[00:00:23] Speaker ?: All right. [00:00:43] Speaker 01: We have four argued cases this morning. [00:01:01] Speaker 01: The first of these is number 16, 1654, Wyandotte Nation of Kansas versus United States. [00:01:08] Speaker 01: Mr. Gonzalez. [00:01:14] Speaker 02: May it please the Court, the Court of Federal Claims and its opinion and order basically held that the Wyandotte Nation is not a federally recognized tribe and therefore it is not entitled to an accounting for its treaty claims and moreover that the Wyandotte Tribe is not a federally recognized tribe because it therefore has no ownership interest in the cemetery and therefore no standing to press its cemetery claims. [00:01:44] Speaker 01: Why the James case and the D.C. [00:01:48] Speaker 01: Circuit or other cases as well suggest that the List Act requires that you exhaust the tribal recognition question before the Department of Interior and then seek judicial review of that rather than raising the tribal recognition issue in a case like this. [00:02:13] Speaker 01: And since the tribe is not on the federal list, why don't you have to exhaust the List Act procedures before raising that in court? [00:02:25] Speaker 02: What the CFC didn't hold is that the Wyandotte Nation was not a federally recognized tribe under the 1867 treaty. [00:02:42] Speaker 02: It did not hold that it wasn't a federally recognized tribe up until the separation with the Oklahoma Wyandots, and it didn't hold that it wasn't a federally recognized tribe up until 1994. [00:02:55] Speaker 02: It said as of 1994, the Wyandot tribe became a non-federal recognized tribe because it wasn't in the LIST Act, and it also admitted that it was not a federally recognized tribe in a settlement agreement [00:03:11] Speaker 02: approved pursuant to 25 USC 81. [00:03:18] Speaker 01: What you're raising is the question of whether the list maintained by the secretary is incorrect by leaving out the Wyandotte Nation of Kansas. [00:03:30] Speaker 01: If you believe that that's incorrect, which apparently you do, why don't you have to start [00:03:36] Speaker 01: with the Department of the Interior, as I think earlier you did, that the tribe did. [00:03:40] Speaker 02: Well, there's a reason for that, because it's been federally recognized all along, Your Honor. [00:03:45] Speaker 02: The tribe was created under this 1867 treaty, which is equivalent to an act of Congress. [00:03:50] Speaker 02: And the List Act itself states that, which the court relied on, the List Act itself says that if a tribe is recognized by act of Congress and the treaty is equivalent to an act of Congress, then it takes another act of Congress [00:04:05] Speaker 02: to terminate its federal recognition. [00:04:07] Speaker 02: And there's no act of Congress that ever terminated the Wyandotte Nation's federal recognition from 1877 up to the present time. [00:04:14] Speaker 00: But Judge Dyke's point is what you're saying is you're not asking us apparently to recognize the Wyandotte Nation. [00:04:22] Speaker 00: You're saying it has already been recognized. [00:04:24] Speaker 00: That's correct. [00:04:25] Speaker 00: That's my position. [00:04:27] Speaker 00: But the LIST Act says that this is the list of all federally recognized [00:04:35] Speaker 00: Nations, tribal nations. [00:04:37] Speaker 00: And so your complaint really is that you should be on the LIST Act. [00:04:41] Speaker 02: That's correct. [00:04:42] Speaker 00: You should be on the LIST. [00:04:42] Speaker 02: That's correct. [00:04:43] Speaker 00: But isn't it true that there is only one mechanism to get on that LIST? [00:04:48] Speaker 00: We can't put you on the LIST. [00:04:49] Speaker 02: That's not true. [00:04:51] Speaker 02: The LIST Act says that if you're already federally recognized, it takes an act of Congress to not recognize you. [00:04:57] Speaker 02: And the government hasn't produced a single act of Congress that ever terminated this tribe. [00:05:02] Speaker 02: It's been a federally recognized tribe all along. [00:05:05] Speaker 01: Well, that's a perfectly legitimate position. [00:05:09] Speaker 01: The question is who's supposed to decide that, whether we decide that, or whether you have to go to the Department of the Interior and then seek Administrative Procedure Act review of an adverse decision in order to be federally recognized. [00:05:24] Speaker 02: Well, the LISAC says that it could be decided by court or administratively. [00:05:30] Speaker 02: So in this case, the court needs to decide it because [00:05:33] Speaker 00: It could be decided upon review of a determination of the Department of the Interior, but not in the first instance. [00:05:41] Speaker 02: I think everybody's locked into that paradigm that you have to go through this acknowledgement procedure, but that's not really correct. [00:05:48] Speaker 02: The LIST Act itself says that you need a federal act to terminate a recognition of a tribe, and there isn't any. [00:05:55] Speaker 02: This tribe has been a federally recognized tribe all along. [00:05:58] Speaker 02: It's been receiving services from the government. [00:06:00] Speaker 02: Is it your position that the tribe is really on the list? [00:06:07] Speaker 02: No, it isn't on the list, and it doesn't have to be on the list to be federally recognized. [00:06:12] Speaker 02: I want to point out that the list wasn't even published for two years. [00:06:16] Speaker 02: It was late in publication for several years. [00:06:20] Speaker 02: Does that mean that the two years that no tribe was on the list, that those tribes were not federally recognized? [00:06:28] Speaker 02: The list is nothing more than a standard [00:06:30] Speaker 02: for federal agencies to see if they should be providing services to an Indian tribe, but it isn't a termination act. [00:06:38] Speaker 02: So the tribe should be, the treaty should be upheld here. [00:06:44] Speaker 00: When you refer to the treaty, are you conflating the older Wyandotte Nation with the Wyandotte Nation of Kansas? [00:06:52] Speaker 02: I'm referring to the 1867 treaty, because the 55 treaty [00:06:58] Speaker 02: It did terminate the existence of the tribe, but the tribe was reestablished under the 1967 treaty, and Article 13 of that treaty says that the members on that register are the tribe. [00:07:12] Speaker 02: As the Wyandotte Nation of Oklahoma. [00:07:15] Speaker 02: And all the current members of the Wyandotte Nation, their enrollment, their descendants. [00:07:19] Speaker 00: But there is the Wyandotte Nation of Oklahoma, which became essentially, I guess, the successor in interest to the original Wyandotte Nation, isn't that right? [00:07:28] Speaker 02: No, that's not correct. [00:07:30] Speaker 02: What is correct is that there was one tribe with two bands from 1867 until the Oklahoma Indian Welfare Act was enacted. [00:07:39] Speaker 02: In 1937, the Oklahoma tribe separated out, but the Oklahoma Indian Welfare Act, 25 U.S.C. [00:07:46] Speaker 02: Section 503, states that only an Oklahoma tribe could organize under that act. [00:07:51] Speaker 02: So the Oklahoma tribe organized under that act. [00:07:54] Speaker 02: So you got a constitution and a federal charter [00:07:57] Speaker 02: And their powers are now delegated from the U.S. [00:08:01] Speaker 02: through that charter, and their recognition or their treaty rights are pursuant to that charter. [00:08:07] Speaker 02: They are not the 1867 treaty tribe. [00:08:10] Speaker 02: They are a separate tribe created by the Oklahoma Indian Welfare Act. [00:08:14] Speaker 02: The 1867 treaty tribe is a swindled out nation of Kansas. [00:08:18] Speaker 02: They've always been the 67 treaty tribe. [00:08:20] Speaker 02: There's no act ever terminating its existence. [00:08:23] Speaker 02: There is no need to go to the federal acknowledgement process [00:08:26] Speaker 02: if there's no act of Congress ever terminating its existence. [00:08:30] Speaker 01: Well, what case says that? [00:08:32] Speaker 01: What case says that? [00:08:33] Speaker 01: We have cases that say the opposite. [00:08:35] Speaker 01: The James case in the District of Columbia Circuit says you have to exhaust your remedies before the Department of the Interior, before you can go to court. [00:08:46] Speaker 01: What case excuses exhaustion? [00:08:50] Speaker 02: Well, what's controlling here? [00:08:55] Speaker 02: is a list act, not some case, federal case. [00:08:59] Speaker 02: The list act says that if you're recognized by an act of Congress, which this tribe was a treaty, which is equivalent to an act of Congress, it takes an act of Congress to terminate you. [00:09:09] Speaker 02: So that's what's controlling here. [00:09:14] Speaker 00: The Department of the Interior specifically found that you were terminated, right? [00:09:21] Speaker 00: No. [00:09:21] Speaker 00: And the Department of the Interior concluded that it couldn't recognize you in 1996 because Congress had terminated the relationship with the tribal government. [00:09:33] Speaker 00: Why didn't you appeal that decision? [00:09:35] Speaker 02: Well, see, in 1997, Congress passed the Brown Bag Bill, which limited the use of that cemetery to the cemetery purposes and cultural purposes. [00:09:51] Speaker 02: Well, a year later, the Wyandotte Nation entered into an agreement with the Oklahoma Winehouse. [00:10:01] Speaker 00: And you conceded at that time that the Wyandotte Nation of Kansas was not a recognized tribe. [00:10:08] Speaker 00: Did you not? [00:10:10] Speaker 00: Come on, that's a yes or no. [00:10:11] Speaker 00: You actually stipulated to that. [00:10:13] Speaker 02: The problem is that nobody's ever done exhaustive research like we just did. [00:10:17] Speaker 02: So back then, everybody, including the government, [00:10:21] Speaker 02: was acting under misinformation. [00:10:23] Speaker 00: So your point is that you're answering my question, yes, but. [00:10:27] Speaker 00: You're saying, yes, we stipulated that we were not a recognized tribal nation, but we were wrong. [00:10:32] Speaker 00: Is that what you're saying? [00:10:33] Speaker 02: That's correct. [00:10:34] Speaker 02: And I want to add that neither the wind up nation of Kansas nor the wind up tribal Oklahoma is Congress. [00:10:41] Speaker 02: And section 81 is not a termination. [00:10:43] Speaker 02: I approve that agreement. [00:10:44] Speaker 04: Your complaint acknowledges that [00:10:47] Speaker 04: the government made its last 1867 treaty payments in 1888. [00:10:55] Speaker 04: Why didn't the tribe's claims accrue in 1888? [00:11:00] Speaker 02: Well, that's a question of fact. [00:11:03] Speaker 02: And the government has a habit of trying to decide those factual issues and the motion is missed. [00:11:08] Speaker 02: The proper thing to do is for the government to file an answer to the complaint and let us have some limited discovery [00:11:15] Speaker 02: Moreover, those factual findings are contrary to the complaint, the allegations in the complaint. [00:11:28] Speaker 04: Doesn't the complaint allege that the last payment was made in 1888? [00:11:32] Speaker 02: It doesn't allege the last payment was made in 1888. [00:11:37] Speaker 02: It alleges that a payment was made in 1888. [00:11:41] Speaker 02: There are still some factual issues that need to be resolved. [00:11:44] Speaker 01: What are the factual issues? [00:11:46] Speaker 02: Well, there's a difference between authorizing or appropriating money and distributing that money. [00:11:52] Speaker 02: There's no evidence that that money's ever been distributed in per capita payments that's required by the treaty. [00:11:59] Speaker 02: And if there's any per capita payments that are left, the One Dot Nation is entitled to recover those. [00:12:05] Speaker 02: So there's a lot of factual issues that aren't resolved here that the government's trying [00:12:10] Speaker 02: resolve on a motion to dismiss, the proper thing to do is to reverse here, send it back down, have them file an answer, let's have some discovery, then you can come up and answer these questions. [00:12:18] Speaker 00: You have a lot of appealing arguments about the proud heritage of this nation and that it shouldn't be a situation where you're divided into two. [00:12:29] Speaker 00: Those are all very strong and I [00:12:32] Speaker 00: you know, recognize that there is a proud heritage for everybody involved or who's descended from the original Wyandotte Nation. [00:12:41] Speaker 00: But isn't the problem really that it's not for the courts at this stage to make these decisions? [00:12:49] Speaker 00: It is for the executive or for Congress? [00:12:51] Speaker 00: I mean, this is one instance where it's very clear that it's the other two branches of government who are to [00:12:59] Speaker 00: give the recognition or take it away in the first instance. [00:13:03] Speaker 00: We have an executive saying that the recognition was taken away. [00:13:08] Speaker 00: Why isn't that enough unless you appeal from that executive decision? [00:13:14] Speaker 02: There's two reasons for that. [00:13:15] Speaker 02: First of all, it takes an act of Congress to terminate any tribe. [00:13:21] Speaker 02: It isn't an executive matter. [00:13:23] Speaker 02: Here, there's no act of Congress. [00:13:25] Speaker 02: And secondly, is it not going to be federal policy? [00:13:29] Speaker 02: pursuant to judicial fiat, that whenever some bureaucrat wants to leave your name off that list, like it did for two years, all the tribes, that they're no longer a federally recognized tribe. [00:13:40] Speaker 00: No, you could ask to have the list amended. [00:13:43] Speaker 00: You go exhaust your remedies, and then you could appeal to the court from that decision if they refuse to amend it. [00:13:49] Speaker 02: I think that exhaustion would have been required if the government produced an act showing that this tribe was ever terminated. [00:13:58] Speaker 02: It hasn't done so. [00:13:59] Speaker 02: So you can't just assume that it was a terminated tribe. [00:14:02] Speaker 02: It has to go through an acknowledgement process again. [00:14:05] Speaker 02: It never has been a terminated tribe. [00:14:07] Speaker 02: There's no evidence in this record that it was ever terminated. [00:14:11] Speaker 02: The government has never produced a single act of Congress to show that this tribe was ever terminated, this recognition was ever terminated. [00:14:19] Speaker 02: And that's what's required by the Lists Act. [00:14:22] Speaker 02: The Lists Act doesn't require that you be, that if you're on that list, not on the list, [00:14:28] Speaker 02: You're not a federally recognized tribe. [00:14:29] Speaker 02: The LIST Act says that if you're created by an act of Congress, then it takes an act of Congress to terminate you. [00:14:35] Speaker 02: Where is that act of Congress that ever terminated a tribe? [00:14:38] Speaker 00: The government has never produced an act. [00:14:40] Speaker 00: What about the 1867 treaty that recognizes the Wyandotte Nation of Oklahoma and not the Wyandotte Nation? [00:14:47] Speaker 02: That's been correct. [00:14:48] Speaker 02: The 1867 treaty did not recognize just the Wyandotte Tribe of Oklahoma. [00:14:52] Speaker 02: The Wyandotte Tribe of Oklahoma didn't even exist until [00:14:55] Speaker 02: 1937 when it reorganized under the Oklahoma Indian Welfare Act. [00:15:00] Speaker 02: What the 1967 treaty says is that any persons that were non-citizens that were on that register constituted the tribe. [00:15:09] Speaker 02: Article 13. [00:15:11] Speaker 02: Well, the Kansas wind-ups were on that list, and the Oklahoma tribes' members were on that list. [00:15:17] Speaker 02: In fact, we even showed that the Lekwami sisters themselves were on that list. [00:15:21] Speaker 02: They were enrolled members of a federally recognized tribe, and moreover, [00:15:25] Speaker 02: The government treated the Kansas Findouts as a federally recognized tribe. [00:15:29] Speaker 02: They got treaty allotments in 1904. [00:15:35] Speaker 02: They were provided to us. [00:15:38] Speaker 02: They were allowed to go to school. [00:15:39] Speaker 02: We showed that they received services in paragraph 44 of our complaint and still receiving services up to the present time. [00:15:49] Speaker 02: So there's no basis to say that this tribe was ever terminated, that only the Oklahoma tribe [00:15:55] Speaker 02: existence, and I might add that the only federally treaty tribe today is the Kansas Windhouse, not the Oklahoma tribe. [00:16:02] Speaker 02: The Oklahoma tribe is wholly a creation of the Oklahoma Indian Welfare Act, Section 3. [00:16:08] Speaker 02: But it is on the list. [00:16:10] Speaker 00: But it is on the list as congressionally recognized, correct? [00:16:13] Speaker 02: Well, the list isn't determinative. [00:16:15] Speaker 02: It's an act of Congress that's determinative, and there is no such act that ever terminated this tribe. [00:16:21] Speaker 02: So there's no need to go through the administrative process. [00:16:24] Speaker 01: Thank you, Your Honor. [00:16:26] Speaker 01: Okay. [00:16:26] Speaker 01: We'll give you two minutes for rebuttal. [00:16:28] Speaker 01: We'll give you two minutes for rebuttal. [00:16:38] Speaker ?: Okay. [00:16:40] Speaker 01: Mr. Bravender, is that how you pronounce it? [00:16:42] Speaker 03: I'm Bravender, Your Honor. [00:16:43] Speaker 03: Bravender. [00:16:44] Speaker 03: May it please the court. [00:16:46] Speaker 03: The plaintiff is a Kansas corporation and only a Kansas corporation. [00:16:50] Speaker 03: It's not a federally recognized Indian tribe. [00:16:53] Speaker 03: We explained the basis for that conclusion in our brief and I don't intend to address that argument today unless the court has questions. [00:17:01] Speaker 01: Would you agree that they have a remedy that they could go to the Department of the Interior and seek recognition and if they're denied recognition that they could [00:17:10] Speaker 01: seek review in federal district court under the APA? [00:17:14] Speaker 01: Absolutely. [00:17:14] Speaker 03: Because the petition that they filed in 1996 was not, there was no final decision from that petition so that they still have that remedy available to them. [00:17:23] Speaker 03: That is correct. [00:17:24] Speaker 03: And that judicial review would be available upon the final decision of the Department of the Interior. [00:17:28] Speaker 01: And is this issue of whether they're a federally recognized tribe an issue of standing that we have to decide at the outset? [00:17:37] Speaker 03: No, and the reason I didn't intend to address the argument today is because regardless of the plaintiff's status, their claims are unpimely. [00:17:44] Speaker 01: Well, I guess that's a jurisdictional issue also. [00:17:47] Speaker 01: But don't we have to decide standing as well as statute of limitations as a predicate to reaching the merits of this? [00:17:59] Speaker 03: Um, you do. [00:18:00] Speaker 03: Um, but I don't know if it's a question of standing, uh, per se, because they, they at least probably have some, some interests, um, not in the Heron Cemetery, but perhaps in the 1867 treaty funds. [00:18:13] Speaker 03: Um, so we didn't, uh, we didn't address it as an issue of standing. [00:18:17] Speaker 00: Well, you can see that these tribe members are descendants of the original Wyandotte Nation, correct? [00:18:23] Speaker 03: They, they at least alleged they are, and we don't have any reason to, to, um, dispute that. [00:18:27] Speaker 00: So why does it make sense for the descendants of the original Wyandotte Nation to be divided into two, one recognized tribe and one non-recognized tribe? [00:18:37] Speaker 03: Well, as I understand what happened in the 1880s was that the Oklahoma Wyandottes were moved to Indian country, Oklahoma, and the plaintiff's ancestors stayed behind in Kansas. [00:18:53] Speaker 03: And at that time, [00:18:54] Speaker 03: they were not recognized as part of the federally recognized tribe. [00:18:57] Speaker 03: They're not members of the federally recognized tribe. [00:19:00] Speaker 04: Is paragraph 44 of the complaint correct that individuals belonging to the appellant still receive benefits right now? [00:19:10] Speaker 03: They may receive benefits as individuals, but they do not receive benefits as members of the federally recognized tribe. [00:19:15] Speaker 04: I don't like may and alleged and so on. [00:19:18] Speaker 04: On page two of your red brief, [00:19:23] Speaker 04: you say arise out of decisions made by the alleged ancestors and so on. [00:19:30] Speaker 04: You don't have any reason to question that. [00:19:32] Speaker 03: We don't, but we don't know whether. [00:19:33] Speaker 03: I mean, there has been no discovery. [00:19:35] Speaker 03: We don't know if they're the ancestors. [00:19:38] Speaker 03: They may be. [00:19:39] Speaker 00: How would they get federal benefits as individuals if they're not members of a recognized tribe? [00:19:46] Speaker 03: They can receive benefits as individuals in certain instances. [00:19:52] Speaker 03: I would refer this court to [00:19:53] Speaker 03: footnote 13 of our brief. [00:19:56] Speaker 03: And that cites to the tribal enrollment ordinance of the Wynandot Nation of Oklahoma, the federally recognized tribe. [00:20:04] Speaker 03: And what it says is that the oldest role considered as proof of the Wynandot Nation ancestry is the 1881 role. [00:20:14] Speaker 03: And it includes only those who are not organized in Indian territory, again, Oklahoma. [00:20:21] Speaker 03: So while plaintiffs' ancestors may have been in the 1867 treaty register, the Wendat Nation does not recognize them to be part of it. [00:20:31] Speaker 00: So all they'd have to do is move to Oklahoma and they'd be fine? [00:20:35] Speaker 03: No. [00:20:35] Speaker 03: In fact, according to this ordinance, they are not eligible to be members of the federally recognized Indian tribe. [00:20:44] Speaker 03: And that is a tribal political matter that is not subject to judicial review. [00:20:52] Speaker 00: Now, regardless of the plaintiff's status, their category- So what is the act of Congress that you point to that took away recognition? [00:20:59] Speaker 03: The 1855 treaty terminated the historic tribe. [00:21:03] Speaker 03: The 1867 treaty recognized the Wannendot Nation of Oklahoma as the historic successor or the successor to the historic tribe. [00:21:15] Speaker 03: And it has always been the Wannendot Nation of Oklahoma and only the Wannendot Nation of Oklahoma. [00:21:20] Speaker 03: that is the federally recognized tribe and the political successor to the historic tribe and the one entity that is able to exercise the historic tribe's treaty rights. [00:21:33] Speaker 01: Does tribal status, well obviously it would determine the first claim, but does it determine the cemetery claim as well? [00:21:43] Speaker 03: Well the fact that they are [00:21:44] Speaker 03: have no legal interest in the cemetery, yes. [00:21:48] Speaker 03: They lack standing for that reason with respect to the Category 2 claims. [00:21:53] Speaker 03: But regardless of plaintiff status, their claims are untimely. [00:21:57] Speaker 03: Because even if they were a federally recognized Indian tribe, their claims accrued in 1888. [00:22:02] Speaker 03: Well, I'm talking about the cemetery claim now. [00:22:07] Speaker 03: And again, their claims there are also untimely. [00:22:09] Speaker 03: They allege in their complaint that they have known of the rights of the way across the Huron cemetery for 150 years, and they know that they can receive payment at any time. [00:22:19] Speaker 04: What's the effect of the... Well, you allege that the Oklahoma Wyandots were loyal to the Union during the Civil War, but 321 of the Joint Appendix contains a treaty between the Confederate [00:22:36] Speaker 04: states and the Oklahoma wine dots, which would make them, put them in the status of the Confederates in 1867, which was not voting states in the United States. [00:23:00] Speaker 04: What's the impact of that on the treaty? [00:23:02] Speaker 04: I don't think there's any impact. [00:23:04] Speaker 03: the Oklahoma Wyandotte is a federally recognized. [00:23:06] Speaker 03: You agree that they did side with the Confederate? [00:23:10] Speaker 03: I don't know the answer to that. [00:23:11] Speaker 03: I think the reference in our brief was to the 1867 treaty, which refers to the Wyandotte people suffering greatly during the war. [00:23:20] Speaker 03: Well, they lost, yeah. [00:23:23] Speaker 03: I don't know, Your Honor. [00:23:24] Speaker 03: But I would like to get back to the Category 1 claims. [00:23:31] Speaker 03: They are barred both by the Statute of Limitations and the Statute of Repos. [00:23:35] Speaker 03: The Indian Claims Commission Act, Statute of Repos, required any claims arising before 1946 to be brought by 1951. [00:23:43] Speaker 03: And here, the facts giving rise to their Category 1 claims, those facts occurred in the 1870s and 1880s, before 1946. [00:23:52] Speaker 03: And there's no dispute that the claim was not brought until 2015. [00:24:00] Speaker 03: What about the cemetery? [00:24:02] Speaker 03: With respect to the cemetery claim, again, they've known of the rights of way for 150 years. [00:24:08] Speaker 03: They know they haven't received any royalties during that time. [00:24:12] Speaker 01: This gave rise to... Well, they certainly couldn't go back more than six years, but why are they barred forever by, what, latches for failing to bring a suit earlier? [00:24:23] Speaker 01: What's the suggestion? [00:24:26] Speaker 01: Well, they're barred by the statute of limitations. [00:24:29] Speaker 01: Why does the limitations prevent them from suing for [00:24:32] Speaker 01: of money that should have been paid during the last six years? [00:24:40] Speaker 03: I guess that it wouldn't, Your Honor. [00:24:41] Speaker 03: That's where our standing argument comes in. [00:24:45] Speaker 03: And plaintiffs do not have a legal interest in the Huron cemetery. [00:24:51] Speaker 03: That is the decision of the Supreme Court in the Connolly case. [00:24:55] Speaker 03: That is the decision of the District of Kansas during the 1960s litigation that plaintiffs' ancestors lacked standing or cause of action to challenge the legislation that allowed the sale of the Huron Cemetery. [00:25:12] Speaker 03: This has been an open repudiation of any trust relationship between the federal government and the plaintiffs relating to the Huron Cemetery. [00:25:22] Speaker 04: That's your wolf child argument. [00:25:26] Speaker 03: Wolf child to right that is They are not They do not need to wait for an accounting for their for the claim to accrue when there has been an open repudiation of the trust relationship and Regarding the accounting there is no inherent right to an accounting the plaintiff would have to point to a [00:25:54] Speaker 03: a specific statute obligating the United States to provide an accounting. [00:25:58] Speaker 03: And the only statute that the plaintiffs identify is the Trust Fund Management Reform Act. [00:26:04] Speaker 03: And the Reform Act contains two provisions that address accountings, but neither applies to the 1867 treaty funds or to the Huron Cemetery alleged royalties. [00:26:16] Speaker 03: One provision is 25 USC 4011A. [00:26:21] Speaker 03: That requires the secretary to account for funds deposited under 25 USC 162A. [00:26:28] Speaker 03: But 162A was not enacted until 1938. [00:26:31] Speaker 03: And so the funds were not deposited. [00:26:36] Speaker 03: So that statute, they had been distributed 50 years before that. [00:26:40] Speaker 03: The other provision is 25 USC 4044. [00:26:44] Speaker 03: which requires the secretary to transmit a report for each account the secretary is responsible for as of 1994. [00:26:51] Speaker 03: There was no account in 1994. [00:26:54] Speaker 03: Moreover, the Reform Act only applies to federally recognized tribes and plaintiffs. [00:27:00] Speaker 04: On your effective disenrollment argument in footnote 13 and the language in the brief that it accompanies, what legal [00:27:14] Speaker 04: support do you have for that disenrollment argument? [00:27:19] Speaker 03: Well, tribal membership decisions are political, internal tribal matters, and they are not subject to judicial review. [00:27:27] Speaker 03: Again, the tribal ordinance of the Wynandot Nation is pretty specific that plaintiffs cannot be members of that federally recognized tribe. [00:27:39] Speaker 03: So to provide some context. [00:27:43] Speaker 04: A member of a recognized tribe is receiving federal benefits and has an expectation of future federal benefits. [00:27:53] Speaker 04: And the tribe, in a political vote, decides that that person's family is no longer a member, that that's not subject to any kind of review. [00:28:02] Speaker 04: That's correct. [00:28:03] Speaker 03: What's your authority for that? [00:28:05] Speaker 03: I cannot cite to you a case right now, but I think the court would not have a difficult time finding those cases. [00:28:16] Speaker 01: unless the court has any other questions. [00:28:20] Speaker 01: No, thank you, Mr. Brabender. [00:28:24] Speaker 01: Mr. Gonzalez, you have two minutes. [00:28:30] Speaker 02: Thank you, Your Honor. [00:28:32] Speaker 02: What the 1867 treaty Article 13 states is that the people, the non-citizens on that register, shall constitute the tribe. [00:28:43] Speaker 02: It doesn't say that [00:28:45] Speaker 02: the Oklahoma Wyandotte Tribe is a tribe that says those people on that register. [00:28:50] Speaker 02: And those people on that register included the Kansas Wyandottes. [00:28:52] Speaker 02: We showed that the Colony Sisters were on that register in our briefs. [00:28:56] Speaker 02: We provided the register. [00:28:59] Speaker 02: So the Kansas Wyandottes were part of the Wyandotte Tribe of Oklahoma created under the 1867 Treaty. [00:29:07] Speaker 02: And that's supported by the 1923 Act, where Congress referred to the Colony Sisters as wards [00:29:15] Speaker 02: of the government. [00:29:15] Speaker 02: They could not be wards of the government if they were not enrolled Indians. [00:29:19] Speaker 02: And it also referred to the Huron Cemetery in Kansas as their reservation, as congressional action. [00:29:26] Speaker 02: And also supportive of their federal status was the allotments that were given out pursuant to the olive roll. [00:29:37] Speaker 02: The olive roll was nothing more than a roll to determine who gets allotments. [00:29:42] Speaker 02: And the Kansas Hawaiian Dots were allotted under that olive roll. [00:29:46] Speaker 02: There were three times that Congress passed acts to give them allotments. [00:29:50] Speaker 02: First on the 20-acre Hawaiian Dot reservation in Oklahoma, there was not enough land. [00:29:57] Speaker 02: Then on the Choctaw-Chickasaw reservation, not enough land. [00:30:00] Speaker 02: So in 1904, Congress passed an act saying, you can take allotments from the polling domain. [00:30:05] Speaker 02: And some of these allotments still exist today. [00:30:08] Speaker 02: There's IAM accounts. [00:30:09] Speaker 02: that exists for people that got the Cobell settlement from their allotments. [00:30:16] Speaker 02: So the history of this tribe shows that they have been federally recognized. [00:30:20] Speaker 02: And as you pointed out, they still receive federal benefits. [00:30:24] Speaker 02: And I also want to say that under 25- I pointed out that you alleged it in the complaint and the government didn't refute it. [00:30:31] Speaker 02: Yes. [00:30:33] Speaker 02: Well, also in 25 U.S.C. [00:30:34] Speaker 02: 4044, [00:30:36] Speaker 02: The Congress said you can go back to the earliest possible date, not till 1946 on the Heron Cemetery claim, but to the earliest possible date for an accounting. [00:30:50] Speaker 02: That's congressional action. [00:30:52] Speaker 02: And so the Trust Funds Reform Act did toll the statute of limitations as well as the [00:31:05] Speaker 02: Indian Trust Accounting Statutes, together with the Trust Reform Act, did toll the statute for this particular tribe. [00:31:13] Speaker 02: And I just want to close. [00:31:14] Speaker 02: It looks like your time is up. [00:31:16] Speaker 01: Your time is up. [00:31:17] Speaker 01: One more sentence. [00:31:18] Speaker 01: Thank you very much. [00:31:20] Speaker 01: Thank you. [00:31:20] Speaker 01: Thank both counsel. [00:31:21] Speaker 01: The case is submitted.