Snyder v. Navajo Nation

• Decision Date: 10 June 2004
• Docket Number: No. 03-15395.,No. 02-16632.,02-16632.,03-15395.
• Citation: 382 F.3d 892
• Parties: Kurt SNYDER, a married man, individually, and on behalf of all other similarly situated employees of the Navajo Nation; Division of Navajo Public Safety; Darrell Boye, a married man, individually; Larry Etsitty, Sr., a single man, individually; Sarah Habaadih, a single woman, individually; Jones R. Begay, a married man, individually; Johnny Peshlakai, a married man, individually; Ronald Platerio, a married man, individually; Rex Butler, a married man, individually; Tyrone benally, a single man, individually; Charlene Bahe, a single woman, individually; Kenny James, a married man, individually; Rosalyn Benally, a single woman, individually; Leroy Butler, a married man, individually; Lucy Lane, a married woman, individually; Dale Dennison, a married man, individually; Randall Tomasyo; a married man, individually; and on behalf of all other similarly situated employees of the Navajo Nation, Plaintiffs-Appellants, v. The NAVAJO NATION, Defendant-Appellee. Kurt Snyder, a married man, individually, and on behalf of all other similarly situated employees of the Navajo Nation; Division of Navajo Public Safety; Darrell Boye, a married man, individually; Larry Etsitty, Sr., a single man, individually; Sarah Habaadih, a single woman, individually; Jones R. Begay, a married man, individually; Johnny Peshlakai, a married man, individually; Ronald Platerio, a married man, individually; Rex Butler, a married man, individually; Tyrone Benally, a single man, individually; Charlene Bahe, a single woman, individually; Kenny James, a married man, individually; Rosalyn Benally, a single woman, individually; Leroy Butler, a married man, individually; Lucy Lane, a married woman, individually; Dale Dennison, a married man, individually; Randall Tomasyo; a married man, individually; and on behalf of all other similarly situated employees of the Navajo Nation; Antonio Cooke; Evelyn Smiley; Mary Fernando; Katie Belone; Louis Anderson; Esther Charley; Louis St. Germaine; Ernest D. Yazzie; Salvantis Begay; Rosina Ford; Otis Desiderio, Robert H. James; Frederick L. Price; Raymond K. Barlow; Henry C. Platerio, Jr.; Fayetta Dale; Wallace Billie; Kara Tilden; Bernadine Dobson; Raymond Butler, Jr.; Division of Navajo Public Safety, Plaintiffs-Appellants, v. The Navajo Nation; United States of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

382 F.3d 892

Kurt SNYDER, a married man, individually, and on behalf of all other similarly situated employees of the Navajo Nation; Division of Navajo Public Safety; Darrell Boye, a married man, individually; Larry Etsitty, Sr., a single man, individually; Sarah Habaadih, a single woman, individually; Jones R. Begay, a married man, individually; Johnny Peshlakai, a married man, individually; Ronald Platerio, a married man, individually; Rex Butler, a married man, individually; Tyrone benally, a single man, individually; Charlene Bahe, a single woman, individually; Kenny James, a married man, individually; Rosalyn Benally, a single woman, individually; Leroy Butler, a married man, individually; Lucy Lane, a married woman, individually; Dale Dennison, a married man, individually; Randall Tomasyo; a married man, individually; and on behalf of all other similarly situated employees of the Navajo Nation, Plaintiffs-Appellants, v. The NAVAJO NATION, Defendant-Appellee.

Kurt Snyder, a married man, individually, and on behalf of all other similarly situated employees of the Navajo Nation; Division of Navajo Public Safety;

Darrell Boye, a married man, individually; Larry Etsitty, Sr., a single man, individually; Sarah Habaadih, a single woman, individually; Jones R. Begay, a married man, individually; Johnny Peshlakai, a married man, individually; Ronald Platerio, a married man, individually; Rex Butler, a married man, individually; Tyrone Benally, a single man, individually; Charlene Bahe, a single woman, individually; Kenny James, a married man, individually; Rosalyn Benally, a single woman, individually; Leroy Butler, a married man, individually; Lucy Lane, a married woman, individually; Dale Dennison, a married man, individually; Randall Tomasyo; a married man, individually; and on behalf of all other similarly situated employees of the Navajo Nation; Antonio Cooke; Evelyn Smiley; Mary Fernando; Katie Belone; Louis Anderson; Esther Charley; Louis St. Germaine; Ernest D. Yazzie; Salvantis Begay; Rosina Ford; Otis Desiderio, Robert H. James; Frederick L. Price; Raymond K. Barlow; Henry C. Platerio, Jr.; Fayetta Dale; Wallace Billie; Kara Tilden; Bernadine Dobson; Raymond Butler, Jr.; Division of Navajo Public Safety, Plaintiffs-Appellants, v. The Navajo Nation; United States of America, Defendants-Appellees.

No. 02-16632.

No. 03-15395.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 9, 2004.

Filed June 10, 2004.

Amended September 2, 2004.

Edward D. Fitzhugh, Law Offices of Edward D. Fitzhugh, Tempe, AZ, for the plaintiffs-appellants.

Dana L. Bobroff, The Navajo Nation Department of Justice, Window Rock, AZ, and Catherine Y. Hancock, Assistant Attorney General, Department of Justice, Washington, DC, for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona; Earl H. Carroll, District Judge, Presiding. D.C. Nos. CV-02-00308-EHC, CV-02-01627-EHC.

Before SCHROEDER, Chief Judge, TALLMAN, and CALLAHAN, Circuit Judges.

ORDER AMENDING OPINION AND DENYING REHEARING AND AMENDED OPINION

ORDER

The Opinion filed June 10, 2004, is amended as follows:

Slip Opinion page 7727, lines 17-18, delete ", and more narrow than," and lines 30-31, delete "This case is easier, because" and insert "Here,"

With the above amendments, the panel has voted to deny the petition for panel rehearing and to deny the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are denied.

OPINION

SCHROEDER, Chief Judge:

Appellants in these consolidated appeals are law enforcement officers of the Navajo Nation Division of Public Safety ("DPS") who filed actions against both the Navajo Nation and the United States claiming violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219. The district court dismissed the claims against the Navajo Nation, holding that law enforcement was an intramural matter within the meaning of Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d 1113 (9th Cir.1985), and that the FLSA therefore did not apply to plaintiff law enforcement officers. The court also dismissed the claims against the United States. The tribal law enforcement officers appeal both dismissals. We affirm.

The FLSA establishes various employee protections and employment standards including premium pay for overtime work. Appellants claim the tribe and United States are in violation of this act because Appellants are regularly required to work overtime and the tribe makes only delayed, sporadic and partial payments for overtime. Appellants also assert that they should receive the same compensation as law enforcement officers employed by the Bureau of Indian Affairs ("BIA") who do similar work.

Claims Against the Tribe

The FLSA is a statute of general applicability. Rutherford Food Corp. v McComb, 331 U.S. 722, 727, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947). Such generally applicable statutes typically apply to Indian tribes. Fed. Power Comm'n v. Tuscarora Indian Nation, 362 U.S. 99, 116, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960). There is an exemption, however, where the law would interfere with tribal self-government. The exemption protects "exclusive rights of self-governance in purely intramural matters." Coeur d'Alene Tribal Farm, 751 F.2d at 1116; EEOC v. Karuk Tribe Housing Auth., 260 F.3d 1071, 1078 (9th Cir.2001) (hereinafter "Karuk"); See also EEOC v. Fond du Lac Heavy Equipment and Construction Co., Inc., 986 F.2d 246, 249-51 (8th Cir.1993) (holding that the ADEA was not applicable because the tribe's right of self-government would be affected in the intramural matter of on reservation tribal employment); Nero v. Cherokee Nation of Okla., 892 F.2d 1457, 1463 (10th Cir.1989) (holding that race discrimination statutes did not apply to a tribe's designation of tribal membership criteria).

In Coeur d'Alene Tribal Farm, we explained that the tribal self-government exception applied to intramural matters and we specifically mentioned, as examples, conditions of tribal membership, inheritance rules, and domestic relations. 751 F.2d at 1116. In Karuk, we followed Coeur d'Alene Tribal Farm and held that the employment of a tribal member, by the tribe's housing authority, on the reservation was an intramural matter and that federal age discrimination statutes did not apply. 260 F.3d at 1079-80. While we have not cabined the intramural exception to those listed in Coeur d'Alene Tribal Farm, we have been careful to allow such exemptions only in those rare circumstances where the immediate ramifications of the conduct are felt primarily within the reservation by members of the tribe and where self-government is clearly implicated.

In NLRB v. Chapa De Indian Health Program, Inc., 316 F.3d 995 (9th Cir.2003) (hereinafter "Chapa De"), we considered whether the National Labor Relations Act applied to tribes and tribal organizations. Id. at 998. We determined that a financially independent, nonprofit tribal organization, which contracted to provide services to the tribe as well as others, and operated outside a reservation, was not exempt. Id. at 1000. Chapa De recognized that despite the relationship between self-government and health services, the commercial nature of the labor relations involved left the activity outside the ambit of the intramural matters exception. Id. at 999-1000. There, as have other circuits, we were careful to distinguish between what is a governmental function and what is primarily a commercial one. Id.; Reich v. Mashantucket Sand & Gravel, 95 F.3d 174, 180-81 (2d Cir.1996).

In this case we are concerned with employees hired to enforce the law. The Navajo Nation's DPS maintains law and order within the reservation and this is a traditional governmental function. The FLSA contains an express exemption for state and local law-enforcement officers. 29 U.S.C. §§ 207(k), 207(o). Tribal law enforcement clearly is a part of tribal government and is for that reason an appropriate activity to exempt as intramural. See Reich v. Great Lakes Indian Fish and Wildlife Comm'n, 4 F.3d 490, 492-94 (7th Cir.1993) (noting that state and local police have no federal entitlement to time and a half for overtime and that Congressional failure to include tribal or Indian police in the exemption was likely a mere oversight).

Appellants argue that these officers' activities are not intramural because they are not performed exclusively on the reservation. Appellants claim that incidental contacts and travel off the reservation preclude application of the intramural affairs exception. They rely, for example, on officers' visits with law enforcement agencies in the states the reservation borders.

There is no question that tribal officers travel off the reservation to assist other agencies engaging in investigation of crimes that affect the reservation and Navajo citizens. The FBI, United States Attorney's Offices, and federal court-houses to which DPS officers travel are necessarily located off the reservation.

When officers travel to provide information or to testify in such locations, however, they do so because of a crime that occurred on the reservation or directly affected the interests of the tribal community. Thus, such services performed off-reservation nevertheless relate primarily to tribal self-government and remain part of exempt intramural activities. Such travel does not relate to any non-government purpose. Nor does it provide primary benefits to persons with no...