Equal Employment Opportunity Commission, Applicant-Appellee v. The Cherokee Nation

McKAY, Circuit Judge.

I.

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

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

II.

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

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

III.

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

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

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

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

REVERSED.

1 . The district court’s determination is a question of law, which we review de novo. Matter of Tri-State Equip., Inc., 792 F.2d 967, 970 (10th Cir.1986).

2 . Article V of the Treaty of New Echota, December 29, 1835, 7 Stat. 478, provides in pertinent part:

The United States hereby covenant and agree ... [to] secure to the Cherokee Nation the right by their national councils to make and carry into effect all such laws as they may deem necessary for the government and protection of the persons and property within their own country belonging to their people or such persons as have connected themselves with them; provided always that they shall not be inconsistent with the constitution of the United States and such acts of Congress as have been or may be passed regulating trade intercourse with the Indians....

(emphasis added).

3 . The EEOC relies on the broad dictum in Federal Power Comm'n v. Tuscarora Indian Nation, 362 U.S. 99, 116, 80 S.Ct. 543, 553, 4 L.Ed.2d 584 (1960), to support its claim that the ADEA, as a statute of general applicability, applies to all persons including Indians. This argument is inapposite since it is well established that the so-called Tuscarora rule is not applicable to treaty cases such as this one. See, e.g., Phillips Petroleum Co. v. United States Environmental Protection Agency, 803 F.2d 545, 556 (10th Cir.1986) (The Tuscarora "rule of construction can be rescinded where a tribe raises a specific right under a treaty ... which is in conflict with the general law to be applied....’’); Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir.1985) (Although Tuscarora represents the general rule, there is an exception when “the application of the law to the tribe would ‘abrogate rights guaranteed by Indian treaties.’ ’’). In fact, in Navajo Forest Products we questioned the continuing vitality of the Tuscarora dictum in light of the Supreme Court's decision in Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982). 692 F.2d at 712-13.

4 . The language of the ADEA neither expressly includes nor excludes Indian tribes from coverage. In contrast, Congress has shown that it knows how to extend the ADEA's coverage when it chooses to do so. The original version of the ADEA expressly excluded states from the Act’s definition of "employer”. Age Discrimination in Employment Act of 1967, Pub.L. No. 90-202, § 11(b), 81 Stat. 602, 605. However, in 1974 Congress amended the Act, this time explicitly including states in the Act’s coverage. See 29 U.S.C. § 630(b).