[00:00:03] Speaker 02:
All right, looks like everybody is ready.

[00:00:04] Speaker 02:
Let's call 24-5011 Fuffalocco, Tribaltown v. Wiley.

[00:00:10] Speaker 02:
You may proceed.

[00:00:11] Speaker 04:
Thank you, Judge Timkovich.

[00:00:13] Speaker 04:
And may it please the Court, I'd like to reserve three minutes for rebuttal.

[00:00:18] Speaker 04:
One central fact... Please identify yourself.

[00:00:20] Speaker 04:
Sorry, Riaz Kanji.

[00:00:22] Speaker 02:
Thank you.

[00:00:23] Speaker 04:
For the Muskogee Creek Judicial Officers.

[00:00:26] Speaker 04:
One central fact informs the proper resolution of this case on appeal.

[00:00:31] Speaker 04:
Since this case was last year, and as a result of the exhaustion of tribal court remedies ordered by this court, the Muskogee Creek Nation courts have ceased to exercise any form of jurisdiction over the tribal town.

[00:00:45] Speaker 04:
The Muskogee Creek Nation District Court dismissed one of the two pending cases against the town in May of 2021, a decision which the Muskogee Creek Nation Supreme Court affirmed in early 2022.

[00:00:59] Speaker 04:
And in that same opinion, the Muskogee Creek Nation Supreme Court ordered the second of the two pending cases dismissed as well.

[00:01:08] Speaker 04:
So as a result, there are now no cases pending or impending in which the Muskogee Creek Nation judicial officers are asserting any form of authority over the tribal town.

[00:01:20] Speaker 04:
Which means that the court below should have dismissed this federal action for either one of two independent reasons.

[00:01:29] Speaker 04:
First, because the Muskogee Creek Nation judicial officers enjoy sovereign immunity from the town's federal suit.

[00:01:37] Speaker 04:
In 2014, this court properly recognized that the suit could proceed under Ex parte Young, because at that time, the town alleged an ongoing violation of federal law in the form of the assertion of judicial jurisdiction over it.

[00:01:53] Speaker 04:
But now that key jurisdictional fact has changed, and the basis for Ex parte Young jurisdiction has evaporated.

[00:02:00] Speaker 00:
Would you agree that the 2014 decision was the understanding that we had there was it was about the injunctive relief claim?

[00:02:08] Speaker 04:
I think it spoke largely to the injunctive relief claim.

[00:02:11] Speaker 04:
It also applied to the claim for declaratory relief in that you can state a viable claim for a declaratory relief under Ex parte Young if you are alleging an ongoing violation of federal law.

[00:02:23] Speaker 00:
So why isn't the component that we didn't speak to so robustly in the 2014 case, the declaratory relief claim about the, which is the central claim here, still alive?

[00:02:37] Speaker 04:
Because the claim for declaratory judgment relief, if I understand the question, that is governed by the same principles, whether we're talking about ex parte young or mutinous, and I'll take those in turn.

[00:02:51] Speaker 04:
Under ex parte young, in order for the district court to issue

[00:02:55] Speaker 04:
a valid declaratory judgment, that judgment has to be speaking to an ongoing violation of federal law.

[00:03:02] Speaker 04:
Once there is no longer the actual or imminent threat of a violation of federal law, there is no basis for carving out an exception

[00:03:11] Speaker 04:
to the judicial officer's sovereign immunity.

[00:03:14] Speaker 04:
At that point, they're fully cloaked in the nation's sovereign immunity.

[00:03:18] Speaker 04:
When the judicial officers cease to exercise jurisdiction in 2022, there is no other allegation of a violation of federal law that the tribal town has stated.

[00:03:30] Speaker 04:
Nowhere in its complaint can you find any allegation of a violation of federal law other than the exercise of jurisdiction over the town.

[00:03:39] Speaker 01:
So it seems to me like that the ex parte young argument and the exception to mootness of voluntary cessation kind of dovetail in the sense that the argument is that

[00:03:56] Speaker 01:
Yeah, you dismissed this action and you're no longer exercising jurisdiction over us again, but you haven't said that you recognize that we have the ability to withdraw a waiver of sovereign immunity.

[00:04:13] Speaker 01:
We have to use your courts because we don't have our own courts and we don't have any comfort

[00:04:23] Speaker 01:
that you're not going to do the same thing again as new cases arise.

[00:04:30] Speaker 01:
So that could fall under an exception to mootness which is the voluntary cessation when, and the burden by the way is on the person who ceases to prove that there's no risk that it's going to happen again.

[00:04:45] Speaker 01:
And it also brings in sort of the ex parte young because if you have this,

[00:04:52] Speaker 01:
concern about your jurisdiction, exercising jurisdiction over you when you have immunity, that would be a federal question.

[00:05:03] Speaker 01:
So that's a long question, but hopefully you understand it.

[00:05:06] Speaker 04:
I definitely understand there's a lot packed into that, so I will do my best to unpack each step.

[00:05:12] Speaker 04:
First, on the voluntary cessation exception, the key there is that exception applies when there's been a unilateral action taken by the defendant for the purposes of evading

[00:05:27] Speaker 04:
jurisdiction for creating moodness.

[00:05:30] Speaker 04:
And those conditions don't apply here.

[00:05:32] Speaker 04:
First, the Muskogee Creek courts not engaged in any unilateral action.

[00:05:38] Speaker 04:
They exercised their responsibility to decide the case pursuant to an order from this court that tribal court remedies be exhausted.

[00:05:49] Speaker 04:
And they decided the case in front of them at the behest of the parties to the case.

[00:05:54] Speaker 04:
So there's no unilateral action.

[00:05:55] Speaker 04:
And that's what this court has talked about in the Washburn University case, for example.

[00:06:00] Speaker 04:
That's one of the requirements.

[00:06:02] Speaker 01:
Secondly... Well, I mean, they dismissed the case.

[00:06:05] Speaker 04:
But they dismissed the case because they examined whether there was a basis for the continued exercise of jurisdiction.

[00:06:15] Speaker 04:
And they found that there wasn't.

[00:06:17] Speaker 04:
So they were exercising their judicial responsibilities.

[00:06:21] Speaker 04:
And I think they were being very responsible in doing it.

[00:06:25] Speaker 01:
Also, I mean, their order is kind of a little difficult to follow, at least for me.

[00:06:31] Speaker 01:
It looks like they affirmed the tribal district courts finding that you couldn't withdraw your waiver.

[00:06:41] Speaker 04:
Well, I think ultimately, and I understand what you're saying about how they address that issue, they ultimately left it open.

[00:06:50] Speaker 04:
And that's what Mr. Salem himself has said in his briefing.

[00:06:55] Speaker 04:
The district court, the tribal district court,

[00:06:58] Speaker 04:
The holding of the district court was that the case was no longer justiciable as a practical matter, which I think is essentially a form of saying it's prudentially moot.

[00:07:09] Speaker 04:
And then the Muskogee Creek Nation's Supreme Court

[00:07:13] Speaker 04:
affirmed that holding and really limited its decision to that.

[00:07:18] Speaker 04:
And of course, deciding a case on justiciability grounds is a perfectly permissible way to resolve a case.

[00:07:25] Speaker 04:
They resolved it on jurisdictional grounds so there was no longer life, case or controversy.

[00:07:30] Speaker 04:
And as a result, the courts are no longer exercising any jurisdiction over the town.

[00:07:35] Speaker 04:
Now, the other part of your question was you said, well, that leaves this issue about, well, what happens in the future if the town waives its immunity and then seeks to withdraw its immunity?

[00:07:47] Speaker 04:
And that was the basis on which the court below here found the case to not be moot.

[00:07:53] Speaker 04:
But I'll address that both.

[00:07:55] Speaker 01:
But it did it on a different exception.

[00:07:57] Speaker 01:
It did it.

[00:07:58] Speaker 01:
Capable of repetition, but evading review, right?

[00:08:02] Speaker 04:
Well, I think the district court here said two things.

[00:08:05] Speaker 04:
First, the case is not moot.

[00:08:09] Speaker 04:
The district court said it's not moot because there's a live case, was the phrase that the district court used, because there's still this issue out here.

[00:08:18] Speaker 04:
But that was fundamental error for several reasons.

[00:08:21] Speaker 04:
First, as this court has said, it said it in the Park County case, for example, almost any time that a case is dismissed for mootness, there are issues left to be resolved.

[00:08:31] Speaker 04:
But they're left to be resolved in future cases.

[00:08:34] Speaker 04:
The case or controversy requirement means they cannot be resolved in the instant case when the case or controversy has disappeared.

[00:08:42] Speaker 00:
But wasn't the issue that was left unresolved here the whole case at the end of the day?

[00:08:48] Speaker 04:
Well, no, I don't think so, Your Honor, respectfully.

[00:08:50] Speaker 04:
There were a lot of issues packed into this litigation over time.

[00:08:55] Speaker 00:
There was the question about... Well, I'm talking about just the ability to withdraw consent.

[00:09:01] Speaker 00:
was at the heart of the jurisdictional challenges?

[00:09:05] Speaker 00:
Was it not?

[00:09:06] Speaker 04:
I would say fairly it was one of several key issues.

[00:09:09] Speaker 04:
There were issues about whether the LAPD's rule, the rule that once you invoke the jurisdiction of a court, in federal court of course the rule is that once you invoke the jurisdiction of a court, if you're

[00:09:23] Speaker 04:
a state, for example, whether you can withdraw that in fairness and equity.

[00:09:28] Speaker 04:
So there was that issue.

[00:09:30] Speaker 04:
There was the issue about whether the counterclaims fell within the scope of the case as it was brought.

[00:09:35] Speaker 04:
There was the issue originally about even... What about Anderson 2, isn't it?

[00:09:39] Speaker 04:
Sorry?

[00:09:39] Speaker 01:
Is that Anderson 2, whether the counterclaims fell within the scope, whether an election issue would be within the initial waiver of sovereign immunity?

[00:09:50] Speaker 04:
It was Anderson 2, it was also Anderson 1, because in Anderson 1 there were counterclaims brought by Mr. Anderson about the election issues itself.

[00:10:00] Speaker 04:
There were issues about who properly spoke for the town.

[00:10:02] Speaker 04:
So there was actually an awful lot for the tribal courts to

[00:10:06] Speaker 04:
to work through.

[00:10:08] Speaker 04:
But I think the key is this.

[00:10:10] Speaker 04:
In the Shell versus Oxy case, this court in 2016 said that the possible effects of a judgment on hypothetical unfiled future litigation

[00:10:25] Speaker 04:
are not a legally cognizable interest that will defeat mootness.

[00:10:30] Speaker 04:
And that's the only claim that the town has here is to evade mootness, which, as the panel said, is the town is claiming, well, in the future, there might be a case.

[00:10:40] Speaker 04:
And think about all the causal links in this chain.

[00:10:42] Speaker 04:
There might be a case where we go into the Muskogee Creek courts, we waive our immunity, we then withdraw that waiver at some later point in time, and the courts refuse to honor that waiver.

[00:10:55] Speaker 01:
But the hypothetical future case, an exception to that is the voluntary cessation exception.

[00:11:05] Speaker 01:
So if we were to say, geez, you know, the tribal courts were really kind of jerking around these people, five-year delay in the district court, and then it finally gets after we

[00:11:20] Speaker 01:
say we could really use some help on this goes to the Supreme Court and the Supreme Court says, ah, it's moot and doesn't decide the issue.

[00:11:27] Speaker 01:
We might look at that and say, you know what, that might be a little bit suspicious.

[00:11:33] Speaker 01:
And they are in this court.

[00:11:35] Speaker 01:
It's the only court they have.

[00:11:37] Speaker 01:
And so if they ever want to be a plaintiff in that court, they're going to have to waive.

[00:11:43] Speaker 01:
But if a case presents itself in a way that they want to withdraw the waiver,

[00:11:51] Speaker 01:
they have a fear of it repeating.

[00:11:55] Speaker 04:
So let me address several aspects of that, please.

[00:11:58] Speaker 04:
First, as a factual point, this notion that it's the only court they have, it goes to the speculative nature of all this.

[00:12:06] Speaker 04:
The town could certainly establish its own court system.

[00:12:10] Speaker 04:
In fact, in 2009, the town enacted a judicial code and set up

[00:12:15] Speaker 04:
a court system, and that's referenced in footnote 59 of the Muskogee Creek Nation Supreme Court opinion.

[00:12:21] Speaker 04:
The town has chosen not to fund that court.

[00:12:24] Speaker 04:
It certainly could, and the town has all manner of business enterprises.

[00:12:28] Speaker 04:
It could fund the court.

[00:12:29] Speaker 04:
The Alabama Qusarde town, which is one of the others similarly,

[00:12:33] Speaker 04:
situated Muskogee Creek towns that is federally recognized, it has its own court system.

[00:12:37] Speaker 04:
So it's certainly not the case that as a factual legal matter that the only recourse for the town is to come into the Muskogee Creek courts.

[00:12:46] Speaker 04:
And when we're talking about speculativeness, whether they establish their own court system or whether they continue to use the Muskogee Creek court system, no one can say.

[00:12:55] Speaker 04:
And that's part of this.

[00:12:57] Speaker 04:
Secondly, and this is very important, the delay point,

[00:13:01] Speaker 04:
I want to speak very strongly to this.

[00:13:03] Speaker 04:
I do not think it is fair to say that the Muskogee Creek courts have engaged in any form of sham here to evade jurisdiction.

[00:13:13] Speaker 04:
The delay was extremely

[00:13:16] Speaker 04:
unfortunate.

[00:13:18] Speaker 04:
And the Muskogee Creek courts have addressed the root cause of that delay.

[00:13:21] Speaker 04:
When the case was remanded by this circuit in 2014, it was assigned to a district court judge who unfortunately, and this happens sometimes, just sat on the case.

[00:13:32] Speaker 04:
And several years passed, and that was inexcusable.

[00:13:35] Speaker 04:
But when the Muskogee Creek Supreme Court, in the exercise of its supervisory authority, became aware of the situation, it first urged that district court judge to decide the case.

[00:13:45] Speaker 04:
When it became clear that that was not going to happen, it reassigned the case to a different district court judge.

[00:13:52] Speaker 04:
That reassignment took place in November of 2020.

[00:13:55] Speaker 04:
By May of 2021, that district court judge had issued her decision and then certified the case for interlocutory appeal.

[00:14:04] Speaker 04:
The Muskogee Creek Supreme Court accepted the interlocutory appeal and by February 28th of 2022 had issued its decision.

[00:14:14] Speaker 04:
And on remand one week later, the district court dismissed both cases.

[00:14:20] Speaker 00:
So this was a normal course of events, right?

[00:14:22] Speaker 00:
Is that what you're arguing that voluntary cessation wouldn't apply?

[00:14:25] Speaker 00:
unless there was some unilateral action, which we can't find here.

[00:14:30] Speaker 04:
That's exactly what I'm saying.

[00:14:31] Speaker 04:
And that's the phrase that's used in discourse Washburn University case, where it says if things happen in the normal course of events, like a court issuing a decision, the voluntary cessation exception does not apply.

[00:14:44] Speaker 04:
It's not unilateral.

[00:14:45] Speaker 04:
The court here did it.

[00:14:46] Speaker 02:
Could the Muskogee Court refuse to hear a town case?

[00:14:51] Speaker 04:
Yes, it could, Your Honor.

[00:14:54] Speaker 04:
And it's interesting, because there was a lot of debate within the Muskogee Creek Court system about whether it should even entertain this case.

[00:15:00] Speaker 04:
And originally, the Muskogee Creek District Court had ruled, no, you know what?

[00:15:04] Speaker 04:
This is a matter of town law.

[00:15:05] Speaker 04:
I don't want to have anything to do with this case.

[00:15:07] Speaker 02:
What's the town do if the Muskogee refuses to take a case?

[00:15:11] Speaker 04:
Well, look, this is my personal opinion, but I think what the town should do is, the town's a federally recognized tribe.

[00:15:17] Speaker 04:
It should have its own court system that's part of exercising sovereignty.

[00:15:21] Speaker 04:
And it's done a lot of the spade work for that, simply a question of funding the system.

[00:15:27] Speaker 02:
Thank you, counsel.

[00:15:28] Speaker 02:
Your time has expired.

[00:15:29] Speaker 02:
Mr. Salem?

[00:15:35] Speaker 03:
Good morning.

[00:15:38] Speaker 03:
May it please the court, I'm Michael Salem.

[00:15:41] Speaker 03:
I represent the Thaplaco Tribal Town.

[00:15:44] Speaker 03:
This case involves an important question for Thaplaco, and that's an intrusion upon its sovereignty by the Creek Nation courts.

[00:15:53] Speaker 03:
It's important enough that six members of the 10 members of the Thaplaco Tribal Town Business Committee have traveled to attend this hearing, and they're seated here in the courtroom.

[00:16:04] Speaker 03:
As Justice O'Connor in the three affiliated tribes versus Wold said, the common law sovereign immunity possessed by a tribe is a necessary corollary to Indian sovereignty and self-governance.

[00:16:18] Speaker 03:
Um, respectfully, contrary to my friend's assertion, this case is not moot.

[00:16:24] Speaker 03:
Just because the Creek tribe says that they're no longer exercising, um, jurisdiction over Thuplaco doesn't mean that this case is, uh, is moot for that circumstances.

[00:16:37] Speaker 03:
And, and, uh, in addition to that, they make, they made an assertion and was repeated that

[00:16:42] Speaker 03:
in the amended complaint that there was no reference to the ability to withdraw the complaint or to withdraw the consent that Thuplaco entered into.

[00:16:54] Speaker 03:
I might say that it's in their appendix and in

[00:17:01] Speaker 03:
Page 67 of the claims says Taplaco is entitled to sovereign immunity as a Greek tribal town.

[00:17:08] Speaker 03:
On page 68, Taplaco's withdrawal of consent and that issue was raised and that was part of the issue and so therefore any consideration that this was not part of the case would be incorrect.

[00:17:27] Speaker 03:
in the claims, Toplaco said, we want to enjoin the exercise of jurisdiction once Toplaco had withdrawn its consent.

[00:17:37] Speaker 03:
I might say that

[00:17:38] Speaker 03:
In the previous case in 2013, when we argued this court's decision in 2014, this was an important topic.

[00:17:50] Speaker 03:
I mean, it's not exactly like there was some kind of dispute over what that is.

[00:17:56] Speaker 02:
Why can't that issue be fully litigated in a future case where we have a live controversy?

[00:18:03] Speaker 03:
Well, first of all, it

[00:18:07] Speaker 03:
The question is whether Taplaco raised it.

[00:18:09] Speaker 03:
First of all, if Taplaco has raised it.

[00:18:11] Speaker 03:
And second, does Taplaco have a standing?

[00:18:14] Speaker 03:
The district court found that this was a live case because

[00:18:17] Speaker 03:
The question for Toplaco is, before they go into the Muskogee Creek Nation and try to litigate this particular issue, they're burdened by the rule of decision that the Creek Nation has already asserted that Toplaco cannot withdraw its consent under their procedural rules.

[00:18:37] Speaker 03:
And so that is part of a live case.

[00:18:42] Speaker 01:
I'm sorry.

[00:18:43] Speaker 01:
There's an issue.

[00:18:45] Speaker 01:
with the underlying merits decision of whether you can withdraw your waiver of sovereign immunity that is very fact specific.

[00:18:57] Speaker 01:
If I look at our case law and the case law generally, whether you can withdraw your waiver of sovereign immunity in this case may be very different than whether you can withdraw it in the next case because it's very much dependent upon

[00:19:14] Speaker 01:
those circumstances?

[00:19:16] Speaker 01:
How long has the case been being litigated?

[00:19:19] Speaker 01:
Are you withdrawing your consent or your waiver of sovereign immunity because it looks like you're going to lose and you're trying to game the system?

[00:19:29] Speaker 01:
If you look at the case law, it's a very fact-specific decision, so I'm not really sure that you can get a ruling

[00:19:38] Speaker 01:
that is a black and white ruling, whether yes, you can withdraw it once you've given a waiver or no, you can't.

[00:19:45] Speaker 01:
How do we deal with that?

[00:19:47] Speaker 03:
Well, the district court judge certainly thought that Toplaco's action in meeting the standards for the declaratory judgment under the Moon case

[00:19:57] Speaker 03:
did not think that there was any kind of fencing or, or of the other five factors that were involved.

[00:20:03] Speaker 03:
And so I think what's clear is, is that if, if the block had standing, for example, to bring a new case and.

[00:20:15] Speaker 03:
In reality, these are the same facts that existed in this case at the time.

[00:20:22] Speaker 01:
I think we're miscommunicating.

[00:20:25] Speaker 03:
I'm sorry?

[00:20:26] Speaker 01:
Your point is it's not moot, because giving us an answer on this question could govern how we behave in the future.

[00:20:35] Speaker 01:
And if you don't give us an answer, it might actually chill our ability to come into court.

[00:20:40] Speaker 03:
Well, OK.

[00:20:41] Speaker 01:
And my point is,

[00:20:43] Speaker 01:
you can't give an answer based on the facts of case A that tell you what's going to happen in the future cases, because it's incredibly fact dependent.

[00:20:54] Speaker 03:
Well, in this particular instance, though, all the questions were there.

[00:20:59] Speaker 03:
And what will burden Toplaco in the future is if the district court's decision is reversed, then Toplaco, before it uses

[00:21:09] Speaker 03:
Crete Nation courts, which get funding on behalf and as a part of Thaplakos headcount, Thaplakos would be burdened with the decision of, do we go into the Crete Nation courts and assume a possible delay of 16 years, let's say.

[00:21:28] Speaker 03:
And, you know, that's a decision we make before we even begin to raise the issue.

[00:21:35] Speaker 03:
I mean, in all honesty,

[00:21:37] Speaker 03:
In the merits of this case, the question of the dangerousness or problems with Nathan Anderson were resolved 58 days after the lawsuit was filed in the Tribal Court when Toplaco on August 8th, 2007, filed a notice of internal resolution.

[00:22:00] Speaker 03:
And at that point,

[00:22:01] Speaker 03:
If it's confronted in the future, and I'll give you an example, just about October 1st, Nathan Anderson announces in the Muskogee newspaper that he's going to, that Thaplako is going to hold an election.

[00:22:18] Speaker 03:
He called himself a Thaplako spokesman.

[00:22:20] Speaker 03:
I'm not going to go into this with any great detail, but if Thaplako was to go into the Creek Nation court and again,

[00:22:32] Speaker 03:
wrestle with Mr. Anderson over this issue and there's some possibility of response cross claims or whatever, they have to decide do we do this and this is delayed and we run into this problem.

[00:22:48] Speaker 03:
I might say though that after consultation with

[00:22:52] Speaker 03:
the Creek Nation and, of course, with counsel, we resolved that issue because they were going to provide a space for him for this meeting.

[00:23:01] Speaker 03:
They withdrew that.

[00:23:02] Speaker 03:
The newspaper issued a correction.

[00:23:04] Speaker 03:
But if we had to sue him again, the first thing that we consider is not whether we have a cause of action against him, but do we want to go into court where we would not be allowed to withdraw our waiver or consent to sovereign immunity?

[00:23:19] Speaker 01:
Well, and my point is, you have no idea whether you can withdraw it, even if you get a ruling in this case, because it will be dependent upon what has happened in the current case.

[00:23:34] Speaker 03:
In this particular case, the district court entered an order that said that Toplaco had sovereign immunity, Toplaco could consent to jurisdiction,

[00:23:44] Speaker 03:
And Taplaco could withdraw that consent under appropriate circumstances.

[00:23:49] Speaker 03:
That's the holding of beers.

[00:23:52] Speaker 03:
That's the holding of Iowa tribe in this court.

[00:23:56] Speaker 03:
I mean, Iowa tribe, of course, is this court.

[00:23:58] Speaker 03:
And those are standalone questions that give guidance in the future to anybody else.

[00:24:03] Speaker 03:
And there's nothing that dismisses those particular holdings from being precedent in the future.

[00:24:12] Speaker 03:
And so under the circumstances, the guidance that the district court gave in its decision will control Fahplaco's ability to decide whether to waive sovereign immunity and avail itself of the Crete Nation courts, just like Beers does, just like Iowa Tribe does.

[00:24:33] Speaker 03:
And I might add that the whole idea that Fahplaco can't withdraw its consent as a plaintiff

[00:24:42] Speaker 03:
which was raised by the defendants as if that was some great difference.

[00:24:49] Speaker 03:
Ordinarily, a plaintiff has a greater control as the master of his complaint as to when it consents and whether it dismisses the case or whatever.

[00:25:00] Speaker 03:
But the district court

[00:25:01] Speaker 03:
In the tribal court, the district court in this instance issued a ruling that it had properly exercised jurisdiction over Thaplaco all these years.

[00:25:13] Speaker 03:
And not only that, even though Thaplaco had withdrawn its consent, the tribal district court said that, went ahead and assumed jurisdiction and decided the case.

[00:25:26] Speaker 03:
If it did not have jurisdiction, and Thaplako's consent was good, if it did not have jurisdiction at that point, it's supposed to announce the fact that it doesn't have jurisdiction and dismiss the case at that point.

[00:25:38] Speaker 03:
But no, it assumed jurisdiction and ruled that Nathan Anderson was no longer a threat to Thaplako.

[00:25:46] Speaker 03:
And that was an assumption of jurisdiction contrary to the very rule that we've been talking about.

[00:25:54] Speaker 03:
The question is whether,

[00:25:56] Speaker 03:
that this is a live case.

[00:25:59] Speaker 03:
And the federal district court properly found that it was a live case.

[00:26:02] Speaker 00:
Council, can I ask you about the district court's analysis here, which skipped over, it seems, the question of subject matter jurisdiction and went to mootness and didn't talk about ex parte young.

[00:26:13] Speaker 00:
Do you think that we have an obligation to do that here?

[00:26:17] Speaker 00:
We can't rely on the 2014 case to satisfy our own independent obligation to make sure that we have subject matter jurisdiction, right?

[00:26:25] Speaker 03:
Well, it's always an obligation of a court to decide that it has subject matter jurisdiction.

[00:26:31] Speaker 03:
And I'm not going to say that the district court necessarily skipped over it.

[00:26:36] Speaker 03:
But I do think that her analysis would be, if she adopted the view that we had, she said that they never decided the question.

[00:26:44] Speaker 03:
I said that they did decide the question.

[00:26:47] Speaker 03:
That was part of the briefing that I entered.

[00:26:49] Speaker 03:
They did decide the question, that is, the tribal district court.

[00:26:52] Speaker 03:
The Supreme Court affirmed it.

[00:26:54] Speaker 03:
And so we have a very clear,

[00:26:55] Speaker 03:
rule of decision that affects Toplaco any time in the future that it wants to go into court, it's going to still be subject to that rule.

[00:27:05] Speaker 03:
And if they didn't give up the rule that Toplaco could not withdraw a consent once it's given,

[00:27:13] Speaker 03:
after the remand in 2014, then I think it's fair to say they're never going to get it.

[00:27:18] Speaker 03:
And I think that that was subject matter jurisdiction because it addresses the issues of standing, that there was a live case, and Toplocko had a concrete interest in the resolution of this question.

[00:27:31] Speaker 03:
And so that is necessarily what you have in terms of subject matter jurisdiction.

[00:27:40] Speaker 03:
I might also add that

[00:27:42] Speaker 03:
The district court's decision fairly characterizing the standard of review is abuse of discretion as to the prudential issues.

[00:27:53] Speaker 03:
And it requires a very strong showing by the defendants to show that the district court abused her discretion when she made her decision about how she would

[00:28:08] Speaker 03:
how she would treat the question of prudential mootness.

[00:28:13] Speaker 03:
And she made findings.

[00:28:15] Speaker 01:
I'm sorry.

[00:28:16] Speaker 01:
Well, you also have to have it be constitutionally not moot.

[00:28:21] Speaker 01:
Yes, ma'am.

[00:28:21] Speaker 01:
And the district court relied on the capable of repetition, yet evading review exception to mootness by saying that this is an election case.

[00:28:36] Speaker 01:
That's wrong, isn't it?

[00:28:38] Speaker 03:
No, I don't think it's entirely wrong, because it arose out of a case.

[00:28:43] Speaker 03:
But I think that she was very true to the idea of something that's capable of repetition yet evading review.

[00:28:48] Speaker 01:
Well, if it's not an election case, this issue could come up in any case, right?

[00:28:55] Speaker 01:
Yes.

[00:28:55] Speaker 01:
Any case where the town

[00:28:59] Speaker 01:
was the plaintiff.

[00:29:00] Speaker 01:
Yes.

[00:29:01] Speaker 01:
This case could arise.

[00:29:02] Speaker 03:
Just like the example that I gave, if we were to sue Nathan.

[00:29:06] Speaker 03:
But the most likely occurrence is going to be an election case.

[00:29:10] Speaker 01:
But that's not the test.

[00:29:12] Speaker 01:
The test isn't most likely occurrence.

[00:29:14] Speaker 01:
The test has to be that it is always incapable of determination

[00:29:20] Speaker 01:
during the time that the case would last?

[00:29:22] Speaker 03:
Well, under the law, there doesn't have to be a certainty of repetition.

[00:29:26] Speaker 03:
There just has to be the possibility of repetition.

[00:29:30] Speaker 03:
And capable of repetition would be satisfied if, of course, every time Thaplako files a lawsuit,

[00:29:39] Speaker 03:
in the Creek courts, which as you've indicated, you know, that's the one that basically that the federal government has supported.

[00:29:48] Speaker 03:
Every time they do that, they must confront the issue that they would have to waive this.

[00:29:56] Speaker 03:
They would have to waive the ability to withdraw their consent.

[00:29:59] Speaker 03:
And that's an infringement on their sovereignty.

[00:30:02] Speaker 03:
And that is irreparable harm on page 29 of the book.

[00:30:05] Speaker 02:
Can't that be litigated when it happens?

[00:30:07] Speaker 03:
Pardon?

[00:30:08] Speaker 02:
Why can't that be litigated when it happens in the future?

[00:30:12] Speaker 02:
I mean, how is it evading judicial review?

[00:30:18] Speaker 03:
It's evading judicial review just because it took 17 years for this case to come to this point where the defendants avoided this court's

[00:30:30] Speaker 03:
2014 order, the court asked it to provide some explanation and some reason for why it was, for why they were not following the Beer's case.

[00:30:45] Speaker 03:
And of course, the Iowa Tribe versus Salazar case.

[00:30:49] Speaker 02:
Okay.

[00:30:49] Speaker 02:
Well, couldn't you or the town have, I mean,

[00:30:54] Speaker 02:
We got an explanation of the delay.

[00:30:58] Speaker 02:
Couldn't the tribe have asked for a mandamus to have the court issue an order more timely?

[00:31:06] Speaker 02:
I just don't see how you cannot fully litigate this issue in a future case.

[00:31:10] Speaker 03:
Well, I mean, as the old saying goes, attorneys have deadlines, but courts don't.

[00:31:19] Speaker 03:
And what was I going to do?

[00:31:20] Speaker 03:
You're not for that.

[00:31:21] Speaker 03:
Huh?

[00:31:21] Speaker 03:
What?

[00:31:23] Speaker 03:
Yes, sir.

[00:31:26] Speaker 03:
You know, there was a report filed with the Federal District Court quarterly

[00:31:31] Speaker 03:
And that went on for years.

[00:31:34] Speaker 03:
And this was done with the knowledge of the Creek Nations attorney and me.

[00:31:41] Speaker 03:
I generally prepared them.

[00:31:42] Speaker 03:
They okayed them.

[00:31:43] Speaker 03:
I filed it in the district court.

[00:31:44] Speaker 03:
Finally, after a while, the district court ordered me to file all of those in the previous 2013 case.

[00:31:52] Speaker 03:
And I got a question from the clerk when I did that, you know, but

[00:31:56] Speaker 03:
I, you know, what was I going to do?

[00:31:58] Speaker 03:
They'd already turned down two appeals, you know, which of course was completely inconsistent with Thaplakos' sovereign immunity.

[00:32:09] Speaker 03:
Twice I appealed, twice it was rejected.

[00:32:12] Speaker 03:
And was I going to aggravate or, you know, sort of stir the pot by trying to follow another motion?

[00:32:22] Speaker 03:
I mean, I tried to do what I could.

[00:32:24] Speaker 03:
Understood well.

[00:32:25] Speaker 03:
Thank you your time's expired.

[00:32:27] Speaker 02:
Thank you your councilor excused.

[00:32:29] Speaker 02:
Did you have any rebuttal time?

[00:32:31] Speaker 02:
Looks like we're out of time Sure, you can have a minute

[00:32:37] Speaker 02:
since you asked nicely.

[00:32:40] Speaker 04:
I'll make three quick points.

[00:32:43] Speaker 04:
First, in response to Judge Rossman, yes, absolutely there's an ongoing obligation to assess whether there's still the basis for ex parte Young jurisdiction.

[00:32:51] Speaker 04:
I'm not saying this by way of flattery, but in 2014, I think this court got the issue exactly right.

[00:32:57] Speaker 04:
But facts have changed.

[00:32:58] Speaker 04:
There's no longer an exercise of jurisdiction.

[00:33:00] Speaker 04:
And with respect to this question that's still hanging out there,

[00:33:03] Speaker 04:
I think you're absolutely right, Judge Tinkovich.

[00:33:05] Speaker 04:
That can be addressed in a future case.

[00:33:07] Speaker 04:
There's no reason why it can't.

[00:33:09] Speaker 04:
And as Judge McHugh said, it's a very fact-specific question.

[00:33:12] Speaker 04:
So the guidance that the district court here provided is no guidance at all under appropriate circumstances.

[00:33:18] Speaker 04:
I don't see how that helps anyone in terms of this concern.

[00:33:23] Speaker 04:
The town's concern about what might happen in the future fits squarely within what the Supreme Court said in the Jackson v. Women's Whole Health Center case, which is that the concern of a litigant about being inhibited or chilled in future litigation is not a basis for ex parte young jurisdiction in this case.

[00:33:44] Speaker 04:
And then finally, with respect to the

[00:33:46] Speaker 04:
The mootness exception for evading review, Judge McHugh is absolutely right.

[00:33:50] Speaker 04:
This is not an election dispute.

[00:33:51] Speaker 04:
The only basis for federal court jurisdiction here, and the court said this in 2014, is to assess the federal question as to whether the Muskogee Creek towns were properly exercising jurisdiction over the town.

[00:34:05] Speaker 04:
That's the only question that this court has authority to review.

[00:34:09] Speaker 04:
It does not sit as an appellate court of general review over tribal courts.

[00:34:13] Speaker 04:
And that issue is clearly not one that is inherently short in nature.

[00:34:19] Speaker 04:
In fact, there have been questions today about how long this case took to resolve

[00:34:23] Speaker 04:
The case became moot because the Muskogee Creek courts ruled in favor of the tribal town.

[00:34:30] Speaker 04:
They gave the tribal town all the relief it sought.

[00:34:32] Speaker 04:
And for that reason, the case is moot, and there is no basis for ex parte young.

[00:34:38] Speaker 04:
Thank you very much.

[00:34:38] Speaker 02:
Thank you, counsel.

[00:34:40] Speaker 02:
You are now excused, and the case is submitted.

[00:34:43] Speaker 02:
The court will be in recess until tomorrow morning at 9 o'clock.