Eeoc v. Peabody Western Coal Company

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY No. 12-17780
COMMISSION,
Plaintiff-Appellant, D.C. No.
2:01-cv-01050-
v. JWS

PEABODY WESTERN COAL
COMPANY; NAVAJO NATION, Rule ORDER AND
19 defendant, AMENDED
Defendants-Appellees, OPINION

v.

KEVIN K. WASHBURN, Esquire;
SALLY JEWELL, in her official
capacity as Secretary of the Interior,
Third-Party-Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
John W. Sedwick, District Judge, Presiding

Argued and Submitted
May 12, 2014—San Francisco, California

Filed September 26, 2014
Amended November 19, 2014
2 EEOC V. PEABODY WESTERN COAL CO.

Before: Susan P. Graber, William A. Fletcher,
and Richard A. Paez, Circuit Judges.

Opinion by Judge W. Fletcher

SUMMARY*

Title VII / Tribal Affairs

The panel filed an order amending its previous opinion,
and in the amended opinion the panel affirmed the district
court’s summary judgment against the Equal Employment
Opportunity Commission with respect to its claim that Title
VII of the Civil Rights Act of 1964 prohibited the tribal
hiring preference contained in Peabody Western Coal
Company leases with the Navajo Nation.

The panel held that the Navajo hiring preference in the
leases was a political classification, rather than a
classification based on national origin, and therefore did not
violate Title VII. The panel concluded that the district court
correctly granted summary judgment to defendants Peabody
Western Coal Company and Navajo Nation, and third-party
defendant Secretary of the Interior. The panel also held that
the EEOC waived on appeal its record-keeping claim.
Finally, the panel held that the district court acted within its
discretion in denying the EEOC’s eleventh-hour motion to
supplement the record with a declaration and documents
about Peabody’s hiring practices in 1999.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 EEOC V. PEABODY WESTERN COAL CO. 3

COUNSEL

P. David Lopez, General Counsel, Lorraine C. Davis, Acting
Assistant General Counsel, and Susan Ruth Oxford (argued),
Attorney, Equal Employment Opportunity Commission,
Washington, D.C., for Plaintiff-Appellant.

John F. Lomax, Jr. (argued) and Kathryn Hackett King, Snell
& Wilmer LLP, Phoenix, Arizona; Louis Denetsosie,
Attorney General, and Paul Spruhan, Assistant Attorney
General, Navajo Nation Department of Justice, Window
Rock, Arizona; Lisa M. Enfield (argued), Paul E. Frye, and
William Gregory Kelly, Frye Law Firm PC, Albuquerque,
New Mexico, for Defendants-Appellees.

Robert Dreher, Acting Assistant Attorney General, Ethan G.
Shenkman (argued), Deputy Assistant Attorney General,
James C. Kilbourne, Section Chief, and Kristofor Swanson,
United States Department of Justice, Washington, D.C., for
Third-Party-Defendants-Appellees.

ORDER

Plaintiff-Appellant’s motion to amend the court’s opinion
is GRANTED. The Opinion, filed on September 26, 2014,
and reported at 768 F.3d 962 (9th Cir. 2014), is amended as
follows:

At Slip Op. 22, 768 F.3d at 974, the sentence beginning
with and ending with
is deleted and replaced with:
4 EEOC V. PEABODY WESTERN COAL CO.

The Indian preference exemption contained in
Section 703(i) is therefore necessary to clarify
that Title VII’s prohibition against racial or
national origin discrimination does not extend
to preferential hiring of Indians living on or
near reservations.

An Amended Opinion is filed concurrently with this
Order.

OPINION

W. FLETCHER, Circuit Judge:

Peabody Western Coal Co. (“Peabody”) mines coal at the
Black Mesa Complex and Kayenta mines on the Hopi and
Navajo reservations in northeastern Arizona under leases with
the tribes. At issue in this appeal are two leases with the
Navajo Nation (“the Nation”) that permit Peabody to mine
coal on Navajo reservation land. Each lease requires Peabody
to give preference in employment to “Navajo Indians.” Both
leases received approval from the Department of the Interior
(“Interior”) under the Indian Mineral Leasing Act of 1938,
25 U.S.C. §§ 396a, 396e (“IMLA”). Since at least as early as
the 1940s, Interior-approved mineral leases, including the two
at issue here, have routinely included tribal hiring preference
provisions.
 EEOC V. PEABODY WESTERN COAL CO. 5

This appeal is the latest stage in a long-running legal
dispute about the tribal hiring preferences.1 The Equal
Employment Opportunity Commission (“EEOC”) sued
Peabody in the District of Arizona in 2001, alleging that
Peabody’s implementation of the tribal hiring preference
constituted national origin discrimination in violation of Title
VII of the Civil Rights Act of 1964. The EEOC also claimed
that Peabody had violated Title VII’s record-keeping
requirements. See 42 U.S.C. § 2000e-8(c). Several years of
litigation on procedural matters resulted in the joinder of the
Nation under Federal Rule of Civil Procedure 19 and
impleader of the Secretary and Assistant Secretary of the
Interior (collectively, “the Secretary”) under Federal Rule of
Civil Procedure 14. The principal issue now before us is the
EEOC’s claim that Title VII prohibits the tribal hiring
preference contained in the Peabody leases.

In the decision now on appeal, the district court granted
summary judgment against the EEOC on the merits. It held
that the Navajo hiring preference in the leases is a political
classification, rather than a classification based on national
origin, and therefore does not violate Title VII. We have

1
The previous opinions in this case are EEOC v. Peabody Coal Co.
(Peabody I), 214 F.R.D. 549 (D. Ariz. 2002); EEOC v. Peabody W. Coal
Co. (Peabody II), 400 F.3d 774 (9th Cir. 2005); EEOC v. Peabody W.
Coal Co. (Peabody III), No. CV 01-01050, 2006 WL 2816603 (D. Ariz.
Sept. 30, 2006); EEOC v. Peabody W. Coal Co. (Peabody IV), 610 F.3d
1070 (9th Cir. 2010); and EEOC v. Peabody W. Coal Co. (Peabody V),
No. 01-CV-01050, 2012 WL 4339208 (D. Ariz. Sept. 20, 2012). Other
issues pertaining to Peabody’s operations on the Nation’s land have also
been the subjects of litigation, in this court and elsewhere. See United
States v. Navajo Nation, 537 U.S. 488 (2003); Peabody Coal Co. v.
Navajo Nation, 373 F.3d 945 (9th Cir. 2004); Navajo Nation v. Peabody
Holding Co., 209 F. Supp. 2d 269 (D.D.C. 2002); see also Clinton v.
Babbitt, 180 F.3d 1081, 1083–86 (9th Cir. 1999).
6 EEOC V. PEABODY WESTERN COAL CO.

jurisdiction over the EEOC’s appeal pursuant to 28 U.S.C.
§ 1291. We agree with the district court that the tribal hiring
preference is a political classification. We therefore affirm.

I. Background

Peabody’s predecessor-in-interest entered into two leases
with the Navajo Nation. The first, Lease No. 8580, signed in
1964, permits Peabody to mine coal on the Navajo
reservation. The second, Lease No. 9910, signed in 1966,
permits Peabody to mine on reservation land formerly held in
trust for both the Navajo and Hopi tribes, now partitioned
between the tribes.

In Lease No. 8580, Peabody “agrees to employ Navajo
Indians when available in all positions for which, in the
judgment of [Peabody], they are qualified, and to pay
prevailing wages to such Navajo employees and to utilize
services of Navajo contractors whenever feasible.” The lease
also provides that Peabody “shall make a special effort to
work Navajo Indians into skilled, technical and other higher
jobs in connection with [its] operations under this lease.”
Lease No. 9910 contains a similar provision, and also states
that Peabody “may at its option extend the benefits of [the
hiring preference] to Hopi Indians.” Interior drafted the
leases and required the inclusion of the Navajo hiring
preferences. The leases were approved by Interior under the
IMLA. Peabody IV, 610 F.3d at 1075.

In 1998, two members of the Hopi Tribe and one member
of the Otoe Tribe filed discrimination charges with the
EEOC. They alleged that they had applied to Peabody for
positions for which they were qualified, and that they were
not hired because they were not Navajo. After an
 EEOC V. PEABODY WESTERN COAL CO. 7

investigation, the EEOC sued Peabody in federal district
court in Arizona in 2001. The EEOC alleged that Peabody’s
implementation of the tribal hiring preference provisions
constituted national origin discrimination forbidden by Title
VII.

After the EEOC brought its Title VII claims, Peabody
moved for summary judgment. The district court granted the
motion on two grounds, holding that the suit presented a
nonjusticiable political question and that the Nation was a
necessary party for whom joinder was not feasible. Peabody
I, 214 F.R.D. at 560–61. We reversed, holding that the suit
did not present a political question and that Rule 19 joinder
was feasible, provided that the EEOC sought no affirmative
relief against the Nation. Peabody II, 400 F.3d at 778. The
Supreme Court denied review. Peabody W. Coal Co. v.
EEOC, 546 U.S. 1150 (2006) (mem.).

On remand, the EEOC amended its complaint to join the
Nation under Rule 19. The district court again granted
summary judgment against the EEOC. It held that the EEOC
sought affirmative relief against the Nation, defeating Rule 19
joinder; that the Secretary was a necessary party for whom
joinder was not feasible; and that the tribal hiring preference
did not violate Title VII because it was authorized by the
Navajo-Hopi Rehabilitation Act of 1950, 25 U.S.C.
§§ 631–638. Peabody III, 2006 WL 2816603.

On appeal, we reversed in part and vacated in part. We
again held that joinder of the Nation was feasible. We held
further that, although the EEOC could not join the Secretary
as a defendant under Rule 19, Peabody or the Nation could
implead the Secretary as a third-party defendant under Rule
14(a) on claims for injunctive or declaratory relief. We
8 EEOC V. PEABODY WESTERN COAL CO.

vacated the judgment on the Title VII claim in order to allow
the district court to consider the Secretary’s arguments.
Peabody IV, 610 F.3d 1070. The Supreme Court again
denied review. EEOC v. Peabody W. Coal Co., 132 S. Ct. 91
(2011) (mem.).

On remand, the EEOC filed a second amended complaint.
Peabody impleaded the Secretary and counterclaimed against
the EEOC for declaratory relief. The district court granted
the EEOC’s motion to dismiss Peabody’s counterclaims.

The Secretary then moved for summary judgment on
Peabody’s third-party complaint on the ground that the tribal
hiring preferences in the leases were permissible under Title
VII. The Nation and Peabody also moved for summary
judgment.

The day before argument on those motions, the EEOC
moved to supplement the record with the declaration and
supporting documents of a former EEOC investigator who
had interviewed Peabody’s hiring officials in 1999. The
district court denied the motion as untimely, noting that the
information that the EEOC sought to introduce had long been
available, and that, in any event, the information was not
relevant because it pertained to pre-1999 practices.

The district court upheld the tribal hiring preferences in
the leases. After “an examination of the status of Indian
tribes in general and their relationship to the federal
government,” and drawing on the principles the Supreme
Court articulated in Morton v. Mancari, 417 U.S. 535 (1974),
the court held that the preference was a political classification
rather than a national origin classification. The EEOC timely
 EEOC V. PEABODY WESTERN COAL CO. 9

appealed the grant of summary judgment and the denial of its
motion to supplement the record.

II. Standard of Review

We review de novo a district court’s grant of summary
judgment. Kang v. U. Lim Am., Inc., 296 F.3d 810, 814 (9th
Cir. 2002). We review for abuse of discretion a district
court’s denial of a motion to supplement the record. Sheet
Metal Workers’ Int’l Ass’n Local Union No. 359 v. Madison
Indus., Inc., of Ariz., 84 F.3d 1186, 1192 (9th Cir. 1996).

III. Discussion

A. Title VII National Origin Discrimination

The EEOC argues that Title VII prohibits hiring
preferences based on tribal affiliation, which it contends is a
form of impermissible national origin discrimination. The
EEOC is responsible for overseeing the implementation and
enforcement of Title VII. 42 U.S.C. § 2000e-14. The
Secretary argues that the tribal hiring preferences are based
on political classifications that Title VII does not reach. The
Secretary maintains that tribal hiring preferences serve to
promote tribal self-governance in accordance with
congressionally mandated federal Indian policy. None of the
parties has argued that Chevron deference applies to the
EEOC’s or Interior’s interpretations of the statutes each is
charged with administering. See Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

The question before us is one of first impression. But we
do not walk on untrodden ground. We have previously stated
that differential treatment in employment based on tribal
10 EEOC V. PEABODY WESTERN COAL CO.

affiliation can give rise to a Title VII national origin
discrimination claim. See Dawavendewa v. Salt River Project
Agric. Improvement & Power Dist. (Dawavendewa I),
154 F.3d 1117 (9th Cir. 1998). Outside the context of Title
VII, however, we have recognized that where differential
treatment serves to fulfill the federal government’s special
trust obligation to the tribes as quasi-sovereign political
entities, tribal preferences are permissibly based on political
classifications. Means v. Navajo Nation, 432 F.3d 924, 932
(9th Cir. 2005); Kahawaiolaa v. Norton, 386 F.3d 1271, 1278
(9th Cir. 2004); see Mancari, 417 U.S. 535.

For the reasons that follow, we hold that the tribal hiring
preferences in the Peabody leases are based on tribal
affiliation, a political classification. We also hold that Title
VII does not prohibit differential treatment based on this
political classification.

1. Statutory Framework

We begin by reviewing the relevant provisions of the
IMLA and of Title VII.

a. The Indian Mineral Leasing Act of 1938

The Peabody leases are authorized and governed by the
IMLA. See United States v. Navajo Nation, 537 U.S. 488,
495 (2003). That statute provides, in relevant part:

On and after May 11, 1938, unallotted
lands within any Indian reservation or lands
owned by any tribe, group, or band of Indians
under Federal jurisdiction, except those
specifically excepted from the provisions of
 EEOC V. PEABODY WESTERN COAL CO. 11

sections 396a to 396g of this title, may, with
the approval of the Secretary of the Interior,
be leased for mining purposes, by authority of
the tribal council or other authorized
spokesmen for such Indians, for terms not to
exceed ten years and as long thereafter as
minerals are produced in paying quantities.

25 U.S.C. § 396a.

The IMLA was “designed to advance tribal
independence.” Navajo Nation, 537 U.S. at 494. Congress
“aimed to foster tribal self-determination by giving Indians a
greater say in the use and disposition of the resources found
on Indian lands.” Id. (internal quotation marks and alteration
omitted). The IMLA was intended (1) to achieve “uniformity
so far as practicable of the law relating to the leasing of tribal
lands for mining purposes,” H.R. Rep. No. 1872, 75th Cong.,
3d Sess., at 1 (1938); (2) to ensure that Indians received “the
greatest return from their property,” id. at 2; and (3) to “bring
all mineral-leasing matters in harmony with the Indian
Reorganization Act,” id. at 3. See Montana v. Blackfeet Tribe
of Indians, 471 U.S. 759, 767 n.5 (1985).

The Indian Reorganization Act (“IRA”), also known as
the Wheeler-Howard Act, enacted four years prior to the
IMLA, has been described as “probably the most important
single statute affecting Indians . . . since its passage.” Elmer
R. Rusco, A Fateful Time: The Background and Legislative
History of the Indian Reorganization Act, at ix (2000). The
drafters of the IRA sought to reverse half a century of
assimilationist policy. See id. at 62, 180. The IRA was a
comprehensive reform statute, providing, among other things,
for tribal self-government, restoration of lands to tribal
12 EEOC V. PEABODY WESTERN COAL CO.

ownership, economic development, and vocational training.
Indian Reorganization Act, 48 Stat. 984, Pub. L. No. 73-383
(1934) (codified as amended at 25 U.S.C. § 461 et seq.). In
the decades since its enactment, the IRA has been criticized
for the lack of involvement of Indian communities during the
drafting process, as well as for perceived failures in its
implementation. Rusco, supra, at x–xi, 190. But it remains
the case that the statute was conceived as a means to restore
tribal sovereignty and to promote the tribes’ self-governance
and economic independence. Mancari, 417 U.S. at 542 &
n.12 (quoting the statement of John Collier, Commissioner of
Indian Affairs, that the IRA “is designed not to prevent the
absorption of Indians in white communities, but rather to
provide for those Indians unwilling or unable to compete in
the white world some measures of self-government in their
own affairs”); see generally Rusco, supra.

In enacting the IMLA, Congress expressly intended to
further the policy goals articulated in the IRA. In the IMLA,
Congress delegated broad discretion to the Secretary to
approve mineral leases. See Navajo Nation, 537 U.S. at
494–95. The IMLA does not mention hiring preferences of
any kind, but in the exercise of its discretionary authority,
Interior since the 1940s has routinely approved mineral leases
that require a tribe’s lessee to give preference in hiring to
members of that tribe. This long-established practice serves
to ensure that the economic value of the mineral leases on
tribal lands inures to the benefit of the tribe and its members,
consistent with the purpose of the IMLA.

Stewart Udall, Secretary of the Interior when the Peabody
leases were prepared, stated in a declaration and in a
deposition that Interior negotiated and drafted the leases. He
affirmed that the Navajo preference provisions were a “key
 EEOC V. PEABODY WESTERN COAL CO. 13

provision,” given the economic importance of coal resources
on the reservations. Peabody IV, 610 F.3d at 1075. Secretary
Udall understood Interior’s role in approving mining leases
as carrying out a special trust duty owed to Indian tribes in
general and, with respect to these leases, owed in particular
to the Navajo and Hopi tribes whose coal was being mined.

b. Title VII of the Civil Rights Act of 1964

Title VII prohibits discrimination in employment on the
grounds of “race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e-2(a). The EEOC contends that the tribal
preference in the leases violates the prohibition against
national original discrimination. Title VII does not define
“national origin.” The legislative history tells us very little
about Congress’s understanding of the term. The only
discussion of “national origin” came in the context of
permitting employers to indicate hiring preferences based on
sex, religion, or national origin where those qualities are a
“bona fide occupational qualification.” That discussion
centered on the distinction between discrimination based on
race and discrimination based on national origin.
Representative James Roosevelt stated, “May I just make
very clear that ‘national origin’ means national. It means the
country from which you or your forebears came from. You
may come from Poland, Czechoslovakia, England, France, or
any other country.” EEOC, Legislative History of Titles VII
and XI of the Civil Rights Act of 1964, at 3179–80 (1968);
110 Cong. Rec. 2549 (1964). Representative John Dent
stated, “National origin, of course, has nothing to do with
color, religion, or the race of an individual. A man may have
migrated here from Great Britain and still be a colored
person.” EEOC, supra, at 3180; 110 Cong. Rec. 2549 (1964).
14 EEOC V. PEABODY WESTERN COAL CO.

Title VII contains two provisions specifically addressing
Indian tribes. First, it provides that the term “employer” does
not include “an Indian tribe,” thus excluding Indian tribal
governments entirely from coverage under Title VII.
42 U.S.C. § 2000e(b). Second, Section 703(i), known as the
“Indian Preference exemption,” expressly permits preferential
hiring over non-Indians of Indians living on or near
reservations. It provides:

Nothing contained in this subchapter shall
apply to any business or enterprise on or near
an Indian reservation with respect to any
publicly announced employment practice of
such business or enterprise under which a
preferential treatment is given to any
individual because he is an Indian living on or
near a reservation.

42 U.S.C. § 2000e-2(i).

The legislative history of Section 703(i) is sparse. We at
least know that it was intended to help remedy past and
present discrimination against Indians as a “minority group.”
See 110 Cong. Rec. 13,702 (statement of Sen. Karl Mundt).
We have previously noted that “the primary impetus behind
§ 703(i) was concern that by enacting Title VII Congress
would render unlawful otherwise permissible hiring
preferences for Native Americans.” Malabed v. N. Slope
Borough, 335 F.3d 864, 871 (9th Cir. 2003). The exemption
was designed “to protect existing or future preference
programs.” Id.; see also 110 Cong. Rec. 13,702 (statement of
Sen. Karl Mundt) (stating that Section 703(i), along with the
exclusion of Indian tribes from Title VII’s definition of
“employer,” “will assure our American Indians of the
 EEOC V. PEABODY WESTERN COAL CO. 15

continued right to protect and promote their own interests and
to benefit from Indian preference programs now in operation
or later to be instituted”). But the legislative history and
statutory text give little indication as to Congress’s views, if
any, on preferences for tribal members over Indians from
other tribes, as distinct from general preferences for Indians
over non-Indians.

The EEOC issued a policy statement in 1988 in which it
concluded that Section 703(i) is limited to general Indian
hiring preferences and does not, in itself, authorize
preferential employment practices based on tribal
affiliation—a statement to which we have accorded
deference. See Dawavendewa I, 154 F.3d at 1121. But this
statement does not end the inquiry. That Section 703(i) does
not itself authorize or create an exemption for tribal hiring
preferences on or near Indian reservations does not dispose of
the question before us: whether Title VII’s prohibition against
national origin discrimination prohibits the tribal hiring
preferences in the mineral leases.

2. Tribal Affiliation and National Origin

The correspondence between tribal membership, on the
one hand, and national origin, on the other, is not self-evident.
See generally Matthew L.M. Fletcher, Tribal Membership
and Indian Nationhood, 37 Am. Indian L. Rev. 1 (2013).
Tribal membership, often based on blood quantum and
lineage, see id. at 4, incorporates notions of race and ethnicity
that the drafters of Title VII explicitly understood the term
“national origin” to exclude. The federal government’s
interactions with Indians have, in many cases, shaped their
political structures and constituencies, such that even the
notion of the tribe may lack direct correlation with actual or
16 EEOC V. PEABODY WESTERN COAL CO.

historical group politics. See Felix S. Cohen, Handbook of
Federal Indian Law § 3.02[3], at 133 (Nell Jessup Newton
ed., 2012); see also id. § 14.03[2][b], at 954 (“[T]he very
concept of enrollment and maintenance of citizenship lists is
largely an artifact of federal actions.”); Carole Goldberg-
Ambrose, Of Native Americans and Tribal Members: The
Impact of Law on Indian Group Life, 28 Law & Soc’y Rev.
1123, 1131–33 (1994). Nonetheless, our decision in
Dawavendewa I established that, at least in some cases, a
tribal hiring preference can give rise to a Title VII national
origin discrimination claim.

At issue in Dawavendewa I was the claim of a Hopi
Indian who had been denied employment at a power station
on a Navajo reservation, the Salt River Project (“SRP”),
pursuant to a tribal hiring preference in the power company’s
lease agreement with the Navajo Nation. Id. at 1118. We
held at the pleading stage that the plaintiffs had stated a Title
VII national origin discrimination claim sufficient to survive
a motion to dismiss. Id. at 1124. We observed that, in its
implementing regulations, the EEOC has given the term
“national origin” an expansive construction that could
plausibly be read to encompass tribal affiliation. Id. at 1119.
The EEOC “defines national origin discrimination broadly as
including, but not limited to, the denial of equal employment
opportunity because of an individual’s, or his or her
ancestor’s, place of origin; or because an individual has the
physical, cultural or linguistic characteristics of a national
origin group.” 29 C.F.R. § 1606.1 (2012). We also drew on
our own broad construction of the term. In Pejic v. Hughes
Helicopters, Inc., 840 F.2d 667 (9th Cir. 1988), we had
written: “Unless historical reality is ignored, the term
‘national origin’ must include countries no longer in
existence. Given world history, Title VII cannot be read to
 EEOC V. PEABODY WESTERN COAL CO. 17

limit ‘countries’ to those with modern boundaries, or to
require their existence for a certain time length before it will
prohibit discrimination.” Id. at 673 (citation omitted).

In light of this, we held in Dawavendewa I that,
“[b]ecause the different Indian tribes were at one time
considered nations, and indeed still are to a certain extent,
discrimination on the basis of tribal affiliation can give rise
to a ‘national origin’ claim under Title VII.” 154 F.3d at
1120. We noted that “Native Americans’ interests in self-
governance” were not at issue. Id. We suggested that the
presence of such interests would trigger a separate analysis,
grounded in the Supreme Court’s decision in Mancari, and its
recognition that at least some forms of preferential treatment
of Indians are based on political classifications rather than
national origin. Id.; see infra Subsection III.A.3. We also
held, giving EEOC’s 1988 policy statement “due weight,”
that Section 703(i) did not authorize tribal hiring preferences.
Dawavendewa I, 154 F.3d at 1121–22.

The EEOC contends that our analysis must begin and end
with Dawavendewa I. But four years later, in a second appeal
in that case, we limited the scope of what we had earlier
written. In Dawavendewa v. Salt River Project Agricultural
Improvement & Power District (Dawavendewa II), 276 F.3d
1150 (9th Cir. 2002), we heard an appeal from the district
court’s dismissal of a claim for failure to join the Nation as a
defendant under Rule 19. We affirmed. In doing so, we
specifically rejected the plaintiffs’ contention that we had
previously held that Salt River Project’s hiring practices
violated Title VII. We wrote in Dawavendewa II that
Dawavendewa I
18 EEOC V. PEABODY WESTERN COAL CO.

held only that a hiring preference policy based
on tribal affiliation, as described in the
complaint, stated a [national origin
discrimination] claim upon which relief could
be granted. . . . [W]e did not address the
merits of the Nation’s proffered legal
justifications in defense of the challenged
hiring preference policy. In particular, we
declined to consider whether the Nation’s
1868 Navajo Treaty, the federal policy
fostering tribal self-governance, the [Navajo
Preference in Employment Act], or any other
legal defense justified SRP’s hiring preference
policy.

Dawavendewa II, 276 F.3d at 1158 (emphasis added)
(citation omitted). We observed that “[i]n appropriate
situations, federal law yields out of respect for treaty rights or
the federal policy fostering tribal self-governance.” Id. As
we explain below, this case presents such a situation.

3. Tribal Affiliation as Political Classification

In Mancari, non-Indian employees of the Bureau of
Indian Affairs (“BIA”) sued to enjoin the implementation of
a provision of the IRA that granted appointment and
promotion preferences to Indians seeking positions in the
BIA. See 25 U.S.C. § 472. The plaintiffs argued that the
preference was contrary to, and impliedly repealed by, the
1972 Equal Employment Opportunity Act’s (“EEOA”)
prohibition against race-based discrimination in federal
employment, and that it constituted invidious racial
discrimination in violation of the Due Process Clause of the
 EEOC V. PEABODY WESTERN COAL CO. 19

Fifth Amendment. Mancari, 417 U.S. at 537, 547. The Court
rejected both arguments. Id. at 551, 553–54

The Court held that the EEOA had not impliedly repealed
the BIA employment preference. Id. at 551. The Court noted
that the “overriding purpose of [the IRA] was to establish
machinery whereby Indian tribes would be able to assume a
greater degree of self-government, both politically and
economically,” and that the participation of Indians in the
operation of the BIA was crucial to achieving that goal. Id.
at 542–43. The Court observed that Title VII explicitly
exempts tribal employers from its coverage and permits the
preferential hiring of Indians on or near Indian reservations.
Id. at 547–48. “It would be anomalous to conclude that
Congress intended to eliminate the longstanding statutory
preferences in BIA employment, as being racially
discriminatory, at the very same time it was reaffirming the
right of tribal and reservation-related private employers to
provide Indian preference.” Id. at 548. The Court noted
further that Congress had enacted Indian preferences in other
legislation contemporaneous to Title VII, which suggested
that it likely did not intend to repeal the Indian preference in
the IRA by passing Title VII. Id. at 548–49.

The Court also held that the Indian employment
preference did not constitute invidious racial discrimination
in violation of the Due Process Clause. The IRA reflected the
congressional determination that “proper fulfillment of its
trust [obligations] required turning over to the Indians a
greater control of their own destinies.” Id. at 553. The Court
reasoned that “[t]he preference . . . is granted to Indians not
as a discrete racial group, but, rather, as members of quasi-
sovereign tribal entities whose lives and activities are
governed by the BIA in a unique fashion.” Id. at 554. The
20 EEOC V. PEABODY WESTERN COAL CO.

Indian employment preference was not based on a racial
designation but on a political preference that triggered only
rational-basis review. Id. “As long as the special treatment
can be tied rationally to the fulfillment of Congress’ unique
obligation toward the Indians, such legislative judgments will
not be disturbed.” Id. at 555. The preference was
“reasonable and rationally designed to further Indian self-
government” and did not violate due process. Id.

The Court has reaffirmed Mancari on several occasions.
The Court continues to distinguish between permissible
differential treatment of Indian tribes based on political
classifications, on the one hand, and impermissible
differential treatment of groups based on racial or national
origin classifications, on the other. In Rice v. Cayetano,
528 U.S. 495 (2000), the Court stated,

Of course, as we have established in a
series of cases, Congress may fulfill its treaty
obligations and its responsibilities to the
Indian tribes by enacting legislation dedicated
to their circumstances and needs. As we have
observed, “every piece of legislation dealing
with Indian tribes and reservations . . .
single[s] out for special treatment a
constituency of tribal Indians.”

Id. at 519 (citations omitted) (alteration in original) (quoting
Mancari, 417 U.S. at 552). We have applied the distinction
in our own cases. See, e.g., Kahawaiolaa, 386 F.3d at 1278;
see also Means, 432 F.3d at 932–33 (applying Mancari and
upholding against an equal-protection challenge a law
subjecting to tribal criminal jurisdiction a person who is not
 EEOC V. PEABODY WESTERN COAL CO. 21

a member of the tribe, but is an enrolled member of a
different Indian tribe).

We recognize that Mancari addressed a political
classification providing a general Indian hiring preference
rather than a tribe-specific preference. But Mancari’s logic
applies with equal force where a classification addresses
differential treatment between or among particular tribes or
groups of Indians. Indeed, based on Mancari, the Court has
specifically upheld differential treatment among Indians. In
Delaware Tribal Business Committee v. Weeks, 430 U.S. 73
(1977), the Court addressed Congress’s distribution of an
award by the Indian Claims Commission for claims arising
out of an illegal sale of Delaware tribal lands in the
nineteenth century. Congress distributed funds to two
federally recognized tribes—the Cherokee Delawares and the
Absentee Delawares—and to members of those two tribes.
Id. at 79–80. However, Congress did not distribute funds to
the Kansas Delawares, an unrecognized tribe, or to its
members, even though the Kansas Delawares, like Cherokee
Delawares and Absentee Delawares, were descendants of the
Delawares whose lands had been illegally sold. Id. at 79–82.
In upholding the differentiation between the two groups of
Delawares, the Court wrote that “the legislative judgment
should not be disturbed ‘[a]s long as the special treatment can
be tied rationally to the fulfillment of Congress’ unique
obligation toward the Indians.’” Id. at 85 (alteration in
original) (quoting Mancari, 417 U.S. at 555); see also
Kahawaiolaa, 386 F.3d at 1279 (“Congress certainly has the
authority to single out a constituency of tribal Indians in
legislation dealing with Indian tribes and reservations.”
(internal quotation marks omitted)).
22 EEOC V. PEABODY WESTERN COAL CO.

The Navajo tribal hiring preferences in this case are based
on the policy considerations that undergird Mancari. As we
have noted above, Congress intended the IMLA to be read in
harmony with the IRA, which had been enacted only four
years earlier. A key purpose of the IRA was the advancement
of tribal self-government. “[T]he IMLA aimed to foster tribal
self-determination by giving Indians a greater say in the use
and disposition of resources found on Indian lands.” Navajo
Nation, 537 U.S. at 494 (internal quotation marks and
alteration omitted). Where the exploitation of mineral
resources on a particular tribe’s reservation is concerned, the
federal government’s responsibility necessarily runs to that
tribe, not to all Indians.

We therefore have no difficulty concluding that the tribal
hiring preferences here are based on a political classification
within the meaning of Mancari. Peabody accords preference
in hiring to members of the Navajo Nation, pursuant to the
terms of Interior-approved leases. Interior viewed those
preferential hiring provisions as useful in ensuring that the
economic benefits flowing from the “most important
resource” on the Navajo reservation accrued to the tribe and
its members. Measures intended to preserve for the Nation
and its members the fruits of the resources found on the
tribe’s own land are “rationally designed” to fulfill the federal
government’s trust obligations to the tribe.

This conclusion, however, does not completely answer
the question before us. Mancari did not involve a claim
brought directly under Title VII. Title VII was implicated
only to the extent the plaintiffs claimed that the EEOA, an
amendment to Title VII, impliedly preempted the BIA hiring
preference. See 417 U.S. at 537. The precise question before
us is whether Title VII’s specific prohibition on national
 EEOC V. PEABODY WESTERN COAL CO. 23

origin discrimination extends to what the Supreme Court
would later characterize in Mancari as a political
classification. We conclude that Title VII does not prohibit
differential treatment based on tribal affiliation, the political
classification at issue here.

As we described above, Title VII contains two provisions
concerning Indians: (1) an exclusion of tribal governments
from the definition of “employer,” and (2) a general
exemption from Title VII for preferential hiring of Indians.
The Indian preference exemption expressly permits the
preferential hiring of “an Indian living on or near a
reservation.” 42 U.S.C. § 2000e-2(i). “There is no
universally applicable definition” of the term “Indian.”
Cohen, supra, § 3.03[1], at 171. Title VII itself does not
contain a definition of the term, but we noted in
Dawavendewa I that it is “generally used to draw a distinction
between Native Americans and all others.” 154 F.3d at 1121.

The EEOC would have us infer from the Indian hiring
preferences expressly authorized in Section 703(i) that Title
VII allows only preferences that distinguish between Indians
and non-Indians. See 42 U.S.C. § 2000e-2(i). We disagree
with the EEOC’s interpretation. Section 703(i) is an
exemption from Title VII. The nature of the exemption helps
us understand the reach of Title VII’s prohibitions. The term
“Indian” in Section 703(i) of Title VII describes a broad
nonpolitical class. The term covers any Indian living on or
near a reservation; qualification as an Indian under Section
703(i) is not based on the political classification of tribal
affiliation. The Indian preference exemption contained in
Section 703(i) is therefore necessary to clarify that Title VII’s
prohibition against racial or national origin discrimination
24 EEOC V. PEABODY WESTERN COAL CO.

does not extend to preferential hiring of Indians living on or
near reservations.

Congress was plainly aware that Title VII could have
ramifications for Indian communities, and it saw clearly the
need to mitigate those possible effects. For that reason,
Congress excluded tribal employers from Title VII’s scope
and exempted general Indian hiring preferences. See
110 Cong. Rec. 13,702 (statement of Sen. Karl Mundt)
(stating that Section 703(i), along with the exclusion of Indian
tribes from Title VII’s definition of “employer,” “will assure
our American Indians of the continued right to protect and
promote their own interests and to benefit from Indian
preference programs now in operation or later to be
instituted”). However, Congress did not carve out from Title
VII’s prohibitions any similar exemption for preferences
based on tribal affiliation. That Congress could have created
such an exemption or exception, but saw no need to do so,
suggests that it did not understand Title VII to reach tribal
affiliation because such affiliation is a political classification.
See Andrus v. Glover Constr. Co., 446 U.S. 608, 616–17
(1980) (“Where Congress explicitly enumerates certain
exceptions to a general prohibition, additional exceptions are
not to be implied . . . .”).

Title VII is a general antidiscrimination statute. Both the
text and the legislative history show that Congress anticipated
possible effects of Title VII on federal Indian policy and
crafted provisions specifically designed to preserve the status
quo. Interior’s approval of mineral leases containing tribal
hiring preferences is a well-established practice that long
predates the enactment of Title VII. Tribal hiring preferences
were, and are, intended to further the policy goals embodied
in the IRA and the IMLA. Nothing indicates that Congress
 EEOC V. PEABODY WESTERN COAL CO. 25

viewed Title VII as a recalibration of its policy toward tribal
communities that had been articulated in its prior legislation.
Nor is there any suggestion that Congress viewed Title VII as
a specific disapproval of Interior’s longstanding and settled
practice of approving tribal hiring preferences in mineral
leases. Cf. Dames & Moore v. Regan, 453 U.S. 654, 686
(1981) (“[L]ong-continued practice, known to and acquiesced
in by Congress, would raise a presumption that the [action]
had been [taken] in pursuance of its consent.” (alterations in
original) (quoting United States v. Midwest Oil Co., 236 U.S.
459, 474 (1915)).

We therefore conclude that Title VII does not reach the
tribal hiring preferences in the Peabody leases and affirm the
district court’s grant of summary judgment against the EEOC.

B. Motion to Supplement the Record

The EEOC argues that the district court erred in denying
its motion to supplement the record. On the eve of oral
argument in the district court, the EEOC sought to include in
the record a declaration and documents from a former EEOC
investigator who interviewed former Peabody hiring officials
about hiring practices in 1999. The EEOC sought to use this
information to demonstrate that Peabody gave hiring
preferences to Indians who were not affiliated with the
Navajo Nation, and thereby made hiring decisions based on
national origin rather than tribal membership. The district
court denied the motion as untimely.

The district court did not abuse its discretion in denying
leave to supplement the record. There is no discernible
reason why the EEOC could not have sought to introduce this
evidence much earlier in the proceedings. See Fed. R. Civ. P.
26 EEOC V. PEABODY WESTERN COAL CO.

6(b)(1)(B), (c)(1) (providing that motions must be served at
least fourteen days prior to the hearing, unless the moving
party has failed to act because of excusable neglect). At the
time of the EEOC’s eleventh-hour motion, the motions to
dismiss and for summary judgment had been pending for
several months. The information, collected in 1999, had been
in the EEOC’s possession for more than a decade.

We also note that the information is relevant only to an
entirely new theory of relief. From the beginning of this
litigation, the EEOC had argued that Peabody’s contractual
hiring practices violate Title VII because the leases give
hiring preference to members of the Nation. By seeking to
introduce the supplemental information, the EEOC sought to
argue that Peabody makes individual hiring decisions based
on national origin criteria, rather than on tribal membership.
In the circumstances, we find no abuse of discretion in the
district court’s decision prohibiting the EEOC from raising a
new theory at such a late stage in this lengthy litigation. We
express no opinion on the legal merit of the EEOC’s new
theory, even assuming it could be supported by admissible
evidence.

C. Record-keeping Claim

In addition to its Title VII national origin discrimination
claim, the EEOC alleged in its complaint that Peabody had
violated the record-keeping requirements of Title VII,
42 U.S.C. § 2000e-8(c), by failing to “make and preserve
records relevant to the determination of whether unlawful
employment practices have been or are being committed.”
The district court granted the defendants’ motions for
summary judgment and dismissed the EEOC’s claims with
 EEOC V. PEABODY WESTERN COAL CO. 27

prejudice, but it did not specifically mention the record-
keeping claim.

Although the EEOC states in its opening brief on appeal
that it “continues to assert” the record-keeping claim, the
brief is devoid of any argument in support of that claim.
Generally, we do not consider claims that are not
“specifically and distinctly argued” in the opening brief.
United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992)
(internal quotation marks omitted). We see no reason to
deviate from our usual practice in this case. We therefore
conclude that the EEOC has waived its record-keeping claim
on appeal.

Conclusion

We hold that the district court correctly granted summary
judgment to the defendants and third-party defendants and
that the EEOC has waived on appeal its record-keeping claim.
We also hold that the district court acted within its discretion
in denying the EEOC’s motion to supplement the record.

AFFIRMED.