Eeoc v. Peabody Western Coal Company ( 2014 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    EQUAL EMPLOYMENT OPPORTUNITY             No. 12-17780
    COMMISSION,
    Plaintiff-Appellant,           D.C. No.
    2:01-cv-01050-
    v.                          JWS
    PEABODY WESTERN COAL
    COMPANY; NAVAJO NATION, Rule             ORDER AND
    19 defendant,                             AMENDED
    Defendants-Appellees,        OPINION
    v.
    KEVIN K. WASHBURN, Esquire;
    SALLY JEWELL, in her official
    capacity as Secretary of the Interior,
    Third-Party-Defendants-Appellees.
    Appeal from the United States District Court
    for the District of Arizona
    John W. Sedwick, District Judge, Presiding
    Argued and Submitted
    May 12, 2014—San Francisco, California
    Filed September 26, 2014
    Amended November 19, 2014
    2          EEOC V. PEABODY WESTERN COAL CO.
    Before: Susan P. Graber, William A. Fletcher,
    and Richard A. Paez, Circuit Judges.
    Opinion by Judge W. Fletcher
    SUMMARY*
    Title VII / Tribal Affairs
    The panel filed an order amending its previous opinion,
    and in the amended opinion the panel affirmed the district
    court’s summary judgment against the Equal Employment
    Opportunity Commission with respect to its claim that Title
    VII of the Civil Rights Act of 1964 prohibited the tribal
    hiring preference contained in Peabody Western Coal
    Company leases with the Navajo Nation.
    The panel held that the Navajo hiring preference in the
    leases was a political classification, rather than a
    classification based on national origin, and therefore did not
    violate Title VII. The panel concluded that the district court
    correctly granted summary judgment to defendants Peabody
    Western Coal Company and Navajo Nation, and third-party
    defendant Secretary of the Interior. The panel also held that
    the EEOC waived on appeal its record-keeping claim.
    Finally, the panel held that the district court acted within its
    discretion in denying the EEOC’s eleventh-hour motion to
    supplement the record with a declaration and documents
    about Peabody’s hiring practices in 1999.
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    EEOC V. PEABODY WESTERN COAL CO.                 3
    COUNSEL
    P. David Lopez, General Counsel, Lorraine C. Davis, Acting
    Assistant General Counsel, and Susan Ruth Oxford (argued),
    Attorney, Equal Employment Opportunity Commission,
    Washington, D.C., for Plaintiff-Appellant.
    John F. Lomax, Jr. (argued) and Kathryn Hackett King, Snell
    & Wilmer LLP, Phoenix, Arizona; Louis Denetsosie,
    Attorney General, and Paul Spruhan, Assistant Attorney
    General, Navajo Nation Department of Justice, Window
    Rock, Arizona; Lisa M. Enfield (argued), Paul E. Frye, and
    William Gregory Kelly, Frye Law Firm PC, Albuquerque,
    New Mexico, for Defendants-Appellees.
    Robert Dreher, Acting Assistant Attorney General, Ethan G.
    Shenkman (argued), Deputy Assistant Attorney General,
    James C. Kilbourne, Section Chief, and Kristofor Swanson,
    United States Department of Justice, Washington, D.C., for
    Third-Party-Defendants-Appellees.
    ORDER
    Plaintiff-Appellant’s motion to amend the court’s opinion
    is GRANTED. The Opinion, filed on September 26, 2014,
    and reported at 
    768 F.3d 962
     (9th Cir. 2014), is amended as
    follows:
    At Slip Op. 22, 768 F.3d at 974, the sentence beginning
    with  and ending with
     is deleted and replaced with:
    4         EEOC V. PEABODY WESTERN COAL CO.
    The Indian preference exemption contained in
    Section 703(i) is therefore necessary to clarify
    that Title VII’s prohibition against racial or
    national origin discrimination does not extend
    to preferential hiring of Indians living on or
    near reservations.
    An Amended Opinion is filed concurrently with this
    Order.
    OPINION
    W. FLETCHER, Circuit Judge:
    Peabody Western Coal Co. (“Peabody”) mines coal at the
    Black Mesa Complex and Kayenta mines on the Hopi and
    Navajo reservations in northeastern Arizona under leases with
    the tribes. At issue in this appeal are two leases with the
    Navajo Nation (“the Nation”) that permit Peabody to mine
    coal on Navajo reservation land. Each lease requires Peabody
    to give preference in employment to “Navajo Indians.” Both
    leases received approval from the Department of the Interior
    (“Interior”) under the Indian Mineral Leasing Act of 1938,
    25 U.S.C. §§ 396a, 396e (“IMLA”). Since at least as early as
    the 1940s, Interior-approved mineral leases, including the two
    at issue here, have routinely included tribal hiring preference
    provisions.
    EEOC V. PEABODY WESTERN COAL CO.                           5
    This appeal is the latest stage in a long-running legal
    dispute about the tribal hiring preferences.1 The Equal
    Employment Opportunity Commission (“EEOC”) sued
    Peabody in the District of Arizona in 2001, alleging that
    Peabody’s implementation of the tribal hiring preference
    constituted national origin discrimination in violation of Title
    VII of the Civil Rights Act of 1964. The EEOC also claimed
    that Peabody had violated Title VII’s record-keeping
    requirements. See 42 U.S.C. § 2000e-8(c). Several years of
    litigation on procedural matters resulted in the joinder of the
    Nation under Federal Rule of Civil Procedure 19 and
    impleader of the Secretary and Assistant Secretary of the
    Interior (collectively, “the Secretary”) under Federal Rule of
    Civil Procedure 14. The principal issue now before us is the
    EEOC’s claim that Title VII prohibits the tribal hiring
    preference contained in the Peabody leases.
    In the decision now on appeal, the district court granted
    summary judgment against the EEOC on the merits. It held
    that the Navajo hiring preference in the leases is a political
    classification, rather than a classification based on national
    origin, and therefore does not violate Title VII. We have
    1
    The previous opinions in this case are EEOC v. Peabody Coal Co.
    (Peabody I), 
    214 F.R.D. 549
     (D. Ariz. 2002); EEOC v. Peabody W. Coal
    Co. (Peabody II), 
    400 F.3d 774
     (9th Cir. 2005); EEOC v. Peabody W.
    Coal Co. (Peabody III), No. CV 01-01050, 
    2006 WL 2816603
     (D. Ariz.
    Sept. 30, 2006); EEOC v. Peabody W. Coal Co. (Peabody IV), 
    610 F.3d 1070
     (9th Cir. 2010); and EEOC v. Peabody W. Coal Co. (Peabody V),
    No. 01-CV-01050, 
    2012 WL 4339208
     (D. Ariz. Sept. 20, 2012). Other
    issues pertaining to Peabody’s operations on the Nation’s land have also
    been the subjects of litigation, in this court and elsewhere. See United
    States v. Navajo Nation, 
    537 U.S. 488
     (2003); Peabody Coal Co. v.
    Navajo Nation, 
    373 F.3d 945
     (9th Cir. 2004); Navajo Nation v. Peabody
    Holding Co., 
    209 F. Supp. 2d 269
     (D.D.C. 2002); see also Clinton v.
    Babbitt, 
    180 F.3d 1081
    , 1083–86 (9th Cir. 1999).
    6         EEOC V. PEABODY WESTERN COAL CO.
    jurisdiction over the EEOC’s appeal pursuant to 
    28 U.S.C. § 1291
    . We agree with the district court that the tribal hiring
    preference is a political classification. We therefore affirm.
    I. Background
    Peabody’s predecessor-in-interest entered into two leases
    with the Navajo Nation. The first, Lease No. 8580, signed in
    1964, permits Peabody to mine coal on the Navajo
    reservation. The second, Lease No. 9910, signed in 1966,
    permits Peabody to mine on reservation land formerly held in
    trust for both the Navajo and Hopi tribes, now partitioned
    between the tribes.
    In Lease No. 8580, Peabody “agrees to employ Navajo
    Indians when available in all positions for which, in the
    judgment of [Peabody], they are qualified, and to pay
    prevailing wages to such Navajo employees and to utilize
    services of Navajo contractors whenever feasible.” The lease
    also provides that Peabody “shall make a special effort to
    work Navajo Indians into skilled, technical and other higher
    jobs in connection with [its] operations under this lease.”
    Lease No. 9910 contains a similar provision, and also states
    that Peabody “may at its option extend the benefits of [the
    hiring preference] to Hopi Indians.” Interior drafted the
    leases and required the inclusion of the Navajo hiring
    preferences. The leases were approved by Interior under the
    IMLA. Peabody IV, 
    610 F.3d at 1075
    .
    In 1998, two members of the Hopi Tribe and one member
    of the Otoe Tribe filed discrimination charges with the
    EEOC. They alleged that they had applied to Peabody for
    positions for which they were qualified, and that they were
    not hired because they were not Navajo. After an
    EEOC V. PEABODY WESTERN COAL CO.                   7
    investigation, the EEOC sued Peabody in federal district
    court in Arizona in 2001. The EEOC alleged that Peabody’s
    implementation of the tribal hiring preference provisions
    constituted national origin discrimination forbidden by Title
    VII.
    After the EEOC brought its Title VII claims, Peabody
    moved for summary judgment. The district court granted the
    motion on two grounds, holding that the suit presented a
    nonjusticiable political question and that the Nation was a
    necessary party for whom joinder was not feasible. Peabody
    I, 214 F.R.D. at 560–61. We reversed, holding that the suit
    did not present a political question and that Rule 19 joinder
    was feasible, provided that the EEOC sought no affirmative
    relief against the Nation. Peabody II, 
    400 F.3d at 778
    . The
    Supreme Court denied review. Peabody W. Coal Co. v.
    EEOC, 
    546 U.S. 1150
     (2006) (mem.).
    On remand, the EEOC amended its complaint to join the
    Nation under Rule 19. The district court again granted
    summary judgment against the EEOC. It held that the EEOC
    sought affirmative relief against the Nation, defeating Rule 19
    joinder; that the Secretary was a necessary party for whom
    joinder was not feasible; and that the tribal hiring preference
    did not violate Title VII because it was authorized by the
    Navajo-Hopi Rehabilitation Act of 1950, 
    25 U.S.C. §§ 631
    –638. Peabody III, 
    2006 WL 2816603
    .
    On appeal, we reversed in part and vacated in part. We
    again held that joinder of the Nation was feasible. We held
    further that, although the EEOC could not join the Secretary
    as a defendant under Rule 19, Peabody or the Nation could
    implead the Secretary as a third-party defendant under Rule
    14(a) on claims for injunctive or declaratory relief. We
    8         EEOC V. PEABODY WESTERN COAL CO.
    vacated the judgment on the Title VII claim in order to allow
    the district court to consider the Secretary’s arguments.
    Peabody IV, 
    610 F.3d 1070
    . The Supreme Court again
    denied review. EEOC v. Peabody W. Coal Co., 
    132 S. Ct. 91
    (2011) (mem.).
    On remand, the EEOC filed a second amended complaint.
    Peabody impleaded the Secretary and counterclaimed against
    the EEOC for declaratory relief. The district court granted
    the EEOC’s motion to dismiss Peabody’s counterclaims.
    The Secretary then moved for summary judgment on
    Peabody’s third-party complaint on the ground that the tribal
    hiring preferences in the leases were permissible under Title
    VII. The Nation and Peabody also moved for summary
    judgment.
    The day before argument on those motions, the EEOC
    moved to supplement the record with the declaration and
    supporting documents of a former EEOC investigator who
    had interviewed Peabody’s hiring officials in 1999. The
    district court denied the motion as untimely, noting that the
    information that the EEOC sought to introduce had long been
    available, and that, in any event, the information was not
    relevant because it pertained to pre-1999 practices.
    The district court upheld the tribal hiring preferences in
    the leases. After “an examination of the status of Indian
    tribes in general and their relationship to the federal
    government,” and drawing on the principles the Supreme
    Court articulated in Morton v. Mancari, 
    417 U.S. 535
     (1974),
    the court held that the preference was a political classification
    rather than a national origin classification. The EEOC timely
    EEOC V. PEABODY WESTERN COAL CO.                   9
    appealed the grant of summary judgment and the denial of its
    motion to supplement the record.
    II. Standard of Review
    We review de novo a district court’s grant of summary
    judgment. Kang v. U. Lim Am., Inc., 
    296 F.3d 810
    , 814 (9th
    Cir. 2002). We review for abuse of discretion a district
    court’s denial of a motion to supplement the record. Sheet
    Metal Workers’ Int’l Ass’n Local Union No. 359 v. Madison
    Indus., Inc., of Ariz., 
    84 F.3d 1186
    , 1192 (9th Cir. 1996).
    III. Discussion
    A. Title VII National Origin Discrimination
    The EEOC argues that Title VII prohibits hiring
    preferences based on tribal affiliation, which it contends is a
    form of impermissible national origin discrimination. The
    EEOC is responsible for overseeing the implementation and
    enforcement of Title VII. 42 U.S.C. § 2000e-14. The
    Secretary argues that the tribal hiring preferences are based
    on political classifications that Title VII does not reach. The
    Secretary maintains that tribal hiring preferences serve to
    promote tribal self-governance in accordance with
    congressionally mandated federal Indian policy. None of the
    parties has argued that Chevron deference applies to the
    EEOC’s or Interior’s interpretations of the statutes each is
    charged with administering. See Chevron, U.S.A., Inc. v.
    Natural Res. Def. Council, Inc., 
    467 U.S. 837
     (1984).
    The question before us is one of first impression. But we
    do not walk on untrodden ground. We have previously stated
    that differential treatment in employment based on tribal
    10        EEOC V. PEABODY WESTERN COAL CO.
    affiliation can give rise to a Title VII national origin
    discrimination claim. See Dawavendewa v. Salt River Project
    Agric. Improvement & Power Dist. (Dawavendewa I),
    
    154 F.3d 1117
     (9th Cir. 1998). Outside the context of Title
    VII, however, we have recognized that where differential
    treatment serves to fulfill the federal government’s special
    trust obligation to the tribes as quasi-sovereign political
    entities, tribal preferences are permissibly based on political
    classifications. Means v. Navajo Nation, 
    432 F.3d 924
    , 932
    (9th Cir. 2005); Kahawaiolaa v. Norton, 
    386 F.3d 1271
    , 1278
    (9th Cir. 2004); see Mancari, 
    417 U.S. 535
    .
    For the reasons that follow, we hold that the tribal hiring
    preferences in the Peabody leases are based on tribal
    affiliation, a political classification. We also hold that Title
    VII does not prohibit differential treatment based on this
    political classification.
    1. Statutory Framework
    We begin by reviewing the relevant provisions of the
    IMLA and of Title VII.
    a. The Indian Mineral Leasing Act of 1938
    The Peabody leases are authorized and governed by the
    IMLA. See United States v. Navajo Nation, 
    537 U.S. 488
    ,
    495 (2003). That statute provides, in relevant part:
    On and after May 11, 1938, unallotted
    lands within any Indian reservation or lands
    owned by any tribe, group, or band of Indians
    under Federal jurisdiction, except those
    specifically excepted from the provisions of
    EEOC V. PEABODY WESTERN COAL CO.                     11
    sections 396a to 396g of this title, may, with
    the approval of the Secretary of the Interior,
    be leased for mining purposes, by authority of
    the tribal council or other authorized
    spokesmen for such Indians, for terms not to
    exceed ten years and as long thereafter as
    minerals are produced in paying quantities.
    25 U.S.C. § 396a.
    The IMLA was “designed to advance tribal
    independence.” Navajo Nation, 
    537 U.S. at 494
    . Congress
    “aimed to foster tribal self-determination by giving Indians a
    greater say in the use and disposition of the resources found
    on Indian lands.” 
    Id.
     (internal quotation marks and alteration
    omitted). The IMLA was intended (1) to achieve “uniformity
    so far as practicable of the law relating to the leasing of tribal
    lands for mining purposes,” H.R. Rep. No. 1872, 75th Cong.,
    3d Sess., at 1 (1938); (2) to ensure that Indians received “the
    greatest return from their property,” id. at 2; and (3) to “bring
    all mineral-leasing matters in harmony with the Indian
    Reorganization Act,” id. at 3. See Montana v. Blackfeet Tribe
    of Indians, 
    471 U.S. 759
    , 767 n.5 (1985).
    The Indian Reorganization Act (“IRA”), also known as
    the Wheeler-Howard Act, enacted four years prior to the
    IMLA, has been described as “probably the most important
    single statute affecting Indians . . . since its passage.” Elmer
    R. Rusco, A Fateful Time: The Background and Legislative
    History of the Indian Reorganization Act, at ix (2000). The
    drafters of the IRA sought to reverse half a century of
    assimilationist policy. See id. at 62, 180. The IRA was a
    comprehensive reform statute, providing, among other things,
    for tribal self-government, restoration of lands to tribal
    12        EEOC V. PEABODY WESTERN COAL CO.
    ownership, economic development, and vocational training.
    Indian Reorganization Act, 
    48 Stat. 984
    , Pub. L. No. 73-383
    (1934) (codified as amended at 
    25 U.S.C. § 461
     et seq.). In
    the decades since its enactment, the IRA has been criticized
    for the lack of involvement of Indian communities during the
    drafting process, as well as for perceived failures in its
    implementation. Rusco, supra, at x–xi, 190. But it remains
    the case that the statute was conceived as a means to restore
    tribal sovereignty and to promote the tribes’ self-governance
    and economic independence. Mancari, 
    417 U.S. at
    542 &
    n.12 (quoting the statement of John Collier, Commissioner of
    Indian Affairs, that the IRA “is designed not to prevent the
    absorption of Indians in white communities, but rather to
    provide for those Indians unwilling or unable to compete in
    the white world some measures of self-government in their
    own affairs”); see generally Rusco, supra.
    In enacting the IMLA, Congress expressly intended to
    further the policy goals articulated in the IRA. In the IMLA,
    Congress delegated broad discretion to the Secretary to
    approve mineral leases. See Navajo Nation, 
    537 U.S. at
    494–95. The IMLA does not mention hiring preferences of
    any kind, but in the exercise of its discretionary authority,
    Interior since the 1940s has routinely approved mineral leases
    that require a tribe’s lessee to give preference in hiring to
    members of that tribe. This long-established practice serves
    to ensure that the economic value of the mineral leases on
    tribal lands inures to the benefit of the tribe and its members,
    consistent with the purpose of the IMLA.
    Stewart Udall, Secretary of the Interior when the Peabody
    leases were prepared, stated in a declaration and in a
    deposition that Interior negotiated and drafted the leases. He
    affirmed that the Navajo preference provisions were a “key
    EEOC V. PEABODY WESTERN COAL CO.                  13
    provision,” given the economic importance of coal resources
    on the reservations. Peabody IV, 
    610 F.3d at 1075
    . Secretary
    Udall understood Interior’s role in approving mining leases
    as carrying out a special trust duty owed to Indian tribes in
    general and, with respect to these leases, owed in particular
    to the Navajo and Hopi tribes whose coal was being mined.
    b. Title VII of the Civil Rights Act of 1964
    Title VII prohibits discrimination in employment on the
    grounds of “race, color, religion, sex, or national origin.”
    42 U.S.C. § 2000e-2(a). The EEOC contends that the tribal
    preference in the leases violates the prohibition against
    national original discrimination. Title VII does not define
    “national origin.” The legislative history tells us very little
    about Congress’s understanding of the term. The only
    discussion of “national origin” came in the context of
    permitting employers to indicate hiring preferences based on
    sex, religion, or national origin where those qualities are a
    “bona fide occupational qualification.” That discussion
    centered on the distinction between discrimination based on
    race and discrimination based on national origin.
    Representative James Roosevelt stated, “May I just make
    very clear that ‘national origin’ means national. It means the
    country from which you or your forebears came from. You
    may come from Poland, Czechoslovakia, England, France, or
    any other country.” EEOC, Legislative History of Titles VII
    and XI of the Civil Rights Act of 1964, at 3179–80 (1968);
    110 Cong. Rec. 2549 (1964). Representative John Dent
    stated, “National origin, of course, has nothing to do with
    color, religion, or the race of an individual. A man may have
    migrated here from Great Britain and still be a colored
    person.” EEOC, supra, at 3180; 110 Cong. Rec. 2549 (1964).
    14        EEOC V. PEABODY WESTERN COAL CO.
    Title VII contains two provisions specifically addressing
    Indian tribes. First, it provides that the term “employer” does
    not include “an Indian tribe,” thus excluding Indian tribal
    governments entirely from coverage under Title VII.
    42 U.S.C. § 2000e(b). Second, Section 703(i), known as the
    “Indian Preference exemption,” expressly permits preferential
    hiring over non-Indians of Indians living on or near
    reservations. It provides:
    Nothing contained in this subchapter shall
    apply to any business or enterprise on or near
    an Indian reservation with respect to any
    publicly announced employment practice of
    such business or enterprise under which a
    preferential treatment is given to any
    individual because he is an Indian living on or
    near a reservation.
    42 U.S.C. § 2000e-2(i).
    The legislative history of Section 703(i) is sparse. We at
    least know that it was intended to help remedy past and
    present discrimination against Indians as a “minority group.”
    See 110 Cong. Rec. 13,702 (statement of Sen. Karl Mundt).
    We have previously noted that “the primary impetus behind
    § 703(i) was concern that by enacting Title VII Congress
    would render unlawful otherwise permissible hiring
    preferences for Native Americans.” Malabed v. N. Slope
    Borough, 
    335 F.3d 864
    , 871 (9th Cir. 2003). The exemption
    was designed “to protect existing or future preference
    programs.” Id.; see also 110 Cong. Rec. 13,702 (statement of
    Sen. Karl Mundt) (stating that Section 703(i), along with the
    exclusion of Indian tribes from Title VII’s definition of
    “employer,” “will assure our American Indians of the
    EEOC V. PEABODY WESTERN COAL CO.                    15
    continued right to protect and promote their own interests and
    to benefit from Indian preference programs now in operation
    or later to be instituted”). But the legislative history and
    statutory text give little indication as to Congress’s views, if
    any, on preferences for tribal members over Indians from
    other tribes, as distinct from general preferences for Indians
    over non-Indians.
    The EEOC issued a policy statement in 1988 in which it
    concluded that Section 703(i) is limited to general Indian
    hiring preferences and does not, in itself, authorize
    preferential employment practices based on tribal
    affiliation—a statement to which we have accorded
    deference. See Dawavendewa I, 
    154 F.3d at 1121
    . But this
    statement does not end the inquiry. That Section 703(i) does
    not itself authorize or create an exemption for tribal hiring
    preferences on or near Indian reservations does not dispose of
    the question before us: whether Title VII’s prohibition against
    national origin discrimination prohibits the tribal hiring
    preferences in the mineral leases.
    2. Tribal Affiliation and National Origin
    The correspondence between tribal membership, on the
    one hand, and national origin, on the other, is not self-evident.
    See generally Matthew L.M. Fletcher, Tribal Membership
    and Indian Nationhood, 
    37 Am. Indian L. Rev. 1
     (2013).
    Tribal membership, often based on blood quantum and
    lineage, see id. at 4, incorporates notions of race and ethnicity
    that the drafters of Title VII explicitly understood the term
    “national origin” to exclude. The federal government’s
    interactions with Indians have, in many cases, shaped their
    political structures and constituencies, such that even the
    notion of the tribe may lack direct correlation with actual or
    16        EEOC V. PEABODY WESTERN COAL CO.
    historical group politics. See Felix S. Cohen, Handbook of
    Federal Indian Law § 3.02[3], at 133 (Nell Jessup Newton
    ed., 2012); see also id. § 14.03[2][b], at 954 (“[T]he very
    concept of enrollment and maintenance of citizenship lists is
    largely an artifact of federal actions.”); Carole Goldberg-
    Ambrose, Of Native Americans and Tribal Members: The
    Impact of Law on Indian Group Life, 28 Law & Soc’y Rev.
    1123, 1131–33 (1994). Nonetheless, our decision in
    Dawavendewa I established that, at least in some cases, a
    tribal hiring preference can give rise to a Title VII national
    origin discrimination claim.
    At issue in Dawavendewa I was the claim of a Hopi
    Indian who had been denied employment at a power station
    on a Navajo reservation, the Salt River Project (“SRP”),
    pursuant to a tribal hiring preference in the power company’s
    lease agreement with the Navajo Nation. Id. at 1118. We
    held at the pleading stage that the plaintiffs had stated a Title
    VII national origin discrimination claim sufficient to survive
    a motion to dismiss. Id. at 1124. We observed that, in its
    implementing regulations, the EEOC has given the term
    “national origin” an expansive construction that could
    plausibly be read to encompass tribal affiliation. Id. at 1119.
    The EEOC “defines national origin discrimination broadly as
    including, but not limited to, the denial of equal employment
    opportunity because of an individual’s, or his or her
    ancestor’s, place of origin; or because an individual has the
    physical, cultural or linguistic characteristics of a national
    origin group.” 
    29 C.F.R. § 1606.1
     (2012). We also drew on
    our own broad construction of the term. In Pejic v. Hughes
    Helicopters, Inc., 
    840 F.2d 667
     (9th Cir. 1988), we had
    written: “Unless historical reality is ignored, the term
    ‘national origin’ must include countries no longer in
    existence. Given world history, Title VII cannot be read to
    EEOC V. PEABODY WESTERN COAL CO.                   17
    limit ‘countries’ to those with modern boundaries, or to
    require their existence for a certain time length before it will
    prohibit discrimination.” 
    Id. at 673
     (citation omitted).
    In light of this, we held in Dawavendewa I that,
    “[b]ecause the different Indian tribes were at one time
    considered nations, and indeed still are to a certain extent,
    discrimination on the basis of tribal affiliation can give rise
    to a ‘national origin’ claim under Title VII.” 
    154 F.3d at 1120
    . We noted that “Native Americans’ interests in self-
    governance” were not at issue. 
    Id.
     We suggested that the
    presence of such interests would trigger a separate analysis,
    grounded in the Supreme Court’s decision in Mancari, and its
    recognition that at least some forms of preferential treatment
    of Indians are based on political classifications rather than
    national origin. Id.; see infra Subsection III.A.3. We also
    held, giving EEOC’s 1988 policy statement “due weight,”
    that Section 703(i) did not authorize tribal hiring preferences.
    Dawavendewa I, 
    154 F.3d at
    1121–22.
    The EEOC contends that our analysis must begin and end
    with Dawavendewa I. But four years later, in a second appeal
    in that case, we limited the scope of what we had earlier
    written. In Dawavendewa v. Salt River Project Agricultural
    Improvement & Power District (Dawavendewa II), 
    276 F.3d 1150
     (9th Cir. 2002), we heard an appeal from the district
    court’s dismissal of a claim for failure to join the Nation as a
    defendant under Rule 19. We affirmed. In doing so, we
    specifically rejected the plaintiffs’ contention that we had
    previously held that Salt River Project’s hiring practices
    violated Title VII. We wrote in Dawavendewa II that
    Dawavendewa I
    18        EEOC V. PEABODY WESTERN COAL CO.
    held only that a hiring preference policy based
    on tribal affiliation, as described in the
    complaint, stated a [national origin
    discrimination] claim upon which relief could
    be granted. . . . [W]e did not address the
    merits of the Nation’s proffered legal
    justifications in defense of the challenged
    hiring preference policy. In particular, we
    declined to consider whether the Nation’s
    1868 Navajo Treaty, the federal policy
    fostering tribal self-governance, the [Navajo
    Preference in Employment Act], or any other
    legal defense justified SRP’s hiring preference
    policy.
    Dawavendewa II, 
    276 F.3d at 1158
     (emphasis added)
    (citation omitted). We observed that “[i]n appropriate
    situations, federal law yields out of respect for treaty rights or
    the federal policy fostering tribal self-governance.” 
    Id.
     As
    we explain below, this case presents such a situation.
    3. Tribal Affiliation as Political Classification
    In Mancari, non-Indian employees of the Bureau of
    Indian Affairs (“BIA”) sued to enjoin the implementation of
    a provision of the IRA that granted appointment and
    promotion preferences to Indians seeking positions in the
    BIA. See 
    25 U.S.C. § 472
    . The plaintiffs argued that the
    preference was contrary to, and impliedly repealed by, the
    1972 Equal Employment Opportunity Act’s (“EEOA”)
    prohibition against race-based discrimination in federal
    employment, and that it constituted invidious racial
    discrimination in violation of the Due Process Clause of the
    EEOC V. PEABODY WESTERN COAL CO.                   19
    Fifth Amendment. Mancari, 
    417 U.S. at 537, 547
    . The Court
    rejected both arguments. 
    Id. at 551
    , 553–54
    The Court held that the EEOA had not impliedly repealed
    the BIA employment preference. 
    Id. at 551
    . The Court noted
    that the “overriding purpose of [the IRA] was to establish
    machinery whereby Indian tribes would be able to assume a
    greater degree of self-government, both politically and
    economically,” and that the participation of Indians in the
    operation of the BIA was crucial to achieving that goal. 
    Id.
    at 542–43. The Court observed that Title VII explicitly
    exempts tribal employers from its coverage and permits the
    preferential hiring of Indians on or near Indian reservations.
    
    Id.
     at 547–48. “It would be anomalous to conclude that
    Congress intended to eliminate the longstanding statutory
    preferences in BIA employment, as being racially
    discriminatory, at the very same time it was reaffirming the
    right of tribal and reservation-related private employers to
    provide Indian preference.” 
    Id. at 548
    . The Court noted
    further that Congress had enacted Indian preferences in other
    legislation contemporaneous to Title VII, which suggested
    that it likely did not intend to repeal the Indian preference in
    the IRA by passing Title VII. 
    Id.
     at 548–49.
    The Court also held that the Indian employment
    preference did not constitute invidious racial discrimination
    in violation of the Due Process Clause. The IRA reflected the
    congressional determination that “proper fulfillment of its
    trust [obligations] required turning over to the Indians a
    greater control of their own destinies.” 
    Id. at 553
    . The Court
    reasoned that “[t]he preference . . . is granted to Indians not
    as a discrete racial group, but, rather, as members of quasi-
    sovereign tribal entities whose lives and activities are
    governed by the BIA in a unique fashion.” 
    Id. at 554
    . The
    20        EEOC V. PEABODY WESTERN COAL CO.
    Indian employment preference was not based on a racial
    designation but on a political preference that triggered only
    rational-basis review. 
    Id.
     “As long as the special treatment
    can be tied rationally to the fulfillment of Congress’ unique
    obligation toward the Indians, such legislative judgments will
    not be disturbed.” 
    Id. at 555
    . The preference was
    “reasonable and rationally designed to further Indian self-
    government” and did not violate due process. 
    Id.
    The Court has reaffirmed Mancari on several occasions.
    The Court continues to distinguish between permissible
    differential treatment of Indian tribes based on political
    classifications, on the one hand, and impermissible
    differential treatment of groups based on racial or national
    origin classifications, on the other. In Rice v. Cayetano,
    
    528 U.S. 495
     (2000), the Court stated,
    Of course, as we have established in a
    series of cases, Congress may fulfill its treaty
    obligations and its responsibilities to the
    Indian tribes by enacting legislation dedicated
    to their circumstances and needs. As we have
    observed, “every piece of legislation dealing
    with Indian tribes and reservations . . .
    single[s] out for special treatment a
    constituency of tribal Indians.”
    
    Id. at 519
     (citations omitted) (alteration in original) (quoting
    Mancari, 
    417 U.S. at 552
    ). We have applied the distinction
    in our own cases. See, e.g., Kahawaiolaa, 
    386 F.3d at 1278
    ;
    see also Means, 
    432 F.3d at
    932–33 (applying Mancari and
    upholding against an equal-protection challenge a law
    subjecting to tribal criminal jurisdiction a person who is not
    EEOC V. PEABODY WESTERN COAL CO.                  21
    a member of the tribe, but is an enrolled member of a
    different Indian tribe).
    We recognize that Mancari addressed a political
    classification providing a general Indian hiring preference
    rather than a tribe-specific preference. But Mancari’s logic
    applies with equal force where a classification addresses
    differential treatment between or among particular tribes or
    groups of Indians. Indeed, based on Mancari, the Court has
    specifically upheld differential treatment among Indians. In
    Delaware Tribal Business Committee v. Weeks, 
    430 U.S. 73
    (1977), the Court addressed Congress’s distribution of an
    award by the Indian Claims Commission for claims arising
    out of an illegal sale of Delaware tribal lands in the
    nineteenth century. Congress distributed funds to two
    federally recognized tribes—the Cherokee Delawares and the
    Absentee Delawares—and to members of those two tribes.
    
    Id.
     at 79–80. However, Congress did not distribute funds to
    the Kansas Delawares, an unrecognized tribe, or to its
    members, even though the Kansas Delawares, like Cherokee
    Delawares and Absentee Delawares, were descendants of the
    Delawares whose lands had been illegally sold. 
    Id.
     at 79–82.
    In upholding the differentiation between the two groups of
    Delawares, the Court wrote that “the legislative judgment
    should not be disturbed ‘[a]s long as the special treatment can
    be tied rationally to the fulfillment of Congress’ unique
    obligation toward the Indians.’” 
    Id. at 85
     (alteration in
    original) (quoting Mancari, 
    417 U.S. at 555
    ); see also
    Kahawaiolaa, 
    386 F.3d at 1279
     (“Congress certainly has the
    authority to single out a constituency of tribal Indians in
    legislation dealing with Indian tribes and reservations.”
    (internal quotation marks omitted)).
    22        EEOC V. PEABODY WESTERN COAL CO.
    The Navajo tribal hiring preferences in this case are based
    on the policy considerations that undergird Mancari. As we
    have noted above, Congress intended the IMLA to be read in
    harmony with the IRA, which had been enacted only four
    years earlier. A key purpose of the IRA was the advancement
    of tribal self-government. “[T]he IMLA aimed to foster tribal
    self-determination by giving Indians a greater say in the use
    and disposition of resources found on Indian lands.” Navajo
    Nation, 
    537 U.S. at 494
     (internal quotation marks and
    alteration omitted). Where the exploitation of mineral
    resources on a particular tribe’s reservation is concerned, the
    federal government’s responsibility necessarily runs to that
    tribe, not to all Indians.
    We therefore have no difficulty concluding that the tribal
    hiring preferences here are based on a political classification
    within the meaning of Mancari. Peabody accords preference
    in hiring to members of the Navajo Nation, pursuant to the
    terms of Interior-approved leases. Interior viewed those
    preferential hiring provisions as useful in ensuring that the
    economic benefits flowing from the “most important
    resource” on the Navajo reservation accrued to the tribe and
    its members. Measures intended to preserve for the Nation
    and its members the fruits of the resources found on the
    tribe’s own land are “rationally designed” to fulfill the federal
    government’s trust obligations to the tribe.
    This conclusion, however, does not completely answer
    the question before us. Mancari did not involve a claim
    brought directly under Title VII. Title VII was implicated
    only to the extent the plaintiffs claimed that the EEOA, an
    amendment to Title VII, impliedly preempted the BIA hiring
    preference. See 
    417 U.S. at 537
    . The precise question before
    us is whether Title VII’s specific prohibition on national
    EEOC V. PEABODY WESTERN COAL CO.                    23
    origin discrimination extends to what the Supreme Court
    would later characterize in Mancari as a political
    classification. We conclude that Title VII does not prohibit
    differential treatment based on tribal affiliation, the political
    classification at issue here.
    As we described above, Title VII contains two provisions
    concerning Indians: (1) an exclusion of tribal governments
    from the definition of “employer,” and (2) a general
    exemption from Title VII for preferential hiring of Indians.
    The Indian preference exemption expressly permits the
    preferential hiring of “an Indian living on or near a
    reservation.” 42 U.S.C. § 2000e-2(i). “There is no
    universally applicable definition” of the term “Indian.”
    Cohen, supra, § 3.03[1], at 171. Title VII itself does not
    contain a definition of the term, but we noted in
    Dawavendewa I that it is “generally used to draw a distinction
    between Native Americans and all others.” 
    154 F.3d at 1121
    .
    The EEOC would have us infer from the Indian hiring
    preferences expressly authorized in Section 703(i) that Title
    VII allows only preferences that distinguish between Indians
    and non-Indians. See 42 U.S.C. § 2000e-2(i). We disagree
    with the EEOC’s interpretation. Section 703(i) is an
    exemption from Title VII. The nature of the exemption helps
    us understand the reach of Title VII’s prohibitions. The term
    “Indian” in Section 703(i) of Title VII describes a broad
    nonpolitical class. The term covers any Indian living on or
    near a reservation; qualification as an Indian under Section
    703(i) is not based on the political classification of tribal
    affiliation. The Indian preference exemption contained in
    Section 703(i) is therefore necessary to clarify that Title VII’s
    prohibition against racial or national origin discrimination
    24        EEOC V. PEABODY WESTERN COAL CO.
    does not extend to preferential hiring of Indians living on or
    near reservations.
    Congress was plainly aware that Title VII could have
    ramifications for Indian communities, and it saw clearly the
    need to mitigate those possible effects. For that reason,
    Congress excluded tribal employers from Title VII’s scope
    and exempted general Indian hiring preferences. See
    110 Cong. Rec. 13,702 (statement of Sen. Karl Mundt)
    (stating that Section 703(i), along with the exclusion of Indian
    tribes from Title VII’s definition of “employer,” “will assure
    our American Indians of the continued right to protect and
    promote their own interests and to benefit from Indian
    preference programs now in operation or later to be
    instituted”). However, Congress did not carve out from Title
    VII’s prohibitions any similar exemption for preferences
    based on tribal affiliation. That Congress could have created
    such an exemption or exception, but saw no need to do so,
    suggests that it did not understand Title VII to reach tribal
    affiliation because such affiliation is a political classification.
    See Andrus v. Glover Constr. Co., 
    446 U.S. 608
    , 616–17
    (1980) (“Where Congress explicitly enumerates certain
    exceptions to a general prohibition, additional exceptions are
    not to be implied . . . .”).
    Title VII is a general antidiscrimination statute. Both the
    text and the legislative history show that Congress anticipated
    possible effects of Title VII on federal Indian policy and
    crafted provisions specifically designed to preserve the status
    quo. Interior’s approval of mineral leases containing tribal
    hiring preferences is a well-established practice that long
    predates the enactment of Title VII. Tribal hiring preferences
    were, and are, intended to further the policy goals embodied
    in the IRA and the IMLA. Nothing indicates that Congress
    EEOC V. PEABODY WESTERN COAL CO.                  25
    viewed Title VII as a recalibration of its policy toward tribal
    communities that had been articulated in its prior legislation.
    Nor is there any suggestion that Congress viewed Title VII as
    a specific disapproval of Interior’s longstanding and settled
    practice of approving tribal hiring preferences in mineral
    leases. Cf. Dames & Moore v. Regan, 
    453 U.S. 654
    , 686
    (1981) (“[L]ong-continued practice, known to and acquiesced
    in by Congress, would raise a presumption that the [action]
    had been [taken] in pursuance of its consent.” (alterations in
    original) (quoting United States v. Midwest Oil Co., 
    236 U.S. 459
    , 474 (1915)).
    We therefore conclude that Title VII does not reach the
    tribal hiring preferences in the Peabody leases and affirm the
    district court’s grant of summary judgment against the EEOC.
    B. Motion to Supplement the Record
    The EEOC argues that the district court erred in denying
    its motion to supplement the record. On the eve of oral
    argument in the district court, the EEOC sought to include in
    the record a declaration and documents from a former EEOC
    investigator who interviewed former Peabody hiring officials
    about hiring practices in 1999. The EEOC sought to use this
    information to demonstrate that Peabody gave hiring
    preferences to Indians who were not affiliated with the
    Navajo Nation, and thereby made hiring decisions based on
    national origin rather than tribal membership. The district
    court denied the motion as untimely.
    The district court did not abuse its discretion in denying
    leave to supplement the record. There is no discernible
    reason why the EEOC could not have sought to introduce this
    evidence much earlier in the proceedings. See Fed. R. Civ. P.
    26        EEOC V. PEABODY WESTERN COAL CO.
    6(b)(1)(B), (c)(1) (providing that motions must be served at
    least fourteen days prior to the hearing, unless the moving
    party has failed to act because of excusable neglect). At the
    time of the EEOC’s eleventh-hour motion, the motions to
    dismiss and for summary judgment had been pending for
    several months. The information, collected in 1999, had been
    in the EEOC’s possession for more than a decade.
    We also note that the information is relevant only to an
    entirely new theory of relief. From the beginning of this
    litigation, the EEOC had argued that Peabody’s contractual
    hiring practices violate Title VII because the leases give
    hiring preference to members of the Nation. By seeking to
    introduce the supplemental information, the EEOC sought to
    argue that Peabody makes individual hiring decisions based
    on national origin criteria, rather than on tribal membership.
    In the circumstances, we find no abuse of discretion in the
    district court’s decision prohibiting the EEOC from raising a
    new theory at such a late stage in this lengthy litigation. We
    express no opinion on the legal merit of the EEOC’s new
    theory, even assuming it could be supported by admissible
    evidence.
    C. Record-keeping Claim
    In addition to its Title VII national origin discrimination
    claim, the EEOC alleged in its complaint that Peabody had
    violated the record-keeping requirements of Title VII,
    42 U.S.C. § 2000e-8(c), by failing to “make and preserve
    records relevant to the determination of whether unlawful
    employment practices have been or are being committed.”
    The district court granted the defendants’ motions for
    summary judgment and dismissed the EEOC’s claims with
    EEOC V. PEABODY WESTERN COAL CO.                   27
    prejudice, but it did not specifically mention the record-
    keeping claim.
    Although the EEOC states in its opening brief on appeal
    that it “continues to assert” the record-keeping claim, the
    brief is devoid of any argument in support of that claim.
    Generally, we do not consider claims that are not
    “specifically and distinctly argued” in the opening brief.
    United States v. Ullah, 
    976 F.2d 509
    , 514 (9th Cir. 1992)
    (internal quotation marks omitted). We see no reason to
    deviate from our usual practice in this case. We therefore
    conclude that the EEOC has waived its record-keeping claim
    on appeal.
    Conclusion
    We hold that the district court correctly granted summary
    judgment to the defendants and third-party defendants and
    that the EEOC has waived on appeal its record-keeping claim.
    We also hold that the district court acted within its discretion
    in denying the EEOC’s motion to supplement the record.
    AFFIRMED.
    

Document Info

Docket Number: 12-17780

Filed Date: 11/19/2014

Precedential Status: Precedential

Modified Date: 11/19/2014

Authorities (22)

Equal Employment Opportunity Commission v. Peabody Western ... , 400 F.3d 774 ( 2005 )

Harold Dawavendewa, a Single Man v. Salt River Project ... , 276 F.3d 1150 ( 2002 )

vojislav-pejic-v-hughes-helicopters-inc-mcdonnell-douglas-corporation , 840 F.2d 667 ( 1988 )

Equal Employment Opportunity Commission v. Peabody Western ... , 610 F.3d 1070 ( 2010 )

77-fair-emplpraccas-bna-1312-74-empl-prac-dec-p-45500-98-daily , 154 F.3d 1117 ( 1998 )

Peabody Coal Company Peabody Western Coal Company Peabody ... , 373 F.3d 945 ( 2004 )

Morton v. Mancari , 94 S. Ct. 2474 ( 1974 )

russell-means-v-navajo-nation-a-federally-recognized-indian-tribe-ray , 432 F.3d 924 ( 2005 )

Sheet Metal Workers' International Association Local Union ... , 84 F.3d 1186 ( 1996 )

United States v. Sakhawat Ullah, Jr., United States of ... , 976 F.2d 509 ( 1992 )

Robert Malabed v. North Slope Borough, Morris David Welch v.... , 335 F.3d 864 ( 2003 )

patrick-l-kahawaiolaa-virgil-c-day-samuel-l-kealoha-jr-josiah-l , 386 F.3d 1271 ( 2004 )

Navajo Nation v. Peabody Holding Co., Inc. , 209 F. Supp. 2d 269 ( 2002 )

Soo Cheol Kang v. U. Lim America, Inc., Tae Jin Yoon, Does ... , 296 F.3d 810 ( 2002 )

United States v. Midwest Oil Co. , 35 S. Ct. 309 ( 1915 )

Andrus v. Glover Construction Co. , 100 S. Ct. 1905 ( 1980 )

Dames & Moore v. Regan , 101 S. Ct. 2972 ( 1981 )

Delaware Tribal Business Committee v. Weeks , 97 S. Ct. 911 ( 1977 )

Montana v. Blackfeet Tribe of Indians , 105 S. Ct. 2399 ( 1985 )

Rice v. Cayetano , 120 S. Ct. 1044 ( 2000 )

View All Authorities »