in the united states court of appeals for the ninth … · 2013. 8. 7. · defendant-appellee,...

No. 12-17780

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant,

v.

PEABODY WESTERN COAL COMPANY, Defendant-Appellee,

NAVAJO NATION, Rule 19 Defendant-Appellee,

KEVIN K. WASHBURN and S.M.R. JEWELL*, in their official capacities as Assistant Secretary for Indian

Affairs and Secretary of the U.S. Department of the Interior, Third-Party Federal Defendants-Appellees.

On Appeal from the United States District Court for

the District of Arizona, No. 2:01-cv-1050 (JWS)

BRIEF FOR THE FEDERAL APPELLEES

ROBERT DREHER Acting Assistant Attorney General

ETHAN G. SHENKMAN Deputy Assistant Attorney General

JAMES C. KILBOURNE Section Chief

KRISTOFOR R. SWANSON Environment & Nat. Resources Div. United States Department of Justice P.O. Box 7415 Washington, D.C. 20044 202-514-2701

* S.M.R. Jewell is substituted for her predecessor, Kenneth L. Salazar, as Secretary of the Interior. Fed. R. App. P. 43(c)(2).

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 1 of 96

TABLE OF CONTENTS PAGE

JURISDICTION ............................................................................................ 1 ISSUES PRESENTED .................................................................................. 2 STATEMENT OF THE CASE...................................................................... 3 A. Legal Framework ....................................................................... 3 1. Fundamental Principles of Federal Indian Law ............ 3 i. Indian tribes are sovereign nations possessing

i. unique political attributes under federal law ................ 3 ii. The United States holds a special relationship

with Indian tribes aimed, in part, at safeguarding tribal autonomy and economic self-sufficiency ..... 5 iii. Federal Indian Leasing Framework ...................... 6 2. Title VII of the Civil Rights Act of 1964 ......................... 8

B. Statement of Facts ..................................................................... 9

1. The history of the United States’ relationship with the Navajo Nation ............................................................. 9 2. The Navajo Leases at Issue in this Case ......................11 C. EEOC’s Complaint and Procedural History ..........................14 D. District Court Decision on Summary Judgment ........................15

SUMMARY OF ARGUMENT ....................................................................18 STANDARD OF REVIEW ..........................................................................20

i


ARGUMENT ................................................................................................21

I. Title VII Does Not Prohibit the Tribal Hiring Preference at Issue in this Case .................................................................21

A. Tribal hiring preferences that are rationally related to congressional policies promoting tribal self- governance and economic self-determination constitute political preferences ......................................21

B. The analysis in Mancari controls the instant case; EECO’s attempts to distinguish Mancari are unavailing ........................................................................27

C. Section 703(i) of Title VII Is Irrelevant to the Issue Presented By this Case, and EEOC’s 1988 Policy Statement Construing that Section Is Therefore Inapposite ........................................................................37

1. The 1988 Statement Construes the Scope of the Indian Exception in Section 703(i), But There Is No Need to Invoke that Exception Where, as Here, a Tribal Preference Does Not Constitute National Origin Discrimination in the First Place........................................................................38

2. EEOC’s 1988 Statement Mischaracterizes Interior’s Federal Contracting Regulations, Which Undercut, Rather than Support, EEOC’s Position ...................................................................40

D. Presumptions Against Implicit Repeal Confirm That Title VII Should Not Be Construed to Abrogate the Federal Government’s Longstanding Practice of Approving Tribe-Specific Employment Preferences ....45

ii


1. Canons of interpretation disfavor implicit repeal of prior statutes or longstanding Executive Branch practice ......................................................45

2. Canons of interpretation also preclude an implied abrogation of tribal sovereign authority .............52 3. The legislative history of Title VII further confirms that Congress did not intend to implicitly abrogate Interior’s longstanding practice of approving tribe-specific employment preferences .............................................................54

E. Dawavendewa I Does Not Control the Outcome of this Case ..........................................................................58

II. The District Court Properly Granted Summary Judgment and Did Not Abuse its Discretion by Denying EEOC’s Last Minute Motion to Supplement the Record .............................65 CONCLUSION ............................................................................................70 STATEMENT OF RELATED CASES CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM

iii


TABLE OF AUTHORITIES CASES: Alaska v. Native Vill. of Venetie Tribal Gov’t, 522 U.S. 520 (1998) .............................................................................. 4 Assiniboine & Sioux Tribes of Fort Peck Indian Reservation v. Bd. of Oil & Gas Conservation of State of Mont., 792 F.2d 782 (9th Cir. 1986) ...................................................... 28, 29 Bob Jones Univ. v. United States, 461 U.S. 574 (1983) ............................................................................49 Bragdon v. Abbott, 524 U.S. 624 (1988) ............................................................................37 Bryan v. Itasca Cty., Minn., 426 U.S. 373 (1976) ............................................................................52 Cherokee Nation v. Georgia, 30 U.S. 1 (1831) .................................................................................... 4 Chisom v. Roemer, 501 U.S. 380 (1991) ............................................................................58 Cnty. of Yakima v. Confed. Tribes & Bands of Yakima Indian Nation, 502 U.S. 251 (1992) .............................................................................. 5 Dames & Moore v. Regan, 453 U.S. 654 (1981) ............................................................................49 Dawavendewa v. Salt River Project Agric. Improvement & Power Dist. (“Dawavendewa I”), 154 F.3d 1117 (9th Cir. 1998) ............................................... 50, 58-60 Dawavendewa v. Salt River Project Agric. Improvement & Power Dist. (“Dawavendewa II”), 276 F.3d 1150 (9th Cir. 2002) ............................................... 54, 61-62

iv


Donovan v. Coeur d’ Alene, 751 F.2d 1113 (9th Cir. 1985) ...........................................................54 Donovan v. Navajo Forest Prods. Indus., 692 F.2d 709 (10th Cir. 1982) ...........................................................29 Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006 (9th Cir. 2012) ...........................................................20 McClanahan v. State Tax Comm’n of Ariz., 411 U.S. 164 (1973) .............................................................................. 9 Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) ................................................................. 6, 29, 53 Mescalero Apache v. Jones, 411 U.S. 145 (1973) ......................................................................... 5, 6 Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976) ............................................................................26 Montana v. Blackfeet Tribe, 471 U.S. 759 (1985) .............................................................................. 7 Montana v. United States, 450 U.S. 554 (1981) ....................................................................... 6, 53 Morton v. Mancari, 417 U.S. 535 (1974) .................................................................... passim Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) ..................................................................... 48, 49 Nat’l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985) .............................................................................. 4 New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983) ..................................................................... 27, 53

v


Olsen v. Idaho State Bd. of Med., 363 F.3d 916 (9th Cir. 2004) .............................................................20 Posadas v. Nat’l City Bank, 296 U.S. 497 (1936) ............................................................................48 Sheet Metal Workers Int’l Ass’n Local Union No. 359 v. Madison Indus. Inc. of Ariz., 84 F.3d 1186 (9th Cir. 1996) .................... 20, 69 Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770 (9th Cir. 2010) .............................................................20 United States v. Antelope, 430 U.S. 641 (1977) ............................................................................26 United States v. Dion, 476 U.S. 734 (1986) ............................................................................52 United States v. Kagama, 118 U.S. 375 (1886) .............................................................................. 4 United States v. Midwest Oil Co., 236 U.S. 459 (1915) ............................................................................48 United States v. Navajo Nation, 537 U.S. 488 (2003) ........................................................... 7, 11, 28, 46 United States v. Wheeler, 435 U.S. 313 (1978) ....................................................................... 4, 52 Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463 (1979) ..............................................................26 Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979) ............................................................................26 Watt v. Alaska, 451 U.S. 259 (1981) ............................................................................48

vi


White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980) ....................................................................... 6, 27 Williams v. Lee, 358 U.S. 217 (1959) .............................................................................. 9 Worcester v. Georgia, 31 U.S. 515 (1832) ................................................................................ 4 STATUTES: Administrative Procedure Act: 5 U.S.C. §§ 702-706 ....................................................................... 1, 15 16 U.S.C. 450oo-4 ........................................................................................47 25 U.S.C. § 2 ................................................................................................37 25 U.S.C. § 9 ................................................................................................37 Indian Mineral Leasing Act: 25 U.S.C. § 396a .......................................................................... 11, 73 Indian Self-Determination and Education Assistance Act: 25 U.S.C. § 450 et seq .................................................................. 40, 43 Indian Reorganization Act of 1934: Pub. L. No. 73-383, 48 Stat. 984 ........................................................ 5 25 U.S.C. § 472 ...................................................................................21 Navajo-Hope Rehabilitation Act: Pub. L. No. 81-474, 64 Stat. 414 .......................................................10 25 U.S.C. § 631 ...................................................................................10 25 U.S.C. § 633 ............................................................................ 11, 47 Indian Mineral Development Act of 1982: 25 U.S.C. § 2101-2108 .......................................................................46

vii


28 U.S.C. § 451 .............................................................................................. 1 28 U.S.C. § 518(a) ........................................................................................65 28 U.S.C. § 519 ............................................................................................65 28 U.S.C. § 1291 ............................................................................................ 2 28 U.S.C. § 1331 ............................................................................................ 1 28 U.S.C. § 1337 ............................................................................................ 1 28 U.S.C. § 1343 ............................................................................................ 1 28 U.S.C. § 1345 ............................................................................................ 1 28 U.S.C. § 1346(a)(2) ................................................................................... 1 28 U.S.C. § 1367 ............................................................................................ 1 28 U.S.C. §§ 2201-2202 ................................................................................. 1 Title VII of the Civil Rights Act of 1964: 42 U.S.C. § 2000e ................................................................................. 9 42 U.S.C. § 2000e-2 .................................................................... passim 42 U.S.C. § 2000e-4 ............................................................................65 42 U.S.C. § 2000e-5 .............................................................................. 1 42 U.S.C. § 2000e-16 ..........................................................................22 43 U.S.C. § 1457 ..........................................................................................37 Act of December 19, 1947: Pub. L. No. 80-390, 61 Stat. 90 .........................................................10 Indian Self-Determination Act Amendments of 1994: Pub. L. No. 103-413, 108 Stat. 4250 .......................................... 43, 47 102 Stat. 2847, 16 U.S.C. 410pp-2(f) (1988) ..............................................47 Navajo Preference in Employment Act: Navajo Nation Code Ann. Tit. 15, § 604(A)(1) .................................13 RULES AND REGULATIONS: 25 C.F.R. § 16.105 ......................................................................................... 8 25 C.F.R. § 170.914 .....................................................................................44 25 C.F.R. § 170.619 .....................................................................................44

viii


29 C.F.R. § 1606.1 ......................................................................................... 8 48 C.F.R. § 1404.7005(a) (1987) .................................................................42 48 C.F.R. § 1404.7005(b) (1987) .................................................................42 48 C.F.R. § 1426.7003(a) .............................................................................42 48 C.F.R. § 1426.7005(a) .............................................................................43 48 C.F.R. § 1452.204-71 (1987) ..................................................................41 48 C.F.R. § 1452.226-70 ..............................................................................43 77 Fed. Reg. 72,440 (Dec. 5, 2012) ............................................................... 8 Fed. R. App. P. 4(a)(1) ................................................................................... 2 LEGISLATIVE HISTORY: H.R. 3942, 85th Cong. (1957) .....................................................................56 H.R. Rep. No. 58-3700, Pt. 2 (1905) ............................................................. 8 H.R. Rep. No. 73-1804 (1934) ....................................................................... 5 S. Rep. No. 97-472 (1982)............................................................................46 103 Cong. Rec. 1386 (1957) .........................................................................56 110 Cong. Rec. 13,380 (1964)......................................................................55 110 Cong. Rec. 13,702 (1964)............................................................... 56, 57 140 Cong. Rec. 28,630 (1994)......................................................................43 CONSTITUTIONS: U.S. Constitution, art. I, § 8, cl. 3 ................................................................ 4 U.S. Constitution, art. II, § 2, cl. 2 ............................................................... 4 MISCELLEANOUS: Felix Cohen, Handbook on Federal Indian Law §17.03[2][a] (2005 ed.) ....................................................................................... 7, 29 EEOC Policy Statement on Indian Preference Under Title VII 1988 WL 912195 (May 16, 1988) ......................................................37

ix


JURISDICTION

District Court: In its complaint against Peabody Western Coal

Company (“Peabody”), the Equal Employment Opportunity Commission

(“EEOC”) asserted jurisdiction under 28 U.S.C. 451, 1331, 1337, 1343

and 1345, and 42 U.S.C. 2000e-5(f)(1) and (3). (ER 688). In its third-

party complaint against Federal Defendants (officials of the

Department of the Interior sued in their official capacity, collectively

referred to herein as “Interior”), Peabody asserted jurisdiction under the

Administrative Procedure Act (“APA”), 5 U.S.C. 702-706, as well as 28

U.S.C. 1331, 1346(a)(2), 1367, and 2201-2202. (ER 672). The district

court found it had jurisdiction over the third-party claims against

Interior. (ER 11-12).1

Court of Appeals: The district court entered final judgment in

favor of all defendants on all claims on October 18, 2012. (ER 27).

EEOC filed a timely notice of appeal on December 17, 2012. (ER 24);

1 In the district court, Interior contested the court’s jurisdiction over Peabody’s third-party claims against it under the APA, and argued that it was not properly named as a third-party defendant under Rule 14. These issues are not presented in this appeal.

1


see Fed. R. App. P. 4(a)(1). This Court has jurisdiction under 28 U.S.C.

1291.

ISSUES PRESENTED

Since this country’s inception, Indian nations have comprised

distinct and independent political communities, retaining all aspects of

inherent tribal sovereignty not specifically withdrawn. Pursuant to

federal statutes that further the United States’ political relationship

with Indian tribes, the Secretary of the Interior has, for more than 90

years, approved tribal leases to extract natural resources on tribal lands

held in trust (“trust lands”) or otherwise set aside by the United States

for the benefit of federally-recognized tribes and their members. To

ensure that the economic development of a tribe’s resources inures to

the tribe and its members, these Interior-approved leases, including

leases pre-dating Title VII of the Civil Rights Act of 1964, often contain

provisions requiring the tribe’s lessees to give preference in hiring

decisions to members of that tribe. These tribe-specific employment

preferences run not to Indians in general, as members of a particular

race or national origin, but to members of the particular federally-

2


recognized tribe whose trust resources are at issue and with whom the

United States holds a political relationship.

The issues presented on appeal are:

1) Whether a federally-recognized Indian tribe’s lessee violates Title

VII by complying with the tribe’s employment ordinance and the

terms of the tribal lease approved by the Secretary of the Interior,

both of which require the lessee to provide a hiring preference for

the tribe’s members for purposes of employment on the tribe’s

reservation relating to development of the tribe’s trust land or

resources.

2) Whether the district court erred in denying EEOC’s last minute

motion (filed the day before argument) to re-open the record and

granting summary judgment as a matter of law.

STATEMENT OF THE CASE

A. Legal Framework

1. Fundamental Principles of Federal Indian Law

i. Indian tribes are sovereign nations possessing unique political attributes under federal law.

The Supreme Court has long recognized that “Indian tribes are

unique aggregations possessing attributes of sovereignty over both their 3


members and their territory.” United States v. Wheeler, 435 U.S. 313,

323 (1978) (quotation omitted). Prior to the arrival of Europeans in

America, Indian tribes were “self-governing political communities,”

Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845,

851 (1985), and, as such, possessed the full attributes of sovereignty.

Wheeler, 435 U.S. at 322–323; see Worcester v. Georgia, 31 U.S. 515, 557

(1832).

The Indian Commerce Clause of the U.S. Constitution, art. I, § 8,

cl. 3, grants Congress the power to “regulate Commerce with . . . Indian

Tribes.” This provision, along with the Constitution’s structure, gives

Congress “plenary power over Indian affairs.” Alaska v. Native Vill. of

Venetie Tribal Gov’t, 522 U.S. 520, 531 n.6 (1998). The Constitution

also provides for treaties with Indian tribes, art. II, § 2, cl. 2. Indian

tribes thus have a unique legal status under federal law. See Cherokee

Nation v. Georgia, 30 U.S. 1, 16 (1831). Today, federally-recognized

Indian tribes continue to retain inherent sovereignty and governmental

authorities and exist as separate governments. See Wheeler, 435 U.S.

at 323; United States v. Kagama, 118 U.S. 375, 381–382 (1886).

4


ii. The United States holds a special relationship with Indian tribes aimed, in part, at safeguarding tribal autonomy and economic self-sufficiency.

Modern federal Indian policy revolves around promoting tribes’

autonomy and sovereignty. This policy dates to the Indian

Reorganization Act (“IRA”) of 1934, Pub. L. No. 73-383, 48 Stat. 984

(codified as amended at 25 U.S.C. 461–479). The IRA promotes the

“principles of tribal self-determination and self-governance.” County of

Yakima v. Confed. Tribes & Bands of Yakima Indian Nation, 502 U.S.

251, 255 (1992). The concept of tribal self-governance is inextricably

intertwined with economic self-sufficiency. The IRA sought to give

Indian tribes “a chance to develop the initiative destroyed by a century

of oppression and paternalism.” Mescalero Apache v. Jones, 411 U.S.

145, 152 (1973) (quoting H.R. Rep. No. 73-1804 at 6 (1934)). 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.” Morton v. Mancari, 417

U.S. 535, 542 (1974). These concepts remain the guiding principles of

the federal government’s relationship with Indian tribes today.

5


Tribal sovereign authority, which carries with it the right to

exclude non-members from tribal lands, allows a tribe to regulate

economic relationships between itself and non-members on the tribe’s

reservation (or other Indian lands). The Supreme Court has held that,

in general, a tribe has the power to “regulate, through taxation,

licensing, or other means, the activities of nonmembers who enter

consensual relationships with the tribe or its members, through

commercial dealing, contracts, leases, or other arrangements.”

Montana v. United States, 450 U.S. 554, 564–65 (1981); see also Merrion

v. Jicarilla Apache Tribe, 455 U.S. 130, 141 (1982) (tribe has “inherent

power necessary to tribal self-government and territorial

management”); White Mountain Apache Tribe v. Bracker, 448 U.S. 136,

149 (1980) (there is a “general federal policy of encouraging tribes to . . .

assume control over their ‘business and economic affairs’” (quoting

Mescalaro Apache, 411 U.S. at 151)).

iii. Federal Indian Leasing Framework

Pursuant to a series of federal statutes that further the United

States’ special political relationship with Indian tribes, Interior has for

more than 90 years approved leases to extract natural resources from,

6


and to use, tribal lands held in trust or otherwise set aside by the

United States for the benefit of tribes and their members. The leasing

of those lands, and the economic opportunities that come with their

development, is intended to benefit the beneficiary of that trust

relationship: i.e., the tribe and its members. See Felix Cohen,

Handbook on Federal Indian Law § 17.03[2][a] (2005 ed.) (ER 574-580);

United States v. Navajo Nation, 537 U.S. 488, 493-494, 511 n.16 (2003);

Montana v. Blackfeet Tribe, 471 U.S. 759, 767 n.5 (1985).

To ensure that the economic development of a tribe’s resources

inures to the tribe and its members, Interior-approved leases often

contain provisions requiring the tribe’s lessees to give preference in

hiring to enrolled members of that tribe. Many of those leases,

including those relating to Navajo Nation trust lands, pre-date Title VII

of the Civil Rights Act of 1964. See ER 301-328 (examples of tribal

mining leases with tribe-specific employment preferences from 1941,

1944, 1949, 1956); see also ER 286 (1957 version of Department of the

Interior tribal mineral lease form).2

2 Research has revealed a tribal coal lease with a tribe-specific hiring preference approved by Interior as far back as 1899. See H.R.

7


In 2012, Interior issued revised regulations addressing non-

agricultural surface leasing of Indian lands, including residential,

business, and wind and solar energy leases. 77 Fed. Reg. 72,440 (Dec.

5, 2012). The regulations make clear that tribal leases may include a

provision giving a preference to qualified tribal members, based on their

political affiliation with the tribe. Id. at 72,446; 72,472 (codified at 25

C.F.R. 16.105).

2. Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 prohibits employers from

discriminating on the basis of “race, color, religion, sex, or national

origin.” 42 U.S.C. 2000e-2(a). The regulations define “national origin”

discrimination to include discrimination on the basis of “an individual’s,

or his or her ancestor’s place of origin.” 29 C.F.R. 1606.1.

As relevant here, Title VII exempts Indian tribes from its

definition of employer, and, hence, tribes themselves are not covered by

Rep. No. 58-3700, Pt. 2, at 8 ¶ 8 (1905) (“[W]here Indians upon said reservation” [i.e., “the Shoshone and Arapahoe tribes of Indians … occupying and residing upon the Wind River Reservation,” id. at 6] “are qualified and willing …, [the parties] will accord them a preference in selecting his employees so far as it may be practicable”) (attached in Addendum).

8


Title VII. 42 U.S.C. 2000e(b). Furthermore, as discussed in greater

detail below, Section 703(i) of Title VII also exempts from its coverage

the preferential treatment of an individual “because he is an Indian

living on or near a reservation.” 42 U.S.C. 2000e-2(i).

B. Statement of Facts

1. The history of the United States’ relationship with the Navajo Nation

The United States has long treated the Navajo as a sovereign

people, capable of self-governance. The modern political relationship

between the United States and the Navajo Nation began on June 1,

1868, when General William T. Sherman and Navajo representatives

signed a peace treaty. See 15 Stat. 667; see also ER 16. The treaty

acknowledges certain lands as the Navajo Reservation and recognized,

among other authorities, the Tribe’s right to exclude others from its

Reservation. See 15 Stat. 667; Williams v. Lee, 358 U.S. 217, 221

(1959). Pursuant to the treaty, “the internal affairs of the Indians

remained exclusively within the jurisdiction of whatever tribal

government existed.” Lee, 358 U.S. at 221-222; see McClanahan v.

State Tax Comm’n of Ariz., 411 U.S. 163, 175 (1973).

9


The past century demonstrates how the Navajo Nation has begun

to benefit from federal policies promoting tribal self-government and

economic self-determination. In the 1940s and 1950s, the Navajo

Nation faced significant challenges. Navajos living on the reservation

at that time had few employment options and “live[d] in abject poverty.”

(ER 567-568) (1948 Interior Report on the Navajo).

In 1947, Congress allocated $2,000,000 for emergency relief of the

Navajo Nation and directed Interior to formulate “a long-range program

dealing with the problems of the Navajo and Hopi Indians.” Act of Dec.

19, 1947, Pub. L. No. 80-390, 61 Stat. 940. Interior recommended an

approach that relied, in part, on development of the Reservation’s

natural resources, in particular the “extensive coal deposit underl[ying]

the Black Mesa area,” which had been identified but not significantly

developed. (ER 571). In April 1950, Congress passed the Navajo-Hopi

Rehabilitation Act (“NHRA”). Pub. L. No. 81-474, 64 Stat. 44, 44-47

(codified as amended at 25 U.S.C. 631-640). The NHRA authorized to

be appropriated approximately $88 million for infrastructure

improvement projects, including surveys and studies of the Nation’s

coal resources. 25 U.S.C. 631. The NHRA expressly provided for

10


preferences in employment for Navajo and Hopi Indians “on all projects

undertaken pursuant to this subchapter.” 25 U.S.C. 633.

2. The Navajo Leases at Issue in this Case

Peabody operates the Kayenta coal mine on tribal trust land

within the Navajo Indian Reservation under two mineral leases with

the Nation. (ER 4-5; 476; 506). Both leases were originally entered into

with Peabody’s predecessor-in-interest, Sentry Royalty. Id. And both

leases were approved by Interior pursuant to the 1938 Indian Mineral

Leasing Act (“IMLA”), 25 U.S.C. 396a. Navajo Nation, 537 U.S. at 495,

498 n.5; ER 6. Though Interior approved both leases, Interior is not a

party to either one.

The “8580” lease, approved by Interior in 1964, permits Peabody

to mine on the Navajo reservation (ER 476); and the “9910” lease,

approved by Interior in 1966, permits Peabody to mine on the Navajo

portion of land jointly used by the Navajo and Hopi tribes (ER 506).

Both leases contain a provision requiring Peabody to grant an

employment preference to “Navajo Indians.” (ER 5).3 Under the 8850

3 Although the lease provisions use the term “Navajo Indians” rather than “Navajo tribal members,” there is nothing in the record to

11


lease, for example, Peabody “agrees to employ Navajo Indians when

available in all positions for which, in the judgment of [Peabody], they

are qualified,” and “shall make a special effort to work Navajo Indians

into skilled, technical and other higher jobs in connection with

[Peabody’s] operations under this lease.” (ER 489).4 Former Secretary

of the Interior Stewart Udall testified by declaration and deposition

suggest that the term means anything other than Navajo tribal members. Consistent with longstanding construction of such tribal employment preferences, Interior interprets “Navajo Indians” to mean members of the Navajo Nation. See, e.g., ER 658 (Interior’s Statement of Uncontested Material Facts ¶4). In a recent Supreme Court brief filed by the Solicitor General on behalf of EEOC in this case, EEOC represented that “[u]nder the terms of its mining leases with petitioner Navajo Nation …Peabody affords a preference to members of the Nation in hiring for operations under the leases.” Br. at I (Peabody SER 52); see also id. at 27 (Peabody SER 83) (characterizing the issue presented in this case as whether and under what circumstances a hiring preference that “favor[s] members of one Tribe over members of another Tribe” constitutes national origin discrimination). As noted below, the Navajo Preference in Employment Act also defines “Navajo” in terms of tribal membership. (ER 442.) 4 The 9910 lease contains an almost identical provision, except that it gives Peabody an option to extend the preference to Hopi Indians. (ER 520-521). The lease between Peabody and the Hopi Tribe for the Hopi portion of the mine has the same provision as the Navajo 9910 lease, except that it is a preference for Hopi Indians and gives Peabody an option to extend the preference to Navajo Indians. (ER 272).

12


concerning the negotiation history of these two leases, in which he was

personally involved. (ER 6; 295-299). Among other things, he

confirmed that Interior was actively involved in drafting the leases,

including the Navajo employment provisions. (ER 6; 297-298).

Both leases provide that the Secretary and the Nation have the

authority to cancel the leases if Peabody violates their terms (ER 6-7;

488, 519-520), and the Secretary must approve any amendments (ER 6-

7; 482). The Secretary most-recently approved amendments to the

leases on December 9, 2011, but no changes were made to the tribal

employment preference provision. (ER 535).

In addition, since 1985, a Navajo Nation tribal ordinance has

separately required all employers doing business within the Navajo

Nation’s territorial jurisdiction to give an employment preference to the

Nation’s members. See ER 443 (Navajo Nation Code Ann. Tit. 15, §

604(A)(1) (“Navajo Preference in Employment Act”)). The ordinance

specifically defines the term “Navajo” to mean “any enrolled member of

the Navajo Nation.” (ER 442). According to the Navajo Nation, as of

2005, there were 326 current or recently expired business leases on

Navajo tribal lands, approved by Interior, that contain employment

13


preferences for Navajo members. (ER 6 (citing Doc. 89, Ex. 2); see also

ER 437).

C. EEOC’s Complaint and Procedural History

EEOC began investigating Peabody’s employment practices at the

Kayenta Mine in 1998. (ER 676).

In 2001, EEOC filed the underlying suit against Peabody, alleging

that a hiring preference for Navajo tribal members constitutes national

origin discrimination prohibited by Title VII. (ER 7). In particular,

EEOC sued on behalf of several individual Charging Parties who were

each members of Indian tribes other than Navajo. ER 689 (second

amended complaint ¶11). EEOC alleged that Peabody had engaged in

impermissible discrimination on the basis of national origin because

“Peabody did not hire Charging Parties …, but instead hired members

of the Navajo Nation for the open positions.” (ER 690 ¶13) (emphasis

added).

The lengthy procedural history of this case is recounted in this

Court’s most recent opinion and will not be repeated here. See ER 698-

699. In its most recent ruling, this Court held that Rule 19 did not

require dismissal of the EEOC complaint, even though the Secretary

14


was a required party under Rule 19(a),5 because the Secretary could be

joined to the action by Peabody as a Rule 14 third-party defendant. (ER

718-720). The Court remanded for further proceedings. Following this

Court’s suggestion, Peabody filed a third-party complaint against the

Secretary under the APA. (ER 669).

D. District Court Decision on Summary Judgment

At the outset, the district court rejected Interior’s argument that it

was improperly impleaded by Peabody as a third-party defendant under

Rule 14, and that Peabody failed to state a claim against Interior under

the APA. The district court reasoned that these issues had been

decided by this Court in its previous decision. (ER 11-12).

With respect to the merits, the district court relied on Morton v.

Mancari to conclude that the tribe-specific employment preference in

the Navajo-Peabody leases is based on a political classification, and not

a preference based on national origin. The court explained that:

5 Interior was not a party to the prior appeal and believes that it should not have been deemed a required party under Rule 19(a), see Conditional Cross-Petition for Certiorari, Navajo Nation v. EEOC, Nos. 10-981 & 10-986 (S. Ct. March 2011), but the Rule 19 issue is not presented in this appeal.

15


The federal government has a distinct relationship with each tribe and distinct trust obligations owed to each tribe. Tribe-specific employment preferences in DOI-approved leases help discharge those trust obligations. Their inclusion in the leases is for political reasons: to benefit the members of the tribe—a political entity—and to foster tribal self-government and self-sufficiency. It is tribal membership, not status as an Indian, that is the touchstone. Like the general Indian preference in Mancari, the tribe-specific preference included in the DOI-approved leases is a political classification.

(ER 18). The court further found that the preference “is rationally tied

to legitimate, nonracially based goals,” promoting “tribal self-

sufficiency,” “economic development on tribal lands,” and tribal “self-

governance.” (ER 19). Moreover, the court noted that, pursuant to

treaties and fundamental principles of federal Indian law, the Nation

“has the right to exclude third parties from their trust lands”; and that

“one aspect of the right to condition entry” is the right to “require[] a

private employer operating on tribal lands,” pursuant to an Interior-

approved lease, “to prefer members of that tribe” in employment. (ER

19-20).

Finally, the district court rejected EEOC’s argument that, by only

including an express exemption for general Indian preferences in

16


Section 703(i) of Title VII, “Congress implicitly intended to prohibit

every type of tribe-specific employment preference.” (ER 21). It noted

that “DOI’s practice of including tribe-specific employment preferences

in mining leases dates back to before passage of Title VII,” and

“[e]limination of this longstanding and ubiquitous DOI practice would

require a far more explicit showing of Congress’ intention to do so than

is reflected in [Section] 703(i).” (ER 21).

For these reasons, the district court granted the Interior’s motion

for summary judgment as to Peabody’s third-party complaint, and

granted the Navajo Nation’s motion to dismiss, or in the alternative for

summary judgment, on the merits of the tribal employment preference.

(ER 22).

17


SUMMARY OF ARGUMENT

This case involves a lessee of the Navajo Nation that is required

by the Tribe’s employment ordinance and by the terms of an Interior-

approved tribal mining lease to provide a hiring preference for qualified

Navajo tribal members, in conjunction with on-reservation commercial

activity relating to the development of the Tribe’s trust lands and

resources. Under Morton v. Mancari, the tribal employment preference

at issue constitutes a political classification, rationally related to the

federal goals of promoting tribal economic self-sufficiency and self-

governance. As a political classification, it does not constitute

discrimination based on race or national origin. It is therefore outside

the scope of Title VII.

Contrary to EEOC, the principles articulated in Mancari are not

limited to general Indian preferences that apply only to Indians versus

non-Indians. Indeed, requiring Navajo lessees to extend such hiring

preferences to all Indians would not directly serve the federal interest,

grounded in federal Indian policy and congressional enactments, in

ensuring that the development and use of Navajo trust lands and

resources redounds to the benefit of the Tribe and its members.

18


Nor is the district court’s legal ruling contradicted by EEOC’s

1988 Policy Statement construing Section 703(i) of Title VII. That

Section creates an Indian exception for employment classifications that

otherwise violate Title VII. It has no bearing on a tribal employment

preference that does not constitute race or national origin

discrimination, and therefore does not violate Title VII to begin with.

Interior’s policy and practice of approving tribal leases with tribe-

specific employment preferences is longstanding, predates Title VII,

and is consistent with statutes endorsing such preferences in other

related tribal contexts. Canons of construction strongly disfavor an

implied repeal of longstanding federal policy and practice in the absence

of clear congressional intent to the contrary—particularly in the context

of policies designed to protect and promote tribal sovereignty.

Finally, the district court properly rejected EEOC’s attempt at the

eleventh hour—literally the day before the hearing—to re-open the

summary judgment record and inject new alleged factual disputes into

this case. Resolution of this case turns on the legal question whether

the tribal member preference in this case constitutes a political

classification, as opposed to discrimination on the basis of national

19


origin—and that is the issue that was presented by EEOC’s complaint

and briefed by the parties on summary judgment. The district court’s

resolution of that legal question was correct, disposes of this case, and

should be affirmed.

STANDARD OF REVIEW

This Court reviews the district court’s grant of summary judgment

de novo, applying the same standard for summary judgment applied in

the court below. Karuk Tribe of Calif. v. U.S. Forest Serv., 681 F.3d

1006, 1017 (9th Cir. 2012) (en banc). This Court “must determine,

viewing the evidence in the light most favorable to [the non-movant],

whether there are any genuine issues of material fact and whether the

district court correctly applied the substantive law.” Olsen v. Idaho

State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). Questions of law

decided on summary judgment are reviewed de novo. Sullivan v. Dollar

Tree Stores, Inc., 623 F.3d 770, 776 (9th Cir. 2010).

This Court reviews the district court’s decision to deny a motion to

supplement the record for abuse of discretion. 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).

20


ARGUMENT

I. Title VII Does Not Prohibit the Tribal Hiring Preference at Issue in this Case.

Morton v. Mancari, 417 U.S. 535 (1974), is one of the seminal

cases addressing the unique status of Indian tribes as sovereign

political entities. In that case, the Supreme Court drew a critical legal

distinction between employment preferences for tribal members that

are based on political classifications, and preferences that discriminate

on the basis of impermissible characteristics such as race or national

origin. For the reasons explained below, the tribe-specific hiring

preference in this case is a political preference, not discrimination based

on race or national origin, and is therefore outside the scope of Title VII.

A. Tribal hiring preferences that are rationally related to congressional policies promoting tribal self-governance and economic self-determination constitute political preferences.

In Mancari, a group of non-Indian employees of the Bureau of

Indian Affairs (“BIA”) challenged the BIA’s hiring preference for

applicants who are members of federally recognized Indian tribes.6

6 The BIA preference implements Section 12 of the Indian Reorganization Act of 1934, 25 U.S.C. 472, which accords a

21


They argued that the hiring preference (a) violated the Equal

Employment Opportunity Act of 1972 (“EEOA”), which prohibits

discrimination in federal employment “based on race, color, religion,

sex, or national origin” (417 U.S. at 540 n.6, quoting 42 U.S.C. 2000e-

16(a) (Supp. II 1970))7; and (b) constituted unlawful discrimination on

the basis of race under the Due Process Clause of the Fifth Amendment.

The Supreme Court upheld the preference, holding that it did not

constitute invidious racial discrimination, was a political classification

subject to rational basis review rather than strict scrutiny, and was

reasonably and rationally designed to further Indian self-government,

“a legitimate, nonracially based goal.” Id. at 553–554.

The EEOA does not itself contain explicit exceptions relating to

Indians or tribes. Nonetheless, the Court looked to the congressional

purpose behind the tribal exemptions in the EEOA’s predecessor

statute, Title VII of the Civil Rights Act of 1964, which “reveal a clear

preference for qualified Indians in the BIA. See Mancari, 417 U.S. at 537. The BIA preference “applies only to members of ‘federally recognized’ tribes.” Id. at 553 n.24; see also EEOC Br. 22.

7 In general, the EEOA extended to most areas of federal employment the protections against discrimination set forth in Title VII. 417 U.S. at 546-547.

22


congressional sentiment that an Indian preference in the narrow

context of tribal or reservation-related employment did not constitute

racial discrimination of the type otherwise proscribed.” 417 U.S. at 548

(emphasis added). In other words, the Court construed the tribal

exemptions in the 1964 Act as premised on the understanding that

certain kinds of preferences for tribal members do not constitute racial

discrimination in the first place; and, although the EEOA did not itself

contain such an exemption, it would be “irrational[] and arbitrar[y]”

(id.) to conclude that preferences for tribal members were legal for

purposes of one statute but constituted racial discrimination for the

other. See also id. at 550 (“Any perceived conflict is more apparent than

real.”)

As further support for the lack of such a conflict, the Court

observed that, shortly after the EEOA was enacted in 1972, Congress

passed two new Indian preference laws. Id. at 548 (citing laws

requiring Indians be given preference in government programs for

training teachers of Indian children). The Court found it “improbable,

to say the least, that the same Congress which affirmatively approved

and enacted these additional and similar Indian preferences was, at the

23


same time, condemning the BIA preference as racially discriminatory.”

Id. at 548-549. It noted, in addition, that for many years Indian

preferences and anti-discrimination provisions had co-existed in

Executive Branch orders governing federal hiring practices, and found

“no reason to presume that Congress affirmatively intended to erase the

preferences that previously had co-existed with broad anti-

discrimination provisions in Executive Orders.” Id. at 549. In short,

the Court held that

[a] provision aimed at furthering Indian self-government by according an employment preference within the BIA for qualified members of the governed group can readily co-exist with a general rule prohibiting employment discrimination on the basis of race. Any other conclusion can be reached only by formalistic reasoning that ignores both the history and purposes of the preference and the unique legal relationship between the Federal Government and tribal Indians.

Id. at 550 (emphasis added).

Next, the Court explained why the BIA preference for tribal

members did not constitute racial discrimination under the Due Process

Clause. Crucially, the Court explained that, “[c]ontrary to the

characterization made by appellees, this preference does not constitute

24


‘racial discrimination.’ Indeed, it is not even a ‘racial’ preference.” Id.

at 553. The Court explained that it was, instead, a political preference:

The preference is not directed towards a ‘racial’ group consisting of ‘Indians’; instead, it applies only to members of ‘federally recognized’ tribes. This operates to exclude many individuals who are racially to be classified as ‘Indians.’ In this sense, the preference is political rather than racial in nature.

Id. at 553 n.24 (emphasis added). The Court continued, “it is an

employment criterion reasonably designed to further the cause of

Indian self-government…, directed to participation by the governed in

the governing agency.” It reasoned that the BIA Indian preference was

therefore “similar in kind to the constitutional requirement that a

United States Senator, when elected,” be a resident of the State that

elected him, or the requirement that “a member of a city council reside

within the city governed by the council.” Id. at 554. Like the state or

city residence requirement for elected politicians, the BIA preference for

members (i.e., citizens) of tribal political entities, with whom the United

25


States has a government-to-government relationship, is a rational

political preference, and not a form of invidious discrimination.8

In sum, the Court held that “[a]s long as the special treatment [of

Indians] can be tied rationally to the fulfillment of Congress’ unique

obligation toward the Indians,” such judgments will not be disturbed.

Id. at 555. Because the BIA employment preference rationally served

the “non-racial” goal of “further[ing] the cause of Indian self-

government,” it did not violate constitutional equal protection

principles. Id. at 554.9

8 Mancari is not an isolated case. The Supreme Court has repeatedly affirmed that “federal regulation of Indian affairs is not based upon impermissible [racial] classifications.” United States v. Antelope, 430 U.S. 641, 646 (1977). It is “governance of once-sovereign political communities; it is not to be viewed as legislation of a ‘racial group consisting of Indians.’” Id. (quoting Mancari, 417 U.S. at 553 n.24); see also Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 673 n.20 (1979); Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463, 500–501 (1979); Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 479–480 (1976). 9 The challengers in Mancari attacked the BIA preference as one based on race rather than national origin, but they could just as easily have characterized it as premised on a group of discrete national origins (e.g., preferring individuals whose place of origin is any Indian reservation over all other individuals). Nothing in the reasoning or logic of Mancari, however, suggests that a national

26


B. The analysis in Mancari controls the instant case; EEOC’s attempts to distinguish Mancari are unavailing.

Consistent with Mancari, the tribal member hiring preference at

issue in the Navajo leases is a political preference, rationally connected

to the fulfillment of the federal government’s general trust relationship

with federally-recognized Indian tribes, and with the Navajo Nation in

particular. EEOC insists that it constitutes unlawful national origin

discrimination. But EEOC ignores a number of factors, unrelated to

national origin, that demonstrate the legitimate purposes of the

political preference in question.

First, the right to direct the benefits of employment and other

economic activity on the Reservation to the Nation’s citizens is

fundamental to the Nation’s status as a sovereign political entity. The

federal government has an established policy of encouraging tribal

economic self-sufficiency, see, e.g., White Mountain Apache, 448 U.S. at

149; New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 335 (1983),

and the Navajo preference directly serves that interest.

origin claim would have fared any better in that case, and EEOC does not contend otherwise.

27


Second, the Navajo employment preference furthers the general

trust relationship between the Nation and the United States because it

involves tangible resources—lands and subsurface minerals—held by

the United States in trust for the Navajo. Encouraging the

development of those resources in a way that benefits the Nation and

its members recognizes the Nation’s sovereign ownership of those

resources and honors the principle that extraction and use of trust

resources should redound to the benefit of the Indians who share a

common interest in those resources. Indeed, the Secretary approved the

Navajo leases at issue here pursuant to his authorities under IMLA,

which Congress specifically enacted to help achieve the goal of

revitalizing Indian tribal governments by ensuring tribal autonomy

over and promoting the greatest return on Indian property. See Navajo

Nation, 537 U.S. at 511 n.16 (concerning the leases at issue here); see

also id. at 493-494 (“In addition ‘to provid[ing] Indian tribes with a

profitable source of revenue’ [], the IMLA aimed to foster tribal self-

determination by ‘giv[ing] Indians a greater say in the use and

disposition of the resources found on Indian lands.’”) (internal citations

omitted); Assiniboine & Sioux Tribes of Fort Peck Indian Reservation v.

28


Bd. of Oil & Gas Conservation of State of Mont., 792 F.2d 782, 796 (9th

Cir. 1986); Felix Cohen, Handbook of Federal Indian Law § 17.03[2][a]

(2005 ed.) (ER 574-580). The Navajo preference serves these

congressional purposes by promoting the Nation’s existence as a self-

sustaining political unit that can advance the welfare of its people

through development of its trust resources.

Third, the political nature of the relationship between the United

States and the Navajo Nation is especially evident here. The Nation

has both the inherent sovereign power and an express treaty right to

exclude non-members from its territory—and those rights include the

lesser power to condition entry onto the Reservation by third parties.

Jicarilla Apache Tribe, 455 U.S. at 144. The Nation’s power to exclude

reflects the unique sovereign status of the Navajo as a free people, who

negotiated with the United States to “ensure peace” and the right to

“conduct their own affairs.” Donovan v. Navajo Forest Prods. Indus.,

692 F.2d 709, 712 (10th Cir. 1982). The Navajo hiring preference is a

manifestation of these core attributes of territorial sovereignty: In

return for the privilege of conducting business on the Reservation and

29


extracting or using the Nation’s trust resources, the Nation insists upon

a tribal hiring preference from its lessees.

For all these reasons, like the BIA employment preference upheld

in Mancari, the Navajo-specific employment preference, approved by

Interior, is a political classification “reasonably and directly related to a

legitimate, nonracially based goal,” and therefore distinct “from

proscribed forms of racial discrimination.” Mancari, 417 U.S. at 554.

EEOC’s attempts to distinguish Mancari are unpersuasive.

EEOC’s principal line of attack is based on the fact that BIA employs a

general Indian preference, which extends to members of all federally-

recognized tribes, whereas the Navajo preference was put in place by

one tribe (and approved by Interior) for the benefit of that single tribe’s

members. That is a distinction without a difference, however. Nothing

in Mancari suggests that a tribal preference may only constitute a

political classification if the preference extends to members of all Indian

tribes. What matters is the context of and purposes behind the

preference: whether it draws distinctions based on political

membership, and whether it is rationally related to the fulfillment of

the federal government’s unique responsibilities to Indian tribes.

30


In some contexts, a general Indian tribal preference may be

appropriate and consistent with federal Indian policy. For example, the

general Indian tribal preference required by the IRA applies to the

hiring of federal employees by a national government agency, the BIA,

which is in charge of programs for all Indian tribes and oversees the

nation’s tribal affairs as a whole. Here, by contrast, the Navajo hiring

preference is implemented at the tribal rather than national level, for

hiring by tribal lessees rather than by the federal government, and in

the context of a particular tribe’s sovereign decision to develop that

tribe’s trust resources for the benefit of its political constituents.

Neither federal Indian policy, nor Mancari, mandates that the tribe in

question must extend such a hiring preference to anyone who is a

member of any federally-recognized tribe, no matter how unconnected

the other tribe may be to the lessor-tribe’s people and resources.

EEOC’s demand that the Navajo Nation must extend its hiring

preferences to someone who lives near the reservation but belongs to an

unrelated tribe from Colorado, for example, turns federal Indian policy

on its head by requiring that economic opportunities on one tribe’s

31


reservation be extended to non-members to the detriment of its own

members.10

Furthermore, like the BIA preference in Mancari, the Navajo

Nation’s hiring preference is granted to tribal members “not as a

discrete racial group, but rather, as members of [a] quasi-sovereign

tribal entit[y].” Id. at 554 (emphasis added). Indeed, just as the BIA

preference at issue in Mancari was based on tribal membership—and as

such “operates to exclude many individuals who are racially to be

classified as ‘Indians’” (id. at 554 n.24) (emphasis added) but who are

not members of federally-recognized Indian tribes—so, too, is the

Navajo Nation preference based on tribal membership. It does not

apply to non-member individuals even if they have some degree of

10 It is arguably easier to defend, under the rationale of Mancari, a Navajo ordinance and lease that require a hiring preference for Navajo’s own tribal members over all other non-members (whether Indian or non-Indian), than it would be to defend such a hiring preference for Indians over non-Indians (as EEOC advocates). Directing the economic and human resources benefits of the development of Navajo lands and resources to the members of the Navajo Nation is directly tied to the fulfillment of the federal government’s general trust responsibility, rooted in treaties and congressional enactments concerning the Navajo Nation, and to the federal policy of promoting the Nation’s self-governance and economic self-sufficiency.

32


Navajo ancestry. Again, for this purpose, it does not matter whether

the preference in question applies to members of one tribe or members

of multiple tribes—either way, eligibility for the preference is based on

membership in a political entity.

Thus, in the context presented here, there is no doubt that the

Navajo Nation’s decision to give preference to its own citizens is a

political classification “reasonably and directly related to a legitimate,

nonracially based goal” (id. at 554): namely, the promotion of economic

development, self-governance, and self-sufficiency of the Tribe. That is

no less of a legitimate, nonracially based goal—and one that is no less

grounded in the “unique legal status of Indian tribes under federal law”

(id. at 551), the “historical relationships” and “‘guardian-ward’ status”

(id. at 551-552), and the “proper fulfillment of [the federal

government’s] trust” responsibility (id. at 553)—than the “cause of

Indian self-government” (id. at 554) that the Court saw as the core

purpose behind the BIA Indian hiring preference in Mancari.

In another attempt to distinguish Mancari, EEOC argues that the

holding in that case is limited to hiring preferences for jobs that are

“political” because they are governmental in nature (e.g., BIA

33


administration of federal Indian programs), and should not apply to the

private sector mining jobs here. Br. 29. But Mancari did not view the

BIA Indian preference as “political” because the jobs to which it applies

are in the public as opposed to private sector. Rather, Indian hiring

preferences are “political” in nature when they draw distinctions based

on membership (i.e., citizenship) in a sovereign political entity—as

opposed to innate racial characteristics or ancestry or place of birth—

and when they promote the unique, political government-to-government

relationship that exists between the United States and federally-

recognized Tribes. These criteria may be satisfied whether or not the

type of job at issue is in the public sector. Moreover, EEOC’s strained

attempt at cabining the scope of Mancari is refuted by the Court’s own

recognition of what was at stake in that case: It noted that if, contrary

to its analysis, the nation’s anti-discrimination laws were deemed to be

in conflict with the federal government’s historically-rooted special

treatment for Indians, “an entire Title of the United States Code (25

U.S.C.) would be effectively erased and the solemn commitment of the

Government toward the Indians would be jeopardized.” Id. at 552.

34


Finally, EEOC argues (Br. 30-31, 39) that the holding and

rationale of Mancari are limited to Indian hiring preferences found in

congressional enactments, whereas the preference at issue here is found

in an Interior-approved lease and tribal ordinance. Once again, EEOC

misses the boat. The first question presented in Mancari was whether

the Indian hiring preference required by Section 12 of the IRA was

abrogated by a subsequent statute that appeared to create a square

conflict: the ban on discrimination in federal hiring on the basis of race

or national origin in the EEOA, enacted by Congress in 1972 without

any exceptions relating to Indians or tribes. The Court resolved the

alleged conflict between the two statutes, not by finding that one law

trumped the other, but rather by explaining why there was no conflict

in the first place, given the fundamental nature of the tribal hiring

preference—it was, as a legal matter, a political preference as opposed

to a preference based on impermissible characteristics. Congress, the

Court found, clearly understood that a political Indian preference could

“co-exist” in harmony with anti-discrimination principles, whether

found in statute or executive orders. That analysis applies equally well

to the current case.

35


Moreover, EEOC overlooks the second question presented in

Mancari, in which the Court rejected a constitutional challenge to the

BIA Indian preference. For that purpose, it did not matter that the BIA

preference was contained in a statute (the IRA); if it constituted race-

based discrimination it would have faltered under the Due Process

Clause of the Fifth Amendment. Yet the Court applied essentially the

same reasoning: because it was a political preference it did not

constitute discrimination under Title VII or the Due Process Clause.

Mancari cannot therefore be limited to tribal preferences contained in

statutes.

* * * * *

In short, because the Navajo preference at issue in this case is in

the nature of a political preference, in the sense discussed in Mancari,

and therefore not a preference based on race or national origin, such a

preference peacefully co-exists with—and does not implicate—the

prohibitions on invidious discrimination found in Title VII (or, for that

matter, in the EEOA of 1972, or the Fifth Amendment Due Process

Clause).

36


C. Section 703(i) of Title VII Is Irrelevant to the Issue Presented By this Case, and EEOC’s 1988 Policy Statement Construing that Section Is Therefore Inapposite.

EEOC complains (Br. 31-32) that the district court failed to accord

deference to EEOC’s 1988 Policy Statement (“1988 Statement”)

interpreting Section 703(i) of Title VII.11 But the court did not say the

Statement was not entitled to deference; rather, it correctly noted (ER

20-21) that the Statement is inapposite because it interprets a provision

of Title VII that is not controlling here.12

11 EEOC Policy Statement on Indian Preference Under Title VII (May 16, 1988), 1988 WL 912195 (Peabody SER 1-7). 12 The district court also correctly noted (ER 12-13) that, as the agency vested with principal responsibility for overseeing federal Indian affairs and discharging the United States’ general trust responsibility to Indian tribes, see, e.g., 43 U.S.C. 1457; 25 U.S.C. 2 & 9, it is Interior rather than EEOC that deserves deference as to the political nature of a tribal hiring preference in an Interior-approved tribal mining lease that is grounded the federal government’s unique obligations to Indian tribes. See generally Bragdon v. Abbott, 524 U.S. 624, 642 (1988); Wheeler, 435 U.S. at 328 n.27 (crediting Interior’s views on inherent tribal sovereignty and self-government).

37


1. The 1988 Statement Construes the Scope of the Indian Exception in Section 703(i), But There Is No Need to Invoke that Exception Where, as Here, a Tribal Preference Does Not Constitute National Origin Discrimination in the First Place.

The purpose of the1988 Statement is to “set[] forth the

Commission’s interpretation of the meaning and scope of the Indian

preference provision contained in Section 703(i) of Title VII.” (Peabody

SER 1). Section 703(i) contains an exception for certain categories of

employment practices that would otherwise violate Title VII’s

prohibitions. It provides as follows:

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). Noting that the provision uses the language,

“because he is an Indian,” as opposed to language denoting tribal

membership, EEOC interprets the Section 703(i) exception as applying

only to general employment preferences for Indians versus non-Indians,

but not to preferences for members of a particular tribe.

38


Interior does not contest EEOC’s interpretation that Section 703(i)

does not contemplate tribe-specific Indian preferences.13 It is simply

beside the point. There is no need to consider whether the exception in

Section 703(i) excuses a particular employment practice, if that practice

does not constitute discrimination on the basis of race or national origin

(or otherwise violate Title VII) in the first place. And EEOC’s 1988

Policy Statement does not analyze what constitutes race or national

origin discrimination in the first place. Most importantly, it does not

discuss or provide any guidance on the Mancari Court’s critical

distinction between political preferences and discrimination based on

race (or national origin). Nor does it address the specific question

presented in this case: Whether an employment preference for

13 It is important to note that the Section 703(i) exception extends well beyond the circumstances presented here. It covers all private businesses operating on or near Indian reservations, even if the business (a) is not a tribal lessee and is not subject to a tribal employment ordinance, (b) is not operating pursuant to an Interior-approved lease or contract, and (c) is not engaged in the development or use of the tribe’s lands or resources. It is understandable that Congress would not have wanted such a private employer—with no oversight or approval by the federal government or the tribe concerned, and little or no connection to the fulfillment of the federal-tribal trust responsibility—to be in the position of unilaterally distinguishing between Indians from different tribes.

39


members of a particular Indian tribe, implemented by an employer on

an Indian reservation in compliance with the terms of a tribal ordinance

and Secretary-approved lease for the utilization of a tribe’s own trust

land and resources, is a political preference and thus beyond the scope

of Title VII. Rather, the 1988 Statement assumes that the employment

practices in question violate Title VII and proceeds to construe the

scope of the Section 703(i) exception.

Because the tribal preference in this case does not constitute

national origin discrimination in the first place, there is no need to

reach Section 703(i), and the 1988 Statement is therefore irrelevant.

2. EEOC’s 1988 Statement Mischaracterizes Interior’s Federal Contracting Regulations, Which Undercut, Rather than Support, EEOC’s Position.

EEOC notes (Br. 33) that its 1988 Policy Statement relied, in part,

on certain federal contracting regulations issued by Department of the

Interior, pursuant to the Indian Self-Determination and Education

Assistance Act (“ISDEA”), 25 U.S.C. 450 et. seq. Even if EEOC’s

discussion of those regulations were accurate, EEOC relied on them to

interpret a statutory provision (the Indian exception in Section 703(i) of

Title VII) that is irrelevant to the question presented in this case. See

40


supra, 38-40. But EEOC’s discussion of Interior’s regulations is not

accurate, and they do not support its position in this case.

To begin with, EEOC’s 1988 Policy Statement overlooks Interior’s

longstanding policy and practice of approving tribal leases with tribe-

specific hiring preferences. See, supra, 7-8; infra, 45-48. That is itself a

glaring omission.

But beyond that, EEOC erroneously asserts (in both its 1988

Policy Statement (Peabody SER 6) and its brief, Br. 33) that the 1987

version of Interior’s ISDEA contracting regulations required contractors

to adopt general Indian hiring preferences and prohibited them from

adopting tribe-specific hiring preferences. That is not correct. EEOC

cherry picks Interior’s 1987 regulations by citing only to the provision

setting forth a general rule that contractors must include a general

Indian hiring preference when performing work that could be for the

benefit of more than one tribe. 48 C.F.R. 1452.204-71 (1987). But

EEOC fails to mention that, in a different part of the same regulation,

Interior expressly allows for a tribe-specific hiring preference where the

work is being performed on an Indian reservation for the benefit of a

particular Indian tribe: “Where the work under a contract is to be

41


performed on an Indian reservation, the contracting officer may . . .

add[] specific Indian preference requirements of the Tribe on whose

reservation the work is to be performed . . . .” 48 C.F.R. 1404.7005(a)

(1987); see also id. at 1404.7005(b) (1987) (referring to such preferences

as “tribal preference requirements,” and making clear that “[n]othing in

these regulations shall be interpreted to preclude Tribes from

independently developing and enforcing” such requirements). Thus,

contrary to the picture EEOC paints, the 1987 version of Interior’s

regulations endorsed, rather than repudiated, the use of tribe-specific

hiring preferences for on-reservation work; and it is not accurate when

EEOC says that its 1988 Statement had merely “concurred with the[]

administrative interpretation[] of its sister agencies.” (Br. 33).

In addition, EEOC erroneously implies (Br. 34) that it was only

after Congress amended the ISDEA in 1994 that Interior changed its

contracting regulations to permit tribe-specific hiring preferences. That

implication is also not correct. The discussion of Indian hiring

preferences in Interior’s ISDEA contracting regulations has remained

substantially the same, both before and after the 1994 amendments.

Compare 1987 regulations, supra, with current version of same

42


regulations, 48 C.F.R. 1426.7003(a) & 1452.226–70 (general Indian

preference) and 48 C.F.R. 1426.7005(a) (permitting tribe-specific

preferences for contracts involving on-reservation work).

Interior did not need to change this aspect of its ISDEA

regulations because, in the 1994 amendments to the ISDEA, Congress

essentially codified Interior’s pre-existing policy (pre-dating the EEOC

Policy Statement) of allowing tribe-specific hiring preferences. In

particular, in the amendments, Congress ratified the distinction

between self-determination contracts for the benefit of tribal

organizations and Indians in general, on the one hand, and such

contracts that are “intended to benefit one tribe,” on the other hand; in

the latter situation, Congress clarified that “the tribal employment or

contract preference laws adopted by such tribe shall govern.” Indian

Self-Determination Act Amendments of 1994, Pub. L. No. 103-413, 108

Stat. 4250, 4251 (codified at 25 U.S.C. 450e(c)) (specifying that when a

self-determination contract “is intended to benefit one tribe, the tribal

employment or contract preference laws adopted by such tribe shall

govern with respect to the administration of the contract or portion of

the contract.”); see also 140 Cong. Rec. 28,630 (1994) (statement of Rep.

43


Richardson) (noting that the new language was added “to recognize

tribal laws addressing employment preferences”).14

Quite apart from whether these errors and omissions call into

question the reliability of EEOC’s analysis in its 1988 Policy Statement,

Interior’s consistent endorsement of tribe-specific preferences in its

ISDEA regulations, and Congress’ ratification of Interior’s position in

the 1994 ISDEA Amendments, lend further context and support for

Interior’s longstanding policy and practice of approving tribal leases

that include such preferences.15

14 As EEOC notes (Br. 34), Interior’s federal contracting regulations implementing the Indian Reservation Roads Program, adopted after the 1994 ISDEA amendments, draws a similar distinction. See 25 C.F.R. 170.619 (distinguishing between contracts serving a single tribe, which may include a tribal hiring preference, and contracts serving multiple tribes, which may include a general Indian hiring preference); see also id. at 170.914. 15 EEOC also references a Department of Labor federal contracting regulation. Br. 33; see also Peabody SER 5. But citation to that regulation is misplaced because it applies to government contracts and there is no government contract at issue here. Rather, at issue here is the propriety of a tribal lessee complying with a tribal employment ordinance and Interior-approved lease relating to on-reservation development of the tribe’s trust lands and resources.

44


D. Presumptions Against Implicit Repeal Confirm That Title VII Should Not Be Construed to Abrogate the Federal Government’s Longstanding Practice of Approving Tribe-Specific Employment Preferences.

As explained above, the holding and rationale of Mancari squarely

support the validity of the Navajo tribal hiring preference at issue in

this case. Even if Mancari somehow does not control this case, canons

of statutory interpretation disfavor a reading of Title VII that implicitly

repeals Interior’s longstanding policy and practice of approving tribal

preferences, or that implicitly abrogates the Navajo Nation’s sovereign

right to control economic activity on its reservation.

1. Canons of interpretation disfavor implicit repeal of prior statutes or longstanding Executive Branch practice.

Interior has a longstanding policy and practice, which predates

Title VII, of approving tribal leases and other tribal contracts that

contain tribe specific employment preferences. As outlined above, the

record in this case includes several such tribal mineral leases that

predate Title VII, and another example of such a tribal coal lease dates

back to 1899. See, supra, 7-8 & n.2. Furthermore, although the IMLA

(under which Interior approved the Navajo leases in this case) does not

address the issue of hiring preferences one way or the other, one of its

45


central goals is to promote tribal sovereignty and self-determination in

mineral leasing, and it vests the Secretary with broad authority and

discretion to approve tribal leases that serve the statute’s purposes. See

Navajo Nation, 537 U.S. at 495, 511 n.16. Despite repeatedly

legislating in the area of tribal mineral development (including passing

amendments to the IMLA itself), Congress has never questioned the

validity of tribe-specific hiring preferences in tribal mineral leases.16

Moreover, outside of the specific context of mineral leasing,

Interior routinely approves hundreds if not thousands of other types of

tribal business leases and contracts that contain tribe-specific

employment preferences. Indeed, there is at least one federal statute

pertaining specifically to the Navajo, predating Title VII, which

expressly authorizes tribe-specific employment provisions for purposes

16 In enacting the Indian Mineral Development Act of 1982, 25 U.S.C. 2101–2108, for instance, the Senate Report highlighted that “[t]ribal autonomy and self-determination” should include the right to negotiate terms of contracts, in part because such contracts “can provide a variety of opportunities that would benefit the long-term tribal socio-economic development such as involvement in resource management, training of tribal members for management positions, and participation in the decision-making process.” S. Rep. No. 97-472, at 4 (1982).

46


of the projects authorized by that statute. See 25 U.S.C. 633 (1950

Navajo-Hopi Rehabilitation Act).17 And such statutes are not limited to

the Navajo. See, e.g., 16 U.S.C. 450oo-4 (codification of 1958 public law

requiring employment preference for recognized members of the

Minnesota Chippewa Tribe); 102 Stat. 2847, 16 U.S.C. 410pp-2(f) (1988)

(expired) (requiring employment preference for members of the Zuni

Tribe). Further, as noted above, in the 1994 amendments to the

ISDEA, Congress ratified Interior’s pre-existing policy (as reflected in

Interior’s then-existing federal contracting regulations, which are still

17 In 1973, the United States Commission on Civil Rights, a bipartisan agency established by Congress, held hearings on the Navajo Reservation focusing on the endemic problems confronting Navajo economic development. (ER 591-617). In 1975, it published its report and findings. (ER 628). Although a central component of the Commission’s mission is to investigate complaints that citizens were being deprived of rights on the basis of their race or national origin (ER 629), one of its principal conclusions was that Navajo-specific employment preferences on the reservation were not being adequately implemented or enforced. For example, the Commission criticized the BIA for “mak[ing] no valid effort to monitor or enforce the [tribal] employment provisions” that included Navajo preferences. (ER 648-649). The Report noted that a further “obstacle” was the “weak wording of what is known as the ‘Navajo preference clause’ in the tribe’s contracts and leases,” (ER 638), and cited with approval tribal efforts to get “stronger Navajo preference provisions” in “approximately 100 contracts and leases with large employers.” (ER 649).

47


in effect today) of endorsing tribe-specific hiring preferences in certain

tribal self-determination contracts. See, supra, at 42-44 (discussing 25

U.S.C. 450e(c)).

Notwithstanding this substantial historical record of

administrative practice and congressional enactments, EEOC contends

that, in enacting Title VII in 1964, Congress made the radical decision

to abrogate this longstanding federal government policy and practice

without so much as a word, while at the same time allowing the

allegedly illegal practice to continue unabated for the next half century

with no further comment or legislative intervention. EEOC’s position,

however, flies in the face of canons of statutory interpretation that

disfavor repeal by implication. See Posadas v. Nat’l City Bank, 296 U.S.

497, 503 (1936). “While a later enacted statute . . . can sometimes

operate to amend or even repeal an earlier statutory provision . . .

‘repeals by implication are not favored’ and will not be presumed unless

the ‘intention of the legislature to repeal [is] clear and manifest.’” Nat’l

Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662

(2007) (quoting Watt v. Alaska, 451 U.S. 259, 267 (1981)) (brackets in

original) (emphasis added). There is no such clear and manifest

48


congressional intent to repeal here. And this presumption against

implied repeal extends to longstanding Executive Branch practice as

well as statutes: “‘Long-continued practice, known to and acquiesced in

by Congress, would raise a presumption that the [action] had been

[taken] in pursuance of its consent . . .’” Dames & Moore v. Regan, 453

U.S. 654, 686 (1981) (brackets in original) (citation omitted); accord

United States v. Midwest Oil Co., 236 U.S. 459, 470-73 (1915) (although

no explicit authority existed for President to withdraw public lands, the

long-continued Executive Branch practice, done with the knowledge and

acquiescence of Congress, creates presumption that withdrawals were

made with its consent or in recognition of administrative power to

manage public lands); Bob Jones Univ. v. United States, 461 U.S. 574,

601 (1983).

Moreover, a further consequence of EEOC’s position, if accepted,

would be to create an irreconcilable conflict between Title VII and at

least one subsequent congressional enactment—the 1994 amendments

to the ISDEA—which expressly endorses tribe-specific employment

preferences. Cf. Dawavendewa v. Salt River Project Agric. Improvement

& Power Dist. (“Dawavendewa I”), 154 F.3d 1117, 1124 n.15 (9th Cir.

49


1998)) (noting, without resolving, the conflict with the ISDEA that

would be created by EEOC’s position). But interpreting statutes to

create such a conflict (which would require a court to decide that one

statute implicitly repeals the other) is disfavored where there is a

plausible way to read them in harmony. Thus, a court “will not infer a

statutory repeal ‘unless the later statute “expressly contradict[s] the

original act”’ or unless such a construction ‘is absolutely necessary . . .

in order that [the] words [of the later statute] shall have any meaning

at all.’” Nat’l Ass’n of Home Builders, 551 U.S. at 662 (brackets in

original) (internal citations omitted); see also Mancari, 417 U.S. at 550

(“In the absence of some affirmative showing of an intention to repeal,

the only permissible justification for a repeal by implication is when the

earlier and later statutes are irreconcilable.”)

In this case, EEOC’s position must be rejected because the two

statutes may easily be read in harmony, i.e., premised on Congress’

understanding (as found in Mancari) that tribal member preferences do

not necessarily constitute race or national origin discrimination in the

first place. It is “improbable, to say the least, that . . . Congress[,] which

affirmatively approved and enacted these additional and similar [tribe-

50


specific] preferences [in the ISDEA amendments] was, at the same

time, condemning the [Navajo lease preferences] as racially

discriminatory.” Mancari, 417 U.S. at 548-549.

EEOC responds (Br. 38-40) that, just because “Interior has

engaged in a particular discretionary administrative practice for many

years does not, itself, justify the continuation of that practice in the face

of a conflicting statutory prohibition.” Br. 38 (emphasis in original)

(citing cases). But EEOC’s response is a red herring, based on a

distortion of Interior’s position. Interior does not contend that an

agency may “excuse” a statutory violation through a repeated

administrative practice. The point, rather, is that the type of tribal

employment preference at issue in this case, as a legal matter, does not

constitute national origin discrimination and is therefore outside the

scope of Title VII. Interior’s longstanding administrative practice (and

the canons of construction disfavoring implied repeal) is cited as

additional support for this interpretation.18

18 EEOC insinuates that, for the past five decades, the Secretary has been “directing” (Br. 39), “enab[ling]” (Br. 39) and “giving permission to” (Br. 40) private companies to “ignore” and “violate” federal law. See also, e.g., 41, 42 and 43. For the reasons expressed above, this

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2. Canons of interpretation also preclude an implied abrogation of tribal sovereign authority.

For similar reasons, EEOC’s interpretation also runs afoul of the

canons of construction that disfavor implied limitations on core

attributes of inherent tribal sovereignty. Under fundamental principles

of federal Indian law, “Indian tribes still possess those aspects of

sovereignty not withdrawn by treaty or statute, or by implication as a

necessary result of their dependent status.” Wheeler, 435 U.S. at 323.

Limitations on tribal self-government and internal affairs cannot be

implied from a treaty or statute; they must be clearly expressed. United

States v. Dion, 476 U.S. 734, 738-739 (1986); Bryan v. Itasca Cty.,

Minn., 426 U.S. 373, 392-393 (1976); Mancari, 417 U.S. at 555.

accusation is patently false and based on a plain misreading of the Secretary’s (and the Department of Justice’s) views. Similarly, EEOC states that it “know[s] of no legal authority for the principle that the [tribal] trust doctrine allows the Secretary to excuse a private, non-tribal business from complying with federal law.” Id. at 41. Once again EEOC misreads the Secretary’s position. EEOC fails to grasp that the federal trust responsibility is not an “excuse” to “violate” federal law, but a core component of the rationale, articulated in Mancari, for why certain forms of tribe-specific preferences constitute legitimate political classifications that are outside the scope of Title VII.

52


Prior to the enactment of Title VII, the Navajo Nation clearly

retained the inherent sovereign authority to regulate its own economic

activities and the activities of nonmembers who enter into consensual,

commercial relationships with the tribe on tribal lands. See Montana,

450 U.S. at 564–565. And, as explained above, the Nation enjoys both

an inherent sovereign right and a treaty right to condition access to its

Reservation by non-members. See, supra, at 29-30; see also Mescalero

Apache Tribe, 462 U.S. 324 at 333 (“A tribe’s power to exclude

nonmembers entirely or to condition their presence on the reservation is

. . . well established”); Jicarilla Apache Tribe, 455 U.S. at 144. As a

corollary to the power to exclude, the Navajo Nation has the lesser-

included authority to require lessees operating on the Reservation to

give a preferential right to employment to tribal members.

Should EEOC’s position prevail, however, the practical effect

would be to render the Nation’s duly enacted ordinance (requiring

lessees to adopt tribal hiring preferences) invalid and to impede the

congressional goal of promoting tribal self-governance and economic

self-sufficiency. Although Congress could abrogate the Navajo Nation’s

sovereign authority in this manner, courts cannot infer such a result

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unless Congress’ intent is clear. For all the reasons given above, there

is no such clear evidence of congressional intent in Title VII, and

EEOC’s position should be rejected.19

3. The legislative history of Title VII further confirms that Congress did not intend to implicitly abrogate Interior’s longstanding practice of approving tribe-specific employment preferences.

No evidence exists, either in the text of Title VII or the Civil

Rights Act’s legislative history, that Congress intended to limit tribal

sovereignty or to ban Interior’s practice of approving tribal preferences.

In fact, legislative history and contemporaneous assessment of the Civil

Rights Act suggest the opposite: Congress believed that the Civil Rights

Act would not affect Interior’s programs to benefit specific Indian

19 This Court has recognized a general rule that federal statutes of general applicability apply to Indian tribes on tribal lands, while identifying certain specific exceptions to that rule. See Dawavendewa v. Salt River Project Agric. Improvement & Power Dist. (“Dawavendewa II”), 276 F.3d 1150, 1158 (9th Cir. 2002) (citing, e.g., Donovan v. Coeur d’Alene, 751 F.2d 1113 (9th Cir. 1985)). That line of cases, however, is not directly relevant here, as Interior is not urging this Court to read an implicit exception into a statute of general applicability. Rather, this case turns on the legal distinction (see Mancari) between a preference based on race or national origin (which is covered by Title VII) and a preference based on a political classification (which is outside the scope of Title VII).

54


tribes—programs well-known to Congress—and Section 703(i) of Title

VII (the Indian exception) was intended to protect, not to prohibit or

restrict, such programs.

In the winter of 1963, the House Committee on the Judiciary

asked the Attorney General for a list of Federal programs that would be

affected by Title VI of the Civil Rights Act, which prohibits the use of

federal funds for discriminatory purposes. Then-Deputy Attorney

General Nicholas Katzenbach replied to the Committee with a list of

programs that would be affected. Importantly, his list intentionally

omits “programs of assistance to Indians.” 110 Cong. Rec. 13,380–81

(1964). As Katzenbach explained: “Indians have a special status under

the Constitution and treaties. Nothing in [T]itle VI is intended to

change that status or to preclude special assistance to the Indians.” Id.

This language, closely echoed by the Supreme Court eleven years later

in Mancari, demonstrates an understanding, contemporaneous with the

passage of the Civil Rights Act, that Indians enjoyed a special status

under the law that the Civil Rights Act did nothing to displace.

Senator Karl Mundt was the sponsor of Section 703(i) of Title VII.

Senator Mundt was from South Dakota (home to nine Sioux tribes) and

55


spent much of his career working on Indian issues, including providing

Indians with education, skills training, job opportunities, and other

means of promoting economic self-sufficiency. (ER 582-584). In the late

1940s and early 1950s, the Senator began to promote a program in

which the United States would transfer control of federal land located

on or near reservations to tribes to lease out to private industry. ER

585; 103 Cong. Rec. 1386 (1957). The United States would then offer

industry tax incentives to re-locate to the site, conditioned on providing

skills training and preferential hiring to local tribal Indians. See H.R.

3942, 85th Cong. (1957). One of these initial projects was designed to

assist a particular South Dakota Sioux reservation. It is in that context

that Senator Mundt explained that including Section 703(i) in Title VII

“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.” 110 Cong. Rec.

13,702 (1964); Mancari, 417 U.S. at 546 n.20. EEOC dismisses Mundt’s

comment on the basis that it refers to Indian preference programs

generally, and suggests that there is no reason to read the remark as

56


encompassing programs containing tribe-specific preferences. But

history suggests otherwise.

In conjunction with the program Senator Mundt championed, by

1956 the BIA had initiated a broader industrial development program

designed to attract established industries capable of employing Indians

to locate on or near reservations. (ER 587). The program began when

BIA worked with the Navajo Nation to create a “Central Office for the

promotion of industrial development on and near Indian reservations.”

(ER 589-590). The first two projects under the program were a

furniture plant near Gamerco, New Mexico, and a Lear Electronics

plant in Flagstaff, Arizona, each of which adopted a tribe-specific

preference. (ER 590). These industrial development programs were

repeatedly couched as providing “on and near Indian reservation”

employment—language identical to that used in the aforementioned

Mundt-sponsored amendment, which Mundt characterized as

preserving “Indian preference programs now in operation or later to be

instituted.” 110 Cong. Rec. 13,702.

Had Mundt intended to preserve every aspect of the Indian

preference programs he championed except for the tribe-specific

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preferences, presumably he would have said so; but he did not. See

Chisom v. Roemer, 501 U.S. 380, 396 (1991). Nor is there any other

indication in the text or legislative history that Congress intended to

draw such a distinction. To the contrary, if anything, the Mundt

statement, combined with Congress’ decision to exempt tribes from the

definition of “employer” and to include the Section 703(i) Indian

exception, indicate that Congress was being careful to preserve inherent

tribal sovereignty and self-governance. There is no basis for reading

Title VII as impliedly abrogating the Navajo Nation’s previously-held

rights, and the legislative history confirms that such a reading would be

in error.

E. Dawavendewa I Does Not Control the Outcome of this Case.

EEOC contends (Br. 23) that the district court erred by not

following binding circuit precedent in Dawavendewa I, 154 F.3d 1117

(9th Cir. 1998). But Dawavendewa I does not answer the specific

question presented in this case.

In that case, the district court had dismissed a Title VII challenge

to a hiring preference for Navajo tribal members in a lease between the

Salt River Project Agricultural Improvement and Power District (“Salt

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River”) and the Navajo Nation. Salt River predicated its motion to

dismiss on the argument that preferences based on tribal affiliation are

categorically valid under Title VII. Id. at 1119. This Court reversed,

holding that “discrimination on the basis of tribal affiliation can give

rise to a ‘national origin’ claim under Title VII.” Id. at 1120 (emphasis

added).20

As a general matter, a private employer’s unilateral decision (e.g.,

where that decision is not mandated by an Interior-approved lease or

tribal ordinance) to favor members of one tribe over members of another

tribe may well constitute national-origin discrimination within the

meaning of Title VII. But Dawavendewa I does not hold that

preferences based on tribal affiliation are always national origin

discrimination. In particular, that decision (like the 1988 EEOC Policy

Statement) does not specifically address the justifications here, in which

20 A significant portion of the Ninth Circuit’s ruling was devoted to whether, assuming a tribe-specific employment preference would otherwise constitute national origin discrimination, such a provision would qualify for the Indian exception in Section 703(i) of Title VII. See 154 F.3d at 1120-1124. It is in that context—and not in the context of what constitutes “national origin” discrimination in the first place—that the Court gave “some deference” to EEOC’s 1988 Policy Statement. 154 F.3d at 1121.

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an employer is complying with a tribal ordinance and an Interior-

approved lease, both of which require a hiring preference for the tribe’s

own members for employment on the tribe’s reservation involving

utilization of the tribe’s land or resources.

Notably, neither Interior nor the Navajo Nation was a party to

Dawavendewa I; so they are not bound by that decision. More to the

point, Interior had not, until the most recent district court proceedings

in this case, had an opportunity to present an affirmative case for (1)

the validity of tribe-specific preferences under these particular

circumstances; (2) its longstanding policy and practice of approving

leases containing tribal preferences; and (3) the critical connection

between such preferences, the federal trust responsibility, and

Congress’ goals of promoting tribal self-governance and economic self-

sufficiency. Indeed, this Court indicated that it decided Dawavendewa I

on the assumption that issues regarding “Native Americans’ interests in

self-governance” were “not present.” Id. at 1120 (emphasis added).

Clearly, the panel did not have occasion to grapple with the specific

arguments presented here by the two sovereign entities directly

involved in the Navajo leasing program: Interior, representing the

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United States in its capacity as general trustee for Indian tribes, and

the Navajo Nation itself.21

This Court confirmed the limited scope of Dawavendewa I when

the case came up on appeal a second time, in Dawavendewa II, 276 F.3d

1150 (9th Cir. 2002). There, the Court noted that, in Dawavendewa I, it

had reversed the dismissal of the complaint because, “as described in

the complaint,” differential treatment based on tribal affiliation was

“actionable”as national origin discrimination; because such treatment

was capable of giving rise to liability, the suit could not be dismissed

without further proceedings on the merits. Id. at 1154. This Court

observed further that, when a petition for certiorari was filed in

Dawavendewa I, the U.S. Solicitor General submitted an amicus brief

noting that there were other legal arguments that could still be made to

defend the tribal preference at issue. Id. And this Court concurred in

the Solicitor General’s submission that “no court had yet considered . . .

whether any legal justification, such as treaty rights or the federal

21 Regardless of whether the Salt River lease was actually approved by the Secretary (see EEOC Br. 20 n.3), the court of appeals did not mention that fact or address its legal significance, presumably because the parties did not raise it.

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policy encouraging tribal self-governance, excused [Salt River]’s Navajo

preference policy,” leaving those questions open. Id. Those questions

would be left for another day, as dismissal of the suit was affirmed on

Rule 19 grounds. Id.

Moreover, if Dawavendewa I controlled the outcome of this case,

there would have been no reason for this Court to encourage Peabody to

implead the Secretary so that Interior could provide its position on the

merits of the Title VII issue, stating:

We vacate all of these rulings to allow reconsideration once the Secretary has been brought into the suit as a third-party defendant. This will allow the court to consider the arguments of the Secretary on the legality of the employment preferences. . . . [P]resentation of the Secretary’s views in the district court . . . will be useful to us in the event of a further appeal.

(ER 720).

Finally, it is important to note that EEOC’s current interpretation

of Dawavendewa I is directly contrary to EEOC’s interpretation of that

case in three Supreme Court briefs filed by the Solicitor General on

behalf of EEOC. First, as noted above, in the 1999 amicus brief on the

petition for certiorari in Dawavendewa I, the Solicitor General argued

that Supreme Court review of the Ninth Circuit’s decision was not

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warranted because, among other things, the court of appeals did not

hold that discrimination based on tribal affiliation was per se national

origin discrimination. See Br. for the United States as Amicus Curiae,

Salt River Project Agric. Improvement & Power Dist. v. Dawavendewa,

No. 98-1628 (ER 160-179). The Solicitor General construed the opinion

in Dawavendewa I as leaving undecided whether the tribal employment

preferences at issue could be deemed a political preference, rather than

a preference based on national origin, and thus not subject to Title VII.

(ER 172-173).22

22 The Solicitor General explained that:

The court of appeals [in Dawavendewa I] did not address the questions whether an on-reservation employer’s preference for members of a particular Tribe in conformity with an ordinance of that Tribe (or the terms of a lease of the trust property of that Tribe) should be viewed as a political classification, [or] whether such a preference should be viewed as having the effect of preferring persons on the basis of political affiliation rather than national origin . . . . [Review] of those questions is therefore not warranted here.

(ER 172-173). The EEOC General Counsel and other EEOC lawyers (including one counsel of record here) were on this brief. (ER 160).

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Next, in 2005, at an earlier stage of the instant case, the Solicitor

General (again speaking on behalf of EEOC) reiterated and confirmed

the 1999 amicus brief’s characterization of Dawavendewa I. (ER 158-

159, at n. 7).

Most recently, in an August 2011 brief filed in this case, the

Solicitor General (on behalf of EEOC) observed that, “[a]s a general

matter, a private employer’s unilateral decision to favor members of one

Tribe over members of another Tribe constitutes national-origin

discrimination within the meaning of Title VII.” (ER 653). But the

Solicitor General reiterated that “the analysis may differ when an

employer is complying with an Indian Tribe’s law or ordinance that

requires a preference for the Tribe’s own members in employment on

the Tribe’s reservation, such as employment under a Secretary-

approved lease for the utilization or exploitation of the Tribe’s own land

or resources held in trust by the United States.” Id. He explained that

“[u]nder those circumstances, the issue . . . is whether the tribal

preference should then be regarded as a political classification rather

than a classification based on national origin—and thus beyond the

scope of Title VII.” Id.

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In filing these briefs, the Solicitor General had authority to

represent the position of EEOC and the United States as a whole. Cf.

28 U.S.C. 518(a) (vesting in the Solicitor General the authority to

represent the United States before the Supreme Court); see 28 U.S.C.

519 & 42 U.S.C. 2000e-4(b)(2) (“[T]he Attorney General shall conduct all

litigation to which [EEOC] is a party in the Supreme Court”). EEOC is

bound by its representations to the Supreme Court. It cannot now

argue for a different interpretation of Dawavendewa I.

II. The District Court Properly Granted Summary Judgment and Did Not Abuse its Discretion by Denying EEOC’s Last Minute Motion to Supplement the Record.

For the above reasons, the district court correctly ruled as a

matter of law that a tribe-specific employment preference adopted by a

private employer, in compliance with a tribal ordinance and pursuant to

an Interior-approved lease for economic activities on tribal lands,

constitutes a political preference, not national origin discrimination,

and therefore lies outside the scope of Title VII. EEOC now argues (Br.

44) that, even if that ruling is legally correct, there remains a disputed

issue of fact as to whether Peabody was actually “bas[ing] its hiring

decisions on an applicant’s tribal membership status.” EEOC further

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contends that the defendants failed to meet their burden of proving that

Peabody was making distinctions based on tribal membership and not

basing its hiring decisions on other allegedly impermissible

characteristics (such as an individual’s Navajo-sounding name or facial

characteristics). EEOC argues that the district court therefore

erroneously granted summary judgment without allowing discovery.

EEOC’s argument, however, is fatally flawed for several reasons.

First, this is not how EEOC pled the case. The gravamen of

EEOC’s complaint was that Peabody’s lease provision violated Title VII

because it required Peabody to favor members of one Indian tribe over

members of other tribes (and other non-member individuals). EEOC’s

second amended complaint, for example, states that it was lodged on

behalf of three individual Charging Parties who are members of Indian

tribes, but “who are not members of the Navajo Nation.” ER 689 ¶11.

Further, EEOC alleges that Peabody had engaged in impermissible

discrimination on the basis of national origin because “Peabody did not

hire Charging Parties . . ., but instead hired members of the Navajo

Nation for the open positions.” (ER 690 ¶13) (emphasis added); see also

ER 688-689 ¶6 (alleging that Peabody “violated Title VII by refusing to

66


hire [Charging Parties] because they were Native Americans who were

not members of the Navajo Nation.”) (emphasis added); ER 653 (framing

issue in Solicitor General brief). EEOC did not allege in its complaint

that Peabody was extending a hiring preference on the basis of

characteristics other than tribal membership.

Similarly, in its brief responding to the Secretary’s motion for

summary judgment, EEOC continued to frame the case as turning on

the legal question whether “Title VII prohibits discrimination based

upon tribal affiliation.” (ER 428). EEOC argued that the Secretary’s

motion should be denied because, in its view, the only permissible form

of tribal hiring preference is a “general Indian preference[] . . . for

Indians as opposed to non-Indians,” and Title VII “does not permit . . .

preferences for Indians from one tribe at the expense of Indians from

another tribe.” (ER 429). This was the legal issue presented to and

decided by the district court. EEOC’s last ditch effort to change its legal

theory should be rejected.23

23 In the conclusion section of its response brief below, EEOC stated in passing that, if discovery were allowed, the evidence “may well demonstrate that Peabody . . . used proxies for national origin such as facial features and surnames.” (EEOC Resp. Br. 35). But EEOC

67


Second, EEOC did not proffer any evidence to support this

different legal theory until literally the very last minute, and the

district court properly rejected it on that basis alone. (ER 23). EEOC

filed this case in 2001. For over a decade, the parties submitted

numerous motions, and the case went to the court of appeals twice. Yet,

not until the day before the district court’s most recent hearing on

summary judgment—after the second remand from the court of

appeals—did EEOC move to supplement the record with evidence

allegedly showing that Peabody was extending hiring preferences based

on factors other than Navajo tribal membership.24 The district court

correctly rejected this motion. As the court explained, all of this

evidence had been in the possession of EEOC since the late 1990’s, and

did not contend that the alleged use of such “proxies” would constitute an independent violation of Title VII, and justify denying summary judgment, even if the district court rejected EEOC’s principal legal theory that “Title VII bars tribal preferences” (id.). 24 EEOC contends that the evidence would have shown that, in the late 1990’s, a Peabody official “denied that [Peabody] maintained a Navajo preference and represented, instead, that it maintained an ‘Indian’ preference.” (Br. 47). Even if EEOC’s characterization of the evidence were correct, it is not clear why that evidence advances its cause. If Peabody had actually been giving a preference to all Indians, as opposed to a preference for Navajo tribal members, EEOC would have no complaint against Peabody.

68


EEOC offered no justification for its tardiness, or for why the court

should re-open the record on the eve of the summary judgment hearing,

effectively allowing EEOC to shift the focus of the case to the prejudice

of the other parties. The district court’s evidentiary ruling is reviewable

only under a deferential abuse of discretion standard. Sheet Metal

Workers Int’l, 84 F.3d at 1192. Clearly, the district court acted well

within its discretion here.

Third, contrary to EEOC’s assertion (Br. 45), the Secretary did not

premise its motion for summary judgment on a fact-based defense. Nor

did it raise an affirmative defense or invoke a statutory exemption to

“excuse” conduct that would otherwise violate Title VII. Rather, the

Secretary’s defense was based on a purely legal proposition, i.e., that a

tribe-specific preference, such as the one at issue here, constitutes a

political preference that falls outside the scope of Title VII. Summary

judgment was appropriate because EEOC’s theory of liability was

flawed as a matter of law, not because it was deficient as a matter of

fact. Thus, EEOC’s discussion (Br. 44-50) of which party carries the

evidentiary burden is misplaced. The Secretary did not assume the

burden of proving a defense as a factual matter. The underlying legal

69


question—on which EEOC predicates its claim and the Secretary

(taking the opposite position) bases her defense—may be decided by the

courts de novo. If this Court affirms the district court’s resolution of

that legal question in the Secretary’s favor, EEOC’s case must be

dismissed.25

For these reasons, this Court should proceed to review the district

court’s legal ruling upholding the validity of the tribal lease provision at

issue. If it affirms that legal ruling, it should affirm the dismissal of the

third party complaint against Interior.

CONCLUSION

For the foregoing reasons, the district court’s judgment should be

affirmed.

Respectfully submitted,

ROBERT DREHER Acting Assistant Attorney General

25 If EEOC’s complaint is not that the tribe-specific hiring preference in the Interior-approved lease is illegal, but that Peabody was not abiding by the terms of that lease provision (i.e., if EEOC wants to assert that Peabody was actually implementing a hiring preference based on impermissible factors as opposed to Navajo tribal membership), that is a different argument for a different case.

70


s/ETHAN G. SHENKMAN Deputy Assistant Attorney General JAMES C. KILBOURNE Section Chief KRISTOFOR R. SWANSON* Environment & Natural Resources Div. United States Department of Justice P.O. Box 7415 Washington, D.C. 20044 202-514-2701

[email protected] [email protected] [email protected] July 17, 2013 DJ# 90-2-4-13546 *Nicolas Hodges, an intern with the Department, made substantial contributions to portions of this brief. usdoj.gov

STATEMENT OF RELATED CASES

The Federal Appellees are unaware of any related cases within the meaning of Ninth Circuit Rule 28-2.6 that are pending in this or any other court. s/Ethan G. Shenkman

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(C) , I certify that the foregoing Brief is proportionately spaced, has a typeface of 14 points, and contains 13,954 words. s/ Ethan G. Shenkman

71


CERTIFICATE OF SERVICE

I hereby certify that on July 17, 2013, I electronically filed the foregoing Brief and following Addendum with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit using the appellate CM/ECF system. I further certify that all participants in this case are registered CM/ECF users will be served by the appellate CM/ECF system. s/ Ethan G. Shenkman

72


ADDENDUM

H.R. Rep. No. 58-3700, Pt. 2 (1905)


58rs Coxoe$ss, ~ HOUSE OF 8EP$ESE~TATIVES. ~ KEP T 3TW,.~d Sesxion. Part 2.

AGREEMENT 1~'ITH INDIAN'S RESIDING ON THE SHO-SHUNE INDIAN KES~:RVATION, ETt;.

.IA~CARY IBS 190G.—Committed to the Cumwittee of the «'hole House on the etatt~of the L'nion and ordered to be printed.

fir. '~ZZ(iEBALI)~ from the (:ommittee on Indian Agaire, submittedthe following

VIEWS OF THE MINORITY.

[To a~~mpany H. R. 1i9S~l. ]

The under~i~ned, members of the (committee on Indian Affairs, sub-mit the following ret~ons for their opposition to certain proviaiona of~i. ft. 17994:The bill is reported a.~ a substitute for H. K. 1381, which, ~cvith

certain Senate amendments, had tx~en referred Lo the Committee onIndian Affairs. 1'he ~urpc»e of the bill is to rsstify and confirm anagreement with the lndian~ reyiding on the ~6oahone or ~` Ind Ri~~erIndian Ke~rvatioa, in the Mate of W~•omii~g, by which it iy proposedthat 1,480,0(X) t~cres of land be ceded to the ~Tnited Stites by tielndians residing on the reser~•ation.The bill purports to ratify an agreement made with the Indians vu

April 21, 190. Tl~e agreement is a~uended in certain particulars, as~E~t forth in the re~iort of the majority of the committee (Keport No.3700, 58th Cong., 3d ae~tt.).

Tk~e committee bars recommended the amendment of .article II ofthe agreement by the in3ertion of the following provision:Pra~ied, That nothing herein contained eball impwir the rights unciec the lease to

Aamue ~tloyraen~ Mhich bas teen approved by the t~ec:retary of the Interior; but saidIk e eha.0 have for thirty ~laye from the dale of the approval of the surveys of saidland a preferential right to locate, following the Ciovernn~e~~t ~un•e}•~, not to eacerdsix hundrod and forty scree of contiguous n►inerai or coal Ianda ~n said reservation;that said Bosses at the time of entry of Ruch land ghali pay cash therefor at the rate..f ten doila~ per acre and eun+ender said Ieaee, and the same st~ali tie cancelled.

Ia support of its action in recommending this amendment to theagreement the committee in it$ report says (p. Z, Report 3700):

AemueBoyeen had a coal lease on the reservation covering a very large acreage, whichv►ae approved by the Secretary of We Interior, and it ieproposed tog~~ e trim the prefer-ence right to locate 640 scree of coal or mineral Ianda at the price at w hich coal landson the reservation ZO miles from the railroad are Lo be sold. IInder this arrangementthe Indiana obtain the h'~gbeet price for their lands under the circumetancee, and alletaime under a lease which might posaibty cloud the title to a very large acreage iethereby proposed to be eztinguisheci.


T:TDIAN~ RE~IUINCi Ov ~fiU.lHOYE RESRx~ ATIUN, FTC.

'Ch~~ n~inorit~ ~u•~~ unable to ii~rr~~~~ ~~•iti~ the u~njorit~•'s ~ iew. of tlii•Irx.~+c~ ui• the ri~t~t~+ ~~f I;~n~~t~n tlii~r~~iu~~iE•r. They ar~~ ~~f opinic,n tlial:1tin~u, I~~~•.~•a h.►~ i~~~ cl~iin~ ~~ittirr IPr~II AI' E'(~U1t2i~1I~' tl~tit ju~titi+~ti ttir~~y~~~t to t~i~» of pr~~f~~r~~~~tiiil right, to lo~•ut~~ a~~- luncl to ix~ c~!H~u~~d to~~~ttlE>>z~~~nt undrr tlit~ 1►i11. i111(~ ~)1U•tic~ularl~• a»~• tniiiE~ral lu:~d utlier tlz~~ne„~~i lunti. "t'~, cic~ •o is a ~fru,> inju.ti~•~ to a~i ~~tl~er ~x~i~~~n» de irinKto t~nt~~r a~~d ai~ttl~~ u~~~~n ttir. lands t~~ I,~~ o~x~uecl. liut•yE~n i~ riot uitl~•~ic~~~~ urnir~r tlie ~n•u~,N~SE~~I iui~~>»dn~c~nt a prrf~~rei~tia~ ri~l~t to luratc~Inncl, but he cHi~ ac~~uirean :il»olute title to t;-~~~ acres of land which cannc~t hr d~,ne i►~• :tnro~ir el:~•.

Ii~~~•~~~n'~ ,u~,E,~,:~t~c~ ri ~,~Iit~ grow ~~ut of a tea~:>e madt~ h~' Ililll W1tI1 rllPIndiuny r~'~1t~111},,~ ~>t~ tf'e tifiu:~l►une or ~~'iud lti~•~~r ~~•~r~•ativu in«'~•un~iu~;. "Che le~a~r ~~•.~.~ appro~~ed b~• t6e tie~~ret~ir~• cif tl~e lnteri<~e unUct~►h~~r ~. 1~'.+!►. ['eider the IE~i~.~e l;o~'~en ~~•i~s ~,~i~•en tlir right to pro.-}~~~ct, for i~ period cif tti~•~~ ~•eur~, ~~ de~crii~ed tecritor~• c~un~isting of1 i~,~~~~~~ ucrey f~~t• e~~al and for nothing else.

'1'hc~ t~~rui of tf~~• {~~:~~~~ wt►~ ten ~•t~arri from the date of approrul (()rtc>-t~r -~, l~:~u), :i~~~i thr i~rupi~ctin~ pericxl of tw•o ~•ear> ~~•at. ~nclu~lc~d a~~Dart of th~~ tt~r~ii. .1t the espieation of the tw•u ~•car~ prc,, x~~~ti~~~~►•i~ >d the le~~.~t~ upplic,~d ui~lt• to :such territory de~c~ri~~ed iri ~uc~ ui~►l~~of definite I~►~•~iti~~n a, were n~►prc,red b~• the ~ecretar~• of ttic Interiorand filed in the I)~~purtni~~nt ~~f the Interior.

lio~•~en ~~a~ ~•uni x~iied undt~r the prop iyion~ of the leu~c to file ~citl:tl~e 5err~~tur~~ of t~~e• Interior, within :i ceH~a~n1►1~~ time:ind ~~~itb~>utunnec~~•~iirr dE~la~•, ai~c1 subject tc> the appro~•:~l cif the 5ecretur~ , a ~►u~E~~r plot •huwinn dcnnitPi~• cl,r tand~ t~ K hick the iea~e ap~iied, ̀`d~~c~•il,-in;~ the ~:one h~~ l~rupeclt• desi~tittte~d and fixed t~oundar~e.~, to 1>edetinedb~• pr~~per ~ur~•e~•."

~Cithin thrt>e months after di~co~erie:~ of coal, ~3o~•en wx~ al•orec{aired t~~ fi!e n~ap~ ~l~o~cing d~tinitely the location of hip di~roverie:~,~ncl all iii~E~K and re~~rt~ «•ere t<~ !~e ~•erihed V y•oath. Upon the tilingof mfip, ~f ai~co~•er~c~a un!i u~wr~ their ap~ro~•al b~ tLe secretary of theInterior the ►~~~~ee ~~a:s t•eytitred forthRit,h to de~•elop and work dili-~entl~~ a~~d tc~ the fullest practi~•:ihle extent the di~rorerie:~ de~crihrdin the nine tiled i~~, t3nd n~~~ro~•ed h~, the Pepartme~,t of the Interior.

13o~•eny hx~ ut~~•et• c<~~upi~ed with and of these ~~ouctitiony.The lease ~il~o ~~rcn ided that extiiigui~tunent of ~tf~~~ Indian title tc~

the tnnd3 ~~o~•er~d b~~ the tease ~l~o~ild o~erat~ to terniin.~te tt~e leu~eand xll ri~h~~ xequired under it. 1'he right to allot the lands ~~o~~erE~clh~• the leu5e ~ruy also reserved, and the ~cretar~~ of the InteriUr ~~~u~c~t~thed K iLh poorer to aeclai•e the let~e €orfeited, abro~iited, and tt~r-ii~inuted apon xixt~~ da3•s' notice to the le.~~ee for any omission, t~e~;lt~i•t.oc fail~~re of thQ Iea~ee to perform and of hip obligations under• tl~~•lease.

tan No~-ember 2Z, 1900, as appears from the letter of the Secretsu;~•of the Interior to tha chairman of the C<'ommittee on Indian Ati',iir•.cited December 15, 19~~~, and print~;d herewith, Boy~en subu~itteclplaty purporting to show location of coal deposits and indications ofother mtnei~als, none of which were satisfactory to the SecreL.nry o~the Interior, or .were ever a~prored by him, or met the rec~ uirementsof the lease. At the same time ~3oysen pro~~osed tc~ surrender certaintownship3 covered by the let~e and to i•eta~n certain other townshipson which to mine coal and other rnir~ral~. The offer was rejected bythe Department of the Interior.


INDIANS $ESIDIN(i ON SH08HONF. RE3EBVATTON~ ETC. 3

On January 22, 1901, Ba~sen'9 attet►tion way ~~alled to the fa~~t thatno hb:p~ had been taken b y•him to cum• nut Lhc~ termK of the IE~s►.~e,although fifteen months hxd elap~rd ~inre iGy appro~•~il. \~~ r~pl~ waaerer made to ti~is couiiuunication, but on ̀ lay ~}. 1!►U1, Iio~•~en nppliedfor a new leuye and ag~ n offered to surrender cerU►in ~rtiong of thelend ~~o~•ered by the old lea.•e.

Ori .Tune J, I~0l, Bob yen wu5 nvtitic~d that hip leu~t~ ht~ct h~• it+3 pr~-~•i~iou~ I~c~come inoperati~•e. The iett,~r containc~~i thiti tangiiuge:

1'~~u (BoyE+en) <ii~i not preAent an}• mad+ ~~r plates :+uch ar+ arcs ~•~mt~iziplated by thet~~rme of ru~~i I.ar~e ~•ittiin tt~e tiu~e rJ~~~ricvi. 'the lk•}~a~ttnrnt rrf~trkN1 to apE►ri >~•r~•rrGiin n~uKh tracing prc•rx•ntcKi h~ }~uu, por}x~rtinK t~~ rhuw cli~x•~~i•~•rir~ ~~f cuxl. butw•#~i~~i~ di~i nvt in any w•a~ iu~lics~le thc~ extent of the ~le}x>riU±, an~i ~ti~i n~>t l~N~~~ Nu~~hrlaiu~ed ~li:+ru~•Nri~w w rth rrtereu~~ t~~ an }• ~'Ut[1N~ of the i~ubli~• durvr~~ ~ ~~r t~, x~sr natu-rai n.onument, w~ that thr~• miKht i~ i~ientided in the fit•I~i~ dU~I N'~lich truriny~+werenod ~•eritir~i i»• ~•~~ur uatl~, :►e the l~•su~ requinK~ mnF~ and ~3iatx to 1~~, ,u~~l in a i~>ttrr~~f .~annary 'l'_', 1~~1, ~~allr~i •our atteutio~ t~~ ~~our failure up to that tia►r t~ ~•~~rupiyw~itli tht~ pro~~ir!iune of raid l~a~r in ree~~~v~t uf,the filinK ~>t n~a~~+ au~i platy ~~( ~ii~~~~•.~•rit~r~~f ~~oal, at the rwwe time ~,ointing out the ~it•fe~•ta anal ~ieHc•ie~aci~•N ••f the trariuy~rtheretof~~re Nubniitt~~l by y~~u. Ycu Ra~•e nn heed to thir~ w•arni»yt :~n~l ma+ir• noetfott. ~ci iar x~ this Department ie int~,rentirl, within this K~,e~itieyl }~eri~H1 ~~f two cean+,nur in ta~~t after that tiv~e, to ~l~iKnatr in the wanner pro~•idcrl in }•~~ur iN~e anydi:k•„~•ery of rc>al.

It is not claiwed e~•en b~ BoS~en that anf coal ~r:~.~ e~ er mined und~i•the lea.~e. It iy ur ►ed, however, that heruu~e Ii~~~•~~~n ~rE~ended~`~5.~►~N) o~• ~530,~NH) ~or attornPy~K' feed+ in ~1"u~hin~±t~m, prelitninar~•~ur~•e~~~s, and other es~~n~~~~ entirely spc~•ul:it.i~•c~ in ~~h~irartt~r uad inde-ix~►ident of any ~ntn~n~ o}x~ratior~s and cie~•elupiu~~~►t. 4on~r :~p~~cixt~~ri~•il~~~en 51iou~d 1x~ Kit•en t~~ hii1~ ire thE~ ~~~nding hill.

'1'i~e minrrit~ are unablt~ t~~ a~r~e Frith the ~~~►n~~uittet~ that lioc•~enno~~• hav and• rigfitq under the {e~.~~~, th~it h~~ ~huul~l hr ~ir~~n xnt• rightt)C !)l'1~'1~@rf` 111 t~lP, t) K!illll~v„ Uf till' 1'l';1'C~'7it1{)ll. Ol' tfllLt t`11~ ~t'iL~i~~~(YUt lIl

tt►e ~li~;bte~t cloud t ie title to un~• purt r>f t}i~~ land t~~ 1►~~ c~~~i~~d ~ii~ci~~rthr ~~i•o~•i~ion• ~f tl~e hill.

It i:~ b~~lie~•~~d that the lr2i•~~ h~~cit:n~ irn►~~~i~iti~•f~ },t• th~~ f~iilurr ~,fI~C~~•~c~n to ci►mpl }• Frith its plain r~~yuir+>>uent. f~,~• t~c~~tilin;,; cif uifi~►:.It i• further tx~lie~•~cl that Ro~•~E~t~'~ ri~;ht~w µ•E~rc~ t~~c~uiuuted i►~• th~~ ~t~~•-~•~~tfii•~• of the Interior under the pro~•isiun authuriziii„ hiiu to run~•~~l:~ft~~r ~ixt~ d:►~•~s notice to the le~:+~~e...

[here i:~ an e~•en it~ore coiicluyi~•c r~~a~on fc~r ci~n~•in~; th;t thi: i+:►:rcan Ex,~~ibl~~ a~'~ct the tide to the iand~. ~c~•tioii l:i of tl,r l+~ii>~~ l~ru-idea that--In the e~•ent of the c•ztinguiehment, «ich the c~>urent <~f th~~ Iii~lian=, ~f th~~ [rnliai~

title t•► the IandK c~~ere~ci t>~• this leaps, ttiE•n and therruENm this lease au~i all ri~l,~~thNreunder shall terminate.

'The bill reported h~ the committee pugport~ to clo this ~t?P~' Lllllt~.IL iy entitled •`A bill to i~utify acid t~m~~~cl aii :irc~~er~i~~i~t," etc. '1'h~~fiat itrticle of the agreement pco~•ide:~ that '`the ~:iid Indiaiti~ i•e~idin~,rcan the ~~'ind Kiver or Shoshone Ke~erri►tion, «'~•c~., f~~r the e~~n~idc~ru-tion hereinafter r.~med, do 6ereb~• cede, grunt, and r~~tinqui~h to thf~United St,~te~ all right, title, nnd~intere:~t which thus mn3• ha~•e to allt}yE~ lancL~ embraced within mid re.-~er~•Ktion,'' eta•., find the hill i~ forthe purpose of ratifying and confirming the ~grE~~~ment.~s5umin~ that lio3•~en Mill has :some rights iindE~i• the !suss h~• th~~

provision» of ptira~rnph i:3 of the lease, thc~• a!l terminate wit~i theenactment of the bit!.


4 INDTANt3 BFAIDINti ON SHO~HONR 8E8EBVATION~ BTO.

From the information at hand the minority believe that it is quiteProbable that this reservation is rich in gas, oil, copper, gold, andiron. •From the outset Boysen hag been endeavoring to obtain the right to

mine other minerals than coal, which has beenpe rsi~tentis refused bythe Department of ttie Interior. His first ap lication for a lease wayfor "coal and other winerals." In the severa~applicationr~ since madeby him he has endeavored to obtain the right to mine for "the otherminerals." He has made no ,pretense that he has peen interested toany extent in the right to mine roal; his anxiety has been to obtainpreferential rights to mine other ininei~la.. Thia reservation is more than :LOU miles from the nearest railroad,and during the entire term of this lease it would have been unprofita-ble to have attempted to mine co31.

lay its amendment to the agreement the committee proposes to give~3oysen an absolute right to locate and obtain a patent for 6~0 acres ofcoal or mineral land before the- reservation is opened, under the pleathat in so doing an extinguishment of rights of much value is obtained.Boyyen hae not complied with the teimas of his lease; be has never

mined coal; he huu~ not expended any money in the development ofmines; he has ne~*er paid anythiug in ro`~altie~ to the Indiana; he 6x~expended practically, nothing. on the land covered by the lease, and, inthe opinion of the n~inorit~, it would be a groes injustice,#ndefeneiblefrom any standpoint, to give him any preferences ~n locatiug land orany rights over other persons desiring to enter and to settle upon thelands to be o~eneci for settlement under the provisions of H. R. 1799 .

If the bill is to be enacted into law the minority urge that the pro-vision inserted by the cou~mittee in reference to Boysen be eliminatedfrom the bill.The minority calls attention to the fact that in the bill recommended

to lie on the table, which passed both the Senate and House of Rspre-sentative~ at the last pion, no provision was made for 13ovsen.The minorit3~ further, recommend that section 2 of the bill tie amended

b~ changing the date of opening from June 15,19QG, to ~lu~u~t 15,1906.The reservation is almost entirely surrounded b~• water. It is in a sec-tion of the country where there arp heavy ~now~ in winter. Whenthe snow melts and the ice is freed in the streams they become so r~wol-len that they are not fordable. There i~ but oc~e bridge cros~ing thestreams that bound that portion of the reservation to be ceded andopened to settlement. It is located is the extre~ue northeast of thereser~•ation and affords the only means of access to the retiervationwhen the streams are unfordable. There was a s~rp difference ofopinion as to whether t,'tie streatn~ were in flood prior to June 15, butit was agreed by all that during the period from June 15 to August 15the Wtreams are not fordable. The minority believe it moat likely thatit is most difficult to enter the reservation prior to August 15; and,desiring to give an even chance to afl who desire to settle upon thelands tc, be opaned for settlement, rec;omniend that the time of settle-ment ba changred from June lei. 1906. to August 15, 1806.

JNO. H. STEPIiEN~I.

FPM. T. ZENOR.

Josx J. FrrzaEa~iu.JOHN DOIIdHEBTY.

CRAB. ti. REID.


INDIANS Rl~3IDIN(i ON SHOSSONg RE88RVATION~ ETA.

DBPAS7'NB~77' OT Tfl~ INTiRIOS~

fVarJ►i»gton, Dtctmber 15, 190.(.

Sta: Replying to gonr c~ommnnication of the 12th instant, requesting informationae to mineral or oo~l lessee that have been oracle or are now m Force on theShoshone or Wind River Indi n Beeervntion~ Wyo.~ more karticularly on that por-ti~~n of the reeer~•ation north of the Big Wind River, which ~e prc,poee~ to be openedt~ 1public entry by House bill ]3481 your at#~ntion is reepectfuiiy in~hted to thein~•loseci a~Qy of Senate Docuruent No. 247, Fifty-sixth G►nRreee~ Hrst session, whichn~hraces a copy of a mining lease in favor of Asmue tioyeen, of Gray, Iov~a (see p. 4),

anal a report from the Commissioner of Indian Affairn of March'.~.1, 1900 (see pp. 2.:;, 4 y, which ie an epitome of its terms, conditioner etc.

~ubeequently (N~vember 22, 1900) Mr. Boyeen eubmitteci plats purporting Loal~ow location of coal deposits and indications of other minerale~ none of which were:u~tiafactory to the rx~cretary of the Interior or sere erer appmved by him, and pro-}~oeed to aun~encler the townships west of the Wind Riper rneridian, reprEeentsd toIse ~•alaable for coal, and to retain the remaining townships on w hick to mine coalat~ci other minerale~ ~tnd also the 8. ~j o~ T. 7 N., H. 2 E., adjoining said townships,true making the mining territory conti~tuoue. Ttye propcx+ition, however, was~leelined by the Aepartment Janaary l5, 19A1.On January 22, 19U1, the Department called rir. Boyeeit'8 attention to the fact

that no etepe had been tagen to carrq nut the terms of the lease, although SkeenmonthA had elated einoe its approval. No e~ply to this communication was receivedbut on Aiav 4,1901, Mr. BOyBCII iI18(~P Rpplic~tion for a new lease and again propoee~to eun~ender a certain portion of the land covered by the old lease. This sae rEfen+edto the Inciiao Office for its conaideration~ and for a report and r~eommendation onthe ne~~ proposition. Up to January 25, ]902, nn report had teen received on thegnbject, and the Department on that date called n~on the Indian 08ioe to report~~•tiether rir. BoYsen had submitted any report of hia operations under the l eesince January 22, 1901, and sleo for an expre~ion of its vieNS on the whole subject.On June 9, 1902 Mr. Boyeen was notified (copy of letter herewith) that hie lease

had by its express provisions, become inoperative and of no effect, and he was givenninety ~layein which to remove his pr~~rty from the reservation.i?pon tt~e recommendation of the Indian OfRce, the Departments on March 5,19C4~

indorsed its formal c~anceliation upon the lease. Ttse lesc+ee thus lost any rights ori~rivile};ea he may have acquired on the reeenation under said lease, and the agt~ee-ment of April 21, 1904, with the Ehoehone and Arapaboe Indians cannot therefore1,e ip any way affected thereby. Ay reference to the lease contained in the incic~eedropy of tienate document it will be observed that alt of the laude covered thereby~~ere within that portion of the reservation R•hirh has been ceded to the United~tateaUnder date of May 8. 1904. a leaee~ dated February 16, 1904, aae approved b~ the

Department in favor of C6arl~e Lahce, a half-breed Shoshone Indian for the comingof coal only on certain laude within the Shoshone Reservation for the term of fiveBeare from date thereof. The coneiueration ie a ro •alty of 10 cents per ton of 2,000pounds, to be paid quarterly. This lease is particu~arly described se follows:"C~mmenc~ng at or near the .mouth of the little Popo-ARie River on the south

boundary line of said reeetvation, and embracing the coal laude in townships 1 and 2eoutt~, in ran~e 2 east, as ehov~n by the Government surveys of said reee;rvat~on, theraid coal lan~a not eac~eding in extentpne section or 640 acres all together."It ie therefore entirely within the proposed diminished reservation.

very respectfully,- E. A. HrresoocY~ Secrdary.

Hon. Je~css $. SaBSxex,Chairman Gbm»iitlu oa Indian A8'aira, House of Rtpreatretativea.

DBPAATYSXT OF TAB IHTEItIOH~Washington, June 9, 19~0.~.

8rR: By the terms of the lease between the 6hoshone and Arapahoe tribes ofIndians on the Wind River Reservation, in Wyoming, and yourself, approved, withcertain conditions, by the Secretary of the Interior October 4, 1899, which oondi-tione were accepted by yon October 14, 1899 you were given the right durinpc theperiod of two yens to prospect and locate mines or deposits of o~ai upon the laadedescribed in mid lease. with a condition ae follows:"Proi7d~d, haa~+xr, That it is eape+eeely anderetood by all parties hereto, that at

the ezpirat~on of two yeas. during which prnepectiaR may be done, tbie lease shall


INDIANA 8~8IDINQ ON SH08HONE BESEBVATION, STC.

over relate toy anal include only such lands ae may be eu~braoecl within and ooc•eyed ~y the appre~•c~l maps and plate eliowing the dieco~ery of said coal deposits."You did not present any maps or plate, euc:h ae are oontecvptated by the terms of

said lease, within the time epeci6ecl. The Department retuEed to approte certainmugh tracings pree~nted 1~~~ ~•ou purporting to show discoveries of coal, but whichdid not in any way indicate the extent of the depoeita~ and did not 1ocaW suchelaimeci discn~•eriea with reference to any Bonier of the public s~irveye or to anynatural monument, eo that they miR}~t be Identified in the field, and which tracingswere not rerifieci by ~•~~ur oath, n~ the lease required maps and plate to be; and in aletter of January ̀l~l,'190t, c~tled y~~ur attetttion to your failure up to Lhat time tocomply H ith the proe i»ions of aaicl !sere in respect of the filing of maps and plate ofdiec~veries of coal, at the same tine pointing out the defects and de6cieuciee of thetracings themtnfore Fubmitted by you. You gat e no heed b this «arning and madeno effort, eo far ae this Department is inf~rrmed~ within the e~ifie~i penal of tv►oyeare, nor in~7act after that time, to c1ePiKitiate in the manner ~~rovided ~n your leaseany diauwvery of wet.By means of this omi~ion and neglect nn •our pArt there is no tract or parcel of

land which the lease now cQ~ere, relates to, or includes. By itA ex~reas ternis itbecame, at the end of paid period of tw•n ~•earA, at~c~iutely ~noperati~e and of noeffect. 1'ou have zoo right to conduct any further operations upon Said land in pros-

tinR for or mining coal. thereon. An.• efforts in that directiun w~itl render youiel~le to be treated ne a tresE~ar~er and to iie ejected from fiaid rec+er~ation. Yon willbe altoviced ninety da~•e from receipt hereof v►•~thin which to remo~•e from. the landdescribed in said lease nay property I~elongin~t to you. Aay such property.remain-ing there after the expiration of that ~~ericx~ will, under the terms of said lease,become the propert y• of the Indiana and Kill be eo treated.

Very re~pecttully,E. A. Hrrcacocg, Secretary.

Mr. AeMUe BoYSSx, Gray, Ioura.

r Bovssx L$,►ss.

This indenture of lease in triplicate, made and entered into this 1st day of Jnly,A. P. 189A, by and betH•een the Sl~u~hone and Arapahoe tribes of Indiana (subjectto the a~proral of the fiec•retan• of the ~aterior), oceupyinR aad residing upon the

-- Wind KiverResercation,inthehtateof W~ominK, psrtvof theBrstpart, aad aemusBo~~nen, of Gray, ~ndubon Co., IoH~a, party of the second part.~Vherels said tribe of Italians o~rn paid lances and are now occupying and reaidiug

upon tt~e said ~Vincl Ricer Res~~r~~ation, in the State of ~V~•oming; and«'harass the lands hereinaiterdeecribecl are in r,art rough, moantainou9lands, pre-

Kmned to contain coal, and are not needed b}• ~aicl trines for farming or agriculturalpurposes and are not desired for indi~zdual allotment, and the said tribes desire tosecure an iacorne therefrom in the way of royalties for coal to t►e mined therefromby t.be party of the second part; andWhereas the said Indian tribes are authorized, under the provisions of the third

ee~stion of the act of Congrera of February 28, 1891 26 Stat. L., p. 7A5). and asamended bx act of CongreRe Aa~ust 15, 1894, to Ieaae ~or mining purposes for• theperiod herein named; an+i this lease ~s made by authority of the pr~ncipal chiefs andcouncil, epeaking for said Indians, pursuant to a resolution of Indiana in council,minuteq of ~•hicl~ are hereto attached and made a dart of this agreement; end thetruth of the foregoing recitals appearing, to the Indian agent at r-a~d Indianag encp,and the quantities and terms and conditions of this lease being recorrunended by thesaid Indian agent in charge of said Wind River Reservat;on, ae ie evidenced by hisapproyal hereof—Now, therefore, this indenture witnesseth:1. That the said~a:rty of the first part, for and in consideration of the enm of one

dollar ($1) in handpa xi to them by the said party of the second part, the re~eeipt•;hereof ie hereby acknoHledged, and in further cone~deration of the premiee~s and oftl~e prospecting and mining to be done and of the rents and royalties to be paid aehereinafter epeci8ed, and of the covenants, atepuiatione, and conditions hereinaftercontained and hereby agreed to be kept and performed by the saidpa rty of thesecondpa rt, hie successors and assigns, 3oee by these presents lease and grant untothe said party of the second part for Lhe period of ten years from and after the date


INDIANS ~IDIN(~ ON 8HU8HONE 8B3&BVATION~ ETC.

of the approvsl hereof bq the 8ecr~tary of the Interior, for the purpoeF, of rainingcoal only the toUoRing-described portion of the said reeervation~ namely:

All of t~e land, vrhen the Government survey ie eztended, which will comprise allof tl~e followin~described townships, vis:

All of towiuhip No. seven (7~ north of range No. four (4) east of the Wind Ricermeridians ooataining 23,040 acres more or lees.

All of township No. seven (?) north of rAnge No. three (S) east of the Wind Rivermeridian, containu'~g 23,040 acne, more or lees.

:111 of tAwnahip No. a~a (8) north of range No. two (2} east of the Wind Riverm~•ridian~ oontaimng 23,040 acres, more or lee.

:111 of toxnehip No. eta (6) north of range No. three (3) east of the Wind Riveru►eri~iian, contain~n~ 23,040 scree, more or lees.

:111 of tovrnehip ho. six ~(6) north of range No. four (4) east of the Wind Rivermeridian containmg 23,4!0 scree, more or lees.

:ill of township.No. Sve (5) north of range No. one-(1) v~eet of the Wind Ri~•ermeridian, eontaimng '13,010 aeree~ more or lees.

All of toe•nehip No. four (4) north of range No. cue (i) west of the Wind Riveru~ericlian, containing 23,410 scree, inure or lees.

All of towi~ahip No. (four) 4 north of range No. three (3) west of the Hind Rivermeridian, !ying north of the Big ~Viud Ricer containing 17,640 scree, more or lees.TogetLer with all mines and depoaits of cos in or upon the lands de6nitely located

as herein provided, with the right to terry the same away and sell and disposethereof for pm6t; and the party of the second part, hie eucc:eesore and aaeiKne, shallha~•e and ie hereby granted the right, during the penod of tw•o 3•ea~, to enter uponand thoroughly prospect and locate mines or deposits of coal upon that part of saidreservation generally deecrit,ed above; and there ie further granted to said party ofthe second part the n~ht to mine, market, and sell all coal u~on the lands de8uitelylo~•atecl us herein provided and may use eo inucli of the susses of said lands and eomuch of the timber anti building atone found thereon as may be necessary, withH hich to construct all buildings, dwellings, or other improvements upon said landsthat. may be_required in minimg said coal avd auc~~essfully conducting sa~~l pro~pect-inK and niinmg operations; and the said party of the second part, his euc+ceseore and,~i~,nie, shall also have and is hereby Rranted the right of n•ay through, acrosA, and❑~x~n said lands generally described ai~ove for the purpose of ingrese and egress toruinee and for tranaporttng coal and sup~liee; an3 said party of the secondpa rt, hiesuccessors and assigns, shall have and ~e hereby granted the right to use the Haterfound in and upon said reeer~aLion necessary in and about its eai<i business and fordomestic uses, and may convey the same by espoeed pipes and open ditches, or issuch other manner se the second party, hie successors and assigns, may determine,in, upon, and over the lease of said Sret party, whether Lhe said w ater is obtained onthe said reser~•ation or not: Frovided~ ho~c~•er, And it ie expre~ly undee~tood by allparties hereto that at the expiration of tK•o ysave, during x hich prospecting may bedone, this lease shall cot er, relate to, and include only each lands as ins} he embrac~~lwithin and covered by the approved maps and plats showing the diacocery of saidcoal depoait8. As to the other lands ~sithin the general !finite descrit~ed in this article,the party of the secondpa rt, hie eucces~sore and ats~igne, shall ha~•e the privilege ofusing eo ninth of the timber and stone found thereon ea may be necessary with a hiehto construct all huilding~+, dwellinge~ or other improvements upon baici lands that maybe required itt mining said coal and eucoeestully conducting ea~d mining operations,and also the right of way through, across, and upon said landau for the purpo.~e ofSaid mining operations, and also the further prig ile~e of using water found in andupon said reservation in and about said mining operat~ona and for domestic uses, andi~ay coii~ey the same by espoged pipes and open ditches in, upon, and o~ertheesidrc~ser~•ation~ whether said water ie obtained on sauce or nut.2. It ie dietinctly etipnlated that the mining privileges granted t,~ this lease shall

extend to and include only coal, and that no rights or pri~rilegee reapecting any otherkind or character of mineral are granted or intended to be granted by this lease.3. The party of the second part ehail, within a reasonable time and H ithont unnec-

e~•ary delays Sle with the Secretary of the Interior, to be subject to hie approvai, amap or plat ehov~ ing deSnitely the laude to which this said :ease ~s intended to apply,describing the same by properly designated and fixed boundaries, to be definefl byproper survey. Said ~aY~y of the second part shall Sle with the f~ecretarp of the Inte-rior, eubjact to his a~provai, maps and plate showing all diecoveriee of coal withinthree menthe after ea~d discoverieA are made, and immediate!y upon the 81ing andapproval of such map or mape~ plat or plate, the said party of the second part, hieeucceasore or aseigne, shall pra~eed to develop, mine, and worl~ the coal depoetttherein described torthccith and prosecute the same with diUgence; and sai3 party of

8 8-68-3-401 2-44


S _ INDIANS BSBIDIN(~ ON BSUSHUNL~ R~ERVATInN, STC.

the second part, hie snca~eeors or assigns, shall likea•iee file with the 8eer8tary of theInterior quarterly reports of all ~roepecting done and dieooveric~a made, also qusrterl~•reports of the.groee outp ut of a l his mining opESrs►tione under this l~aee. All suc imaps anal reports shall be ~ erified by the oath of tl~e said party of the eeoond part. _~. The party of the second part, tiie aucoeeAOre or aeeigme~ for and in oonedderation

of tl~e privileges of prospecting and mining neon said deecrsbed lands, for the ~pericxlof time herein stated, hereby covenants and agreeE+ to pay or c~aee to be paid, m Iaw•-ful money of the United States, to the Secretary of the Interioq or eachpa rty or ~ar-tiea ae he may de~iRnate~ to be placed to the credit of said party of the Bret part andto lie paid to or expendeci for them ae the Secretary of the Interior may direct, thetollow~ng rents and royalties, namely:~ aun~ of money equal to ten }per centum of thc+ market~valne of said c~o~al at the

pla~~ mined.Such payments, or royalties, shall be made seery three months during the con-

tinuau~^e of this lease for ali coal mined or removed from said lands during the threemonths Iast preceding, and such payments shalt f~ere~cei~eci in full of all royaltir~and demand N hateoever on the part of the party of the hret part against the parh~of the second part, hie succesrore or aae~gnee for the period of time therein covered.

b. his further covenanted and agreed by the party of •he second part, hie euc-ceeeore or assigns, that he will openand operate eatd mines and deposits of coal andcause the game to be worked and mined in a workmanlike manner and to the fullestpracticaUle extent; that be wi11 protect ail mines, and w ill not commit or suffer and•waste upon said laude or upon the mines thereof; that he w ill take food care thereofand surrender and return the said premises at the ez~iration of this lease to theparty of the Sit part in as good condition ae when reoetved, excepting the removalof the coal ae herein provided, and the ordinary wear, tear, and unavoidable acci-dPnte in the proper use of the same for the parpoeea hereinbefore indicated; that hewill not permit any naieance to be maintained upon the premises, nor allow an}•into~icatinq lic~uore to be sold or Riven away to be used as a beverage on the prem-iae~; that he will not vee or permit the nee of said premises, or uny part thereof, forany other purpoee than that authorized by this lease.8. It ie further covenanted and agreed that thep~t y of the second part, his euc•-

cesgor3and assignee shall keep an accurate account o~ said mining operations, ehowingthe whole amount of coal mined or removed and the Indian agent ~n charge of esi~lre~er~~ation, or any otherap~ent or agents appointed by the Secretary of tl~e Interior,shall have the right at all times during the existence of this lease, on behalfof the party of the Srst part to make such res~onable examination of all books ofaccount and mines as may ~e nec~seary to obtain all groper information desiredre~arding the amount of product mined or removed, or being mined or rem^ved, fromsaid laude under tAie lease; and there shall be, and there ie hereby, creater~ a lien onall implements, tools, movable machinery, and other personal chattels belonging. tothe party of the second p~rt~ hie eucxeaeore or aseigne, used in the said proepectangand mining operations, and npon all coal obtained from land herein leased, ae eecuntyfor the quarterly payment of said royalties and rents.7. It ie further covenanted and agreed that no location under this lease shall obstruct

or interfere with any highway, road, or trail now in nee without special permissionfmm the Secretary of the Interior; and the nght of way across and over the landFwhich shall be includeii within the surveys and definite locations herein pro~idecifor is to be reserred to the party of the Sret part, the nee t.herEOf, however, to be con-

• eietent and note to interfere with the mining operations of the said party of the secondpart, his successors or assignsIn his operations. under this leaAe said party of the second part, hie svcc~eeore or

sesigne,.shall in no wise interfere with any personal or propertq nghte of anY char-aeterwhatsoever now existing in or that may be hereafteraoqsued by any individualIndian without Bret obtaining consent in wntinR of such Indian, and the payment ofproper compensation, to be approved by the secretary of the Interior; and no rightor pnvilegPs herein granted shall be extended, eaerciaed, need, or operated to theimpairment, injury, or p~jndice of any legitimate indoatry, business, or occupationof said Indians ae a tribe or as individnal8.8. It is further stipulated andagre~i that where Indisae n~oa said re~eervation are

qualiSed and willing to perform the character of labor required in carrying on themining operations herein named, the party of the second part, hie sneceeeore orassigns, Rnll accord them a preference in selecting his employees eo far ae it may be~ract~cable to do eo.9. Alln~thte are reserved to the United States and to the Indians on said reeer~a-

tion to make and accept allotments in severalty for the beaeHt of said Indians at anytune in the future of such laude within the boundaries of this lease ae mxy at anytime be deemed by the Secret~y of the Interior suitable for agricultural pnrpueea.


INDIANS BEBIDIN(~ ON BHOL~HON$ BEBEBVATION~ ETU.

10. This lease and all rights and prlvilegee thereflnder are made and accepted bythe psrt~ of the eeoond part hia euca~eeoee or assigns subject to ezietiug law or hwsanti any Lq or lava hereafter acted pertaining to t~e said teservatioa.

11. 1n ao event shall the IInited 8tatee or the Secretary of the Interior, in hie o~cislar personal capacity be Ilable in damages or otherwise ender t6~ provisions of thislease ~n oonneactioa therewith.

12. No Member of or Delegato~ to Congress, officer, agent, or employee of the Govem-ment ehaU at any time be admitted to share in this lease or in any wise derive anyi,rnefit therefrom.

13. In the event of the erting~i~bment, with the consent of the I$diane~ of theIndian title to the lands covered by t~ lease, thc+n and thereupon this lease and allrikhte thereunder shall terminate.

14. In the event of any omission, neglect, or failare of the party of the eeo~nd parthie successors ur aeeigne~ to faithiully observe andpedorm any of hie obligations arie-inguponand anderthe pravieione of the lease, the Secretary of the Interior may, with-out pre~udioe to any other lawful remedq or remedie,~, treat the same ae a eu~cientcause for the forfeiture, abrogation, or termination of this lease b~ him unless withineixt.y days after notice thereof from tine becretary of the Interior the, party of theeec~ond part, hie successors or assigns, shall not fully correct such omissions, neglect,or failure, and make gooci any lose or injnry.x;c~eioned thereby; or if thereafter suchomission, neglect, or failure of the party of the secondpa rt, his successors or assigns,e},all be repEated, then; at any time within aiaty love theresfter~ the Secretorp of theInterior may, at his optton~ declare this lease forfeited, abrogated, or terminated; then,and in that c~ee, the party of the second part bie successors or assigns, shall whollycacAte the leaaeed precaieee within :0 days after notice thereof,and upon failureof the~~arty of the secondpart, hie eua~eeore or aesigne to vacate said premises, the Secretaryof the Interior eball have the right, on behalf o~ the Indians, to reenter the same andtake possession thereof, uaing such force as may be deemed necee~ary to dispossessand remove therefrom the said party of the second part, his aucoeseors or aesi};ne; andit ie agreed and understood that any property of the said party of the second part,I~i~ eucoesAOre or assigns, located .on ea~dpremuaea at the time of the forfeiture, abro-~;ation or termination of tliia lease mad be removed therefrom by the partq of the~econ~ part, hie succeseore or a$eigne, a thin such reasonable tune ae may be Szed bythe Secretary of the Interior, not to exceed eia months from the forfeiture, abroga-tion, or termuiation of thiA lease; and any property of the party of the secondpa rt,hi» successors or assigns, remaining upon said preniise~ after the expiration of thetime eo fixed for ire removal, shall thereupon become the property of the said partyof the first part, and may Ue treated ae aucli by the Secretary of the Interior.

Provided, ho~cccYr~ That the ►arty of the second part, hie eucceseore or assigns, shallhave eiz months after the eap~rataon of this lease ~n which to remove the buildings,machinery, and other property from said lands without hindrance by the party ofthe first part if the party of the second part, hie aueceesore or assigns, has performedull the covenants and conditions inipoeed upon him by this lease.

15. The party of the second part shall execute and file in the Department of theInterior hie hood in the sum of ten thonpand dollars ($10,000), with sufficient earetiee,to be approved by the ~ecretarq of the Interior, conditioned for the faithful perform-nnce by the party of the sewed part, hie successors or assigns, of alt hie duties andobligataone under this lease.

16. It is further mtitually covenanted and agreed that the Secretary of the anteriorbe, and he is hereby, authorised and eWpowered to make such additions to this leaseas ~n his judgement may not impair the nRhte sad privileges in the matter of theparty of the fret part.. l7. It ie farther mutually covenanted and agreed that the agreements, atipulaeione,covenants, and conditions 1n this lease set forth shall extend to and be indinF, andobligating neon the te~, aseiRne, and eucaesaora of each of the parti~ hereto.In witness whereo the said parties have hereunto set their hands and scale this the

day and year Bret above written.

Name. Tame.

~t esas~is (hie x msrk)~ BZAL. ~AARP Noes (hie z mark), sseL.Dice (hie z mark) ~Vesa~xrs, sseL. TeLiow (his z mark) BYAL.MoYVwvoA (hie x mark), essr,. Lois Brea (hie z mar3~), east.Ti~occo (hie z mark), a~ t. WeLwwtxo Burr. (hie a mark}, esw~..WdA~IAIlNABIDI)IE (h~8 Z :~~nrk), saeL. SP[TtNa BsAB (his a mark), asst.A81lUB BOYBSN, [t W..By f088p WEI[I~ .

Hie ttttorrtey ~in jact for dames Boyaen. .


1~ INDIANS $Ef3ID1N(~ ~)N 8SU8HUPiE $EBEBOATION~ ETO.

scrroKLenoys~°r.

I, Henry I.ee, United Ctatee official iotarpr~eter at the fihoehone Agency for theArsp~hac tril,e of lndiana~ do hereby certify that on this lat dad of .luly~ A. D.1899, the t~~rc~nin~ lea+~e Wa~ upon by a delegation of tt,e tube appo~nt~ed ata cnui~cil of esid Indians, hel at Little Wind Riper c~~uncil hails «'yu~~tirlp,~ nD t1~e•26th day of Jane, A. D. 18951, sod that said 1ea~e v+~as csretully and fully interprntcKiby ine to said Indiana v~ho comp.~ed said delegation and w•ae fully imdemtoal b~•then and each of them.

Hs~ar LBS,l.: S O,~eial Interprder.

J, Chao. ~~~ern, official United fitatee interpreter at the $hoehone Agency for thef3h~~hune trif~c ~f Indiana, ~ln herel,y~ c~rtity that on thin lr~t day cif Jui~•, A. D. ISlI~,the forr+coin~; ieaAe w•ae agreed u~wn by the delc~catiun of the tri{,e apEwint~i at arouncil ~,f the trite held at the i3hotlhone Agency, fitate of «'yuu~inK~ un the 28th~lsy cif June, ~. D. IfiSlS, and that »aid lases was c~retuily inter~~retc.~! by me to esi~lIndian» vrtio compoeeci said delc~ation and was Cully uudenrtoorl by tt►eiri and eachof them.

(:rtes. ~iveas,:.S. Of~ieial Inlery►rettr.

On thin Zgt day of Jniy, A. D. 1899, peraonallp appeared before me, ~i. t:. ~i~~kerxon,L'nitkd fitatea Indian agent, the atwv~nsmed members of the Arapahne and rho-ahone triter of Indiana, ~~iz, Washakie, Ihck Washa3~i~, ltoyva~~h, Timocco, Wab-w•annal,idrlie~ f~harp N~,ee, Tallow, Lone Bear, ~Vallo~ring dull, and Kitting ~irur,M horse nacaea and e~gnaturee are af6zeci to said leaAe, Jxirtic~ of the firxt ~.3rt; J~~eeph~Veia, attoraey in fact for Aemua Boyxen, party of the eeo~nrl part, and acT~nowle~lgeelthe eigr~ing and sealing of the said indenture of lease to be their h+ee act and deExi.

H. G. T'icxsnso~,U..4. Indian A~etit.

I, H. G. Nickerson, United Atste~i Iadian nt at the Wind River Agency, dohereby certiEy, on honor, that the above-named~c~ore, parties of the Snit part to thefore~o~ng indenture of I~~, made the let day of Jaly, A. D. 1899, with ssaid party.of the second part, are the proper representatives of the two tribes, and suthorizec! bycouncil duly called to execute the same.I inrther certify, oa honor, that said land ie not neecie~ by the Kaid Indiana for.

farming and agriculture pur{xx+e~ and is not desired fc,r individual allotm~nte; thatthe terms and eonditione of said lease are advantagc~oue acid are for the best interc~tof said Inc~iane, and I therefore recommend the name for approval.I further c~rtity, on honor, that I have eatiaSed myself that the general tt►aracter

of said trac~te of land is such ae invites ex~ plocation and pr~epecting for coal. I havealso secured the teetimo:~y of James B. McLucBe and Chas, d. Wooclhuret and 3ol~nT. Wertz, creditable diaintereete~~ereone fully competent to 'udge ae to the charac:-ter and quality o[ said lands and I am eatuaBecl therefrom ~t ~t would. be to themanifest advantage of the tubes of Indiseu~ to authorize the lease and that the landcan be ac cupiec~, need, and improved more advantageonaiy and profitably for the pur-poeee named in the lease than for any other purpoee, and I ooneider the said Lern~eagreed upon to be a full, lair, just, and reasonable rental for said premises and mastdesirable if obtainable.I inrth certify, on honor, of my personal knowledge, that outside the land

embraced the said lease the said Indiana poneeea eu8icient land for allotment ~,ur-poeee of a quality suitable for agricultural purpoees~ and that I believe that the pr~rposed lessee ~e well disposed to the food order and happiness of the Indiana, and inmy udqmant the presence of the said lessee will be beneficial to the IndianaI ~urther certify, on honos, that the contents, purport, and effect of the IeAee vrerc•

explained to and folly unden~tood bq the del~a Lion who ezecnted the yams for theIeeeurA, and that said lease was ei~ned and sealed is my presence, and ie, in everyree~c t, free irnm tread or deception, sad that I am in no ree~,ect interested in thesaid lases.

~. Vii. NICYERSOX~U. ~& Indian Agent.


I:tDIANe SI+~3IDINti ON BHOSHONS BEBL~R~'ATIUN, ETC. Z I

YIItUT~l.

T~~ Ise aignexf t y ct,sirman~ with ~ritn~w fn xiKcu►ture. (M~• t~~r each trif,e.

(,~ue~ricil ~oaedirtgt.

At a oonncit of tine fiha~hone tribe of Indiana, held at the onuncit hall, fihoeh~ne:1s~NUC•~, ~~'yo., c~Ueri for the parpoee of ooneidering the quc~stir,n of leaei~u trit,allandx ~~~r coal-mtninR pur~wsee~ there mere prc~c:nt chi~fe~ headmen, aiul trit~~niet~to tl~e number of o~•er fifty.

('bi~~f 1Vabha~ie sae called to the chair and Charle+~~ ~iyere ch~~n Kc~cret~ur}•.!'p~~a aintiun duly cbnr~idered it was unsnimonely r~ol~e~i to ltzsse to ~1rtnue &►y-

w•n such~x,rtiun ref our tribal iande ae n,sy be dealgnsteel is raid l~~as~e i►y the nKentanal the tullawing-named members of our said tn't~e we're belcti•tcyl to exP~•utr s~aiilIE~a~c':('t~ief «sahakie, Uict ~Vaehalcie. ~ioyysvoh, Timua~o, anal «'ahwannabiiWie.~i~rnecl this 28th day of June, 1899.

Wefsuatcis (hiN x u~arlc),(_'lwrn~an.

~1'itneee~e:(~r.~,ruiE Tsa$Y.~;ftAHLPJS I.AIiOR '

~1tt~tl~:Csns. '.Kyssx~ ,5'tcrdary.

Council procecdingi.

At s council of the Arapahoe tribe ~~t Indiana held at the council hall, fiha±hone~y~encv, R'yo., called for the purpose o! oonei~enag the c~ueetian of I~+inR triballan~ty ~~~r anal-wining parfx~ee, there were present chiefs, hesuituen, an~i tribe ~ucnt~~ t6e number of over Sky.('hiet fihar~ rase was called to the chair and Henry J.ee chosen t~ecretar~•.i'ix n ~n~~t~on duly considered it K•aa unanimunely reeol~ed t~ lea~r tc, Aymue

Knrf!en such portion of our tribal Isnde as may be deHi,materl in Maid leap bq thea~ent~ an~i the fotluvrinK memberES ~f our said tribe N ere w ertcKl t~ exe+•ute laid lie:

(:liief hharp Nose Tallow, Lone Bear, Wallowing Bull, end 5ittinK I3c~ar.signed this 28th t'~sy of 3une, 1$89.

Baea~-~c~+s~ (I,iA x mark),Giairnucn.

~t'itneseeH:Gr~,iu;s TesRY.C~iIARl.Eti I.AHOL

AtteKt:HexsY Lsu, ,4urrct~iry.

Uertifi~ak.

I, Henry Lee, secretary of the council of the meeting of the Arapahoe gibe r,(inrliany, ~n ~•uunc:il ar~emblerl, do hernby certify that the fireqoir~~ iy a true c~c,pv ~~ffhe ~uinutc~ of Raid tnc~eting of the tribe held at Little Wind ~ti~er council halt un`pith day of June, A. D. 1898, and ie a oorreet record of the proc~eclingx thereof.

HYN1tY LYS~ ,SeCTCtlttlf.

I, Chas. 3iyere, secretary of the council of the meeting of .the t~hoxhone trii►a ofInrliarw, in council a~embled dahereby certifq that the fot~toing ie a tlue cryp yofthe minutes of mid meeting o~ the tribe held at the t3hoahone Ageney, fitate of ̀ Vyawing, on the 28Lh clay of Jane, A. D. 1899, and is a correct record of the ~,roceedingethereof.

Cs~. MYS~te, &cretary.


12 INDYANB ~i$BIDiN(~ Oli BS03HUl~TR 8$8g8VATIOlT~ ST().

I, Hen Lees laterprater for the Ara oe tribe of In ' do hereby oe~rti~ythat I was present at the council of the tn~ held at I.lt~te Win Biver oonncil hailon 28th dsy of June; A. D. 1899 and ths~t I correctly interpreted sll matters andqueetione made at ea~d meeting, and also the raeolation eet out in the foe+egoing Dopyof the minutes end record of eaid meeting, and I' further certify that each and all ofsaid Indiana fully nnderet~ood th~e p~rpoee, meaning and effect of esid resolution aadthe queetione voted upon, and that I witneeetxi the eigoatares attached thereto.

H~~r I.ss, Interpreter.

.Cert~f~cak.

I, Chse. Myers. interpreter for the BhoeBane tribe of Indiana, do hereby certify thatI waa present at the council of the tribe held at the ~hoehone Agency, State of W yo-ming~ on 26th day of June, A. D. 1899, and that I correctly interpreted all mattersanti quc~►tione made at said meeting, and also LZ.~e resolution set out in the foregofn~c~~~r of the minutes+ and record of sand meeting and I farther certify that each and allotNa~c~ Indianxfully undeirtood thepurpose, meaning, andeffectof said reeolutionand theyueetiona Voted upon and that I witnessed the s~gnatw~ee attached thereto.

Cs~►s. Mtrsxe, Interprder.G'e~iificatt.

We hereby certify that we witneeAed the signatures to the foregoing indenture oflease and that we have no interest therein.

H. G. Ntexsaeox, Agent.Juats F. I.IIDIN~ L'rCr~.

a .,

I, H. (~. Nickerson, United Btatee Indian agent of the Shoshone and ArapahoeIndian, at tl~e Nhoehone ARencv, do hereby certify that I wag present at the councilmeeting of eaicl trip, hell at Little Wind River council hall, and at the ShoshoneA~tenc~, on the 26th day of June, A. D. 2899, and that the foregoing copy of theminutes contain a correct record of the pn,c~eedinga of said council.

Fi. G. Nrexsaeox, U..S. Indian Agent.[6tamp, fi0 cents. J

[Stamp, 60 cents.] DBPABT1l8NT OF TEiB INTEAIOR~OFFiCB OF INDIAN ABPAIB$~

Waehiregt~m, D. C., SeptemLer ~9, 1889.I~c~pectfully eubmittsci to the Secretary of the Interior, with the recommendation

that he approve the same, subject to the additions saggeeted in office letter of thistints.

A. C. Toxxsx, Adirtq Commiaeiontr.

DSPAHT]t$NT OF TIIB INTSBtOR~(klotier ,~, 1889.

The within lease ie herEby approved with the following anienclmenta:1. It is further exprer~sly agreeci between the parties hereto that the party of the

eecand part w•ili nat at any time durin~t the term horeof grant, sa~+iKn, lr~e, convey,or transfer any of hie estate or interests is or to any part of said premicea o~ thea~►purtenenc~ therNt~~, or the term hereof, to anp perFC,n or peracn~ whomeoe~•er,without the cc~n~rnt theret~~ cif the Secretary of the Interior.2. It ie further cu~enante~l and agreed that in hie bueine~w and operations under

anal by virtue of thialease sai~~ party of the second part ehal► not employ or retainin his em tormrnt any person or persunH objectionable to the Indiana in said rnr~cr-vatiop, o~tu the Indian aE►ei~t or the t3ecretary of the Interior; and there shall lie. furniehecl by sari party of the eecoad purl to the Indian sgentor acting Irn1iAn auntat raid re~ervati~n atatt~ment~ at least e~•ery three rdontha, and oftener if demanded,grin the natnc~» .►f hiy employees, whether temporary or ~rmanen~3. ~he party of the raxin~i part shall keep an accurate account of said mining oper-

at~uns, Dhow ink the N h~►le sinount of coal mined or removed; and tbo Indian agentin charee of Paid re:!ervation, or any Mher agent or agents appoint~eci by the Serretary~~f the I~~teri~►r~ shall have tl~~, ri~tht at alI times dunnq the ex~etence ~f this lease, onhet~x{f ~►f t!~e ~~arty of the first ~~art, to make eueh rene~nable examination of all bucksof acc~ourst and nnnee aA may t,e nece~ry to obtain ull proper information deeireii


INDIANS REBIDIN(i ON AHU~HONS RESI+:B~'ATtON. ETC1. 2:3

regarding the, amount of prodact mitred or reruo~ ed, os being ~uiued or rnmo~ ed, Iram+aid lands tinder this lease; and there aball be, and theie ie henb~ ~ rreaterd a lieu onalt implements, w~ol~; movable si~achinery, and other ~~enional etiatt~le belonging toLhe party of the eec~ond~a rt used in seed pnmpectink and ininin& operativna, an<I uponall c~c►81 obtained from the lands Ler~in lea~eed, as security for the yuarterly psymentnt paid royalties and mineral reekThis approval not to be e~fec;tive end biading until aeeenteci to by written endoree-

inent hereon by the lessee and the sureties on hia twnd.• Tuos. KYAN~ Adiny Stcrttary.

Gsnv, Avnu~x Cour r~ ~ Iowe, O~obrr 14, Ibt98.«'e and each of us hereby assent to the atwve amE~ndmente to the within lease,

p~cribed by the.acting Secretary of the Interior un ()etober 4, ISS~9.Aaa~cs BoYSYar, I.taau.Fsexs 11. Ins, b'urety.Ai.ass~r F. Bsrixsrr, Surety.

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in the united states court of appeals for the ninth … · 2013. 8. 7. · defendant-appellee,...

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