[00:00:01] Speaker 02:
Good morning, everyone, and welcome to the Ninth Circuit.

[00:00:03] Speaker 02:
Appreciate your patience.

[00:00:06] Speaker 02:
We do have a number of matters on calendar today.

[00:00:09] Speaker 02:
Just so people are aware, we may take a brief break after the third or fourth case.

[00:00:13] Speaker 02:
We're kind of going to see how everyone's going to be doing this morning, because we do have a full boat.

[00:00:18] Speaker 02:
All right, so we do have our first case for argument, Goldtooth.

[00:00:21] Speaker 02:
One thing I'm going to just remind everyone is that in the Ninth Circuit, I'm sorry, it's a little pingy.

[00:00:27] Speaker 02:
In the Ninth Circuit, there's no extra credit or bonus points for using all of your time.

[00:00:32] Speaker 02:
So for the lawyers, if you've made your points and you're not getting any questions back, it's okay to sit down.

[00:00:40] Speaker 02:
Nothing wrong with that.

[00:00:41] Speaker 02:
And with that, we'll go ahead and call the first matter, Goldtooth.

[00:00:47] Speaker 03:
Good morning, Your Honors.

[00:00:49] Speaker 03:
Robert Malone, appearing for Appellant Tony Goldtooth.

[00:00:53] Speaker 03:
And may it please the Court,

[00:00:54] Speaker 03:
Tony Goldtooth is one of the many thousands of Navajo individuals who were forced to relocate from their ancestral homeland here in Arizona.

[00:01:04] Speaker 03:
And Congress directed that this relocation program would be conducted in a way that was fair, consistent, and equitable.

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And we submit that the way that the agency dealt with Mr. Goldtooth's case and his claim did not meet that standard.

[00:01:25] Speaker 03:
Now this whole, the hearing officer based his denial on finding an adverse credibility finding for Mr. Goldtooth.

[00:01:38] Speaker 03:
He said that he was credible with respect to all of his testimony about his education, his military service, employment and so forth, but he exaggerated his presence and what he did

[00:01:54] Speaker 03:
at his family home site in Tisto.

[00:01:58] Speaker 03:
And the reasons that, first of all, these do not amount to the specific and cogent reasons that this court, this circuit, has mandated in order to find that a credibility finding is based upon substantial evidence.

[00:02:19] Speaker 02:
Can you talk about the video?

[00:02:21] Speaker 02:
That was one thing that the officer seemed to take great issue with.

[00:02:26] Speaker 03:
Sure.

[00:02:26] Speaker 03:
The video was never introduced into evidence.

[00:02:31] Speaker 03:
Actually, what is in evidence is a screenshot of Mr. Goldtooth from the YouTube.

[00:02:40] Speaker 03:
But we have no problem with it.

[00:02:42] Speaker 03:
I mean, what the video showed was, and what Oneir based, you know,

[00:02:50] Speaker 03:
claimed that he had contradicted himself was that in the video, Mr. Goldtooth stated that he was a member of the White Cone Chapter.

[00:03:00] Speaker 01:
In the chapters... What does that mean?

[00:03:01] Speaker 01:
Do we know?

[00:03:02] Speaker 01:
I mean, there's a little... There's something in the record later from the government witness saying that you could be a member of a chapter which isn't where you live or something.

[00:03:14] Speaker 01:
Is it a place or is it a club or what is it?

[00:03:17] Speaker 03:
Okay, a chapter is the political subdivision

[00:03:20] Speaker 03:
of the Navajo Nation government.

[00:03:22] Speaker 03:
It's like the local entity.

[00:03:24] Speaker 01:
But to be a member, do you have to join it or you just have to live there?

[00:03:29] Speaker 03:
Yes, you join it.

[00:03:32] Speaker 03:
But what the government did here, it conflated that chapter membership

[00:03:38] Speaker 03:
with a community and with living in a community and in a geographical area.

[00:03:45] Speaker 03:
And T-STO is also a chapter, but it's also a community.

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And so the hearing officer recognized that he was born and raised in T-STO, but he was a member of the White Cone chapter.

[00:03:59] Speaker 03:
They are adjacent.

[00:04:00] Speaker 03:
They're like 25 miles apart.

[00:04:04] Speaker 03:
He didn't contradict himself.

[00:04:07] Speaker 03:
He said in his application, he was a member of the White Coon chapter, and the same thing that he repeated in the oral history project.

[00:04:16] Speaker 01:
But when he was testified, did he testify that he was a member of the Tistow chapter?

[00:04:20] Speaker 01:
No, he didn't.

[00:04:21] Speaker 01:
Just that he lived in Tistow?

[00:04:23] Speaker 03:
No, Your Honor.

[00:04:24] Speaker 03:
Exactly.

[00:04:25] Speaker 03:
Exactly.

[00:04:26] Speaker 03:
He never said he was a member of any other chapter.

[00:04:29] Speaker 03:
He never contradicted himself.

[00:04:32] Speaker 03:
He was, he lived in Tisto which is a community.

[00:04:36] Speaker 03:
It's a geographical area.

[00:04:39] Speaker 03:
And what your honor is referring to in that email that was sent subsequently to the hearing officer and myself as counsel for Mr. Goldtooth, you know, spoke about how some people in the area consider themselves, you know, white cone, members of the white cone chapter and,

[00:05:02] Speaker 03:
others do not.

[00:05:03] Speaker 01:
What about the hearing officer's statement that Mary Goldtooth wasn't there, wasn't in the Hoppy area?

[00:05:16] Speaker 03:
Well, I believe what he said, that she did not, she was not in the BIA's enumeration.

[00:05:23] Speaker 01:
No, but he said if the primary purpose of those visits was to see Mary Gold's

[00:05:27] Speaker 01:
Mary Goldtooth was not there since she was residing in her own home on NPL.

[00:05:32] Speaker 01:
Is there any evidence that she wasn't there at any point?

[00:05:36] Speaker 03:
No, Your Honor.

[00:05:38] Speaker 03:
Mary Goldtooth had a home site.

[00:05:41] Speaker 03:
She lived at the Tisto home site, the extended family home site that we've been speaking of.

[00:05:47] Speaker 01:
Some of the time.

[00:05:48] Speaker 03:
Yes, and she also had a home site on the Navajo side, the NPL.

[00:05:56] Speaker 03:
This is total speculation on the part of the hearing officer.

[00:05:59] Speaker 03:
I mean, she lived at Tisto, and when she was at the other site, it may have been seasonally or whatever, but there was no evidence in the record saying that Mr. Goldtooth went there to the NPL and did not go to the other home.

[00:06:18] Speaker 04:
Is there any documentary evidence that supports his credible testimony, as you argue?

[00:06:24] Speaker 03:
When you speak, no, I mean, you know, all of these cases basically rest on testimony.

[00:06:33] Speaker 03:
I mean, there isn't any, you know, this is a rudimentary pastoral home site.

[00:06:39] Speaker 03:
I mean, it's not like a residence that, you know, where there would be some documentary, you know, records.

[00:06:48] Speaker 04:
So what's the essence of your argument that the judges

[00:06:53] Speaker 04:
adverse credibility determination is not supported by evidence in the record.

[00:07:01] Speaker 03:
Just, I mean, that the reasons that the hearing officer offered for him not being there were like that the family sold livestock, for instance, or that he purchased a mobile home, or what we just discussed about the

[00:07:20] Speaker 03:
the chapter membership and residency in Tistow or that he was not in the BIA's enumeration.

[00:07:30] Speaker 03:
But which, I mean, the hearing officer didn't really base his denial on his not being in the enumeration because he recognized that he said in his findings of fact he was born and raised at Tistow.

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The hearing officer acknowledged that.

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And Marlene,

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Mr. Goldtooth's sister and Johnny, his uncle, both of them received relocation benefits.

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Both of them resided at the same home site and neither of them were recorded on the Hopi partition land in the BIA's enumeration.

[00:08:06] Speaker 01:
The hearing officer also discounted as the evidence of the other witnesses

[00:08:16] Speaker 01:
by saying that they didn't actually say that he came every weekend, but they actually did say that, didn't they?

[00:08:23] Speaker 01:
Well, his sister definitely said that, because when Mr. Gold... But he said, the hearing officer said she didn't say how often he came, but she was very specific about that.

[00:08:33] Speaker 03:
Well, she was.

[00:08:34] Speaker 03:
She said that every weekend when she was residing, she was employed near where Mr. Goldtooth was going to

[00:08:44] Speaker 03:
college in many farms and she said that every weekend he and his vehicle would pick, she would pick her up and her children and they would go back to the T. Stowe home site.

[00:08:56] Speaker 03:
Your honor is correct.

[00:08:58] Speaker 03:
I mean, he just ignored that.

[00:09:00] Speaker 01:
I mean, it isn't... He didn't just ignore it.

[00:09:03] Speaker 01:
He said that she didn't say it and she didn't say it.

[00:09:06] Speaker 03:
Okay.

[00:09:07] Speaker 03:
That's correct.

[00:09:09] Speaker 03:
And the other witnesses were not that specific about every weekend, but they did testify to him being present in the requisite time period.

[00:09:21] Speaker 01:
And Johnny Goldjew said they came home on Saturdays and Sundays.

[00:09:26] Speaker 03:
Correct.

[00:09:28] Speaker 03:
The hearing officer found all witnesses credible without reservation, but he did not properly

[00:09:36] Speaker 03:
credit that, I mean, even though he found them credible, he did not acknowledge how they corroborated Mr. Goldtooth's testimony.

[00:09:48] Speaker 03:
And so I would say, you know, the specific and cogent reasons that this circuit has required to support an adverse credibility finding are totally absent here.

[00:09:59] Speaker 01:
He came home every weekend, although he clearly was living elsewhere with his family.

[00:10:07] Speaker 01:
Does that necessarily make him entitled to the benefits?

[00:10:11] Speaker 03:
I'm sorry, what is your question?

[00:10:12] Speaker 01:
Would that necessarily make him entitled to the benefits?

[00:10:16] Speaker 01:
If he came home every weekend, but he had a mobile home and was living with his family for several years.

[00:10:28] Speaker 03:
Yes, well first of all, Your Honor, I mean it's generally recognized, I think, that when a student departs home and goes to college somewhere,

[00:10:36] Speaker 03:
He or she has not.

[00:10:38] Speaker 01:
But he wasn't only a student.

[00:10:39] Speaker 01:
At some points he lived in his wife's parents' home and he worked and he was just not there for long periods of time with his family.

[00:10:52] Speaker 03:
That is true.

[00:10:52] Speaker 03:
He was at other places.

[00:10:54] Speaker 03:
He was in the military service when he got out.

[00:10:58] Speaker 03:
For a while he was in Shiprock, New Mexico where he studied to be a machinist and worked as a machinist and at times lived with his wife's family.

[00:11:06] Speaker 03:
But I think the record is cleared and his testimony is credited that he continued to return to T-STO as much as he could.

[00:11:17] Speaker 03:
And O'Neill is recognized throughout the operation of its program that an individual can be temporarily away for education and for employment.

[00:11:29] Speaker 01:
What about the fact that he never actually came back?

[00:11:32] Speaker 01:
You mean, I'm sorry, I don't... He did not, in fact, after the relevant date, and I understand it's after the relevant date, but he never actually did come back permanently.

[00:11:42] Speaker 03:
He never came back to live there permanently.

[00:11:44] Speaker 03:
That is correct, Your Honor, but the eligibility criteria is just that the individual needs to be there as of December 22nd, 1973, and through December 22nd, 1974.

[00:11:58] Speaker 03:
And, you know, he was one of the many Navajo people, I mean, they have

[00:12:02] Speaker 03:
like a foot in the traditional culture, but he also, you know, he wanted a career.

[00:12:09] Speaker 03:
But he never strayed very far from home and from the reservation, and his career for 40 years was teaching the Navajo language.

[00:12:19] Speaker 03:
But he only has to show that his presence, that was his legal

[00:12:24] Speaker 03:
through the date of December 22nd, 1974.

[00:12:29] Speaker 03:
And we do acknowledge at some point after that, he did relocate when he began teaching in the fall of 1975, I think it was.

[00:12:42] Speaker 02:
I'm going to have you break right there.

[00:12:43] Speaker 03:
Okay.

[00:12:44] Speaker 02:
I'm going to give you a minute for rebuttal.

[00:12:45] Speaker 03:
Okay.

[00:12:46] Speaker 02:
And we'll hear from the other side.

[00:12:47] Speaker 03:
Okay, thank you, Your Honor.

[00:12:48] Speaker ?:
Sure.

[00:12:53] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:12:56] Speaker 00:
Caitlin Shugart-Schmidt here on behalf of O'Neer.

[00:12:58] Speaker 00:
Your Honors, in this case, substantial evidence supported the hearing officer's decision, determination, that Mr. Goldtooth did not meet his burden of proof to show that his legal residency as of December 22, 1974,

[00:13:10] Speaker 00:
was on the HPL unless he was not entitled to relocation benefits.

[00:13:14] Speaker 00:
And if I can, Your Honors, I'd just like to start by taking a little bit of a step back and note that a lot of this conversation has focused so far on return visits to the HPL or what happened sort of later.

[00:13:24] Speaker 00:
But if you take a step back, what the record actually shows here is somebody who finished high school, got married, moved to his wife's home, or his wife's family's home in Shiprock, lived there for approximately the next eight years,

[00:13:37] Speaker 00:
in Shiprock, left Shiprock to go to college in Many Farms, attended college in Many Farms, and then moved back to Shiprock and lived there.

[00:13:44] Speaker 00:
I thought he lived in Shiprock for a fairly short time.

[00:13:46] Speaker 00:
Well, he actually was discharged from the military, my understanding is in January of 1968, and he didn't start college until 1973.

[00:13:54] Speaker 00:
So we're talking about the first five years post him returning from the military or him finishing his military service, where he could have elected anywhere to live.

[00:14:02] Speaker 00:
He could have returned to the HPL at that time,

[00:14:04] Speaker 00:
He could have stayed with his uncle.

[00:14:05] Speaker 00:
He could have stayed with his grandmother on her NPL home site.

[00:14:08] Speaker 00:
I thought he was for some period of time there.

[00:14:11] Speaker 00:
It's a little unclear in the record.

[00:14:13] Speaker 00:
He sort of makes varying assertions at different points in time, and it's never really clear.

[00:14:17] Speaker 00:
He basically seems to assert that he frequently visited the HPL during the duration of his life.

[00:14:25] Speaker 00:
But he lived, and he testifies that he lived in Shiprock with his in-laws.

[00:14:29] Speaker 00:
And he worked there after training.

[00:14:31] Speaker 01:
Well, that's why I asked the last question was if you assume that he did in fact go as often as he thought, would he get benefits?

[00:14:37] Speaker 01:
But I'm not sure we're there yet because the hearing officer discredited what he said about how often he was there and when he was there.

[00:14:49] Speaker 01:
And on that it seems to me the hearing officer was

[00:14:54] Speaker 01:
completely misrepresented what the other witnesses who he did credit said.

[00:14:58] Speaker 00:
So I recognize, Your Honor, that there's that one line in the discussion about the frequency of return.

[00:15:03] Speaker 00:
But I would note a few things about that, if I may.

[00:15:05] Speaker 00:
The first is that he actually does credit Marlene's specific testimony earlier in his decision, where he says that he recognizes that ER-24, that she did say that they returned on weekends, or at least certain weekends, to the HPL.

[00:15:19] Speaker 00:
Where does he say that?

[00:15:21] Speaker 00:
On ER-24.

[00:15:22] Speaker 00:
when he's discussing her testimony specifically.

[00:15:25] Speaker 00:
The other thing I want to note is that when it comes to this discussion about frequency, plaintiff didn't just assert that he came home on certain weekends.

[00:15:34] Speaker 00:
He actually asserted that he came home on weekends and for significant periods of time during the summer, which was not a frequency that was supported by other testimony in the record.

[00:15:44] Speaker 01:
He would pick her up on certain weekends, but what she actually said was he would pick her up on every weekend.

[00:15:49] Speaker 00:
I recognize that, Your Honor.

[00:15:50] Speaker 00:
I would say there's even some tension between what she testified with respect to that and what, say, Jimmy Lewis testified.

[00:15:55] Speaker 01:
Then he says Johnny Galtooth described the visitation as whenever they came home, but that's not what he said.

[00:15:59] Speaker 01:
He said they came home on Saturdays and Sundays, and he would see him when he came home.

[00:16:03] Speaker 01:
So that's a misrepresentation as well.

[00:16:06] Speaker 00:
If I could, Your Honor, he says when he came home, right?

[00:16:09] Speaker 00:
That's what Johnny testified to.

[00:16:10] Speaker 00:
Not that he came home all the time, but then when Tony happened to come home.

[00:16:13] Speaker 01:
No, but that's not what he said.

[00:16:15] Speaker 01:
What he actually said was, I'm sorry.

[00:16:24] Speaker 01:
What I do know is they came home on Saturdays and Sundays.

[00:16:29] Speaker 01:
Yes, so how often would you see them?

[00:16:32] Speaker 01:
Whenever they came home on Saturdays and Sundays, I would see them.

[00:16:36] Speaker 00:
Right, I would say whenever they came home on Saturdays and Sundays is maybe a little different.

[00:16:39] Speaker 01:
But that's different than whenever they came home, and he said they came home on Saturdays and Sundays.

[00:16:43] Speaker 01:
I mean, it seems to me that he is, that all, and the third, Johnny Lewis, Jimmy Lewis, who was somewhat less specific, still, read in context, seemed to be saying that they were actually, we went home quite often, we would see them, but,

[00:17:06] Speaker 01:
He had moved off.

[00:17:08] Speaker 01:
Jimmy Lewis had moved off.

[00:17:10] Speaker 00:
So he wasn't there when... But Jimmy did testify that plaintiff came to see him in Winslow on weekends during this period as well, right?

[00:17:18] Speaker 00:
And obviously, Winslow is a location not on the HPL.

[00:17:21] Speaker 00:
So when he was there in Winslow, he could not have also been in the HPL.

[00:17:24] Speaker 00:
But the broader point I'd like to make, Your Honor, is just that as the IHO noted in that paragraph, he said that the evidence of frequency pales in comparison.

[00:17:32] Speaker 00:
So this wasn't a close call.

[00:17:34] Speaker 00:
This wasn't a situation where

[00:17:35] Speaker 00:
You know, had plaintiff been able to show that he came home every single weekend, he still would have been able to, he then would have been able to qualify for benefits.

[00:17:43] Speaker 00:
You know, this is a situation where O'Neill has developed.

[00:17:45] Speaker 04:
How are they supposed to show that they came home every weekend?

[00:17:48] Speaker 00:
I'm sorry.

[00:17:49] Speaker 04:
How are they supposed to show that they came home every weekend?

[00:17:52] Speaker 00:
They can show that through credible testimony.

[00:17:53] Speaker 04:
Well, what would satisfy your position?

[00:17:59] Speaker 00:
Well, I would say that, you know, that O'Neill has considered thousands of applications and certified.

[00:18:04] Speaker 00:
thousands of applications.

[00:18:05] Speaker 00:
So there have been many people who have been able to show, even through this temporarily away exception, that they were returning with such regularity, with substantial and frequent contact with an HPL home site, that they should be eligible for benefits, even though they weren't actually living there at the time.

[00:18:20] Speaker 00:
But that's not what we have here.

[00:18:21] Speaker 04:
So let me ask you this.

[00:18:22] Speaker 04:
Is the adverse credibility determination, is that why he loses?

[00:18:27] Speaker 04:
What if he assumed that he were credible?

[00:18:30] Speaker 00:
Right.

[00:18:30] Speaker 00:
I think that the IHO discusses that, and he talks about two other reasons why he still finds that the plaintiff's actions at the relevant time would not mean that he was a legal resident of the IHO.

[00:18:41] Speaker 00:
And the first is that his grandmother, who he repeatedly testified that he returned to visit, there's evidence in the record that she lived on the NPL.

[00:18:49] Speaker 00:
She was enumerated there twice.

[00:18:51] Speaker 00:
And plaintiff testified at ER 156 that she had a summer camp on the NPL.

[00:18:56] Speaker 00:
So both winter and summer, we have evidence of her on the NPL, which is where you would think she would go to visit her if that was the intent of the return visits.

[00:19:04] Speaker 00:
And also the fact that the plaintiff was never enumerated on the HPL or the NPL.

[00:19:08] Speaker 00:
even though his grandmother was interviewed twice, as the FBA enumeration records notes.

[00:19:14] Speaker 00:
And while that's not conclusive evidence, this court has certainly held that it's sort of prima facie evidence of your absence that you're not enumerated on any of the relevant records for that time period.

[00:19:23] Speaker 04:
Let me ask you this.

[00:19:23] Speaker 04:
What's the essence of a legal residence?

[00:19:27] Speaker 00:
So O'Neill considers your intent, your stated intent, which can come through testimony,

[00:19:33] Speaker 00:
And then it considers objective manifestations of your intent.

[00:19:37] Speaker 00:
So for example, if you're off the HPL at the relevant time, but you have grazing permits that you maintain on the HPL, or your nuclear family lives on the HPL while you commute elsewhere for work or for school, those can all be objective manifestations of your intent to continue to come back and reside on the HPL.

[00:19:55] Speaker 00:
But none of those are present here, because plaintiff and his family lived in Shiprock.

[00:20:00] Speaker 00:
They then moved to Minnie Farms, where he purchased a home.

[00:20:02] Speaker 00:
He never moved that home back to the HPL at any point in time.

[00:20:05] Speaker 00:
He left it in Minnie Farms, and then he brought it to Shiprock.

[00:20:08] Speaker 00:
So he lived for the duration of this time period off the HPL.

[00:20:13] Speaker 01:
Could you tell me where in the opinion the hearing officer says that even if he were credible, he wouldn't be entitled to a benefits?

[00:20:24] Speaker 00:
Well, I think he uses words like additionally, also further.

[00:20:29] Speaker 00:
First, talking about how this livestock issue came into play, right?

[00:20:33] Speaker 00:
He's talking about how plaintiff continually says that he returned to manage livestock.

[00:20:37] Speaker 00:
But that in itself is a reason for not finding him credible, because Jimmy testified, his uncle testified, that all of the livestock had been sold by 1974.

[00:20:45] Speaker 01:
He said all of his livestock.

[00:20:46] Speaker 00:
Right.

[00:20:47] Speaker 00:
Well, that's different.

[00:20:48] Speaker 00:
That's different than all of the livestock.

[00:20:51] Speaker 00:
Well, plaintiff also testified that at least much of the livestock was sold.

[00:20:54] Speaker 00:
And he said that there were these extra benefits for selling at the time, so at least most of it was sold.

[00:20:58] Speaker 00:
It's also really unclear what livestock he's talking about.

[00:21:01] Speaker 00:
He owned no grazing permits himself, which he discussed in his letter that he sent to O'Near.

[00:21:05] Speaker 00:
So he himself did not own any livestock.

[00:21:07] Speaker 00:
He testified that his livestock was sold.

[00:21:09] Speaker 00:
And his mother, it seems, kept his livestock, at least for a significant portion of the year, on the NPL.

[00:21:15] Speaker 00:
So even the question of what livestock, the small amount of livestock that may have been there, that doesn't rise to the level of legal residency in an area.

[00:21:24] Speaker 00:
So plaintiff may have returned to assist or to visit family, all of which are reasonable things to do once you have moved away from the place where you were raised.

[00:21:33] Speaker 00:
But that's what happened here.

[00:21:35] Speaker 04:
What was, you know, reading the record and reading the briefs,

[00:21:40] Speaker 04:
It talks about, I was in 74 that the federal government asked for there to be a reduction, or ordered a reduction in livestock.

[00:21:48] Speaker 04:
Was that a complete reduction?

[00:21:50] Speaker 04:
Was it a complete sell-off?

[00:21:51] Speaker 04:
Or was it reducing by 50% whatever stock, whatever cattle you had?

[00:21:57] Speaker 00:
I'm sorry, Your Honor.

[00:21:57] Speaker 00:
I don't know the exact details of the reduction program.

[00:22:00] Speaker 00:
What I do know from working on O'Nair cases is that there was clearly a number of sales that occurred, a number of opportunities to sell livestock.

[00:22:10] Speaker 00:
And my understanding from sort of general knowledge is that this happened in 73, 74, 75 over this time period.

[00:22:17] Speaker 04:
And of course this- So it was just an encouragement to sell your livestock?

[00:22:20] Speaker 00:
My understanding is that there was an incentive offered to sell it at this time.

[00:22:24] Speaker 04:
So there's no dispute here when he talks about the government giving an incentive, 300 extra dollars, if you sold your livestock, they apparently retained some livestock.

[00:22:36] Speaker 04:
They didn't sell it all off, in other words.

[00:22:39] Speaker 00:
I would say it's just not clear from the record.

[00:22:41] Speaker 00:
I mean, plaintiffs certainly never testify.

[00:22:43] Speaker 04:
Was it your position that they sold off all the livestock?

[00:22:46] Speaker 00:
I would say Jimmy's testimony says that he sold, you know, the Lewis's sold their livestock.

[00:22:50] Speaker 01:
No, he didn't say that.

[00:22:51] Speaker 01:
He said he sold his livestock.

[00:22:53] Speaker 00:
Right.

[00:22:53] Speaker 00:
So Jimmy Lewis sold his livestock and he moved to Winslow.

[00:22:56] Speaker 00:
So that was certainly the case.

[00:22:57] Speaker 00:
But remember, the livestock we're talking about is this sort of nebulous livestock that existed at the Lewis's property.

[00:23:04] Speaker 00:
Frank, his dad, had livestock, his own livestock.

[00:23:07] Speaker 00:
Mary had her own livestock, the grandmother.

[00:23:10] Speaker 00:
But plaintiff never asserts that he had his own grazing permits, had his own livestock.

[00:23:15] Speaker 01:
He doesn't say he had his own livestock.

[00:23:18] Speaker 01:
He doesn't say he had his own grazing permits.

[00:23:20] Speaker 00:
Right.

[00:23:20] Speaker 00:
In fact, he specifically says he did not have grazing permits.

[00:23:22] Speaker 01:
But he does say he had his own livestock.

[00:23:24] Speaker 00:
He does say that he had livestock, that the herd was together, that he assisted with livestock, but it's not really clear what the significance of that would be, other than the fact that it clearly does not rise to the level of legal residency on this area, even if he had his livestock there.

[00:23:40] Speaker 01:
So to me, the question is this.

[00:23:42] Speaker 01:
If we thought the adverse credibility of finding about him was not justified on the record, what do we do?

[00:23:50] Speaker 00:
I think that you can look at the IHO's conclusion here and say it is still supported by substantial evidence.

[00:23:56] Speaker 01:
Okay, so where would we find that?

[00:23:58] Speaker 00:
Specifically in the IHO's decision.

[00:24:04] Speaker 00:
So I think the helpful points to look at were first of all on page ER 26 where he talks about several factors.

[00:24:11] Speaker 00:
Militate against finding that the residence of his uncle, Louis, was his legal residence.

[00:24:16] Speaker 00:
The reduction in the livestock.

[00:24:18] Speaker 00:
and the grandmother having a residence on the NPL.

[00:24:22] Speaker 01:
But that depends on his credibility because he said that she lived at a great deal of the time on the HPL.

[00:24:30] Speaker 01:
So that turns on Tony Goldtooth's credibility.

[00:24:37] Speaker 00:
What I'm saying here, Your Honor, is there's so much evidence in this record that points the other direction that even if you removed the adverse- But not that because that depends on his credibility.

[00:24:45] Speaker 00:
No, I don't think so.

[00:24:46] Speaker 00:
For example, he says the applicant had his own residence in the form of a mobile home that he bought and placed in many farms, and then Shiprock and his family lived full time.

[00:24:53] Speaker 00:
I understand that, but the part about the grandmother not living?

[00:24:57] Speaker 00:
No, the part about the grandmother living there is supported by his own testimony.

[00:25:00] Speaker 00:
That was credible.

[00:25:00] Speaker 00:
At ER 156, plaintiff testified that his grandmother lived on the NPL.

[00:25:04] Speaker 00:
Plus, we have two pieces of evidence in the VIA enumeration records that his grandmother lived in the NPL.

[00:25:10] Speaker 00:
So his grandmother may have spent time on the HPL, but the question of whether or not he returned

[00:25:15] Speaker 00:
to visit his grandmother on the HPL or the NPL isn't a credibility determination.

[00:25:19] Speaker 00:
We know that she spent time on the NPL from other information in the record.

[00:25:24] Speaker 02:
Anything further from my colleagues?

[00:25:27] Speaker 02:
All right, thank you very much.

[00:25:29] Speaker 02:
One minute.

[00:25:29] Speaker 03:
Thank you, Your Honor.

[00:25:34] Speaker 03:
Yes, first of all, with the grandmother's residency, I mean, she did have home sites on the NPL.

[00:25:42] Speaker 03:
The record does not support that that's where Tony Goldtooth was going to all the time when he said he was visiting his grandmother.

[00:25:51] Speaker 03:
There were many other reasons for him to go to the Tisto home site and his grandmother was there, I think clearly if we credit his testimony, a substantial amount of time.

[00:26:03] Speaker 03:
And even with the reduction in livestock and Navajo people were mandated to reduce their livestock.

[00:26:10] Speaker 03:
but they still retain livestock.

[00:26:12] Speaker 03:
And there were many reasons why Tony Goldtooth would go back to the home site of his birth and his upbringing.

[00:26:20] Speaker 03:
I mean, this is a rudimentary pastoral home site.

[00:26:22] Speaker 03:
There's a lot of work there.

[00:26:24] Speaker 03:
There were elders there hauling water, chopping wood, and there are the cultural reasons, the familial ties, and then the cultural lifestyle that would have brought him there.

[00:26:35] Speaker 03:
And when council

[00:26:38] Speaker 03:
quoted the hearing officer saying that his presence in Tisto paled by comparison to his residency at college.

[00:26:49] Speaker 03:
These exact words that the hearing officer has used in other cases where this court here and four decisions that we cite in our brief, the hearing officer has used that kind of speculation without any

[00:27:07] Speaker 03:
basis in the record to say that his presence at the home site had paled by comparison to his residency at his college.

[00:27:17] Speaker 03:
And I think that the adverse credibility finding, if he's found credible, all of the reasons that the hearing officer came up with to decide that he was not there at the requisite date, it all, the same

[00:27:32] Speaker 03:
reasons that he found him not credible.

[00:27:34] Speaker 02:
We got your argument.

[00:27:35] Speaker 02:
Thank you, sir, very much, sir.

[00:27:35] Speaker 02:
I appreciate it.

[00:27:36] Speaker 02:
This matter has been well argued and briefed and is now submitted.

[00:27:39] Speaker 02:
Appreciate counsel.

[00:27:40] Speaker 02:
Thank you, Your Honor.