E.E.O.C. v. Cherokee Nation

• Decision Date: 28 March 1989
• Docket Number: No. 88-2092,88-2092
• Citation: 871 F.2d 937
• Parties: 49 Fair Empl.Prac.Cas. 1074, 49 Empl. Prac. Dec. P 38,875, 57 USLW 2568 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Applicant-Appellee, v. The CHEROKEE NATION, Respondent-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 937

871 F.2d 937

49 Fair Empl.Prac.Cas. 1074,

49 Empl. Prac. Dec. P 38,875, 57 USLW 2568

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Applicant-Appellee, v. The CHEROKEE NATION, Respondent-Appellant.

No. 88-2092.

United States Court of Appeals, Tenth Circuit.

March 28, 1989.

Rehearing Denied July 28, 1989.

James G. Wilcoxen, Wilcoxen & Wilcoxen, Muskogee, Okl., for respondent-appellant.

John F. Suhre, Atty. (Charles A. Shanor, Gen. Counsel, Gwendolyn Young Reams, Associate Gen. Counsel, Vella M. Fink, Asst. Gen. Counsel, with him on the brief), E.E.O.C., Washington, D.C., for applicant-appellee.

Before McKAY, LOGAN, and TACHA, Circuit Judges.

McKAY, Circuit Judge.

I.

At issue in this case is the jurisdictional authority of the Equal Employment Opportunity Commission (EEOC) over the Cherokee Nation pursuant to the ADEA, as amended, 29 U.S.C. Sec. 621-34 (1982). The dispute was precipitated by EEOC's attempt judicially to enforce an administrative subpoena duces tecum directing the Cherokee Nation to produce documents of several former tribal employees. The subpoena was issued as part of an EEOC investigation of an age discrimination charge filed by complainant, Mrs. Louise Gossett, against the Cherokee Nation's Director of Health and Human Services.

The Cherokee Nation resisted the EEOC's assertion of authority, maintaining that tribal sovereign immunity precluded EEOC jurisdiction absent specific congressional intent to bring tribes under ADEA coverage. The district court examined the ADEA and its prototype--Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e(b) (1982)--and concluded that principles of statutory construction led to the conclusion that Congress intended the ADEA to apply to Indian tribes. ¹ Therefore the EEOC was entitled to have its administrative subpoena enforced.

II.

In Donovan v. Navajo Forest Products Indus., 692 F.2d 709 (10th Cir.1982) we held that OSHA, a statute of general applicability, was nevertheless not applicable to a tribal business enterprise operating in the reservation for two reasons: First, because its enforcement would violate treaty provisions which recognized the tribe's right to exclude non-Indians from tribal lands. 692 F.2d at 712. Second, because enforcement "would dilute the principles of tribal sovereignty and self-government recognized in the treaty." Id.

This second basis for our holding in Navajo Forest Products--the treaty-protected right of self-government--is likewise at issue in the case before us. ² The treaty's language clearly and unequivocally recognizes tribal self-government with only two express exceptions, neither of which is at issue in this case. We believe that the reasoning in Navajo Forest Products is equally applicable to the case at bar. Consequently, we hold that ADEA is not applicable because its enforcement would directly interfere with the Cherokee Nation's treaty-protected right of self-government. ³

III.

Like the Supreme Court, we have been "extremely reluctant to find congressional abrogation of treaty rights" absent explicit statutory language. See United States v. Dion, 476 U.S. 734, 739, 106 S.Ct. 2216, 2220, 90 L.Ed.2d 767 (1986). We are also mindful that we should not "construe statutes as abrogating treaty rights in a 'backhanded way'; in the absence of explicit statement, 'the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress.' Indian treaty rights are too fundamental to be easily cast aside." Id. (citations omitted).

In its carefully reasoned opinion, the district court attempted to determine congressional intent by comparing the statute on which ADEA was modeled, Title VII, which provides an express exclusion of tribes from the statute's coverage, with the ADEA, which is completely silent on the subject. ⁴ The court then applied normal rules of construction to reach its holding.

While normal rules of construction would suggest the outcome which the district court adopted, the court overlooked the fact that normal rules of construction do not apply when Indian treaty rights, or even nontreaty matters involving Indians, are at issue. See, e.g., Montana v. Blackfeet Tribe, 471 U.S. 759, 766, 105 S.Ct. 2399, 2403, 85 L.Ed.2d 753 (1985) ("[S]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit."); County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 247, 105 S.Ct. 1245, 1258, 84 L.Ed.2d 169 (1985) ("[T]he canons of construction applicable in Indian law are rooted in the unique trust relationship between the United States and the Indians. Thus, it is well established that treaties should be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.... The Court has applied similar canons of construction in nontreaty matters."); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 152, 102 S.Ct. 894, 909, 71 L.Ed.2d 21 (1982) ("[I]f there [is] ambiguity ... the doubt would benefit the tribe, for 'ambiguities in federal law have been construed generously in order to comport with ... traditional notions of sovereignty and with the federal policy of encouraging tribal independence.' ") (quoting White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143-44, 100 S.Ct. 2578, 2583-84, 65 L.Ed.2d 665 (1980)).

We believe that unequivocal Supreme Court precedent dictates that in cases where ambiguity exists (such as that posed by the ADEA's silence with respect to Indians), and there is no clear indication of congressional intent to abrogate Indian sovereignty rights (as manifested, e.g., by the legislative history, or the existence of a comprehensive statutory plan), the court is to apply the special canons of construction to the benefit of Indian interests. Cf. Merrion, 455 U.S. at 148-49 n. 11, 102 S.Ct. at 906-08 n. 11 ("Because the Tribe retains all inherent attributes of sovereignty that have not been divested by the Federal Government, the proper inference from silence [in the Tribe's Constitution] is that the sovereign power to tax remains intact."). We conclude that, in this case, the bases for inferring congressional intent were not so clear as to overcome the burden which the EEOC was required to carry.

REVERSED.

TACHA, Circuit Judge, dissenting.

Because I believe that there is clear indication of congressional intent to apply the Age Discrimination in Employment Act of 1967 (ADEA) to Indian tribes, I respectfully dissent.

Indian tribes possess inherent powers of sovereignty that predate the coming of the Europeans to this continent. See United States v. Wheeler, 435 U.S. 313, 322-23, 98 S.Ct. 1079, 1085-86, 55 L.Ed.2d 303 (1978). Their incorporation within the territory of the United States, and their acceptance of its protection, however, "necessarily divested them of some aspects of [that] sovereignty." Id. at 323, 98 S.Ct. at 1086. In addition to the implicit divestment of sovereign powers by virtue of tribal dependence upon the United States, other sovereign powers were explicitly yielded by treaties or removed by Congress. Id. at 322-23, 98 S.Ct. at 1085-86. "The Indian tribes [however] retain all aspects of tribal sovereignty not specifically withdrawn." Donovan v. Navajo Forest Prods. Indus., 692 F.2d 709, 712 (10th Cir.1982).

The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, 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, 98 S.Ct. at 1086.

The laws of the United States recognize both sovereign immunity from suit and tribal self-government as aspects of the inherent sovereignty retained by Indian tribes. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-60, 98 S.Ct. 1670, 1676-77, 56 L.Ed.2d 106 (1978); see also White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142-43, 100 S.Ct. 2578, 2582-83, 65 L.Ed.2d 665 (1980). Both of these aspects of tribal sovereignty, however, whether or not established by treaty, are "subject to the superior and plenary control of Congress." Martinez, 436 U.S. at 58, 98 S.Ct. at 1676-77; see also Bracker, 448 U.S. at 143, 100 S.Ct. at 2583. "The United States retains legislative plenary power to divest Indian tribes of any attributes of sovereignty." Navajo Forest Prods., 692 F.2d at 714. The issue in this case is whether, by enacting the ADEA, Congress has exercised its power to divest the Cherokee Nation of the aspects of tribal sovereignty here claimed.

In determining whether Congress has exercised such power, "a proper respect both for tribal sovereignty itself and for the plenary authority of Congress ... cautions that we tread lightly in the absence of clear indications of legislative intent." Martinez, 436 U.S. at 60, 98 S.Ct. at 1677-78. The majority notes that the courts have been " 'extremely reluctant to find congressional abrogation of treaty rights' absent explicit statutory language." Majority opinion at 938 (quoting United States v. Dion, 476 U.S. 734, 739, 106 S.Ct. 2216, 2220, 90 L.Ed.2d 767 (1986)). The Supreme Court, moreover, has stated that "Congress' intention to abrogate Indian treaty rights [must] be clear and plain." United States v. Dion, 476 U.S. 734, 738, 106 S.Ct. 2216, 2220, 90 L.Ed.2d 767 (1986).

The majority apparently interprets the "clear intent" language of Dion to require explicit language applying the statute to Indian tribes either on the face of the statute or in its legislative history. ¹ In my view Dion cannot be read as restrictively as the majority suggests.

In Dion, the Supreme Court stated that it has "enunciated ... different standards over the years for determining how such a clear and plain intent must be...