[00:00:00] Speaker 03: case number 20-5123 et al. [00:00:03] Speaker 03: Salt St. [00:00:04] Speaker 03: Mary tribe of Chippewa Indians versus Deborah A. Haland in her official capacity as Secretary of the Interior and United States Department of the Interior at balance, Saginaw Chippewa Indian tribe of Michigan et al. [00:00:17] Speaker 03: Ms. [00:00:18] Speaker 03: Krantz for the federal imbalance, Mr. Shaw for the non-federal imbalance, Ms. [00:00:22] Speaker 03: Pinnelli for the appellee. [00:00:25] Speaker 01: Ms. [00:00:25] Speaker 01: Krantz, good morning and before you begin, [00:00:29] Speaker 01: We are here unexpectedly. [00:00:31] Speaker 01: Let me ask on behalf of my colleagues how your child is. [00:00:36] Speaker 05: She's just fine. [00:00:37] Speaker 05: And thank you so much for accommodating my last second request based on that emergency. [00:00:43] Speaker 05: I really deeply appreciate it. [00:00:46] Speaker 01: Well, and Mr. Shah, I want to thank you on behalf of my colleagues, too, for being immediately willing to interrupt your vacation. [00:00:56] Speaker 01: I don't know where you are. [00:00:59] Speaker 01: Thank you. [00:01:01] Speaker 02: No problem, your honor. [00:01:02] Speaker 01: Okay. [00:01:03] Speaker 01: Ms. [00:01:03] Speaker 01: Kranz? [00:01:05] Speaker 05: Sure. [00:01:05] Speaker 05: Good morning. [00:01:06] Speaker 05: Erica Kranz for the federal defendants in this case. [00:01:10] Speaker 05: At the urging of the Sioux St. [00:01:12] Speaker 05: Marie tribe of Chippewa Indians, the district court has interpreted section 108 of the Michigan Indian Land Claim Settlement Act in two unprecedented ways. [00:01:22] Speaker 05: First, the court read section 108C [00:01:25] Speaker 05: to effectively allow any purchase of lands to qualify as a so-called enhancement of tribal lands, an interpretation that stretches the term enhancement far beyond its normal meaning, and that effectively eviscerates the apparent intent of Congress to provide a limit on the tribe's ability to acquire new trust lands. [00:01:47] Speaker 05: Second, the court has interpreted Section 108F as requiring the Department of the Interior [00:01:53] Speaker 05: to rubber stamp the tribe's request for lands to be taken into trust, regardless whether those lands were lawfully purchased. [00:02:01] Speaker 05: Both rulings by the district court run counter to the most reasonable interpretation of these two provisions based on their text and their context. [00:02:10] Speaker 05: The interpretation proffered by the tribe and adopted by the district court would provide this tribe a uniquely unfettered ability to acquire new trust lands without geographic or functional limitation [00:02:22] Speaker 05: and without any oversight by the Interior Department, all absent any indication by Congress that it intended this truly anomalous result. [00:02:31] Speaker 00: Is this, you refer to it being unprecedented, is this language that we have in this enactment, does that occur in other enactments with respect to other tribes or is this a unique statute? [00:02:43] Speaker 05: There is similar language in section 107 of the Michigan Indian Land Claim Settlement Act with regard to a different tribe. [00:02:52] Speaker 05: um, interior has interpreted that language in the same way. [00:02:57] Speaker 00: Has any court interpreted it at all? [00:03:00] Speaker 05: The district court did interpret that language and reached the same conclusion that the district court did in this case. [00:03:08] Speaker 05: However, that decision was later vacated. [00:03:11] Speaker 00: Later vacated. [00:03:12] Speaker 00: Thank you. [00:03:13] Speaker 05: Yes. [00:03:14] Speaker 05: Um, and interior, [00:03:17] Speaker 05: Part of the reason that Interior reached the conclusion that it did in this case about the meaning of the word enhancement was because it had already reached a conclusion about the meaning of the word enhancement with regard to Section 107 and a different tribes request. [00:03:37] Speaker 05: So starting with Section 108. [00:03:40] Speaker 04: Sorry, while you're discussing the two different provisions, can you tell me [00:03:46] Speaker 04: What is the difference between, if there is any, between tribal land holdings and tribal lands and also the term land held as Indian lands are held? [00:03:58] Speaker 04: Are those distinct terms or do they have the same meaning? [00:04:04] Speaker 04: I'm wondering what your understanding is of that. [00:04:07] Speaker 05: Well, I'm not sure that the [00:04:11] Speaker 05: The secretary reached a definitive decision in this case about the precise meaning of the words tribal lands because the secretary had concluded that the tribe hadn't shown that it met sort of the enhancement requirement generally. [00:04:29] Speaker 05: It's not entirely clear whether tribal lands and tribal land holdings mean something different. [00:04:36] Speaker 05: I think they probably mean [00:04:39] Speaker 04: the same thing, meaning the- Doesn't the secretary have to have an understanding of what tribal lands means in order to determine whether they were enhanced? [00:04:48] Speaker 04: I'm not sure how that question could be left open. [00:04:54] Speaker 05: Well, the tribe here was arguing that sort of interpreting enhancement in two ways. [00:05:00] Speaker 05: The primary way that we're talking about here in this appeal, of course, is they had sort of a quantitative interpretation of that term. [00:05:09] Speaker 05: But the tribe did also try to argue that this acquisition would enhance its sort of lands generally, including land that it owns in fee. [00:05:21] Speaker 05: I mean, I believe that I'm correct that the secretary didn't reach a final decision on this, but it does seem implicit in the secretary's interpretation that tribal lands means trust lands. [00:05:35] Speaker 04: Does tribal land holdings in 107 also mean trust lands? [00:05:42] Speaker 05: I'm not, I'm not sure, your honor. [00:05:45] Speaker 05: I'm sorry. [00:05:46] Speaker 04: I'm just not that familiar with section 107 and how the secretary is relying on its earlier interpretation of 107 and saying that a similar interpretation should apply to section 108. [00:05:59] Speaker 04: Isn't that correct? [00:06:01] Speaker 05: Yes, but that, I mean, primarily what we're talking about is the meaning of the word enhancement and whether enhancement means just any increase in acreage or whether it means you are doing something that improves the value or the functioning or the quality of the existing lands. [00:06:21] Speaker 04: I think it actually makes actually some difference, though, given how the provisions read together. [00:06:28] Speaker 04: Because if tribal lands only means lands held in trust, that may affect how we understand the interaction between 108F and 108C5. [00:06:44] Speaker 05: I guess there's another part of this, which is that there is still pending before the district court, or there would be if you agreed with the Interior Department here, the question whether the tribe has shown that what they have done here, this acquisition would be an enhancement of tribal lands. [00:07:03] Speaker 05: And it may be that the right time to answer that question would be on remand when the district court can assess whether the [00:07:14] Speaker 05: Interior Department correctly determined that this acquisition did not enhance tribal lands, whatever that means. [00:07:22] Speaker 04: And what about land held as Indian lands are held? [00:07:25] Speaker 04: What about that term? [00:07:27] Speaker 04: Is that equivalent to either trust Indian lands or Indian land holdings? [00:07:34] Speaker 04: I did some separate research and I couldn't really find [00:07:41] Speaker 04: any definitive understanding of how these terms interact? [00:07:44] Speaker 04: So I'm just wondering how the government understands it. [00:07:46] Speaker 05: My memory is that in the Baymills secretary's opinion, it walks through what that phrase means. [00:07:56] Speaker 05: That opinion is in the appendix in full and concludes that it doesn't mean anything in particular. [00:08:03] Speaker 05: Your research did not lead you astray. [00:08:05] Speaker 05: It's not a defined term and it can mean [00:08:10] Speaker 05: sort of a variety of different things. [00:08:12] Speaker 05: So in other words, Interior determined that in the Bay Mills section of MILCSA, Section 107, that held as Indian lands is held was not a mandatory landage trust provision. [00:08:28] Speaker 05: We do of course agree here that Section 108F is a mandatory landage trust provision if conditions are met. [00:08:37] Speaker 05: And what this case is about is what are the conditions that trigger that duty? [00:08:44] Speaker 05: We argue, of course, that the term enhancement, the plain meaning, the ordinary usage of that word has a sense that relates to the value or the function of something, the attractiveness, all qualitative meanings [00:09:05] Speaker 05: of that term enhancement, and that the district court aired here by agreeing with the tribe that it could have this quantitative meaning that is really outside ordinary usage of the word enhancement. [00:09:20] Speaker 00: More is what our tribal lands. [00:09:24] Speaker 00: I hadn't thought of this till this morning, so I hadn't looked back myself, but is there similar language in the Major Crimes Act of 1888 that makes [00:09:34] Speaker 00: gives criminal jurisdiction to the tribes on the reservations. [00:09:39] Speaker 00: Does that use tribal lands, do you know? [00:09:41] Speaker 00: What I'm wondering is if there's a parallel interpretation of that anywhere. [00:09:46] Speaker 05: I don't know. [00:09:47] Speaker 05: Okay. [00:09:48] Speaker 00: I should know, but I don't, so excuse me. [00:09:53] Speaker 05: So one of the reasons that we think enhancement must have this more limited sense is because Congress's decision to write this provision in section [00:10:04] Speaker 05: C, indicates an intent to provide a limit. [00:10:07] Speaker 05: If Congress intended any acquisition to qualify as an enhancement, it seems Congress should have chosen a word that means acquisition. [00:10:20] Speaker 05: And Congress didn't. [00:10:22] Speaker 05: They paired enhancement with the word consolidation, which also- They wouldn't need this at all. [00:10:27] Speaker 00: I mean, they wouldn't need any word at all unless it's words of limitation. [00:10:30] Speaker 00: Would that not be your position that the very fact that they use the words by itself indicates they intended a limitation? [00:10:38] Speaker 00: That's right. [00:10:39] Speaker 05: That's right. [00:10:41] Speaker 05: And I know my time is running very short, so very quickly on section 108F. [00:10:46] Speaker 05: Our position is that the reference in Section 108F to lands acquired using interest or fund income is clearly a reference back to Section C incorporates those requirements and that of course the United States when taking the affirmative act to take land into trust to fundamentally alter the relationships [00:11:11] Speaker 05: between the tribe, the state and the United States with regards to that land. [00:11:15] Speaker 05: Of course, the United States may verify that the minimum standards in the statute have been met before doing so. [00:11:26] Speaker 05: Taking land into trust has significant consequences. [00:11:30] Speaker 05: The United States takes title. [00:11:33] Speaker 05: It takes on all kinds of responsibilities about approving uses of that land. [00:11:37] Speaker 05: The land of course then becomes [00:11:39] Speaker 05: is pulled from state jurisdiction with regulatory consequences. [00:11:45] Speaker 00: And as relevant here, it becomes eligible to have a casino on it. [00:11:48] Speaker 05: That's right. [00:11:49] Speaker 05: And of course, that's what this case is all about. [00:11:52] Speaker 05: So we do not think that this is not something that Congress would have taken lightly and just assumed that Interior would not be able to verify that the requirements of this statute were met. [00:12:08] Speaker 05: before taking that discrete government action. [00:12:12] Speaker 04: Ms. [00:12:12] Speaker 04: Kranz, did Interior, Interior's decision doesn't seem to reference the compact that the tribe has with Michigan. [00:12:23] Speaker 04: I mean, ordinarily, would the Department of Interior need to read the statute also to be consistent with the compact? [00:12:35] Speaker 04: Since those are both laws that the Department of Interior is charged with enforcing? [00:12:42] Speaker 05: Well, I don't believe the Department of Interior directly enforces the compact. [00:12:48] Speaker 05: The compact is essentially a contract between tribes and the state. [00:12:54] Speaker 05: The Interior Department's opinion does- It's approved by Congress. [00:12:59] Speaker 04: I mean, the tribal state compacts must be approved by Congress. [00:13:05] Speaker 04: So they're not statutes, but they are, I mean, I don't know, what status do they have? [00:13:10] Speaker 04: Do they have the same status as other federal laws or treaties? [00:13:15] Speaker 05: I don't know. [00:13:15] Speaker 05: I mean, you're correct that that's not what Interior relied on here. [00:13:20] Speaker 05: Interior did reference, I believe, IGRA. [00:13:24] Speaker 05: And that was part of the backdrop for interpreting [00:13:30] Speaker 05: this statute, obviously Congress would have known at the time it wrote this statute that lands that were taken into trust could be gaming eligible. [00:13:41] Speaker 05: And that IGRA establishes sort of a default, no gaming on later acquired lands with some narrow exceptions. [00:13:51] Speaker 05: So that does sort of form part of the backdrop. [00:13:57] Speaker 05: And I think that also heightens [00:14:01] Speaker 05: The sort of slippery slope that all of the appellants have talked about in their briefing here is that if this is interpreted, this statute is interpreted to provide really no limits on what lands this tribe could acquire and what lands it could then force Interior to just blindly take into trust. [00:14:25] Speaker 05: Those lands could be anywhere. [00:14:26] Speaker 05: I mean, not just downstate in Michigan, but [00:14:29] Speaker 05: you know, across the country and Manhattan. [00:14:33] Speaker 05: Why not? [00:14:33] Speaker 05: There would be really nothing, there would be no limiting principle to stop that from happening. [00:14:40] Speaker 05: And as I mentioned, to fundamentally change the way that land functions. [00:14:46] Speaker 05: So we, you know, we think it will be very strange for Congress to have written a statute with that effect where there's really no indication [00:14:59] Speaker 05: by Congress that it thought it was doing. [00:15:01] Speaker 05: So that would be, as far as we can tell, really unique in the universe of statutes like this. [00:15:10] Speaker 05: It would really give this tribe unfettered land acquisition ability unlike any tribe has. [00:15:19] Speaker 05: And we just don't think that the text of the statute and the context in which it comes [00:15:27] Speaker 05: can support a reading as extreme as that. [00:15:31] Speaker 01: All right, unless my colleagues have further questions, and we'll give you some time in reply. [00:15:37] Speaker 01: We'll hear from Mr. Shaw. [00:15:42] Speaker 02: Thank you, Your Honor. [00:15:44] Speaker 02: May it please the court, Pratik Shah, for the non-federal appellants. [00:15:48] Speaker 02: Maybe I should start by offering a few thoughts, Judge Rao, on your question. [00:15:52] Speaker 02: about the possible distinction between tribal lands and tribal land holdings. [00:15:56] Speaker 02: The casino reply brief on page four and five kind of goes into this just as a reference guide. [00:16:03] Speaker 02: But here, we believe that tribal lands is a narrower term and that tribal lands is a term of art. [00:16:10] Speaker 02: And in fact, it refers to trust lands or other lands in which [00:16:16] Speaker 02: Indian jurisdiction is exclusive. [00:16:20] Speaker 02: And so that, in our view, underscores the Interior Department's reading. [00:16:24] Speaker 02: Perhaps you would reach the same reading if you use the term, the broader term, tribal land holdings, which would occur anything they hold title in, but certainly if you're talking about [00:16:35] Speaker 02: consolidate or enhance tribal lands, then you are talking about the tribes trust lands. [00:16:41] Speaker 02: That's a term of art. [00:16:43] Speaker 02: And so Congress had in mind something very specific. [00:16:46] Speaker 02: It didn't have in mind a right to acquire any lands that would simply add to the sum total of the tribes land holdings. [00:16:55] Speaker 02: it had in mind a particular phrase, consolidate or enhance tribal lands. [00:17:01] Speaker 02: That is, the acquisition has to either consolidate, which is a strict geographic limitation, bring together, or it has to enhance the value of, improve the existing value of the trust lands. [00:17:16] Speaker 02: What they would be acquiring are not automatically trust lands. [00:17:19] Speaker 02: And we think that that [00:17:20] Speaker 02: distinction that Congress used there actually underscores our reading. [00:17:24] Speaker 04: Now, of course, Your Honor, we don't think... Is it your position that they do not become tribal lands until the government takes them into trust? [00:17:34] Speaker 02: Correct, Your Honor. [00:17:34] Speaker 04: So you can't enhance something, you can't enhance a tribal land because that hasn't already been taken into trust. [00:17:42] Speaker 02: That's right, Your Honor, and we don't understand anyone disputing. [00:17:44] Speaker 02: In fact, the Sioux filed an application to have the lands taken into trust, and that's why we're all here. [00:17:51] Speaker 02: The other point I would make on 108C5 is I don't think you even need to think, you don't even need to resolve that, although we think it [00:17:58] Speaker 02: cuts in our favor because Congress, this is not the first time Congress has used the terms enhance or consolidate when it's talking about lands or in fact the term acquisition and on the casino opening brief at pages 10 and 11 they're cited a number of statutes and regulations that use those terms and in particular I would point you on page 11 [00:18:23] Speaker 02: to 16 USC 1456-1F4C. [00:18:25] Speaker 02: I know that's a mouthful, but it's reprinted there on page 11, and I think that's a good example because what that does, that was a land management statute, land conservation statute, and it said, [00:18:39] Speaker 02: It referred to, quote, costs associated with land acquisition and enhancement. [00:18:47] Speaker 02: So here you have Congress using these words. [00:18:49] Speaker 02: If enhancement means acquisition, period, then that means acquisition in that statute is entirely superfluous. [00:18:58] Speaker 00: Just one moment. [00:18:58] Speaker 00: What was that reference again where you had acquisition and [00:19:02] Speaker 00: Enhancement. [00:19:04] Speaker 02: Yes, so it's reproduced on page 11 of the casino opening brief and the statutory site your honor is 16 USC 1456-1 subsection F [00:19:18] Speaker 02: for capital C. And that's a land conservation statute and the terms acquisition and enhancement. [00:19:28] Speaker 02: And that's not the only statute. [00:19:29] Speaker 02: There are others cited there and other regulations that Interior has used in the same way. [00:19:35] Speaker 02: And so it would render the term enhancement in that statute entirely superfluous, which means consistent with ordinary usage enhancement cannot possibly [00:19:46] Speaker 02: include any and all acquisitions. [00:19:49] Speaker 04: And of course, in this particular statute- Mr. Shah, I have a question for you about that argument because the Michigan Act here is not codified, right? [00:19:59] Speaker 04: So this is the kind of, you know, there are a number of public laws that are not codified. [00:20:04] Speaker 04: So the Michigan Act does not appear in the US code. [00:20:07] Speaker 04: And I'm wondering with statutes that are not codified, whether [00:20:12] Speaker 04: That means that we can't apply a whole code presumption right because there's a presumption that Congress legislates terms in a similar way. [00:20:22] Speaker 04: Should we read acts that are not codified to be consistent with other codified statutes? [00:20:30] Speaker 04: Does it make a difference? [00:20:31] Speaker 02: Oh, I don't think it makes a difference at all, Your Honor. [00:20:35] Speaker 02: These are acts that Congress passes. [00:20:38] Speaker 02: They pass them all in the same way. [00:20:39] Speaker 02: The fact whether they're later codified or not, I mean, that's a formatting, almost a formatting thing, right? [00:20:46] Speaker 02: They don't control the codification. [00:20:48] Speaker 02: There's codifiers who do that. [00:20:50] Speaker 02: So I think when Congress uses statutes, you apply all the normal canons [00:20:54] Speaker 02: of statutory construction. [00:20:56] Speaker 02: You assume they knew pre-existing statutes. [00:20:58] Speaker 02: You assume they use the words in the same way. [00:21:01] Speaker 02: And you assume they use words with their established meaning. [00:21:05] Speaker 02: And so I think 108C5 in our view should not even be a close call that it provides a limit. [00:21:13] Speaker 02: It doesn't give a license to acquire any and all acquisitions that increase acreage. [00:21:18] Speaker 02: Recall, our position isn't that no acquisitions are on the table. [00:21:21] Speaker 02: It just has to be a subset of those acquisitions. [00:21:24] Speaker 02: If I can turn briefly I know my time is running but on 108 F, because I think it's critical. [00:21:32] Speaker 02: I think it's important to start from the common ground on 108. [00:21:36] Speaker 02: Everyone here agrees that there are certain preconditions that have to be satisfied before the mandatory trust duty kicks in. [00:21:44] Speaker 02: Everyone agrees, for example, that the land has to be acquired with fund income. [00:21:49] Speaker 02: That's explicit in the statute. [00:21:51] Speaker 02: Everyone agrees that Interior has the authority to do a title check, make sure that the tribe has clear and valid title. [00:21:57] Speaker 02: That's not in the statute. [00:21:58] Speaker 02: that's an implicit precondition. [00:22:01] Speaker 02: The only question here is whether, as another precondition, Interior can act consistent with the government's fundamental duty to avoid becoming a party to illegality, particularly when taking on affirmative sovereign obligations of a trustee. [00:22:18] Speaker 02: Nothing in Section 108 strips that basic authority, and that makes particular sense here [00:22:25] Speaker 02: the United States should not be compelled to take on the burdens of trust obligations for lands beyond those that Congress carefully delimited in Section 108C5. [00:22:39] Speaker 02: It just wouldn't make sense to think that Congress thought that US has to assume the significant burdens of trust obligations if the tribe is acting entirely outside of the lands [00:22:51] Speaker 02: that it authorized to be taken into trust. [00:22:54] Speaker 02: The last point I'll make is a textual structural one, and it goes to Section E2, the immediately preceding section before 108F in the statute. [00:23:04] Speaker 02: The district court seems to think that that provision supports its reading, but it actually cuts exactly the opposite way. [00:23:12] Speaker 02: In Section E2, the immediately preceding section, Congress drew a clear line. [00:23:18] Speaker 02: It precludes interior's review. [00:23:20] Speaker 02: It says interior hands off when you're talking about the spending or management of the tribe's fund. [00:23:28] Speaker 02: And that makes sense because Congress made the tribe the trustee of that fund. [00:23:33] Speaker 02: Tribe's money, tribe, you're the trustee. [00:23:35] Speaker 02: The tribe's board is the trustee of that. [00:23:38] Speaker 02: And so E2 says interior, you can't second guess that. [00:23:41] Speaker 02: But significantly E2 says nothing [00:23:45] Speaker 02: about the Interior's own compliance duty with respect to its own sovereign act of taking land into trust in Section F, which comes after E2. [00:23:58] Speaker 02: And that distinction, clear in the text of the statute, text and structure of the statute, makes sense. [00:24:04] Speaker 02: You have different trustees. [00:24:06] Speaker 02: The Tribes Board is the trustee for the [00:24:08] Speaker 02: spending of the fund income. [00:24:11] Speaker 02: The United States is the trustee for lands taken into trust. [00:24:15] Speaker 02: You have an affirmative obligation on the behalf of the tribe with respect to spending and management. [00:24:21] Speaker 02: It makes sense that they have authority in that area, but it's the United States affirmative trust obligations when it comes to land taking into trust, criminal prosecutorial jurisdiction, mineral resource jurisdiction, environmental cleanup, all of those things, and of course, the background principles. [00:24:36] Speaker 02: that we've talked about. [00:24:38] Speaker 02: I know your honor. [00:24:39] Speaker 04: Mr. Shaw, so the district court thought that the Supreme Court's opinion in Chicorilla Apache nation supported its reading and I'm wondering whether you think that that case supports your reading. [00:24:53] Speaker 02: Your Honor, Hickory Apache Nation strongly, I happen to argue that case, so that's why I have the pronunciation. [00:25:02] Speaker 02: That case, the district court was wrong. [00:25:05] Speaker 02: That case involved, the district court read it for the categorical proposition that all trust duties must be explicitly enumerated in statute otherwise they can't be enforceable. [00:25:16] Speaker 02: In Hickory, what was at issue was an exception to the attorney-client privilege. [00:25:22] Speaker 02: And what the Supreme Court said there is, when the United States is acting as trustee, there are certain occasions in which the United States' role is different than a private trustee. [00:25:34] Speaker 02: And that was a great example of one, because a private trustee, you can imagine, when it's invoking the attorney-client privilege, [00:25:40] Speaker 02: A private trustee is only acting on behalf of its beneficiary. [00:25:45] Speaker 02: So there isn't a good reason to allow exercise of the attorney-client privilege to shield the beneficiary. [00:25:56] Speaker 02: But with the United States, it is not simply acting only blindly for the beneficiary. [00:26:02] Speaker 02: It has a lot of different interests. [00:26:04] Speaker 02: And so that exception to the attorney-client privilege, the Supreme Court held shouldn't apply. [00:26:08] Speaker 02: you would have expected Congress to make it explicit. [00:26:11] Speaker 02: Here, that reasoning and Hickory Apache Nation cuts exactly the opposite way, because like a private trustee, the United States has an interest in avoiding becoming a participant in illegality. [00:26:26] Speaker 02: And in fact, the United States has a greater interest. [00:26:29] Speaker 02: as a sovereign in making sure that it's not running afoul of any federal law. [00:26:35] Speaker 02: So the reasoning in Hickory Apache Nation, I think the district court's reading was superficial. [00:26:40] Speaker 02: If you look at the reasoning, it strongly supports that you would be applying that fundamental duty here of any trustee, which applies in spades when the sovereign is acting as a trustee in this capacity. [00:26:54] Speaker 01: Mr. Shaw, let me ask you one [00:26:57] Speaker 01: Question about 108 E2. [00:27:00] Speaker 01: Maybe I missed it but you skipped over not withstanding any other provision of law. [00:27:05] Speaker 02: Sure, Your Honor and and look we don't dispute that not withstanding any other provision of law interior cannot do the things stated in need to that is. [00:27:15] Speaker 02: cannot second guess how the tribe spends the money, distributes the money from its fund, administers its fund, and all of that makes sense because the scheme that Congress set up was that the tribe would be the trustee of this fund, and it gets to monitor and makes the decisions how to spend it. [00:27:36] Speaker 02: But that's in contradistinction to F, [00:27:39] Speaker 02: That's when the United States comes into the picture. [00:27:41] Speaker 02: The tribe can spend the money and acquire any land at once. [00:27:45] Speaker 02: Interior isn't stopping that. [00:27:47] Speaker 02: What Interior is saying, before we put the government's imprimatur on that and take on the significant trust obligations, we at least have our basic duty to make sure that that land was acquired lawfully. [00:28:03] Speaker 02: So that's our reading of how E2 fits with F, Your Honor. [00:28:08] Speaker 01: All right, if my colleagues have no other questions, we'll hear from Miss Spinelli. [00:28:14] Speaker 01: Thank you, Your Honor. [00:28:16] Speaker 07: Thank you, Danielle Spinelli for the Sault Ste. [00:28:19] Speaker 07: Marie tribe. [00:28:20] Speaker 07: The district court correctly held that Interior committed two fundamental errors here, each of which independently invalidates its order. [00:28:29] Speaker 07: First, Congress didn't give Interior the authority to override the tribe's determination that its purchase was an enhancement of tribal lands. [00:28:40] Speaker 00: And second, even if Interior... It's not just the tribe's decision we're involved with. [00:28:45] Speaker 00: As the Council argued before you, [00:28:49] Speaker 00: pointed out, what we're reviewing is the decision of interiors to land into trust. [00:28:55] Speaker 00: We're not talking about overriding the decision of the tribal trustees to make an acquisition, but we are talking about whether the secretary has the independent duty to comply with the law in making his or her decision. [00:29:10] Speaker 07: Well, let me go straight to that point. [00:29:14] Speaker 07: The statute makes it perfectly clear, I think, in multiple places that Congress was not giving interior the authority at any time, including when it is reviewing a trust submission by the tribe to override the tribe's determination about whether a purchase enhances tribal lands. [00:29:37] Speaker 07: So. [00:29:37] Speaker 00: Well, why would the term [00:29:43] Speaker 00: enhance or consolidate be in the statute unless there are terms of limitation? [00:29:52] Speaker 07: They are not terms that connote a geographic limitation of the type that interior and interveners... Why would they be in there at all unless there are terms of limitation? [00:30:03] Speaker 07: They certainly [00:30:06] Speaker 07: limit within broad parameters what the tribe can do with its money. [00:30:13] Speaker 00: What would you say they preclude as far as land acquisition? [00:30:20] Speaker 07: I don't believe they preclude particular land acquisitions. [00:30:25] Speaker 00: So why are they in there unless their terms of limitation, which would be a way of precluding the acquisition of things outside the grant. [00:30:34] Speaker 07: The terms are there because they limit what the tribe can do with the self-sufficiency fund. [00:30:41] Speaker 07: I don't believe they limit. [00:30:43] Speaker 07: In fact, they're broader. [00:30:44] Speaker 00: They're there for limitation. [00:30:47] Speaker 00: And what is it that you would say they exclude here as far as acquisition of land? [00:30:51] Speaker 07: I don't believe they do exclude. [00:30:54] Speaker 00: You don't believe that they have any application to land holding transactions, and yet that's where they are in the statute. [00:31:03] Speaker 07: Let me explain, let me explain Judge Sentel. [00:31:10] Speaker 07: First, there are two questions here. [00:31:14] Speaker 07: First, we think the statute makes very clear that Interior does not have the authority to interpret that language. [00:31:24] Speaker 07: The Board has the authority to determine [00:31:28] Speaker 07: whether or not a purchase consolidates or enhances tribal lands. [00:31:32] Speaker 07: And that is clear, not only from section A2, which appoints the board as the trustee of the self-sufficiency fund with the power to administer the fund, but also from the provision that you were just discussing with my friend, Mr. Shah, E2, which says notwithstanding any other provision of law, [00:31:58] Speaker 07: the approval of the secretary for any payment or distribution from the principal or income of the self-sufficiency fund shall not be required. [00:32:08] Speaker 07: And I apologize, the language of the statute is in the addendum to the tribes brief and I'm right now looking at page eight four. [00:32:15] Speaker 07: And the secretary shall have no trust responsibility for the expenditure of the principal or income of the fund. [00:32:28] Speaker 07: Before we ever get to what does consolidation and enhancement mean, we have to reach the conclusion that the statute gives interior the power to make that determination. [00:32:42] Speaker 00: One thing we know, one thing that's axiomatic- Your friend, Mr. Schell, pointed out that that does have the language in it that you just read. [00:32:51] Speaker 00: It does not say anything about the decision whether or not to take the land into trust. [00:32:57] Speaker 07: Well, if we look at F, which is the provision, so the way I think we need to understand 108 in its totality, all the provisions of 108 lead to the same conclusion, which that is, this is the tribe's plan for how to expend the settlement money that belongs to the tribe, that the tribe received as compensation [00:33:27] Speaker 07: the unlawful taking of its lands. [00:33:32] Speaker 00: That brings us to the Indian canon where we do defer to the interpretation by tribes of statues for their benefit. [00:33:42] Speaker 00: That's correct. [00:33:43] Speaker 00: That canon does not say the difference extends to rewriting a statue. [00:33:49] Speaker 00: It seems to be at least the [00:33:52] Speaker 00: reasonable position to say the tribe is writing that limitation of consolidation and enhancement out of the statute so that that interpretation no longer be entitled to deference. [00:34:06] Speaker 07: Let me say something about consolidation and enhancement then. [00:34:10] Speaker 07: I do think there are two separate questions here and that the court doesn't need to get to what consolidation and enhancement means. [00:34:18] Speaker 07: if it agrees with our fundamental position, which was adopted by the district court, that Interior doesn't get to decide that. [00:34:29] Speaker 07: The only role that Interior is given in this statute is in 108F, and that is a mandatory duty to take into trust [00:34:41] Speaker 07: any lands acquired using amounts from interest or other income of the Self-Sufficiency Fund. [00:34:49] Speaker 07: it has to take into trust any land purchased with interest. [00:34:52] Speaker 07: That is the only role that interior is given. [00:34:56] Speaker 04: Ms. [00:34:56] Speaker 04: Spinelli, I mean, doesn't that provision, it is any lands, but it has to be lands acquired using amounts from interest or other income of the fund. [00:35:04] Speaker 04: That's the only way to acquire land using interest or income from the fund is for the consolidation or enhancement of tribal land. [00:35:14] Speaker 04: So, I mean, isn't that implicitly [00:35:17] Speaker 07: part of- No, not at all Judge Rao. [00:35:21] Speaker 07: Again, the agencies, in order to have the authority it's claiming, the agency has to have some statutory grant of authority. [00:35:34] Speaker 07: And sure, yes, it can be implicit, but if one looks at the rest of this statute, including E, I think it's very clear that it's not. [00:35:44] Speaker 07: So I think the distinction. [00:35:46] Speaker 04: So what then what about the government's sovereign obligation to ensure that it properly enforces the law. [00:35:56] Speaker 07: With respect to draw I think that way of putting it by interior and the intervenors just begs the question of who gets to decide whether something consolidates or enhances tribal lands, our position is that [00:36:10] Speaker 07: the board has made a good faith determination as it did here and no one is disputing that this purchase enhances tribal lands because it increases the total amount of land. [00:36:23] Speaker 00: So under your interpretation if this land instead of being near Detroit was near Milwaukee they could still take it in and still buy it and the secretary would have to take it in trust is that correct? [00:36:37] Speaker 07: Our position is that the tribe gets to- No, answer that question. [00:36:41] Speaker 07: Answer that question. [00:36:43] Speaker 00: You would say they could buy land near Milwaukee and the secretary would still have to take an interest, right? [00:36:49] Speaker 07: Yes, our position is that they're- Suppose it was near Los Angeles. [00:36:52] Speaker 00: Suppose it was near Los Angeles. [00:36:53] Speaker 00: Could the tribe buy some out there near Los Angeles? [00:36:57] Speaker 00: Put a casino on and the secretary would have to take an interest. [00:37:02] Speaker 07: Our position is that the statute doesn't contain a geographic limitation. [00:37:07] Speaker 07: If it did, it's certainly going to be paid. [00:37:10] Speaker 00: So your position is that the enhancement and consolidation is essentially written out of the statute? [00:37:15] Speaker 07: No, Judge Santel. [00:37:16] Speaker 07: Let me respond directly to that. [00:37:18] Speaker 07: Enhancement is a broader word than acquisition. [00:37:25] Speaker 00: It is. [00:37:25] Speaker 00: And we therefore have to interpret what it means in this usage. [00:37:29] Speaker 07: Correct. [00:37:29] Speaker 00: It is a broader word. [00:37:30] Speaker 00: Lots of words in there are broader words that can mean lots of things in different uses. [00:37:36] Speaker 00: It can be, it would seem, interpreted as the secretary does, that it has to be, if you're enhancing existing land, it has to be land in relationship to that land. [00:37:45] Speaker 00: Is that not a possible interpretation? [00:37:48] Speaker 07: I don't believe it's a reasonable interpretation. [00:37:50] Speaker 00: Is it not a possible interpretation? [00:37:54] Speaker 07: Perhaps it's a possible interpretation. [00:37:56] Speaker 07: I don't believe it's a reasonable interpretation, and it's certainly not one that could overcome [00:38:02] Speaker 07: the Indian canon, which requires statutes to be read if they are ambiguous, as the tribe would have them read. [00:38:11] Speaker 00: And this statute is- Isn't that canon also subject to the limitation that it has to be consistent with the language of the statute? [00:38:21] Speaker 07: Certainly. [00:38:22] Speaker 00: Yeah. [00:38:22] Speaker 00: Certainly, Judge Santel, but- They're not saying that we do away with the Indian canon. [00:38:27] Speaker 00: They're just saying that applying it here [00:38:31] Speaker 00: It doesn't work because it doesn't control, excuse me, it does work. [00:38:35] Speaker 00: It doesn't control because we have to look at the language of the statute first. [00:38:40] Speaker 07: Well, I think there's no, I really, really think that there is no possible argument that the statute unambiguously requires a geographic limitation. [00:38:51] Speaker 00: It unambiguously requires a limitation. [00:38:54] Speaker 00: Then the question becomes whether it's consistent with that limitation. [00:39:00] Speaker 00: So Judge Lintel, I think the limitation- What does it mean if it doesn't mean some kind of geographic relationship? [00:39:07] Speaker 00: That's what I'm trying to ask you when I ask you about Milwaukee and Los Angeles. [00:39:12] Speaker 00: What does that mean, the limitation to enhancement and consolidation, unless it has a reference to the existing lands? [00:39:21] Speaker 07: I think as both district courts that have looked at this issue have found, enhancement [00:39:29] Speaker 00: simply means to increase it can increase it can mean increasing any number of qualities if that's what you mean here then there's no limitation created by the term enhancement because the very fact of acquisition would cover uh the increase in holding it's got to mean something more in there congress wouldn't put it in there unless it means something more than simply uh echoing the fact of acquisition [00:39:58] Speaker 07: Respectfully, Judge Sentel, we disagree. [00:40:02] Speaker 07: I mean, we think that enhancement can mean either purchasing land that enhances the tribe's overall possessions of land. [00:40:16] Speaker 00: So there's no limitation at all created by enhancement. [00:40:20] Speaker 07: Correct. [00:40:21] Speaker 07: There's no geographic limitation. [00:40:22] Speaker 00: There's no reason why Congress put it in there. [00:40:27] Speaker 07: Congress used the phrase consolidation or enhancement rather than acquisition because it's broader. [00:40:37] Speaker 07: Enhancement allows the tribe to improve its existing lands. [00:40:43] Speaker 07: And in another context, perhaps that would be the only thing enhancement means is improvement. [00:40:51] Speaker 07: In this context, we know [00:40:54] Speaker 07: That that's not all it means, but we know that it includes acquisitions of land, both interior and intervenors have conceded that and they have to because F. [00:41:05] Speaker 07: provides for taking such land into trust. [00:41:08] Speaker 04: Ms. [00:41:08] Speaker 04: Spinelli isn't enhancement in the context, the meaning, so the dictionary meanings of enhanced that you cite are broad. [00:41:17] Speaker 04: They can be quantitative or qualitative. [00:41:20] Speaker 04: But when we talk about the enhancement of land specifically, which is what we have in this statute, the enhancement of land [00:41:28] Speaker 04: isn't enhanced much more akin to what you just said, which is an improvement. [00:41:33] Speaker 04: I don't think anyone would say an improvement of land would include acquiring more land, right? [00:41:38] Speaker 04: An improvement in land means some type of development of attractive land. [00:41:45] Speaker 07: So two things, Judge Rao. [00:41:47] Speaker 07: First of all, what we're talking about here is not enhancement of land. [00:41:51] Speaker 07: It's enhancement of tribal lands. [00:41:53] Speaker 07: And I think that goes to the discussion that you were having [00:41:56] Speaker 07: with Ms. [00:41:57] Speaker 07: Kranz about what is the meaning of tribal lands. [00:42:01] Speaker 07: The way Interior reads it is that it has to be a specific parcel of land already owned by the tribe, but that is not what lands means. [00:42:12] Speaker 07: Lands means, according to the OED, territorial possessions. [00:42:17] Speaker 04: Well, but that's not, I mean, what does tribal lands mean? [00:42:20] Speaker 04: I mean, Judge Santel mentioned the Major Crimes Act. [00:42:22] Speaker 04: I believe there, tribal lands means [00:42:25] Speaker 04: lands held in trust? [00:42:27] Speaker 07: Well, no, actually. [00:42:28] Speaker 07: So so just just to talk about that, I mean, the Major Crimes Act uses the term Indian country and Indian country is defined to mean lands within the limits of any Indian reservation, which include fee lands. [00:42:44] Speaker 07: It's not just trust lands. [00:42:46] Speaker 07: it includes dependent Indian communities and it includes Indian allotments. [00:42:52] Speaker 07: It's a very broad term. [00:42:55] Speaker 04: So is tribal lands distinct from Indian country in your view? [00:43:00] Speaker 07: I actually think tribal lands in this context means all the lands owned by the tribe and that's consistent with [00:43:10] Speaker 07: the phrase you pointed to with interior's interpretation of the phrase you pointed to, which is held as tribal lands are held. [00:43:18] Speaker 07: As Ms. [00:43:19] Speaker 07: Cran said, interior interpreted that in the Bay Mills decision, essentially to mean those lands have no special status at all. [00:43:28] Speaker 07: We're not saying we agree with that, but interior's reasoning was tribes can have lands in any number of ways. [00:43:37] Speaker 07: They can be reservation lands, they can be trust lands, [00:43:40] Speaker 07: They can be restricted fee lands. [00:43:42] Speaker 07: They can be held in fee simple. [00:43:44] Speaker 04: So interior in your view, in your view, tribal lands, tribal land holdings and lands held as Indian lands are held are equivalent terms. [00:43:55] Speaker 07: I believe, I believe tribal lands and tribal land holdings are synonymous as interior conceded earlier. [00:44:01] Speaker 07: Um, there is there in fact, one definition of tribal lands, which is from the Collins English dictionary. [00:44:09] Speaker 07: is holdings and land. [00:44:13] Speaker 07: The point is simply that it's referring to the collective. [00:44:17] Speaker 07: It's not referring to specific parcels the tribe already owns on the upper peninsula. [00:44:22] Speaker 07: It's referring to the tribe's lands collectively. [00:44:26] Speaker 07: And that makes sense because this statute was intended to allow the tribe to make a plan for the use of money that was given to it in compensation [00:44:38] Speaker 07: for the lands that were unlawfully taken away from it, which were in both the upper and lower peninsulas of Michigan. [00:44:45] Speaker 07: A third of the tribe's population is in the lower peninsula of Michigan. [00:44:51] Speaker 07: And right now, the tribe has no lands in the lower peninsula to serve the needs of its members there. [00:45:00] Speaker 07: Congress would have known that. [00:45:05] Speaker 07: I actually think the use of the phrase tribal lands strongly supports our reading. [00:45:11] Speaker 07: A tribe's collective lands are much more than just the specific parcels that it already owns, especially in this context. [00:45:21] Speaker 07: They determine the extent to which the tribe can exercise its sovereignty and achieve self-sufficiency by pursuing economic development and providing jobs and other benefits to its members. [00:45:33] Speaker 04: So that's also interesting because it, I mean, is there any part of 108C that suggests fund income can be used for economic development? [00:45:44] Speaker 04: I mean, C4 talks about educational, social welfare, health, cultural or charitable purposes. [00:45:52] Speaker 04: Whereas under 108B, it does talk about economic development where you can use the principle of the fund. [00:46:00] Speaker 07: Right. [00:46:00] Speaker 07: I actually believe C is much broader than B. [00:46:03] Speaker 04: B, with respect to economic development, I mean, B specifically refers to economic development where I don't, I mean, is there any language in C that you would read to include economic development? [00:46:17] Speaker 07: I mean, I think that four or five could potentially include economic development because that's one of the main purposes of acquiring tribal land is in order to use it for economic development. [00:46:31] Speaker 04: It doesn't say that in the statue. [00:46:37] Speaker 07: It doesn't say that in C. [00:46:40] Speaker 07: It says it in B, and I think, you know, I think. [00:46:45] Speaker 04: Well, but that's interesting, right? [00:46:46] Speaker 04: Because Congress specifically provided that principle from the fund could be used for economic development. [00:46:52] Speaker 04: And then in C, they talk about a list of quite specific things that might be used by the interest or income from the fund, none of which, at least to my reading, indicate economic development. [00:47:08] Speaker 07: I think economic development is absolutely a possible use for interest. [00:47:14] Speaker 07: I mean, I think if you look at principle and interest, it's very clear that principle can be used more narrowly than interest. [00:47:24] Speaker 07: So the restriction on principle is that it has to be used for investments that the board determines are reasonably related to. [00:47:33] Speaker 07: economic development, development of tribal resources are otherwise financially beneficial or will consolidate or enhance tribal land holdings. [00:47:41] Speaker 07: They're restricted to economic use because Congress and the tribe itself, which developed this plan in conjunction with Congress, wanted to ensure that the principle wasn't wasted. [00:47:54] Speaker 07: So that's why, for instance, you know, B3 specifically says you cannot use principle [00:48:02] Speaker 07: to make per capita payments. [00:48:04] Speaker 07: Then if you look at C, C says you can use interest to make per capita payments. [00:48:12] Speaker 07: But uses of interest are broader than the uses of principle. [00:48:16] Speaker 04: I'm not sure if I agree with that, to be honest. [00:48:18] Speaker 04: I mean, be economic development beneficial to the tribe, reasonably related to that. [00:48:27] Speaker 04: I mean, that is a very [00:48:28] Speaker 04: broad term, whereas under C, I mean, it's quite specific addition to the principle as a dividend to tribal members, a per capita payment, and then it lists a closed set of educational, social welfare, et cetera reasons. [00:48:43] Speaker 04: So I'm not sure that B is broader than C. Okay. [00:48:47] Speaker 07: Well, in a way it doesn't matter. [00:48:48] Speaker 07: The question is, first of all, does Interior get to decide what consolidation or enhancement means? [00:48:57] Speaker 00: Not just get to, but [00:48:58] Speaker 00: have to. [00:49:00] Speaker 00: They have to determine they're lawfully taking into trust. [00:49:04] Speaker 07: Judge Sentel, I would say this question of whether it's this argument that Interior is somehow being forced to do something illegal by complying with the plain language of subsection F really [00:49:20] Speaker 07: really just begs the question. [00:49:22] Speaker 07: It is not unlawful for Interior to do what the statute tells it to do. [00:49:27] Speaker 00: You're coming to the question. [00:49:31] Speaker 07: Yes. [00:49:31] Speaker 00: It is necessary to determine whether it's lawful in order to determine whether they're performing their duties. [00:49:36] Speaker 00: Not just are they authorized to, but one would assume they are required to be convinced of doing something lawful. [00:49:46] Speaker 00: The Indian law does not permit the Indian tribe to rewrite the law. [00:49:51] Speaker 00: We have to defer to reasonable interpretations by the tribes of the law, but that doesn't mean that the tribe can dictate an understanding of the law that differs from what we believe the language plainly means. [00:50:10] Speaker 07: That's absolutely correct, Judge Sentel. [00:50:12] Speaker 07: So if I could just go back quickly to subsection F, that is the source of interior's authority here. [00:50:20] Speaker 07: I think everyone agrees. [00:50:22] Speaker 07: So 108F says, any lands acquired using amounts from interest or other income shall be held in trust by the secretary for the benefit of the tribe. [00:50:34] Speaker 07: Right next to that is a provision that says, notwithstanding any other provision of law, the approval of the secretary for any payment or distribution from the principal or income shall not be required. [00:50:47] Speaker 07: And the question is, [00:50:50] Speaker 07: Notwithstanding, I mean, we have E, which makes it very clear that the secretary does not get to decide. [00:51:00] Speaker 04: does not get to approve or disapprove expenditures, but by saying- E2 also says, right, that the secretary shall have no trust responsibility for the investment administration. [00:51:11] Speaker 04: Right. [00:51:11] Speaker 04: So, but then F establishes that it does have a trust responsibility over land. [00:51:17] Speaker 04: So I think it's consistent to say the tribe can acquire lands for consolidation or enhancement. [00:51:24] Speaker 04: And it gets, you know, broad deference over what that means in terms of using its interest. [00:51:30] Speaker 04: But then, you know, but then the secretary, you know, has an obligation, it has a trust obligation with respect to lands that it, you know, that it takes into trust. [00:51:41] Speaker 07: Judge Ryle, the problem, the problem with that is that they're really [00:51:47] Speaker 07: is there is no distinction between approving or disapproving expenditures and deciding that in the context of taking land and to trust that that land was acquired unlawfully. [00:52:01] Speaker 07: That's what Interior has said. [00:52:03] Speaker 07: This land was acquired unlawfully. [00:52:06] Speaker 07: We're interpreting a statute here. [00:52:08] Speaker 07: The statute says consolidation or enhancement of tribal lands. [00:52:12] Speaker 07: That has to have a single meaning. [00:52:14] Speaker 07: It can't change meanings depending on whether the board is determining whether to make an expenditure or interior is deciding whether to take the land into trust. [00:52:25] Speaker 07: So if interior is permitted when taking the land into trust to decide, no, the board was wrong. [00:52:32] Speaker 07: This does not consolidate or enhance tribal lands. [00:52:36] Speaker 07: That acquisition was unlawful, then the board [00:52:40] Speaker 04: is bound by that going forward. [00:52:42] Speaker 04: How would the government, though, put its imprimatur on something that it thought was unlawful? [00:52:48] Speaker 04: How could we expect the Department of Interior to do that? [00:52:52] Speaker 04: For instance, Mr. Shah says it's implicit that they have a valid title. [00:52:57] Speaker 04: That's not mentioned in F. But so what if they determined that the tribe did not have a valid title to land? [00:53:04] Speaker 04: Would the government still be forced to take it into trust if the tribes say so? [00:53:08] Speaker 07: No, and that is in F. If the tribe does not have valid title, there is no way the United States can take title from the tribe and hold it in trust for the tribe's benefit. [00:53:23] Speaker 07: That is inherent in what it means to take land into trust for the benefit of the tribe, and that is within the language of the statute. [00:53:32] Speaker 07: But there's nothing at all [00:53:35] Speaker 07: inconsistent with having, there's nothing at all strange about having a statute that says the secretary shall take land into trust without letting the secretary go back and determine for itself whether the board was correct that taking this land into trust served the purpose that the board itself set out in the plan that it developed for the use of its settlement money. [00:54:05] Speaker 04: What about this language from from Hicarilla Apache nation right I mean so they're the the court says that in fulfilling its statutory duties, the government acts, not as a private trustee but pursuant to its sovereign interest in the execution of federal law. [00:54:23] Speaker 04: Right, so here it is also acting in the sovereign interest in the execution of federal law. [00:54:29] Speaker 04: I mean, can we really read out that obligation of the federal government? [00:54:33] Speaker 07: No, not at all. [00:54:34] Speaker 07: Again, I really think this begs the question of whether Interior gets to decide whether something is a consolidation or enhancement of tribal lands. [00:54:46] Speaker 07: Nothing in the statute requires or even permits Interior to decide that question. [00:54:52] Speaker 07: Interior would not be doing anything unlawful [00:54:56] Speaker 07: by taking this land into trust, which the board has decided benefits the tribe by increasing its total lands by enhancing its tribal lands for the benefit of its members, which right now have no lands to meet their needs in that area. [00:55:19] Speaker 01: Ms. [00:55:19] Speaker 01: Finnelli, let me ask you, I read [00:55:24] Speaker 01: 108C5, very simply. [00:55:29] Speaker 01: We were talking earlier about geographic limitations. [00:55:32] Speaker 01: That's consolidation. [00:55:34] Speaker 01: You can't consolidate lands that are non-contiguous. [00:55:38] Speaker 01: So that if this tribe bought lands in the Upper Peninsula, they'd probably be contiguous and be consolidated. [00:55:48] Speaker 01: On the other hand, if they buy land in the Lower Peninsula, [00:55:55] Speaker 01: which is not considered consolidation, they would be enhancing, that is, increasing the worth [00:56:05] Speaker 01: To me, enhancement means worth, very simply. [00:56:08] Speaker 01: And when Judge Rao said, where is there any authority to economically improve under this statute, I think that comes from enhancement. [00:56:20] Speaker 01: Agreed. [00:56:21] Speaker 01: Increasing the worth. [00:56:22] Speaker 01: So my question is this, which I don't think goes beyond this case, and that is, if you're right that [00:56:34] Speaker 01: Interior has no business second guessing the tribe in the purchase of land that either consolidates or enhances who does have the authority. [00:56:49] Speaker 01: to challenge that? [00:56:50] Speaker 01: Would members of the tribe have the authority? [00:56:53] Speaker 01: Judge Sintel was talking about buying land in Los Angeles and so forth. [00:56:56] Speaker 01: I came up with what if they decided they wanted to buy an island in the South Pacific? [00:57:03] Speaker 01: Would anybody have the authority to challenge that? [00:57:10] Speaker 07: Tribal members, I believe, could challenge it. [00:57:13] Speaker 07: So for one thing, there's a provision in the tribe's constitution [00:57:17] Speaker 07: which allows tribal members by referendum to undo any resolution of the board. [00:57:24] Speaker 07: So if tribal members believed that this use of the self-sufficiency fund did not in fact enhance tribal lands, then they could undo that. [00:57:40] Speaker 07: So the point I think is that, as the district court said, this is not a regulatory scheme. [00:57:47] Speaker 07: where Interior gets to oversee the tribe's use of its own money. [00:57:51] Speaker 07: It's a restitutionary scheme. [00:57:53] Speaker 07: And these limitations in B and C are both created by, administered by, and are for the tribe's benefit. [00:58:07] Speaker 07: So yes, the tribal members certainly could [00:58:12] Speaker 01: Okay, all right, fine. [00:58:14] Speaker 01: Let me ask if my colleagues have any other questions. [00:58:19] Speaker 01: Okay, then let's see. [00:58:22] Speaker 01: Mr. Shah, I know you waived your right to reply or your minutes. [00:58:27] Speaker 01: Ms. [00:58:27] Speaker 01: Kranz, why don't you take two minutes? [00:58:30] Speaker 05: Sure. [00:58:31] Speaker 05: We've covered a lot of ground here, but [00:58:33] Speaker 05: I think what we've heard is a concession that under the tribes reading of the phrase enhancement of tribal lands, there really is no limitation to what they could acquire. [00:58:45] Speaker 05: Judge Rao, I know we haven't briefed here the meaning of the phrase tribal lands, but I want to offer a thought, which is if tribal lands means just any land the tribe owns in fee, what would there be [00:59:00] Speaker 05: to stop the tribe from acquiring fee lands just anywhere they like, and then trying to use fund interest to acquire other nearby lands and try to make the geographic argument that, oh, we're now enhancing these fee lands we acquired in Southern California. [00:59:20] Speaker 05: Again, we haven't briefed it, but I do think there's the potential of a really expansive reading of tribal lands [00:59:28] Speaker 05: to also eviscerate the limitation that Congress clearly intended in this statute. [00:59:35] Speaker 01: But nothing would stop Congress from amending the statute if that happened. [00:59:40] Speaker 05: I suppose that's true. [00:59:42] Speaker 05: I think. [00:59:44] Speaker 01: Oh, of course it's true. [00:59:45] Speaker 05: Right. [00:59:46] Speaker 05: It would be politically difficult, I'm sure. [00:59:49] Speaker 05: But no other statute has been read to give a tribe the kind of [00:59:55] Speaker 05: sweeping trust land acquisition authority that this tribe is claiming here. [01:00:00] Speaker 05: The tribe's view that Interior can't even ensure that the most basic requirements in the statute have been met really, I mean, essentially undermines the United States status as the ultimate sovereign over lands and the trustee over trust lands in particular. [01:00:23] Speaker 05: I see my time is evaporating quickly here. [01:00:27] Speaker 05: We think Interior has the best reading of both of these provisions. [01:00:30] Speaker 05: Clearly it has the authority which the tribe invoked to ensure that the conditions in this statute have been met before taking land into trust. [01:00:41] Speaker 05: And Interior has a reading of the word enhancement that both respects Congress's manifest intent to provide a limitation and extends from the ordinary usage of the word enhancement. [01:00:54] Speaker 01: Thank you. [01:00:55] Speaker 01: All right. [01:00:55] Speaker 01: If my colleagues have no further questions, then thank you, Council.