Reich v. Great Lakes Indian Fish and Wildlife Com'n

Citation4 F.3d 490
Decision Date09 December 1993
Docket NumberNo. 92-4035,92-4035
Parties, 126 Lab.Cas. P 33,006, 1 Wage & Hour Cas. 2d 929 Robert REICH, Secretary of Labor, Plaintiff-Appellant, v. GREAT LAKES INDIAN FISH AND WILDLIFE COMMISSION, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Steven J. Mandel, Allen H. Feldman, Dept. of Labor, Appellate Litigation, Washington, DC, William J. Stone, Ellen L. Beard (argued), U.S. Dept. of Labor, Office of the Sol., Washington, DC, for plaintiff-appellant.

James E. Zorn, Great Lakes Indian Fish & Wildlife Com'n, Odanah, WI, Douglas B.L. Endreson (argued), Anne D. Note, Sonosky, Chambers, Sachse & Endreson, Washington, DC, for defendant-appellee.

Before POSNER and COFFEY, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

POSNER, Circuit Judge.

The Department of Labor asked the district court to enforce a subpoena directed against the Great Lakes Indian Fish and Wildlife Commission, seeking evidence that the Commission is violating the Fair Labor Standards Act, 29 U.S.C. Secs. 201 et seq., which so far as relevant here requires employers to pay employees one and a half times their regular wages for work in excess of forty hours a week. The district judge refused to enforce the subpoena, on the ground that the Commission is not subject to the Act. The Department has appealed. Its first argument, which need not detain us long, is that the court should have enforced the subpoena without resolving the question of statutory coverage, instead deferring the question until and unless the Department proceeded against the Commission for violations of the Act. If it were doubtful whether the Commission was failing to pay time and a half for overtime, or if the question whether the Commission is subject to the Act could not be resolved without the information sought by the subpoena, the deferral suggested by the Department would be proper. Neither condition is satisfied. The Commission admits that it does not pay time and a half for overtime; and the question of statutory coverage is independent of any information that the subpoena might produce, as it is a question purely of law. The Commission should not be burdened with having to comply with a subpoena if, as the district court believed, the agency issuing it has no jurisdiction to regulate the wages that the Commission pays. Questions of regulatory jurisdiction are properly addressed at the subpoena-enforcement stage if, as here, they are ripe for determination at that stage. EEOC v. Cherokee Nation, 871 F.2d 937 (10th Cir.1989); United States v. Newport News Shipbuilding & Dry Dock Co., 837 F.2d 162, 165-66 (4th Cir.1988); EEOC v. Ocean City Police Dept., 820 F.2d 1378 (4th Cir.1987); FTC v. Shaffner, 626 F.2d 32, 36 (7th Cir.1980); United States v. Frontier Airlines, Inc., 563 F.2d 1008, 1009 (10th Cir.1977); cf. Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 216, 66 S.Ct. 494, 509, 90 L.Ed. 614 (1946). Compliance with a subpoena is a burden, and one that a person or institution that can show it is not subject to the regulatory regime in aid of which the subpoena was issued should not be required to bear. Cf. id. at 217, 66 S.Ct. at 509.

The Great Lakes Indian Fish and Wildlife Commission is a consortium of thirteen Chippewa Indian tribes that inhabit the Great Lakes region. The Commission was created in 1984 in order to enforce the usufructuary rights that the Chippewas retained under a series of nineteenth-century treaties with the United States. Sokaogon Chippewa Community v. Exxon Corp., 2 F.2d 219, 224 (7th Cir.1993); Lac Courte Oreilles Band v. Voigt, 700 F.2d 341, 362-65 (7th Cir.1983). The Chippewa surrendered in these treaties most of their rights to the occupation of land outside of Indian reservations, but retained the right to use a great deal of that land for traditional Indian activities (which incidentally have a religious as well as economic significance for the Indians), such as fishing for walleye pike and muskellunge, hunting deer and moose, and gathering wild rice and the sap of maple trees, provided that they could do these things without prejudice to lawful occupiers of the land. Today these retained rights, though greatly curtailed by the spread of white occupation, still extend over tens of thousands of square miles in states abutting the Great Lakes. The Great Lakes Indian Fish and Wildlife Commission supervises these activities. It fixes hunting, fishing, and gathering seasons for the various species of animal and plant covered by the usufructuary rights, sets limits on the amounts and type of catch permitted, and polices compliance with its regulations. The last function is the most labor intensive. It consists not only of assuring that Indian hunters, fishers, and gatherers do not exceed the authorized catch, use unauthorized methods, or fish, hunt, or gather out of season, but also of protecting the Indians from interference by white hunters, fishers, and gatherers. Many white people in the Great Lakes region as elsewhere in the United States either do not understand or do not accept the privileges that the Indian treaties grant Indians. Forbidden themselves to spear fish, for example, white fishermen resent the fact that Indians are permitted to do so. This resentment sometimes boils over into violence. Hence the field employees of the Commission are not only uniformed but also armed. They are in fact a combination of game wardens and policemen. The State of Wisconsin has deputized them to exercise state as well as tribal law enforcement functions in the areas that they patrol.

The work of the Commission is seasonal because the usufructuary rights that it administers are seasonal. And during the seasons for fishing and hunting the principal species, the work of the Commission's field employees--its game warden police--takes place virtually round the clock, not only because the hours of daylight are long and hunting and fishing take place throughout them, but also because the Indians like to spear fish at night, by torchlight. The seven-day-a-week, twenty-four-hour-a-day character of the work of these Indian police is similar to that of law enforcement officers generally, only accentuated by the seasonality of the Commission's responsibilities. If employed by state or local governments these police would have no federal legal entitlement to time and a half for overtime; their employer would be free within broad limits not only to substitute compensatory time off for overtime premium pay but also to measure hours worked by a work month rather than a work week, so that an employee who worked more than 40 hours in a particular week would not be entitled even to compensatory time off unless he had exceeded 160 hours in the entire month. 29 U.S.C. Secs. 207(k), 207(o ). Because the Fair Labor Standards Act does not mention Indians, the Department of Labor takes the position that these exemptions are inapplicable to the warden-policemen of the Great Lakes Indian Fish and Wildlife Commission. The Department's able counsel acknowledged at argument that the difference in treatment between these tribal law enforcement officers and state or local policemen makes no sense, but contended that the difference can be erased only by Congress. She added reassuringly that it was only a question of money. The Commission's activities are financed primarily by a grant from the Department of the Interior, and if the Commission is required to pay its warden-policemen overtime it can always ask the Department for additional funding and the Department can in turn ask Congress for a supplemental appropriation.

Indian treaties are deemed the legal equivalent of federal statutes and they can therefore be modified or even abrogated by Congress. United States v. Dion, 476 U.S. 734, 738, 106 S.Ct. 2216, 2219, 90 L.Ed.2d 767 (1986). Nevertheless, partly no doubt out of a sense of guilt for the mistreatment of Indians by the U.S. government, partly in recognition that Indian tribes like states retain at least vestiges of sovereignty, and partly perhaps as a straightforward application of the "canon of construction" that repeals by implication are disfavored, the presumption is that a statute does not modify or abrogate Indian treaty rights. Id. at 738-40, 106 S.Ct. at 2219-20; Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 690, 99 S.Ct. 3055, 3076, 61 L.Ed.2d 823 (1979). The Fair Labor Standards Act does not mention Indians. It was enacted in 1938, at a time when Indian problems were not at the forefront of the national policy agenda. Nothing in the legislative history suggests that Congress thought about the possible impact of the Act on Indian rights, customs, or practices. If therefore the Chippewa had a treaty right to employ law enforcement officers on any terms, the Fair Labor Standards Act would be presumed not to abrogate the right by forcing the Great Lakes Indian Fish and Wildlife Commission to pay time and a half for overtime. Cf. EEOC v. Fond du Lac Heavy Equipment & Construction Co., 986 F.2d 246 (8th Cir.1993); Donovan v. Navajo Forest Products Industries, 692 F.2d 709 (10th Cir.1982). But one searches the treaties in vain for such a right. So far as pertains to this case the only rights granted are rights to hunt, fish, and gather. There is no mention of the system for enforcing these rights, let alone any reference to the terms of employment of those hired to enforce it.

But we cannot end our consideration of the appeal with that observation. The ultimate question is the meaning fairly to be attributed to the Fair Labor Standards Act. Obviously the Act is broadly enough worded to apply to the Commission's warden-policemen without semantic strain. Indeed, read literally against the background of the exemption for state and local law enforcement...

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