Osage Tribal Council Ex Rel. Osage Tribe of Indians v. United States Department of Labor

                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                   PUBLISH
                                                                       AUG 4 1999
                      UNITED STATES COURT OF APPEALS
                               TENTH CIRCUIT                      PATRICK FISHER
                                                                           Clerk


 THE OSAGE TRIBAL COUNCIL, on
 behalf of the OSAGE TRIBE OF
 INDIANS,

        Petitioner,

 v.                                            No. 97-9564

 UNITED STATES DEPARTMENT
 OF LABOR,

        Respondent,

 CHRIS WHITE,

        Intervenor.


                  APPEAL FROM DECISION OF THE
      ADMINISTRATIVE REVIEW BOARD, U.S. DEPARTMENT OF LABOR
                         (A.R.B. No. 96-137)


F. Browning Pipestem (and Dena L. Silliman with him on the briefs), F.
Browning Pipestem & Associates, Norman, Oklahoma, for Petitioner, the Osage
Tribal Council.

Ellen L. Beard, Senior Appellate Attorney (Marvin Krislov, Deputy Solicitor for
National Operations, and Allen H. Feldman, Associate Solicitor for Special
Appellate and Supreme Court Litigation, with her on the brief), U.S. Department
of Labor, Washington, D.C., for Respondent, U.S. Department of Labor.

John T. Edwards, Oklahoma City, Oklahoma, for Intervenor, Chris White.
Before ANDERSON , HENRY , and MURPHY , Circuit Judges.


HENRY , Circuit Judge.




       The Osage Tribal Council (the Council) petitions for review of an order by

the Administrative Review Board of the Department of Labor in a proceeding

under the employee protection provisions of the Safe Drinking Water Act

(SDWA), 42 U.S.C. § 300j-9(i). The Board's order rejected the Council's

assertion that it was entitled to tribal immunity, found for the complainant, Chris

White, and remanded the matter to the administrative law judge for a

determination of the amount of back pay, attorneys’ fees, and costs to which Mr.

White was entitled. We hold that the Board’s denial of sovereign immunity is

reviewable under the collateral order doctrine, affirm the Board's determination

that the SDWA abrogates tribal immunity, and remand to the Board for further

proceedings. We do not address the intervenor's arguments as the order is not yet

final and thus not reviewable as to his claims.



                                   I. BACKGROUND

       Chris White was employed by the Council as an environmental inspector.

He was directly supervised by both Council and Environmental Protection Agency


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(EPA) employees, and was responsible for monitoring the Council's compliance

with the underground injection control provisions of the SDWA. His duties

included filing violation reports, which could and did trigger SDWA enforcement

actions from the regional EPA office.

      In late spring of 1994, the EPA directed its inspectors, including Mr.

White, to begin monitoring compliance with the SDWA's surface pollution

provisions. Inspectors were directed to send copies of any reports of surface

pollution violations on the Osage mineral estate to the local Bureau of Indian

Affairs (BIA) agency offices in addition to the regional EPA office. Testimony

of Mr. White's supervisors established that he performed these duties

exceptionally.

      In February, 1995, although no one had ever complained before, Mr.

White's immediate tribal supervisor, Patricia Beasley, was notified of certain

complaints about him from BIA employees and mineral lease operators. Later

that month, the joint Council-EPA committee met to discuss the complaints. On

March 15, this committee issued a memorandum to Ms. Beasley directing her to

fire Mr. White. The memorandum referenced various specific complaints against

White by oil leaseholders and cited “serious misconduct” and “disloyalty” as the

reasons for his termination.

      Mr. White alleged, however, that the Council terminated him for engaging


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in acts protected under the SDWA – filing environmental violation reports –

because the Council was concerned the reports would affect oil production on the

Osage mineral estate. The Council responded that Mr. White only filed his suit

for political reasons, owing to the political upheaval and infighting between two

factions, the Council (the traditional governing body) and the Osage National

Council (a recently formed competitor).

      After Mr. White was terminated, he had a hearing before his supervisors,

who upheld his termination on April 6, 1995. He did not appeal the decision to

the joint Council-EPA Committee. Instead, Mr. White filed a complaint of

discrimination with the Secretary of Labor (“the Secretary”) under the SDWA's

whistle blower employee protection provisions.   See 42 U.S.C. § 300j-9(i). In

response, the Council argued that the SDWA had not explicitly abrogated its

tribal sovereign immunity, and therefore the Council could not be held subject to

the SDWA’s enforcement provisions.

      Following a hearing, the Administrative Law Judge (ALJ) issued a

recommended order that rejected the Council's immunity claim and found in favor

of White. On administrative appeal, the Administrative Review Board rejected

the ALJ's recommendation of punitive damages but otherwise adopted the order

on all issues, and remanded to the ALJ for a determination of damages and costs.

      On October 7, 1997, the Council petitioned for review of the Board's


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decision. We have jurisdiction to review orders of the Secretary of Labor under

42 U.S.C. § 300j-9(i)(3)(A). Under Fed. R. App. P. 15(a), the Department of

Labor is the respondent on appeal. The original complainant, Mr. White, appears

as an intervener.   See Fed. R. App. P. 15(d).

       On October 27, the Secretary filed a motion to dismiss on the grounds that

the Board's action below did not yet constitute a final appealable order. The ALJ

returned its pending administrative case to the Administrative Review Board

pending the outcome of the appeal in this case.



                                    II. Discussion

A. Whether the Secretary’s Ruling is Reviewable on Appeal as a Collateral Order

       We must first address the threshold question of whether the Secretary's

order rejecting the Council's sovereign immunity defense with respect to the

SDWA is reviewable notwithstanding lack of a final judgment. As the Supreme

Court has noted, “at least in the absence of an appealable collateral order, the

federal courts may exercise jurisdiction only over a final [administrative agency]

order.” Bell v. New Jersey , 461 U.S. 773, 778-79 (1983) (internal citations

omitted). Here, however, the Council argues that its petition is just such an

immediately appealable collateral order.

       In limited circumstances, the collateral order doctrine allows interlocutory


                                           5
appeal of an order that does not actually end the litigation.    See Cohen v.

Beneficial Indus. Loan Corp. , 337 U.S. 541, 546 (1949). As the Supreme Court

has explained, “[i]n Cohen , we held that §1291 permits appeals not only from a

final decision by which a district court disassociates itself from a case, but also

from a small category of decisions that, although they do not end the litigation,

must nonetheless be considered ‘final.’”      Swint v. Chambers County Comm'n      , 115

S. Ct. 1203, 1208 (1995).      An order falls within the collateral order doctrine if (1)

it conclusively determines the disputed question, (2) resolves an important issue

completely separate from the merits of the case, and (3) is effectively

unreviewable on appeal from a final judgment.         See United States v. Leon , 132

F.3d 583, 587 (10th Cir. 1997).

       The Eleventh Circuit has held that the denial of a tribal immunity claim

satisfies the collateral order doctrine.   See Tamiami Partners, Ltd. v. Miccosukee

Tribe of Indians of Florida , 63 F.3d 1030, 1050 (11th Cir. 1995). The       Tamiami

court analogized the tribal immunity claim to the Supreme Court's treatment of a

qualified immunity claim in      Mitchell v. Forsyth , 472 U.S. 511, 525 (1985). As

the circuit court noted, in Mitchell , the Supreme Court treated the third    Cohen

factor – effective unreviewability on appeal – as predominant.       Id. The Mitchell

Court held that a denial of qualified immunity was immediately reviewable as a

collateral order because qualified immunity shared the essential attribute of


                                              6
absolute immunity: “The entitlement is an         immunity from suit rather than a mere

defense to liability ; and like an absolute immunity, it is effectively lost if a case is

erroneously permitted to go to trial.”     Mitchell , 472 at 526 (emphasis added).

Thus, the Supreme Court held, “the reasoning that underlies the immediate

appealability of an order denying absolute immunity indicate to us that the denial

of qualified immunity should be similarly appealable.”        Id. at 526-27. Following

suit , the Eleventh Circuit in   Tamiami held that because tribal immunity similarly

guarantees immunity against suit, the district court's denial of tribal immunity was

similarly immediately appealable under the collateral order doctrine.       Id.

       Following the Supreme Court's guidance in         Mitchell , we join the Eleventh

Circuit in holding that the denial of tribal immunity is an immediately appealable

collateral order. As above, the major part of the inquiry is whether the third

Cohen factor is met, i.e., whether the order is effectively unreviewable on appeal.

As in Mitchell , that inquiry focuses on whether the immunity at issue shares the

essential attribute of absolute immunity, that is, immunity from suit. The

Supreme Court has very clearly held that tribal immunity does indeed guarantee

immunity from suit, and not merely a defense to liability.       See Kiowa Tribe of

Okla. v. Manufacturing Techs., Inc.      , 118 S. Ct. 1700, 1704 (1998).   Thus, tribal

immunity is of the sort that is immediately appealable.

       Here, however, the Council has already borne much of the burden of “trial”


                                              7
in the administrative proceeding, and the Secretary argues thus that, in effect, the

Council has nothing left to lose and the third   Cohen factor is not met. We

disagree. Although, ideally, the question of the Council's immunity should have

been decided earlier in the administrative process such that Council would not

have borne any possibly erroneous trial burden, here the Council still faces the

burden of calculating damages in the proceeding on remand. Were this case

erroneously permitted to proceed further, the Council's absolute entitlement to

immunity from suit would still be effectively lost. Thus, the third   Cohen factor is

satisfied.

       Yet, as in Mitchell , for the order to be immediately appealable under the

collateral order doctrine, it must also satisfy two additional criteria: the

remaining first and second    Cohen factors. Here, that inquiry is easy. The first

Cohen factor is met because, as the Secretary conceded, the question of tribal

sovereignty is conclusive of whether the tribe must bear the burden of the

administrative proceeding. The second       Cohen factor is also met because the

question of tribal sovereignty is distinct from the underlying merits of whether the

Council violated Mr. White’s whistle blower rights under the SDWA.

       Thus, we hold that the Secretary's order as to sovereign immunity may be

immediately appealed under the collateral order doctrine, and deny the Secretary's

motion to dismiss the petition for review. At the same time, we do not reach the


                                             8
merits of the order, as the remainder of the order is not subject to the collateral

order doctrine, is not yet final, and is thus not reviewable. Accordingly, we do

not address the intervenor's arguments as to the appropriateness of punitive

damages.



B. Whether the SDWA Abrogates Tribal Sovereign Immunity

       The Council argues that Congress failed to unequivocally abrogate tribal

immunity in enacting the whistle blower provision of the SDWA. We review de

novo the legal question of whether Congress has abrogated tribal immunity.              See

Ute Distribution Corp. v. Ute Indian Tribe       , 149 F.3d 1260, 1263 (10   th
                                                                                  Cir. 1998).

       As a preliminary matter, the Secretary has raised the issue of whether the

tribe may even assert its immunity in this administrative proceeding. The

Secretary argues it is the real party respondent and the Council cannot assert its

immunity against a representative of the federal sovereign. Because we conclude

that the SDWA has explicitly abrogated tribal immunity in any case, we need not

address the merits of this argument.   1




       The issue of whether immunity is validly asserted arguably precedes the
       1

issue of whether Congress has abrogated immunity, however, resolution of this
issue may implicate issues of constitutional dimension. Therefore, we follow the
“fundamental and longstanding principle of judicial restraint” which requires that
we “avoid reaching constitutional questions in advance of the necessity of
deciding them.” Lyng v. Northwest Indian Cemetery Protective Ass'n    , 485 U.S.
                                                                     (continued...)

                                             9
           The Supreme Court recently reaffirmed the longstanding doctrine of tribal

sovereign immunity.      See Kiowa , 118 S. Ct. 1700, 1703 (1998) (holding that

tribal immunity is “a matter of federal law” and is “settled law”);        see also Santa

Clara Pueblo v. Martinez , 436 U.S. 49, 58 (1978) (“Indian tribes have long been

recognized as possessing the common law immunity from suit traditionally

enjoyed by sovereign powers.”).

       But, as the Court has also observed, “[t]his aspect of tribal sovereignty, like

all others, is subject to the superior and plenary control of Congress.”         Santa

Clara , 436 U.S. at 58. Thus, Congress may abrogate a tribe’s immunity from suit

by statute. Id. Congressional waivers of tribal sovereign immunity, however,

“cannot be implied but must be unequivocally expressed.”            Id. In “determining

whether a particular federal statute waives tribal sovereign immunity,          courts

should 'tread lightly in the absence of clear indications of legislative intent.'”

Northern States Power Co. v. Prairie Island Mdewakanton Sioux Indian

Community , 991 F.2d 458, 462 (8th       Cir. 1993) (quoting     Santa Clara , 436 U.S. at

60).

       Here, we conclude that the language of the Safe Drinking Water Act

contains a clear and explicit waiver of tribal immunity. The SDWA’s whistle




       (...continued)
       1

439, 445 (1988).

                                              10
blower provision, section 300j-9(i)(1), provides:

      (1) No employer may discharge any employee or otherwise discriminate
      against any employee with respect to his compensation, terms, conditions,
      or privileges of employment because the employee . . . has -
             ....
             (C) assisted or participated or is about to assist or participate in any
             manner in such a proceeding or in any other action to carry out the
             purposes of this subchapter.

42 U.S.C. § 300j-9(i)(1)(C). The following section provides an enforcement

mechanism against any “person” in violation of the act:

      Any employee who believes that he has been discharged or otherwise
      discriminated against by any person in violation of paragraph (1) may,
      within 30 days after such violation occurs, file (or have any person file on
      his behalf) a complaint with the Secretary of Labor . . . alleging such
      discharge or discrimination . . . .

Id. at § 300j-9(i)(2)(A) (emphasis added).

      The definitional sections of the SDWA define the term “person” to include

a “municipality.” 42 U.S.C. § 300f(12). In turn, “municipality” is defined to

include “an Indian tribe.” 42 U.S.C. § 300f(10). Thus, under the express

language of the Act, Indian tribes are included within the coverage of the whistle

blower enforcement provisions.

      The Council argues that such a definitional exercise can never constitute

the explicit waiver of immunity required under   Santa Clara . We disagree. There

is very little case law defining the precise scope of the “unequivocal expression”

of waiver required. Importantly, however, courts considering tribal immunity


                                           11
waivers – including the     Santa Clara Court – have only found statutory language

inadequately explicit when there was no language specifically establishing the

cause of action at issue.   See, e.g. , Santa Clara , 436 U.S. 49, 59 (“Nothing on the

face of Title I of the ICRA [Indian Civil Rights Act] purports to subject tribes to

the jurisdiction of the federal courts in civil actions for injunctive or declaratory

relief.”); Ute , 149 F.3d at 1264 (“Like the ICRA, the [Ute Partition and

Termination Act] is devoid of any language clearly expressing an intent to subject

the Tribe to lawsuits in federal court over the joint management of the indivisible

tribal assets.”).

       We take our cue from the decisions addressing waivers of Eleventh

Amendment state sovereign immunity. Conceding potential differences between

tribal and state sovereign immunity, we note that courts have often used similar

language in defining the requirements for waiver of these immunities.       See

Seminole Tribe of Fla. v. Florida   , 116 S. Ct. 1114, 1123 (1996)) (Congress must

“unequivocally express its intent to abrogate the immunity” (quoting      Green v.

Mansour , 474 U.S. 64, 68 (1985)). In the state sovereign immunity context,

courts have held definitional inclusions to be sufficiently explicit waivers of

immunity. See, e.g. , Hurd v. Pittsburgh State Univ.    , 29 F.3d 564, 565 (10th Cir.

1994) (affirming district court decision that Age Discrimination in Employment

Act abrogated Eleventh Amendment immunity by defining “employer” – the class


                                            12
of potential defendants – to include a “State”).

       Both parties have mustered legislative history to support their position.

However, as the Supreme Court has noted in the context of Eleventh Amendment

immunity, “[l]egislative history generally will be irrelevant to a judicial inquiry

into whether Congress intended to abrogate the Eleventh Amendment.”            Delmuth

v. Muth , 491 U.S. 223, 230 (1989). Unable to find a rational basis on which to

distinguish tribal immunity and state immunity with respect to this rule – and,

perhaps more importantly, having found the text unambiguous – we do not find

these arguments persuasive.

       We hold that where Congress grants an agency jurisdiction over all

“persons,” defines “persons” to include “municipality,” and in turn defines

“municipality,” to include “Indian Tribe[s],” in establishing a uniform national

scheme of regulation of so universal a subject as drinking water, it has

unequivocally waived tribal immunity. We note that Congress           could have been

more clear. Congress could have included a provision directly stating its intent to

waive tribal immunity. However, “that degree of explicitness is not required.”

Davidson v. Board of Governors      , 920 F.2d 441, 443 (7th     Cir. 1990) (noting

Congress need not state in “so many words” its intent to abrogate state sovereign

immunity). Where the language of a jurisdictional grant is unambiguous as to its

application to Indian tribes, no more is needed to satisfy the       Santa Clara


                                             13
requirement than that Congress unequivocally state its intent.     See Blue Legs v.

United States Bureau of Indian Affairs    , 867 F.2d 1094, 1097 (8th   Cir. 1989)

(“text and history of the [Resource Conservation and Recovery Act] clearly

indicated congressional intent to abrogate the Tribe’s sovereign immunity” when

provision authorized suit “against any person,” “person” included “municipality,”

and “municipality” included “an Indian tribe”);      see also Atlantic States Legal

Found. v. Salt River Pima-Maricopa Indian Community          , 827 F. Supp. 608 (D.

Ariz. 1993) (citizen suit provision in Clean Water Act unequivocally waived tribal

immunity by defining term “person” to include “Indian tribe”).

       The Council argues, however, that two other provisions of the SDWA show

that Congress did not intend to waive tribal immunity here. The first provision

addresses the federal sovereign immunity of agencies: “This subsection shall

apply, notwithstanding any immunity of such agencies, under any law or rule of

law.” The Council argues the degree of explicitness of this waiver shows that

Congress “knew the exact process for waiving governmental immunity from suit,”

Aplt. Br. at 27, and that Congress' failure to be so explicit here indicates it did not

intend to waive the tribe's immunity. We do not agree: Congress' achievement of

particular clarity in one waiver (while laudable and to be encouraged) does not

mean that every waiver must be explicit to the same degree.

       The second provision addresses tribal sovereignty: “[n]othing in the Safe


                                            14
Drinking Water Amendments of 1977 shall be construed to alter or affect the

status of American Indian lands or water rights nor to waive any sovereignty over

Indian lands guaranteed by treaty or statute.”       42 U.S.C. § 300j-6(c)(1). The

Council argues this provision shows that Congress expressly preserved the tribe's

sovereign immunity. But the whistle blower provision at issue here was part of

the original 1974 Act, not the 1977 amendments. And, as we noted in         Phillips

Petroleum Co. v. EPA , section 300j-6(c)(1) “was enacted largely due to concern

expressed by the Osage tribe that section 8 of the 1977 amendments [requiring

federal agencies to adhere to state governmental oil and gas regulations], without

this provision, would give jurisdiction over Indian lands to the State of

Oklahoma.” 803 F.2d 545, 557 n.16 (10th           Cir. 1986). Accordingly, this express

guarantee of sovereignty does not apply to the whistle blower provision at issue

here.



C. Whether the SDWA Conflicts with Other Tribal Statutory or Treaty Rights

        Alternatively, the Council argues that the SDWA conflicts with rights

granted to it by statute and by treaty. First, the Council argues that the SDWA

would impermissibly repeal by implication the 1906 Osage Allotment Act, ch.

3571, 34 Stat. 539 (1906) (the “1906 Act”). However, the Council has not

identified any particular provision of the Act that would be impliedly repealed,


                                             15
instead referring only to the general sovereign immunity that flows to it under that

Act. It is, however, unarguable that Congress has the power to abrogate that

immunity through explicit legislation.       See Santa Clara , 436 U.S. at 58.

       Second, the Council argues that the SDWA impermissibly interferes with

its treaty rights under principles articulated in      Donovan v. Navajo Forest Prods.

Indus. , 692 F.2d 709 (10th Cir. 1982) and          EEOC v. Cherokee Nation , 871 F.2d

937 (10th Cir. 1989). The Council argues            application of the SDWA's whistle

blower provision to the Council would impair its “right to exclude,” guaranteed to

it under Article 11 of the November 10, 1808 treaty. 1808 Treaty, 7 Stat. 107

(“And if any person or persons, for hunting or other purpose, shall pass over the

boundary lines into the country reserved for the Great and Little Osage nations,

without the license of . . . [a] proper officer, . . . the said Great and Little

Osage . . . shall be at liberty to apprehend such unlicensed hunters or other

persons . . . .”).

       But, the Council's argument misunderstands the inquiry in         Donovan and

Cherokee Nation . Both those cases considered the applicability of a         general

statute to an Indian entity, and concluded that in the absence of any       specific

language addressing Indian tribes, the court would not construe the statute as

applicable to them when the statute would be in derogation of Indians' treaty

rights. The Donovan principle is inapposite here, where the SDWA specifically


                                               16
includes Indian tribes in the scope of its coverage.     See Phillips , 803 F.2d at 552

(“The 1986 amendments to the SDWA resolve any doubt concerning coverage of

the SDWA by expressly including Indian tribes”). We already considered and

rejected this argument with respect to the SDWA generally.        Id. at 556. The

argument is even less compelling with respect to the specific whistle blower

provision at issue here, which explicitly applies to Indian tribes.



D. Is There a Violation of Trust Obligations

       Finally, the Council makes two arguments stemming from trust obligations.

First, the Council argues that the Board decision impermissibly attempts to assess

a money judgment against funds held in trust for Osage tribal members. As the

Secretary has not yet issued a final remedial order, however, we do not find this

issue ripe for decision.

       Second, the Council argues that in bringing this action, the Secretary of

Labor has violated the federal government's trust responsibility toward the tribe.

See United States v. Creek Nation , 295 U.S. 103, 109 (1935) (federal executive

is held to strict fiduciary standard); Felix S. Cohen,   Handbook of Federal Indian

Law 226 (1982). Trust duties may arise from statutory or treaty obligations, or

from the breach of the obligations of an ordinary trustee.     Cohen, supra , at 227.

But here, the Council has not identified any specific statutory or treaty obligation


                                             17
nor any ordinary trustee obligation that the Secretary of Labor has breached.

Federal executives are held to strict fiduciary standards when charged with

administering Indian lands or funds, or the disbursement of Indian benefits.    See,

e.g. , Morton v. Ruiz , 415 U.S. 199, 236 (1974);   Seminole Nation v. United

States , 316 U.S. 286, 296 (1942). But here, the Secretary was not carrying out

his duties with respect to administering Indian property or funds, rather the

Secretary was carrying out his duties with respect to Congress' mandate on safe

drinking water. The Council has not shown a fiduciary duty which was breached.



                                   III. Conclusion

      For the foregoing reasons, we affirm the Secretary's determination that the

Osage Tribal Council is not entitled to tribal sovereign immunity in this case

because the SDWA whistle blower provision explicitly abrogates that immunity.

We remand to the Secretary for further proceedings consistent with this order.




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