 05: And his defense was that [00:16:02] Speaker 05: He was an Indian, and the laws that was being enacted and charging him was not in fact applicable to him. [00:16:09] Speaker 01: But that seems to me different from recognition. [00:16:11] Speaker 01: What I'm trying to figure out is how do courts get involved when the argument is we are a recognized tribe or should have been, and we don't want to go through the process that the executive has established. [00:16:31] Speaker 05: Well, that's not the way it really looks from this side of the bench, Your Honor. [00:16:37] Speaker 05: The way it is from this side of the bench is that, like for example, the Mackinac in 1910, they were enrolled. [00:16:46] Speaker 05: They had native allotments. [00:16:47] Speaker 05: They were receiving annuities. [00:16:49] Speaker 05: Today, the Mackinac receive all kinds of services. [00:16:53] Speaker 05: because of their status as Indians to some degree, depending upon what's going on with their 638 contract, which is handled through the Sault Ste. [00:17:02] Speaker 05: Marie. [00:17:04] Speaker 05: So the bigger question [00:17:08] Speaker 05: These issues come before the courts. [00:17:11] Speaker 05: For example, in NOATAC, it came before the courts based upon a failure of the state of Alaska to pay revenue sharing that under state law went to Indian tribes. [00:17:24] Speaker 05: And the state administration said, there are no Indian tribes in Alaska. [00:17:28] Speaker 05: And so the question was, oh, let's take a look at that statute and see if there are Indian tribes in Alaska. [00:17:34] Speaker 05: And the Ninth Circuit said, yes, even though they were excluded from the list and specifically excluded from the list that was promulgated and had never gone through the Part 83 process. [00:17:48] Speaker 05: Oftentimes, and this is the interesting thing, [00:17:52] Speaker 05: As we point out, and there is no definition of what an Indian tribe is, and this was again part of what Briar was talking about. [00:18:03] Speaker 05: If you take a look at footnote 24 and 25, I list the fact that the part 83 definition of an Indian tribe is only used in about three statutes. [00:18:18] Speaker 05: The term Indian tribe, and there's many, many statutes. [00:18:22] Speaker 05: I think there's close to 60 statutes in which the term Indian tribe is made and applies. [00:18:27] Speaker 05: And those are discussed at footnote 25. [00:18:32] Speaker 05: And that's why Justice Breyer was saying that there is this unyielding detailed and unyielding definition of an Indian tribe based upon the purposes for which you are looking at that Indian tribe. [00:18:48] Speaker 05: If you are trying to reorganize, you don't go to part 83, you go to the IRA. [00:18:54] Speaker 05: You say, what does the IRA statute say? [00:18:56] Speaker 05: And what the IRA statute says is that you have to be a recognized tribe. [00:19:01] Speaker 05: It doesn't say an acknowledged tribe, it says a recognized tribe. [00:19:06] Speaker 05: And it also says you have to have been under federal jurisdiction in 1934. [00:19:11] Speaker 05: Two things. [00:19:13] Speaker 05: Now, the government doesn't really dispute any of this. [00:19:16] Speaker 05: In fact, for the purposes of this, they never filed an answer. [00:19:20] Speaker 05: And all of the alleged facts in the complaint are deemed to be admitted. [00:19:24] Speaker 05: They basically demurred to it. [00:19:26] Speaker 05: So you have to take a look at that statute. [00:19:29] Speaker 05: Like, for example, [00:19:35] Speaker 05: Base closure. [00:19:39] Speaker 05: Military base closure has a definition of Indian tribes, but it only applies to certain Indian tribes. [00:19:44] Speaker 05: And that definition of Indian tribe is very narrowly defined. [00:19:49] Speaker 05: Under Johnson O'Malley Education Act funding, certain tribes can receive it, other tribes can't. [00:19:56] Speaker 05: And so when you're looking at the implementation of a statute, you have to take a look at this [00:20:03] Speaker 05: detailed and unyielding definition that is applicable to the purposes for which you are looking at the issue. [00:20:11] Speaker 02: But we are being told by the Secretary that for purposes of this law, the Indian Reorganization Act, that they have chosen as a regulatory matter to define tribes in this uniform way as [00:20:27] Speaker 02: the result of this process. [00:20:30] Speaker 05: Actually, you're not being told that. [00:20:31] Speaker 02: They don't actually argue that in any of the reasons. [00:20:36] Speaker 02: I understood the new regulation. [00:20:39] Speaker 02: And we will ask the Secretary about whether that applies. [00:20:43] Speaker 02: But even if we're back at included or eligible to be included, we're still talking about part of a [00:20:56] Speaker 02: included or eligible to be included, and I hear you about eligible to be included. [00:21:00] Speaker 02: You see that as quite broad and maybe covering the waterfront that includes your clients. [00:21:07] Speaker 05: Unfortunately, as the Carcieri decision points out, [00:21:12] Speaker 05: on such a fundamental issue as what's an Indian tribe for the purposes of the IRA. [00:21:17] Speaker 05: They get it wrong all the time. [00:21:18] Speaker 05: And the Supreme Court said, no, that the Narragansett are not an Indian tribe for the IRA. [00:21:24] Speaker 05: Now, they're a fully recognized Indian tribe for under the LIST Act. [00:21:28] Speaker 05: They were fully recognized for lots of other purposes. [00:21:32] Speaker 05: But for the IRA, they were not an Indian tribe. [00:21:35] Speaker 05: And that's what Breyer is talking about. [00:21:39] Speaker 05: You look at the IRA. [00:21:41] Speaker 05: You don't look at what these guys say, well, this is what we think is needed, because the court has rejected that. [00:21:48] Speaker 02: Well, our court also, though, has recognized the expertise of the secretary and said, and the district court here said, [00:21:57] Speaker 02: reading our opinions in James and Miwok and elsewhere, at least give them a crack. [00:22:05] Speaker 02: And yeah, maybe they get it wrong. [00:22:07] Speaker 02: Maybe the court is there as a backstop, but as a matter of exhaustion or if you're right on the law, maybe [00:22:16] Speaker 02: maybe statutory standing, you have to have gone there first. [00:22:21] Speaker 05: Not in those cases, because those cases are clearly distinguished from what we're talking about here. [00:22:26] Speaker 05: Those cases dealt, and particularly the ones in the D.C. [00:22:30] Speaker 05: Circuit, all dealt with two distinguishing factors. [00:22:34] Speaker 05: One, those tribes were suing the secretary to be on the list. [00:22:40] Speaker 05: They weren't suing under the IRA. [00:22:42] Speaker 05: They were suing under the Indian Tribal List Act. [00:22:45] Speaker 05: And of course, I have to agree with this court in those cases. [00:22:50] Speaker 05: The other distinguishing aspect about that is that in those cases, those were all non-treaty tribes. [00:22:57] Speaker 05: So you didn't have a situation where you were having a treaty tribe come and say, you know what, we were recognized back in 18-whatever by a treaty, and we've always been a tribe. [00:23:09] Speaker 04: Those were cases where you had... But in those cases, I mean, it's the currency of the determination. [00:23:16] Speaker 04: I mean, in Miwok, it talks about, you know, you can have a tribe that's recognized, and it fades away, right? [00:23:22] Speaker 04: So it sure seems to me like, from our cases, what we're saying is, [00:23:27] Speaker 04: This Part 83 process is a critical door that you need to go through, a recognition that there are problems out here. [00:23:35] Speaker 04: And I take it, maybe I shouldn't use the word recognition, and I was going to say an acknowledgement, I shouldn't use that word either, but a realization that there's a problem here, that we have historic decisions made by the United States, [00:23:52] Speaker 04: question whether those are vibrant today, vital today, right? [00:23:56] Speaker 04: And in our cases, we've said, I thought we've said, it's the Part 83 process that cleans it up. [00:24:05] Speaker 05: In fact, it's also a separation of powers argument. [00:24:09] Speaker 05: This circuit has never dealt [00:24:11] Speaker 05: with the issue of what's in the tribe for the purposes of the IRA. [00:24:16] Speaker 05: And I'll tell you what, the one question you should ask, it's not me, these guys, ask them, where, two things, one, where does it say [00:24:28] Speaker 05: in the IRA, which was passed 40 years prior to the Part 83 process, that they were going to use this Part 83 process as part of the acknowledgement or the process for being eligible to be an IRA tribe. [00:24:46] Speaker 05: And the second question is, where has there ever been [00:24:52] Speaker 05: Where has there ever been a court that has upheld an administrative termination of an Indian tribe that had a treaty saying, you're an Indian tribe, and promising that you're going to go forward and deal with that group? [00:25:07] Speaker 05: And the answer to both of those questions are, one, the Congress. [00:25:12] Speaker 04: So is it your argument if there was a treaty in 1850 that fixes for all time that that group is a tribe? [00:25:19] Speaker 04: It can't fade away? [00:25:19] Speaker 05: Oh, no, no, no, no, no, not at all. [00:25:22] Speaker 04: How is the Secretary supposed to make a determination that the way this works is I ask the question and you let me finish. [00:25:36] Speaker 04: And now I've lost my train of thought, which I'm not appreciative for. [00:25:39] Speaker 04: I apologize. [00:25:41] Speaker 05: The point that you were asking, though, is how does the Secretary determine what's a tribe and what's not a tribe? [00:25:53] Speaker 04: And I think my question was – forgive me – I think my question was if we have an instance where in the 19th century the secretary of the United States Government recognizes a tribe, as I – your point is not that that recognition is good for all time. [00:26:12] Speaker 04: The secretary needs to have some mechanism to update that if there's questions about whether that tribe exists any longer. [00:26:22] Speaker 04: Isn't that what Part 83 process does? [00:26:25] Speaker 04: No, no. [00:26:25] Speaker 04: Because the interesting thing about Part 83 is there's... Once again. [00:26:29] Speaker 04: Okay, I'm sorry. [00:26:30] Speaker 04: Yeah, that's twice. [00:26:32] Speaker 04: Okay. [00:26:32] Speaker 04: How is the Secretary to make that determination? [00:26:35] Speaker 04: How is the Secretary to update, to say, we have a treaty in 1855? [00:26:40] Speaker 04: Does that group still exist? [00:26:41] Speaker 04: Is it still a tribe? [00:26:42] Speaker 04: How is he supposed to do that? [00:26:43] Speaker 04: Is she supposed to do that? [00:26:46] Speaker 05: Okay. [00:26:47] Speaker 05: The answer is she doesn't get to do that. [00:26:50] Speaker 05: And that's the whole Mashpee decision. [00:26:55] Speaker 05: In other words, and that's what happened here. [00:26:59] Speaker 05: Back in 1889, the Secretary of War at the time said, there are no Makanas anymore. [00:27:09] Speaker 05: Well, in 1926, they documented that there were over 1,000 Makanas. [00:27:15] Speaker 05: And it was a political decision. [00:27:18] Speaker 05: Under the Mashpee line of cases, the secretary doesn't get to terminate Indian tribes. [00:27:24] Speaker 05: The only entity that can terminate an Indian tribe is Congress. [00:27:31] Speaker 05: And you've really hit the nail on the head. [00:27:35] Speaker 05: And that is, does the secretary, and as we argue that in this particular case, that the secretary is usurping congressional power [00:27:47] Speaker 05: because the Constitution says that Congress regulates the relationship with Indian tribes, not the secretary. [00:27:56] Speaker 02: So I take it that your position is that the Mackinac are a recognized tribe and that we should accept that [00:28:09] Speaker 02: based on your representation. [00:28:11] Speaker 02: We don't need to decide that. [00:28:14] Speaker 02: All we need to say is, here's somebody coming before the court who claims to be a tribe and wants to organize, and the secretary has not acted on their request for a secretary of election, and we should order that. [00:28:34] Speaker 02: What do you think we do need to determine, since you answered no to my question, that we would need to determine that the Mackinac are a recognized tribe? [00:28:44] Speaker 02: You said, no, we don't need to so find. [00:28:46] Speaker 02: So I'm wondering what you think we do need to find in order to reach your election claim, your organization claim. [00:28:55] Speaker 05: Well, I think all that's needed is a determination by this court that part 83 [00:29:03] Speaker 05: And the acknowledgment process is not a prerequisite of organization under the IRA or the definition of a tribe for the purposes of the IRA and remand to the court to determine that issue. [00:29:19] Speaker 02: I think the question for us is there seem to be some cases in which it's not a prerequisite. [00:29:28] Speaker 02: whether the secretary fully acknowledges that under its current regulation or not, there do seem to be some. [00:29:34] Speaker 02: But I'm not convinced that you've explained to us why your client is among those for whom Part 83 is not the requisite process. [00:29:45] Speaker 02: And so that's what, when I said, what's your path under the statute and regulations for saying we are recognized, you said, well, the treaty. [00:29:54] Speaker 02: But the statute says a lot of things about what's a tribe, and what's an Indian tribe, and then the regulations go further, and it's funneling claimants to that status into the part three process. [00:30:08] Speaker 02: So I'm just not quite getting still what you think the district court were we to remand as you request, what you're asking the district court to do as a matter of evidence and conclusions. [00:30:21] Speaker 05: specifically what we're asking this court to do is to remand and have the district court determine the issue that was reserved in footnote 10, which is, are the Mackinac a recognized tribe for the purposes of the Indian Reorganization Act? [00:30:41] Speaker 05: Because [00:30:44] Speaker 05: Even if, let's say, let's say we win and they get reorganized and they're an IRA, you're not going to be an Indian tribe for everything. [00:30:51] Speaker 02: I understand that, but even for purposes of the IRA, it's not entirely clear to me where you find the authority for the tribe in this situation not to seek an acknowledgement of recognition through part of the Indian tribe. [00:31:08] Speaker 05: And the point is, it is the IRA itself that says that a recognized tribe, as it was defined and has been subsequently clarified in the light of Breyer's analysis, that you take a look at, for recognition purposes, you take a look at the cognitive quasi-anthropological definition of recognition that was used by Congress when they passed the Act. [00:31:37] Speaker 05: And you take a look at whether or not they were under federal supervision in 1934. [00:31:44] Speaker 05: They have to meet those two standards. [00:31:47] Speaker 05: We believe that they can't, but they were prevented from presenting that evidence because of this idea [00:31:56] Speaker 05: that came out out of thin air that part 83 has to go, you have to go through part 83. [00:32:02] Speaker 02: So are they residing within the present boundaries of an Indian reservation? [00:32:06] Speaker 02: No. [00:32:07] Speaker 05: No, that was actually removed in 88. [00:32:09] Speaker 02: Are they persons of one half or more Indian blood? [00:32:14] Speaker 05: No, the 88 amendments actually removed the requirement for being resident on an Indian reservation unless you are one half, unless your group is composed of one half of Indians' blood, by Indian blood. [00:32:32] Speaker 02: And do they not need to be? [00:32:39] Speaker 02: for looking at the regulation, one half degree of Indian blood for whom a reservation is established and each reside on their reservation, that's 81.1 W, the older version that you are using. [00:32:54] Speaker 05: And that's exactly why some tribes don't go through the part 83 process, because like for example, there are no Indian reservations in Alaska, although there's 250 tribes. [00:33:10] Speaker 05: And that's because Congress said that they were Indian tribes in the Alaska Native Claims Settlement Act. [00:33:21] Speaker 05: And the answer here is that for the purposes of the IRA, and only for the purposes of the IRA, [00:33:30] Speaker 05: are the Mackinac Indian Tribe, and they say they are because of the definition of Indian Tribe within the statute. [00:33:38] Speaker 02: Okay, point me to which words of the definition of the Indian Tribe you're relying on. [00:33:41] Speaker 02: I'm sorry, I'm missing something. [00:33:42] Speaker 05: Definition Indian Tribe is in 25479. [00:33:49] Speaker 05: definition of Indian according to Karsari, which means that you take a look at the two issues of one, whether or not they were under federal supervision in 1934, which was the big holding in that case, because that didn't apply to the Nenera Gansett. [00:34:05] Speaker 05: And the second is whether or not they are a recognized tribe within the definition of what recognition meant, what Congress meant. [00:34:14] Speaker 05: and the definition of recognition. [00:34:16] Speaker 05: And subsequently, for example, in the case of Stand Up California and [00:34:31] Speaker 05: the city, there's a detailed explanation in there on the legislative history, which was cited and was actually part of why Breyer responded the way he did. [00:34:45] Speaker 05: Because what Breyer was responding to in carcerary was the brief of the law professors that was filed and talked about this specific issue. [00:34:56] Speaker 05: And the idea that if you had [00:35:01] Speaker 05: If it was, you have to read the recognition issue as the cognitive and quasi anthropological meaning of recognition because the under federal jurisdiction in 34 would have rendered the recognition issue irrelevant. [00:35:22] Speaker 05: And Breyer says, because they've got recognition wrong, so often. [00:35:26] Speaker 05: And so when Breyer was addressing the issues that were raised in the law professor's brief in Carceri by basically saying, yeah, you need to take a look at those two issues. [00:35:38] Speaker 05: One, were they recognized within the [00:35:42] Speaker 05: within the, for the IRA purposes, in this cognitive quasi-anthropological as opposed to the political recognition or that has emerged as a result of the Part 83 process, which is 40 years after. [00:36:03] Speaker 05: the IRA was enacted and, of course, Congress would have been unable to anticipate something that hadn't occurred for 40 years. [00:36:17] Speaker 01: All right. [00:36:17] Speaker 01: Thank you. [00:36:18] Speaker 05: Thank you. [00:36:21] Speaker 05: And I apologize. [00:36:34] Speaker 03: Good morning, Your Honor. [00:36:35] Speaker 03: This is Nicholas DiMazio on behalf of the United States and may it please the court. [00:36:40] Speaker 03: The plaintiffs here have provided this court with absolutely no reason to depart from its holding in James that a group seeking to be recognized as an Indian tribe, even one that claims to have been previously recognized in the past, must exhaust its administrative remedies by filing an acknowledgment petition with Interior. [00:36:59] Speaker 03: And the mere fact that this group is seeking a secretarial election under the Indian Reorganization Act, which we refer to as the IRM, [00:37:07] Speaker 03: does not change the analysis for three reasons. [00:37:11] Speaker 03: The first is that the plaintiffs are simply wrong that the IRA's definitions of Indian and tribe somehow evidence the disregard for Interior's acknowledgement process. [00:37:22] Speaker 03: To the contrary, as this court explained in Muwekma'olone, Interior began holding acknowledgement proceedings precisely because the IRA's definitions limit IRA benefits and services only to quote unquote recognized Indian tribes. [00:37:40] Speaker 03: In the 40 years since Interior has adopted its acknowledgement regulations, the plaintiff cite no case and we are aware of none that holds that a group can simply skip that administrative process and ask a court to declare in the first instance. [00:37:57] Speaker 03: that the group may seek IRA benefits and services because it qualifies as a recognized Indian tribe. [00:38:03] Speaker 04: Well, maybe I misunderstood Mr. Willard. [00:38:04] Speaker 04: I thought he identified hundreds of examples since 1978 where tribes have gained recognition but did not go through the Part 83 process. [00:38:14] Speaker 04: Perhaps I misunderstood him. [00:38:16] Speaker 03: That's what he said, but I don't think it's true. [00:38:19] Speaker 03: The three examples that he's given, and as far as I know, he's only cited three examples. [00:38:25] Speaker 03: One is the Sault Ste. [00:38:26] Speaker 03: Marie tribe. [00:38:29] Speaker 03: That was actually one of the ad hoc administrative determinations that Interior reached before the Part 83 process was adopted into regulations. [00:38:39] Speaker 03: He's also cited the Noah talk decision out of the Ninth Circuit. [00:38:43] Speaker 03: That was a case that dealt with native Alaskan villages. [00:38:47] Speaker 03: And it was not an IRA case, first. [00:38:51] Speaker 03: Second, those Alaskan native villages were in fact on the list of recognized Indian tribes that the Department of Interior maintains. [00:38:59] Speaker 03: And they also had a government. [00:39:01] Speaker 03: that had been adopted pursuant to interior's regulations. [00:39:07] Speaker 03: And that was because Alaskan native villages have a way of adopting that government, even if they are not, quote unquote, historically recognized tribes. [00:39:15] Speaker 03: And that is, if they have common bonds of occupation, they were allowed to adopt. [00:39:18] Speaker 04: So is it the government's position that since? [00:39:21] Speaker 02: You said the third? [00:39:21] Speaker 02: Oh, I'm sorry. [00:39:24] Speaker 02: You were going to distinguish three examples, but I interrupted. [00:39:29] Speaker 02: I just wanted to hear your treatment of the third example. [00:39:31] Speaker 03: The Tilly Hardwick cases were a settlement that the Department of Interior reached when it had itself decided that it had unlawfully terminated certain rancherias, and so it restored the status quo ante. [00:39:49] Speaker 03: So again, that was not a decision where a court had recognized [00:39:52] Speaker 03: these rancherias, it was a settlement decision by the Department of the Interior. [00:39:59] Speaker 03: So I don't think that it's absolutely incorrect to say that they have identified any example since the 1978 regs were promulgated. [00:40:10] Speaker 03: where a group has come directly into court seeking IRA benefits and services, and the court said, yes, you can simply skip the acknowledgement process and come into court. [00:40:20] Speaker 03: I would like to cite you to a couple of cases that I think are specifically on point here. [00:40:24] Speaker 03: The first would be the Sandy Lake Band of Mississippi Chippewa case, which is the most analogous to this case. [00:40:34] Speaker 03: It is a district court case from Minnesota. [00:40:36] Speaker 03: Unfortunately, it's unpublished, but it is persuasive in the sense that [00:40:40] Speaker 03: That group was seeking the precise thing that this group is seeking, which is a secretarial election under the IRA. [00:40:47] Speaker 03: And that district court specifically explained [00:40:50] Speaker 03: that a group cannot skip the acknowledgement process and come into court asking for a Secretary of Justice. [00:40:55] Speaker 04: Was it a group that had entered into treaty with the United States? [00:40:58] Speaker 03: I believe that was part of their claim. [00:40:59] Speaker 03: I can't remember exactly what their claim of historical recognition was, whether it was a treaty or an executive order, but there was a claim. [00:41:06] Speaker 04: But there was some historical recognition. [00:41:07] Speaker 03: There was some historical recognition, and based on that fact, they could come into court. [00:41:10] Speaker 04: So is it the government's position that since 1978, the way one gains access to IRA recognition is exclusively [00:41:19] Speaker 04: through the part 83 process, in no other way? [00:41:23] Speaker 03: If you are claiming to be a recognized Indian tribe in the sense that you have a government-to-government relationship with the United States. [00:41:32] Speaker 04: IRA recognition. [00:41:33] Speaker 03: Under the IRA. [00:41:35] Speaker 03: The exclusive mechanism for Interior to determine whether in fact you are a recognized Indian tribe. [00:41:41] Speaker 03: Because as your honor was questioning the appellant here, [00:41:46] Speaker 03: Interior simply needs a way of deciding when a group comes before Interior and asks for IRA benefits and services and says, I was recognized in the past. [00:41:55] Speaker 03: Interior needs a process for deciding whether or not that is or is not true. [00:42:00] Speaker 03: And that is the Part 83 process. [00:42:02] Speaker 03: It is the exclusive mechanism by which Interior decides. [00:42:05] Speaker 04: And what's the authority upon which the Secretary relies to determine that that's the exclusive process since 1978? [00:42:15] Speaker 03: The authority is, as this court explained in James, Interior's general authority, which was granted by Congress, to manage Indian affairs. [00:42:25] Speaker 03: Under 25 USC, I believe it's sections two and nine, what this court explained was that Interior had validly exercised that authority to promulgate a set of regulations governing the process by which a group may ask Interior [00:42:42] Speaker 03: to decide that it is a recognized Indian tribe. [00:42:45] Speaker 03: And that is the acknowledgment process. [00:42:47] Speaker 03: How do you say that? [00:42:51] Speaker 03: Look at it. [00:42:51] Speaker 04: You hit the button first. [00:42:52] Speaker 04: You get it. [00:42:57] Speaker 02: The department itself acknowledges that there are, for example, if a group of half-bloods on a reservation sought to organize through a secretary election, they could do so even though they are not listed as a federally recognized tribe. [00:43:13] Speaker 02: So it's not fully exclusive. [00:43:15] Speaker 02: And I think the statute wouldn't support a regulation that renders the part of E3 absolutely exclusive. [00:43:26] Speaker 02: because of the definition of Indian tribe in the statute. [00:43:29] Speaker 03: It's a little bit broader. [00:43:30] Speaker 03: Yeah, let me take two. [00:43:31] Speaker 03: You have two points, I think. [00:43:33] Speaker 03: The first is having to do with the half bloods residing on an Indian reservation. [00:43:37] Speaker 03: I think what's important about that, and again, what I'm saying is that the acknowledgement process is the exclusive process for a group that claims to be a recognized Indian tribe, recognized in the sense that it has a formal government-to-government relationship with the United States. [00:43:50] Speaker 03: that those groups, the acknowledgement process is the exclusive way for those groups. [00:43:57] Speaker 03: But what you're referring to are a group of persons of half Indian blood or more residing on a single reservation, and the definition of Indian in the IRA does not say that those are recognized Indian tribes in the historical sense. [00:44:13] Speaker 03: So that's the distinction. [00:44:14] Speaker 02: I know you wanted to answer my other part of my question, but I think Mr. Walleria is saying that's all we're asking. [00:44:20] Speaker 02: We're not, it's unlike in James, we're not seeking, and unlike in Miwok, we're not seeking recognition. [00:44:28] Speaker 02: We're seeking... What they're saying is that they were historically recognized as... We're seeking organization, which has fewer benefits. [00:44:37] Speaker 03: What they're saying is that they were recognized for purposes of the IRA in the past. [00:44:43] Speaker 03: And again, we don't know this group's relationship to any historical Mackinac tribe that was mentioned in the 1855 treaty. [00:44:51] Speaker 03: That is an open question as to what the relation, as the appellants here explained, there are multiple different, I don't know, faction is the right term, but even within what they're calling their group, there are different, [00:45:04] Speaker 03: different groups of people who are claiming various relationships to this historical Mackinac tribe. [00:45:11] Speaker 03: And because they haven't gone through the process that Interior has for it to apply its expertise to those factual questions in the first instance, we simply don't know what their relationship is to a historical Mackinac tribe. [00:45:25] Speaker 03: You cannot answer that question without looking at the evidence. [00:45:29] Speaker 03: And what this court said in James [00:45:31] Speaker 03: is that it is for Interior to apply its expertise to those questions in the first instance. [00:45:37] Speaker 03: My other case that I was going to cite to Your Honors was the Shawnee Indians case out of the 10th Circuit. [00:45:42] Speaker 03: And that was a case that dealt with a group that said that it had been historically recognized in a treaty [00:45:49] Speaker 03: And the 10th Circuit said you have to exhaust your administrative remedies by going through the acknowledgment process. [00:45:53] Speaker 04: Now, I think you're – I don't want to make arguments for your opponent, but I think you would say that there are three ways to gain this recognition. [00:46:02] Speaker 04: Part 83 is one of them. [00:46:03] Speaker 04: But Congress can do it. [00:46:04] Speaker 04: Now, are you arguing that Congress cannot do it because of the regulations? [00:46:10] Speaker 04: Clearly, Congress has the power to – And the courts can do it. [00:46:13] Speaker 03: Well, so this is coming from an uncodified provision in the LIST Act. [00:46:18] Speaker 03: And I think that in order to understand what Congress was getting at in that uncodified finding in the LIST Act, you need to read all of those findings as a whole. [00:46:27] Speaker 03: So what's being referred to here is a statement in the third uncodified finding that tribes presently may be recognized by an act of Congress through the Part A3 process. [00:46:38] Speaker 03: or by a decision of the United States. [00:46:42] Speaker 04: What does that mean? [00:46:43] Speaker 03: And so the next finding explains that a tribe that has been recognized in one of those three manners cannot be terminated except by act of Congress. [00:46:52] Speaker 03: So what that shows is that Congress was thinking retrospectively with these findings. [00:46:57] Speaker 03: It was saying that in the past, [00:46:59] Speaker 03: there are ways in which groups may have become recognized Indian tribes for purposes of having a government-to-government relationship with the United States. [00:47:07] Speaker 03: But it was not suggesting that going forward, that courts should be making these types of decisions in the first instance, because these decisions are fundamentally political decisions. [00:47:16] Speaker 02: But Mr. Dimasco, how is that different from their claim? [00:47:18] Speaker 02: That's what they say. [00:47:19] Speaker 02: They say, yeah, historically, we were recognized by treaty. [00:47:25] Speaker 02: And so they're not really saying we want the court to recognize us. [00:47:30] Speaker 02: They're saying we want the court, acknowledging that we are duly recognized by the federal government, want organization. [00:47:40] Speaker 02: Well, again. [00:47:41] Speaker 02: And so your retrospective characterization, I mean, they might argue, would help them. [00:47:45] Speaker 03: I don't think that you can separate out the question of whether the group that is currently appearing before the court is a quote unquote recognized Indian tribe from the question of whether in the [00:47:57] Speaker 03: what, 80 years since the 1855 treaty was enacted, what the relationship is between this particular group and the group that was mentioned in the treaty, that factual question is the precise thing that is being addressed by the acknowledgement process, because the criteria to become acknowledged are not only do you have to have been identified as an Indian tribe, [00:48:23] Speaker 03: in 1900 or from the point of previous federal recognition. [00:48:27] Speaker 03: But you also have to have maintained that identity throughout time. [00:48:30] Speaker 02: But nobody's challenged that in this case, have they? [00:48:32] Speaker 02: Nobody's challenged whether they're the real deal. [00:48:36] Speaker 03: In that sense. [00:48:38] Speaker 03: Excuse me? [00:48:38] Speaker 02: In that sense of the wrong representative. [00:48:42] Speaker 03: That is the fundamental question that the plaintiffs are asking the district court to decide. [00:48:47] Speaker 03: I mean, how else can the district court decide whether or not this group is a quote unquote recognized Indian tribe without addressing the question of their relationship to the original group mentioned in the 1855 treaty? [00:48:59] Speaker 03: Before 1978, would a district court do that? [00:49:02] Speaker 03: So what was going on, again, and this is a point that I meant to make very early in the process, but I hadn't gotten to it yet, and that is before 1978, what was going on? [00:49:14] Speaker 03: was interior was making ad hoc recognition determinations for acknowledgement. [00:49:20] Speaker 03: It was making acknowledgement determinations in an ad hoc manner between 1934 and 1978. [00:49:25] Speaker 03: And those processes started precisely because the IRA used the term recognized and said you only get benefits and services under the IRA if you are a quote unquote recognized Indian tribe. [00:49:37] Speaker 03: That created the administrative dilemma that gave rise. [00:49:41] Speaker 04: The game is on then for what does it mean to be recognized, right? [00:49:45] Speaker 04: Then the game is what does it mean to be recognized? [00:49:47] Speaker 03: What does it mean to be recognized and what is your relationship to anyone who was recognized in the past? [00:49:52] Speaker 03: Those are the precise questions that gave rise to the acknowledgement process. [00:49:56] Speaker 04: My question is were those determinations ever made by a district court before 1978? [00:50:02] Speaker 04: And if so, what happened in 1978 to displace the authority of the district court? [00:50:09] Speaker 03: Again, I think they've only brought forward to this court, and I can only address what they've cited here. [00:50:15] Speaker 03: They've only brought forward, as far as I know, three supposed examples. [00:50:18] Speaker 03: And one is the Sue St. [00:50:19] Speaker 03: Marie case, the Noah Todd case, and the other is the Tilly Hardwood case. [00:50:23] Speaker 04: And I'm telling you that I've read all of those in our positions that none of those before 1978 were these handled in the district court on occasion. [00:50:33] Speaker 04: Not that I know of. [00:50:34] Speaker 04: No, I don't believe so. [00:50:36] Speaker 02: What about their position that [00:50:39] Speaker 02: Without actually deciding the merits question, whether part A3 recognition is a prerequisite to organization with the assistance of the secretary, it doesn't make sense to require exhaustion. [00:50:56] Speaker 03: Okay, this is a very important point that I would like to turn to, and that is that if unlisted groups can, in fact, seek IRA benefits and services in court in the first instance, it would effectively represent a sea change in recognition and it would throw the existing process into disarray. [00:51:14] Speaker 03: And the reason why is because you need to look at what they were ultimately asking for here. [00:51:19] Speaker 03: And that is a secretarial election under the IRA. [00:51:22] Speaker 03: And they were seeking to enforce the election procedures under 476D2. [00:51:27] Speaker 03: That's the only cause of action that one can identify in this case. [00:51:31] Speaker 03: OK? [00:51:32] Speaker 03: The statute provides extremely short deadlines for the Department of the Interior to hold a secretarial election once it's been petitioned. [00:51:41] Speaker 03: It's 180 days, but in fact it's not even 180 days because 30 days before the election is held, Interior needs to get back to the tribe with its position. [00:51:49] Speaker 03: So that effectively provides the Department of the Interior five months [00:51:54] Speaker 03: to wade through the complicated historical and political questions that are raised when a group comes seeking a constitutional election as a sovereign entity. [00:52:07] Speaker 03: The secretary, frankly, that would create an impossible task for the agency. [00:52:12] Speaker 03: And when the agency is unable to do that, it is going to create a huge burden on the courts and unprecedented burden on the courts to wade through those complicated historical and political questions in the first instance. [00:52:24] Speaker 03: And keep in mind here that we also are not, no one is arguing that these folks will be denied their day in court if they are ultimately found by Interior not to be a recognized Indian tribe. [00:52:35] Speaker 02: But how can we respond to the risk of 10 years, 20 years of processing without even having that question answered? [00:52:44] Speaker 02: I mean, so should we remand to the district court and ask the district court to answer [00:52:50] Speaker 02: premise of the exhaustion requirement, which is that you actually do need to be a Part 83 recognized tribe in order to get any of the IRA benefits, including organization with the assistance of the secretary? [00:53:03] Speaker 03: No, that's a legal question that the district court has already answered in our favor. [00:53:07] Speaker 02: I don't think so. [00:53:08] Speaker 02: I think the district court in footnote 10, maybe footnote 20, said, no, I'm not answering that question. [00:53:15] Speaker 03: In the first instance, [00:53:16] Speaker 03: that it is for interior's experts to apply their expertise to the facts, to the factual questions that is raised by that. [00:53:24] Speaker 03: And once interior renders a decision, arbitrary and nutritious review is available if that decision is averaged to the group. [00:53:31] Speaker 03: It's also important to keep in mind here that there are groups that have in fact gone through the process. [00:53:37] Speaker 03: The Grand Traverse case that they are citing out of the Sixth Circuit, [00:53:42] Speaker 03: as well as the Burt Lake group were both groups that said that they had a historical relationship to tribes mentioned in the same 1855 treaty. [00:53:57] Speaker 03: And those groups went through the part 83 process. [00:54:00] Speaker 03: One was successful and one was not. [00:54:02] Speaker 03: Are those the only groups that passed through? [00:54:05] Speaker 03: No, these are the two examples that I know of of groups mentioned in the same 1855 treaty as these folks that went through the part 83 process and one was successful and one was not. [00:54:18] Speaker 03: And it shows why this question of the historical continuity isn't important. [00:54:23] Speaker 02: What's the story with the regulation? [00:54:25] Speaker 02: It's not clear to me why you're not applying new 81.4 to this case. [00:54:33] Speaker 03: We thought it most fair to apply the regulations as they existed when the suit was filed in district court. [00:54:44] Speaker 03: The difference in the Part 81 regulations, the only potentially salient difference is the update in the cross-reference, which is really just a clerical change. [00:54:57] Speaker 03: Because the previously what the regulation said was that if you're eligible to be included on the list provide provided for in part 80 it's 83.6. [00:55:09] Speaker 02: 83.6B. [00:55:10] Speaker 02: 0.6B. [00:55:11] Speaker 03: So that was a cross-reference to the... This is actually proving our point, because the list was in existence before the LIST Act was enacted, and that cross-reference is a reference to the list that was being promulgated before 1994. [00:55:27] Speaker 02: But they jump on included or is eligible to be included, and that's no longer in the current regulations. [00:55:34] Speaker 02: So that's not the only thing that changed. [00:55:37] Speaker 03: That's I guess that's true the eligible to be included phrase was dropped I can't explain exactly why that was they think that gets them all the way to the eligible to be included phrase you realize on that pretty heavily so I'm surprised that you don't have a I Do I do I would refer your honor to? [00:55:57] Speaker 03: 46 [00:56:03] Speaker 03: Federal Register 1669, which specifically explains, it supports the interpretation of that phrase that we put forward in our brief, which is that it accounts for the gap between an acknowledgement decision and the next publication of the official publication of the list. [00:56:20] Speaker 03: And that is specifically explained in the Federal Register in 1981 when the phrase was adopted. [00:56:26] Speaker 03: And that interpretation of the agency's own regulations is entirely different. [00:56:31] Speaker 01: Ordinarily, when we say that someone has to exhaust their administrative remedies, we're telling them they need to go through a process that takes a month or at most a year. [00:56:42] Speaker 01: I think everyone here has acknowledged that this is a very time-consuming, quite expensive process, could take decades. [00:56:50] Speaker 01: And that you seem to be saying that's all there is. [00:56:56] Speaker 01: It may take 20 or 30 years for you to exhaust your administrative remedies. [00:57:01] Speaker 01: And I guess one question that I have is I'm very sympathetic to your argument that this is a political decision and that government to government relations should be perhaps established by the executive. [00:57:15] Speaker 01: On the other hand, if all they're asking for is to be able to organize, that seems to me somewhat different than saying, and we get all these benefits by virtue of being acknowledged. [00:57:29] Speaker 01: Well, is there, so I guess my question is, is there any middle ground here? [00:57:34] Speaker 01: Or is that just it? [00:57:35] Speaker 03: I don't believe so for a couple of reasons. [00:57:38] Speaker 03: One is that it's not just a matter of adopting a constitution and organizing, but there are other benefits that are provided by the IRA to, quote unquote, recognized Indian tribes. [00:57:50] Speaker 03: For example, the Department of Interior can take land into trust for a recognized Indian tribe. [00:57:54] Speaker 01: I understand. [00:57:55] Speaker 01: So what you're saying is, [00:57:56] Speaker 01: you can't be a little bit recognized, right? [00:58:00] Speaker 01: I mean, it's all or nothing. [00:58:02] Speaker 03: No, there are a lot of things that flow from recognition as a government, as a sovereign government entity with a relationship with the United States. [00:58:12] Speaker 03: And so it is a very, I appreciate the court's concern that it is a time-consuming process. [00:58:17] Speaker 03: I would direct your honors to this court's own mash people. [00:58:20] Speaker 03: Wampanoag, I believe was the name. [00:58:22] Speaker 03: I don't know if I'm pronouncing it correctly. [00:58:24] Speaker 03: But it was a case that dealt with the long process for obtaining acknowledgement. [00:58:31] Speaker 03: And this court acknowledged that there's a lot of work to do. [00:58:34] Speaker 03: It's a very factually intense exercise that requires a lot of expertise. [00:58:39] Speaker 03: And it's an important decision. [00:58:40] Speaker 03: And so it should be given the time that it needs. [00:58:44] Speaker 03: Again. [00:58:45] Speaker 02: What about the fact that what they're seeking is mandamus? [00:58:50] Speaker 02: And, you know, we ordinarily don't award mandamus unless there's not another avenue for the relief that's sought. [00:59:03] Speaker 02: And one might say that they should have sought to compel agency action under the APA, under 7061, for example. [00:59:14] Speaker 03: Is that not? [00:59:15] Speaker 03: Or arbitrary and capricious review after exhausting administrative remedies, which is how the Tenth Circuit specifically addressed Your Honor's question. [00:59:22] Speaker 02: I'm actually sort of looking more at the Third Circuit approach to mandamus, where they basically said you don't, you know, in order to be eligible to do it, and this would be different from saying you have to go through Part A3, I would say at least you have to go through [00:59:36] Speaker 02: um, APA efforts. [00:59:40] Speaker 02: Maybe that's just a waste of time, but I want to write your position. [00:59:44] Speaker 03: It's it's honestly quite I think if you look closely at the complaint and you try to figure out what their cause of action is, it's very difficult to discern. [00:59:53] Speaker 03: Uh, you know, they throw around this idea of mandamus, but it hasn't appeared in any of the briefs in terms of [01:00:00] Speaker 03: mandamus standard and you're absolutely correct that mandamus is not available when there's another remedy which the 10th circuit has explained there is another remedy here in this precise factual scenario where a group says that it was previously recognized historically by a treaty so mandamus certainly would not be available for any number of good reasons and the only cause of action again that they did identify is this idea that they're trying to enforce secretarial election procedures [01:00:25] Speaker 03: And as we've explained in our brief, there's really no indication that Congress intended a group to be able to bootstrap a recognition claim into a cause of action to enforce election procedures that are done under a very short timeframe. [01:00:39] Speaker 03: So for all these reasons, unless there are any... Is it true? [01:00:43] Speaker 04: I think I remember your opponent saying that the Department of Interior never responded to the tribe's request for call for an election. [01:00:54] Speaker 04: Is that right? [01:00:55] Speaker 03: Well, again, we have to take what's in the complaint here, but it's not true. [01:01:00] Speaker 03: What is true is that Interior did respond via letter to the groups explaining that they had received multiple different inquiries from different competing folks claiming to be the government of the Mackinac tribe. [01:01:14] Speaker 03: And so it asked the group to sort out its leadership and submit a documented petition under the acknowledgement regulations, which it would then consider. [01:01:24] Speaker 03: And that never happened. [01:01:26] Speaker 03: I'm sorry, there was never a documented petition for acknowledgment submitted by the group claiming to be the government of the Mackinac Tribe. [01:01:39] Speaker 03: For all these reasons, we would ask Your Honors to affirm the district court's judgment because the plaintiffs have not yet exhausted their administrative remedies. [01:01:46] Speaker 01: Mr. Wallery, you were well over your time. [01:01:54] Speaker 01: The court will give you back two minutes for rebuttal, but only two minutes. [01:01:58] Speaker 04: Thank you, Your Honor. [01:02:01] Speaker 04: Was that a correct recitation that we just heard from government counsel, that you all had alleged that the letter? [01:02:08] Speaker 05: No, the letter was made in response to an inquiry, congressional inquiry, from a congressman from the UP who had made inquiry about this. [01:02:19] Speaker 05: And the letter was sent, but it was sent before [01:02:23] Speaker 05: They made the petition to – that we're discussing right now. [01:02:27] Speaker 05: There has been no formal response from the secretary to this petition. [01:02:35] Speaker 05: Thank you, because I was going to address that. [01:02:38] Speaker 05: The other thing is you asked the question about what did they do before? [01:02:42] Speaker 05: Well, as Judge Pillard had noted, prior to the 88 amendments, you had to be on a reservation, so it was pretty straightforward. [01:02:53] Speaker 05: But the case came up with regards to the New Mexico [01:02:59] Speaker 05: the New Mexico Pueblos because they were on Spanish land grants, Indian land grants. [01:03:06] Speaker 05: And what were they? [01:03:07] Speaker 05: And they had some very strange, what are called colonies. [01:03:13] Speaker 05: So in a series of cases, the district court starting with Henry Sandoval ending with [01:03:23] Speaker 05: excuse me, but Sandoval, Joseph, Candelara, in a series that's actually set forth and described, they were, the courts did do that. [01:03:34] Speaker 05: The question, the open process, the process is that after [01:03:39] Speaker 05: the determination of who these people are, that's made in the enrollment process under the regulations. [01:03:46] Speaker 05: So once the Secretary orders the election, there has to be an enrollment. [01:03:51] Speaker 05: And that, in this particular case, is very easy because you have the Durant role, which was done in 1910. [01:03:57] Speaker 05: And so if people are descended from that role, and the Constitution says if you're descended from that role, [01:04:04] Speaker 05: you're a tribal member. [01:04:06] Speaker 05: So it's very easy to determine for the secretary because the secretary has the role and they have to come up with an enrollment that has to be approved by the secretary and a voters list. [01:04:17] Speaker 01: Thank you.