No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 1 of 96 No. 12-17780 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. PEABODY WESTERN COAL COMPANY, Defendant-Appellee, NAVAJO NATION, Rule 19 Defendant-Appellee, KEVIN K. WASHBURN and S.M.R. JEWELL*, in their official capacities as Assistant Secretary for Indian Affairs and Secretary of the U.S. Department of the Interior, Third-Party Federal Defendants-Appellees. On Appeal from the United States District Court for the District of Arizona, No. 2:01-cv-1050 (JWS) BRIEF FOR THE FEDERAL APPELLEES ROBERT DREHER Acting Assistant Attorney General ETHAN G. SHENKMAN Deputy Assistant Attorney General JAMES C. KILBOURNE Section Chief KRISTOFOR R. SWANSON Environment & Nat. Resources Div. United States Department of Justice P.O. Box 7415 Washington, D.C. 20044 202-514-2701 * S.M.R. Jewell is substituted for her predecessor, Kenneth L. Salazar, as Secretary of the Interior. Fed. R. App. P. 43(c)(2).

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 2 of 96 TABLE OF CONTENTS PAGE JURISDICTION... 1 ISSUES PRESENTED... 2 STATEMENT OF THE CASE... 3 A. Legal Framework... 3 1. Fundamental Principles of Federal Indian Law... 3 i. Indian tribes are sovereign nations possessing i. unique political attributes under federal law... 3 ii. The United States holds a special relationship with Indian tribes aimed, in part, at safeguarding tribal autonomy and economic self-sufficiency... 5 iii. Federal Indian Leasing Framework... 6 2. Title VII of the Civil Rights Act of 1964... 8 B. Statement of Facts... 9 1. The history of the United States relationship with the Navajo Nation... 9 2. The Navajo Leases at Issue in this Case...11 C. EEOC s Complaint and Procedural History...14 D. District Court Decision on Summary Judgment...15 SUMMARY OF ARGUMENT...18 STANDARD OF REVIEW...20 i

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 3 of 96 ARGUMENT...21 I. Title VII Does Not Prohibit the Tribal Hiring Preference at Issue in this Case...21 A. Tribal hiring preferences that are rationally related to congressional policies promoting tribal selfgovernance and economic self-determination constitute political preferences...21 B. The analysis in Mancari controls the instant case; EECO s attempts to distinguish Mancari are unavailing...27 C. Section 703(i) of Title VII Is Irrelevant to the Issue Presented By this Case, and EEOC s 1988 Policy Statement Construing that Section Is Therefore Inapposite...37 1. The 1988 Statement Construes the Scope of the Indian Exception in Section 703(i), But There Is No Need to Invoke that Exception Where, as Here, a Tribal Preference Does Not Constitute National Origin Discrimination in the First Place...38 2. EEOC s 1988 Statement Mischaracterizes Interior s Federal Contracting Regulations, Which Undercut, Rather than Support, EEOC s Position...40 D. Presumptions Against Implicit Repeal Confirm That Title VII Should Not Be Construed to Abrogate the Federal Government s Longstanding Practice of Approving Tribe-Specific Employment Preferences...45 ii

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 4 of 96 1. Canons of interpretation disfavor implicit repeal of prior statutes or longstanding Executive Branch practice...45 2. Canons of interpretation also preclude an implied abrogation of tribal sovereign authority...52 3. The legislative history of Title VII further confirms that Congress did not intend to implicitly abrogate Interior s longstanding practice of approving tribe-specific employment preferences...54 E. Dawavendewa I Does Not Control the Outcome of this Case...58 II. The District Court Properly Granted Summary Judgment and Did Not Abuse its Discretion by Denying EEOC s Last Minute Motion to Supplement the Record...65 CONCLUSION...70 STATEMENT OF RELATED CASES CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM iii

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 5 of 96 CASES: TABLE OF AUTHORITIES Alaska v. Native Vill. of Venetie Tribal Gov t, 522 U.S. 520 (1998)... 4 Assiniboine & Sioux Tribes of Fort Peck Indian Reservation v. Bd. of Oil & Gas Conservation of State of Mont., 792 F.2d 782 (9th Cir. 1986)... 28, 29 Bob Jones Univ. v. United States, 461 U.S. 574 (1983)...49 Bragdon v. Abbott, 524 U.S. 624 (1988)...37 Bryan v. Itasca Cty., Minn., 426 U.S. 373 (1976)...52 Cherokee Nation v. Georgia, 30 U.S. 1 (1831)... 4 Chisom v. Roemer, 501 U.S. 380 (1991)...58 Cnty. of Yakima v. Confed. Tribes & Bands of Yakima Indian Nation, 502 U.S. 251 (1992)... 5 Dames & Moore v. Regan, 453 U.S. 654 (1981)...49 Dawavendewa v. Salt River Project Agric. Improvement & Power Dist. ( Dawavendewa I ), 154 F.3d 1117 (9th Cir. 1998)... 50, 58-60 Dawavendewa v. Salt River Project Agric. Improvement & Power Dist. ( Dawavendewa II ), 276 F.3d 1150 (9th Cir. 2002)... 54, 61-62 iv

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 6 of 96 Donovan v. Coeur d Alene, 751 F.2d 1113 (9th Cir. 1985)...54 Donovan v. Navajo Forest Prods. Indus., 692 F.2d 709 (10th Cir. 1982)...29 Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006 (9th Cir. 2012)...20 McClanahan v. State Tax Comm n of Ariz., 411 U.S. 164 (1973)... 9 Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982)... 6, 29, 53 Mescalero Apache v. Jones, 411 U.S. 145 (1973)... 5, 6 Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976)...26 Montana v. Blackfeet Tribe, 471 U.S. 759 (1985)... 7 Montana v. United States, 450 U.S. 554 (1981)... 6, 53 Morton v. Mancari, 417 U.S. 535 (1974)... passim Nat l Ass n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007)... 48, 49 Nat l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985)... 4 New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983)... 27, 53 v

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 7 of 96 Olsen v. Idaho State Bd. of Med., 363 F.3d 916 (9th Cir. 2004)...20 Posadas v. Nat l City Bank, 296 U.S. 497 (1936)...48 Sheet Metal Workers Int l Ass n Local Union No. 359 v. Madison Indus. Inc. of Ariz., 84 F.3d 1186 (9th Cir. 1996)... 20, 69 Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770 (9th Cir. 2010)...20 United States v. Antelope, 430 U.S. 641 (1977)...26 United States v. Dion, 476 U.S. 734 (1986)...52 United States v. Kagama, 118 U.S. 375 (1886)... 4 United States v. Midwest Oil Co., 236 U.S. 459 (1915)...48 United States v. Navajo Nation, 537 U.S. 488 (2003)... 7, 11, 28, 46 United States v. Wheeler, 435 U.S. 313 (1978)... 4, 52 Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463 (1979)...26 Washington v. Wash. State Commercial Passenger Fishing Vessel Ass n, 443 U.S. 658 (1979)...26 Watt v. Alaska, 451 U.S. 259 (1981)...48 vi

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 8 of 96 White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980)... 6, 27 Williams v. Lee, 358 U.S. 217 (1959)... 9 Worcester v. Georgia, 31 U.S. 515 (1832)... 4 STATUTES: Administrative Procedure Act: 5 U.S.C. 702-706... 1, 15 16 U.S.C. 450oo-4...47 25 U.S.C. 2...37 25 U.S.C. 9...37 Indian Mineral Leasing Act: 25 U.S.C. 396a... 11, 73 Indian Self-Determination and Education Assistance Act: 25 U.S.C. 450 et seq... 40, 43 Indian Reorganization Act of 1934: Pub. L. No. 73-383, 48 Stat. 984... 5 25 U.S.C. 472...21 Navajo-Hope Rehabilitation Act: Pub. L. No. 81-474, 64 Stat. 414...10 25 U.S.C. 631...10 25 U.S.C. 633... 11, 47 Indian Mineral Development Act of 1982: 25 U.S.C. 2101-2108...46 vii

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 9 of 96 28 U.S.C. 451... 1 28 U.S.C. 518(a)...65 28 U.S.C. 519...65 28 U.S.C. 1291... 2 28 U.S.C. 1331... 1 28 U.S.C. 1337... 1 28 U.S.C. 1343... 1 28 U.S.C. 1345... 1 28 U.S.C. 1346(a)(2)... 1 28 U.S.C. 1367... 1 28 U.S.C. 2201-2202... 1 Title VII of the Civil Rights Act of 1964: 42 U.S.C. 2000e... 9 42 U.S.C. 2000e-2... passim 42 U.S.C. 2000e-4...65 42 U.S.C. 2000e-5... 1 42 U.S.C. 2000e-16...22 43 U.S.C. 1457...37 Act of December 19, 1947: Pub. L. No. 80-390, 61 Stat. 90...10 Indian Self-Determination Act Amendments of 1994: Pub. L. No. 103-413, 108 Stat. 4250... 43, 47 102 Stat. 2847, 16 U.S.C. 410pp-2(f) (1988)...47 Navajo Preference in Employment Act: Navajo Nation Code Ann. Tit. 15, 604(A)(1)...13 RULES AND REGULATIONS: 25 C.F.R. 16.105... 8 25 C.F.R. 170.914...44 25 C.F.R. 170.619...44 viii

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 10 of 96 29 C.F.R. 1606.1... 8 48 C.F.R. 1404.7005(a) (1987)...42 48 C.F.R. 1404.7005(b) (1987)...42 48 C.F.R. 1426.7003(a)...42 48 C.F.R. 1426.7005(a)...43 48 C.F.R. 1452.204-71 (1987)...41 48 C.F.R. 1452.226-70...43 77 Fed. Reg. 72,440 (Dec. 5, 2012)... 8 Fed. R. App. P. 4(a)(1)... 2 LEGISLATIVE HISTORY: H.R. 3942, 85th Cong. (1957)...56 H.R. Rep. No. 58-3700, Pt. 2 (1905)... 8 H.R. Rep. No. 73-1804 (1934)... 5 S. Rep. No. 97-472 (1982)...46 103 Cong. Rec. 1386 (1957)...56 110 Cong. Rec. 13,380 (1964)...55 110 Cong. Rec. 13,702 (1964)... 56, 57 140 Cong. Rec. 28,630 (1994)...43 CONSTITUTIONS: U.S. Constitution, art. I, 8, cl. 3... 4 U.S. Constitution, art. II, 2, cl. 2... 4 MISCELLEANOUS: Felix Cohen, Handbook on Federal Indian Law 17.03[2][a] (2005 ed.)... 7, 29 EEOC Policy Statement on Indian Preference Under Title VII 1988 WL 912195 (May 16, 1988)...37 ix

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 11 of 96 JURISDICTION District Court: In its complaint against Peabody Western Coal Company ( Peabody ), the Equal Employment Opportunity Commission ( EEOC ) asserted jurisdiction under 28 U.S.C. 451, 1331, 1337, 1343 and 1345, and 42 U.S.C. 2000e-5(f)(1) and (3). (ER 688). In its thirdparty complaint against Federal Defendants (officials of the Department of the Interior sued in their official capacity, collectively referred to herein as Interior ), Peabody asserted jurisdiction under the Administrative Procedure Act ( APA ), 5 U.S.C. 702-706, as well as 28 U.S.C. 1331, 1346(a)(2), 1367, and 2201-2202. (ER 672). The district court found it had jurisdiction over the third-party claims against Interior. (ER 11-12). 1 Court of Appeals: The district court entered final judgment in favor of all defendants on all claims on October 18, 2012. (ER 27). EEOC filed a timely notice of appeal on December 17, 2012. (ER 24); 1 In the district court, Interior contested the court s jurisdiction over Peabody s third-party claims against it under the APA, and argued that it was not properly named as a third-party defendant under Rule 14. These issues are not presented in this appeal. 1

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 12 of 96 see Fed. R. App. P. 4(a)(1). This Court has jurisdiction under 28 U.S.C. 1291. ISSUES PRESENTED Since this country s inception, Indian nations have comprised distinct and independent political communities, retaining all aspects of inherent tribal sovereignty not specifically withdrawn. Pursuant to federal statutes that further the United States political relationship with Indian tribes, the Secretary of the Interior has, for more than 90 years, approved tribal leases to extract natural resources on tribal lands held in trust ( trust lands ) or otherwise set aside by the United States for the benefit of federally-recognized tribes and their members. To ensure that the economic development of a tribe s resources inures to the tribe and its members, these Interior-approved leases, including leases pre-dating Title VII of the Civil Rights Act of 1964, often contain provisions requiring the tribe s lessees to give preference in hiring decisions to members of that tribe. These tribe-specific employment preferences run not to Indians in general, as members of a particular race or national origin, but to members of the particular federally- 2

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 13 of 96 recognized tribe whose trust resources are at issue and with whom the United States holds a political relationship. The issues presented on appeal are: 1) Whether a federally-recognized Indian tribe s lessee violates Title VII by complying with the tribe s employment ordinance and the terms of the tribal lease approved by the Secretary of the Interior, both of which require the lessee to provide a hiring preference for the tribe s members for purposes of employment on the tribe s reservation relating to development of the tribe s trust land or resources. 2) Whether the district court erred in denying EEOC s last minute motion (filed the day before argument) to re-open the record and granting summary judgment as a matter of law. A. Legal Framework STATEMENT OF THE CASE 1. Fundamental Principles of Federal Indian Law i. Indian tribes are sovereign nations possessing unique political attributes under federal law. The Supreme Court has long recognized that Indian tribes are unique aggregations possessing attributes of sovereignty over both their 3

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 14 of 96 members and their territory. United States v. Wheeler, 435 U.S. 313, 323 (1978) (quotation omitted). Prior to the arrival of Europeans in America, Indian tribes were self-governing political communities, Nat l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 851 (1985), and, as such, possessed the full attributes of sovereignty. Wheeler, 435 U.S. at 322 323; see Worcester v. Georgia, 31 U.S. 515, 557 (1832). The Indian Commerce Clause of the U.S. Constitution, art. I, 8, cl. 3, grants Congress the power to regulate Commerce with... Indian Tribes. This provision, along with the Constitution s structure, gives Congress plenary power over Indian affairs. Alaska v. Native Vill. of Venetie Tribal Gov t, 522 U.S. 520, 531 n.6 (1998). The Constitution also provides for treaties with Indian tribes, art. II, 2, cl. 2. Indian tribes thus have a unique legal status under federal law. See Cherokee Nation v. Georgia, 30 U.S. 1, 16 (1831). Today, federally-recognized Indian tribes continue to retain inherent sovereignty and governmental authorities and exist as separate governments. See Wheeler, 435 U.S. at 323; United States v. Kagama, 118 U.S. 375, 381 382 (1886). 4

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 15 of 96 ii. The United States holds a special relationship with Indian tribes aimed, in part, at safeguarding tribal autonomy and economic self-sufficiency. Modern federal Indian policy revolves around promoting tribes autonomy and sovereignty. This policy dates to the Indian Reorganization Act ( IRA ) of 1934, Pub. L. No. 73-383, 48 Stat. 984 (codified as amended at 25 U.S.C. 461 479). The IRA promotes the principles of tribal self-determination and self-governance. County of Yakima v. Confed. Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 255 (1992). The concept of tribal self-governance is inextricably intertwined with economic self-sufficiency. The IRA sought to give Indian tribes a chance to develop the initiative destroyed by a century of oppression and paternalism. Mescalero Apache v. Jones, 411 U.S. 145, 152 (1973) (quoting H.R. Rep. No. 73-1804 at 6 (1934)). The overriding purpose of the IRA was to establish machinery whereby Indian tribes would be able to assume a greater degree of selfgovernment, both politically and economically. Morton v. Mancari, 417 U.S. 535, 542 (1974). These concepts remain the guiding principles of the federal government s relationship with Indian tribes today. 5

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 16 of 96 Tribal sovereign authority, which carries with it the right to exclude non-members from tribal lands, allows a tribe to regulate economic relationships between itself and non-members on the tribe s reservation (or other Indian lands). The Supreme Court has held that, in general, a tribe has the power to regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. Montana v. United States, 450 U.S. 554, 564 65 (1981); see also Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 141 (1982) (tribe has inherent power necessary to tribal self-government and territorial management ); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 149 (1980) (there is a general federal policy of encouraging tribes to... assume control over their business and economic affairs (quoting Mescalaro Apache, 411 U.S. at 151)). iii. Federal Indian Leasing Framework Pursuant to a series of federal statutes that further the United States special political relationship with Indian tribes, Interior has for more than 90 years approved leases to extract natural resources from, 6

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 17 of 96 and to use, tribal lands held in trust or otherwise set aside by the United States for the benefit of tribes and their members. The leasing of those lands, and the economic opportunities that come with their development, is intended to benefit the beneficiary of that trust relationship: i.e., the tribe and its members. See Felix Cohen, Handbook on Federal Indian Law 17.03[2][a] (2005 ed.) (ER 574-580); United States v. Navajo Nation, 537 U.S. 488, 493-494, 511 n.16 (2003); Montana v. Blackfeet Tribe, 471 U.S. 759, 767 n.5 (1985). To ensure that the economic development of a tribe s resources inures to the tribe and its members, Interior-approved leases often contain provisions requiring the tribe s lessees to give preference in hiring to enrolled members of that tribe. Many of those leases, including those relating to Navajo Nation trust lands, pre-date Title VII of the Civil Rights Act of 1964. See ER 301-328 (examples of tribal mining leases with tribe-specific employment preferences from 1941, 1944, 1949, 1956); see also ER 286 (1957 version of Department of the Interior tribal mineral lease form). 2 2 Research has revealed a tribal coal lease with a tribe-specific hiring preference approved by Interior as far back as 1899. See H.R. 7

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 18 of 96 In 2012, Interior issued revised regulations addressing nonagricultural surface leasing of Indian lands, including residential, business, and wind and solar energy leases. 77 Fed. Reg. 72,440 (Dec. 5, 2012). The regulations make clear that tribal leases may include a provision giving a preference to qualified tribal members, based on their political affiliation with the tribe. Id. at 72,446; 72,472 (codified at 25 C.F.R. 16.105). 2. Title VII of the Civil Rights Act of 1964 Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin. 42 U.S.C. 2000e-2(a). The regulations define national origin discrimination to include discrimination on the basis of an individual s, or his or her ancestor s place of origin. 29 C.F.R. 1606.1. As relevant here, Title VII exempts Indian tribes from its definition of employer, and, hence, tribes themselves are not covered by Rep. No. 58-3700, Pt. 2, at 8 8 (1905) ( [W]here Indians upon said reservation [i.e., the Shoshone and Arapahoe tribes of Indians occupying and residing upon the Wind River Reservation, id. at 6] are qualified and willing, [the parties] will accord them a preference in selecting his employees so far as it may be practicable ) (attached in Addendum). 8

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 19 of 96 Title VII. 42 U.S.C. 2000e(b). Furthermore, as discussed in greater detail below, Section 703(i) of Title VII also exempts from its coverage the preferential treatment of an individual because he is an Indian living on or near a reservation. 42 U.S.C. 2000e-2(i). B. Statement of Facts 1. The history of the United States relationship with the Navajo Nation The United States has long treated the Navajo as a sovereign people, capable of self-governance. The modern political relationship between the United States and the Navajo Nation began on June 1, 1868, when General William T. Sherman and Navajo representatives signed a peace treaty. See 15 Stat. 667; see also ER 16. The treaty acknowledges certain lands as the Navajo Reservation and recognized, among other authorities, the Tribe s right to exclude others from its Reservation. See 15 Stat. 667; Williams v. Lee, 358 U.S. 217, 221 (1959). Pursuant to the treaty, the internal affairs of the Indians remained exclusively within the jurisdiction of whatever tribal government existed. Lee, 358 U.S. at 221-222; see McClanahan v. State Tax Comm n of Ariz., 411 U.S. 163, 175 (1973). 9

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 20 of 96 The past century demonstrates how the Navajo Nation has begun to benefit from federal policies promoting tribal self-government and economic self-determination. In the 1940s and 1950s, the Navajo Nation faced significant challenges. Navajos living on the reservation at that time had few employment options and live[d] in abject poverty. (ER 567-568) (1948 Interior Report on the Navajo). In 1947, Congress allocated $2,000,000 for emergency relief of the Navajo Nation and directed Interior to formulate a long-range program dealing with the problems of the Navajo and Hopi Indians. Act of Dec. 19, 1947, Pub. L. No. 80-390, 61 Stat. 940. Interior recommended an approach that relied, in part, on development of the Reservation s natural resources, in particular the extensive coal deposit underl[ying] the Black Mesa area, which had been identified but not significantly developed. (ER 571). In April 1950, Congress passed the Navajo-Hopi Rehabilitation Act ( NHRA ). Pub. L. No. 81-474, 64 Stat. 44, 44-47 (codified as amended at 25 U.S.C. 631-640). The NHRA authorized to be appropriated approximately $88 million for infrastructure improvement projects, including surveys and studies of the Nation s coal resources. 25 U.S.C. 631. The NHRA expressly provided for 10

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 21 of 96 preferences in employment for Navajo and Hopi Indians on all projects undertaken pursuant to this subchapter. 25 U.S.C. 633. 2. The Navajo Leases at Issue in this Case Peabody operates the Kayenta coal mine on tribal trust land within the Navajo Indian Reservation under two mineral leases with the Nation. (ER 4-5; 476; 506). Both leases were originally entered into with Peabody s predecessor-in-interest, Sentry Royalty. Id. And both leases were approved by Interior pursuant to the 1938 Indian Mineral Leasing Act ( IMLA ), 25 U.S.C. 396a. Navajo Nation, 537 U.S. at 495, 498 n.5; ER 6. Though Interior approved both leases, Interior is not a party to either one. The 8580 lease, approved by Interior in 1964, permits Peabody to mine on the Navajo reservation (ER 476); and the 9910 lease, approved by Interior in 1966, permits Peabody to mine on the Navajo portion of land jointly used by the Navajo and Hopi tribes (ER 506). Both leases contain a provision requiring Peabody to grant an employment preference to Navajo Indians. (ER 5). 3 Under the 8850 3 Although the lease provisions use the term Navajo Indians rather than Navajo tribal members, there is nothing in the record to 11

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 22 of 96 lease, for example, Peabody agrees to employ Navajo Indians when available in all positions for which, in the judgment of [Peabody], they are qualified, and shall make a special effort to work Navajo Indians into skilled, technical and other higher jobs in connection with [Peabody s] operations under this lease. (ER 489). 4 Former Secretary of the Interior Stewart Udall testified by declaration and deposition suggest that the term means anything other than Navajo tribal members. Consistent with longstanding construction of such tribal employment preferences, Interior interprets Navajo Indians to mean members of the Navajo Nation. See, e.g., ER 658 (Interior s Statement of Uncontested Material Facts 4). In a recent Supreme Court brief filed by the Solicitor General on behalf of EEOC in this case, EEOC represented that [u]nder the terms of its mining leases with petitioner Navajo Nation Peabody affords a preference to members of the Nation in hiring for operations under the leases. Br. at I (Peabody SER 52); see also id. at 27 (Peabody SER 83) (characterizing the issue presented in this case as whether and under what circumstances a hiring preference that favor[s] members of one Tribe over members of another Tribe constitutes national origin discrimination). As noted below, the Navajo Preference in Employment Act also defines Navajo in terms of tribal membership. (ER 442.) 4 The 9910 lease contains an almost identical provision, except that it gives Peabody an option to extend the preference to Hopi Indians. (ER 520-521). The lease between Peabody and the Hopi Tribe for the Hopi portion of the mine has the same provision as the Navajo 9910 lease, except that it is a preference for Hopi Indians and gives Peabody an option to extend the preference to Navajo Indians. (ER 272). 12

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 23 of 96 concerning the negotiation history of these two leases, in which he was personally involved. (ER 6; 295-299). Among other things, he confirmed that Interior was actively involved in drafting the leases, including the Navajo employment provisions. (ER 6; 297-298). Both leases provide that the Secretary and the Nation have the authority to cancel the leases if Peabody violates their terms (ER 6-7; 488, 519-520), and the Secretary must approve any amendments (ER 6-7; 482). The Secretary most-recently approved amendments to the leases on December 9, 2011, but no changes were made to the tribal employment preference provision. (ER 535). In addition, since 1985, a Navajo Nation tribal ordinance has separately required all employers doing business within the Navajo Nation s territorial jurisdiction to give an employment preference to the Nation s members. See ER 443 (Navajo Nation Code Ann. Tit. 15, 604(A)(1) ( Navajo Preference in Employment Act )). The ordinance specifically defines the term Navajo to mean any enrolled member of the Navajo Nation. (ER 442). According to the Navajo Nation, as of 2005, there were 326 current or recently expired business leases on Navajo tribal lands, approved by Interior, that contain employment 13

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 24 of 96 preferences for Navajo members. (ER 6 (citing Doc. 89, Ex. 2); see also ER 437). C. EEOC s Complaint and Procedural History EEOC began investigating Peabody s employment practices at the Kayenta Mine in 1998. (ER 676). In 2001, EEOC filed the underlying suit against Peabody, alleging that a hiring preference for Navajo tribal members constitutes national origin discrimination prohibited by Title VII. (ER 7). In particular, EEOC sued on behalf of several individual Charging Parties who were each members of Indian tribes other than Navajo. ER 689 (second amended complaint 11). EEOC alleged that Peabody had engaged in impermissible discrimination on the basis of national origin because Peabody did not hire Charging Parties, but instead hired members of the Navajo Nation for the open positions. (ER 690 13) (emphasis added). The lengthy procedural history of this case is recounted in this Court s most recent opinion and will not be repeated here. See ER 698-699. In its most recent ruling, this Court held that Rule 19 did not require dismissal of the EEOC complaint, even though the Secretary 14

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 25 of 96 was a required party under Rule 19(a), 5 because the Secretary could be joined to the action by Peabody as a Rule 14 third-party defendant. (ER 718-720). The Court remanded for further proceedings. Following this Court s suggestion, Peabody filed a third-party complaint against the Secretary under the APA. (ER 669). D. District Court Decision on Summary Judgment At the outset, the district court rejected Interior s argument that it was improperly impleaded by Peabody as a third-party defendant under Rule 14, and that Peabody failed to state a claim against Interior under the APA. The district court reasoned that these issues had been decided by this Court in its previous decision. (ER 11-12). With respect to the merits, the district court relied on Morton v. Mancari to conclude that the tribe-specific employment preference in the Navajo-Peabody leases is based on a political classification, and not a preference based on national origin. The court explained that: 5 Interior was not a party to the prior appeal and believes that it should not have been deemed a required party under Rule 19(a), see Conditional Cross-Petition for Certiorari, Navajo Nation v. EEOC, Nos. 10-981 & 10-986 (S. Ct. March 2011), but the Rule 19 issue is not presented in this appeal. 15

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 26 of 96 The federal government has a distinct relationship with each tribe and distinct trust obligations owed to each tribe. Tribe-specific employment preferences in DOI-approved leases help discharge those trust obligations. Their inclusion in the leases is for political reasons: to benefit the members of the tribe a political entity and to foster tribal self-government and self-sufficiency. It is tribal membership, not status as an Indian, that is the touchstone. Like the general Indian preference in Mancari, the tribe-specific preference included in the DOIapproved leases is a political classification. (ER 18). The court further found that the preference is rationally tied to legitimate, nonracially based goals, promoting tribal selfsufficiency, economic development on tribal lands, and tribal selfgovernance. (ER 19). Moreover, the court noted that, pursuant to treaties and fundamental principles of federal Indian law, the Nation has the right to exclude third parties from their trust lands ; and that one aspect of the right to condition entry is the right to require[] a private employer operating on tribal lands, pursuant to an Interiorapproved lease, to prefer members of that tribe in employment. (ER 19-20). Finally, the district court rejected EEOC s argument that, by only including an express exemption for general Indian preferences in 16

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 27 of 96 Section 703(i) of Title VII, Congress implicitly intended to prohibit every type of tribe-specific employment preference. (ER 21). It noted that DOI s practice of including tribe-specific employment preferences in mining leases dates back to before passage of Title VII, and [e]limination of this longstanding and ubiquitous DOI practice would require a far more explicit showing of Congress intention to do so than is reflected in [Section] 703(i). (ER 21). For these reasons, the district court granted the Interior s motion for summary judgment as to Peabody s third-party complaint, and granted the Navajo Nation s motion to dismiss, or in the alternative for summary judgment, on the merits of the tribal employment preference. (ER 22). 17

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 28 of 96 SUMMARY OF ARGUMENT This case involves a lessee of the Navajo Nation that is required by the Tribe s employment ordinance and by the terms of an Interiorapproved tribal mining lease to provide a hiring preference for qualified Navajo tribal members, in conjunction with on-reservation commercial activity relating to the development of the Tribe s trust lands and resources. Under Morton v. Mancari, the tribal employment preference at issue constitutes a political classification, rationally related to the federal goals of promoting tribal economic self-sufficiency and selfgovernance. As a political classification, it does not constitute discrimination based on race or national origin. It is therefore outside the scope of Title VII. Contrary to EEOC, the principles articulated in Mancari are not limited to general Indian preferences that apply only to Indians versus non-indians. Indeed, requiring Navajo lessees to extend such hiring preferences to all Indians would not directly serve the federal interest, grounded in federal Indian policy and congressional enactments, in ensuring that the development and use of Navajo trust lands and resources redounds to the benefit of the Tribe and its members. 18

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 29 of 96 Nor is the district court s legal ruling contradicted by EEOC s 1988 Policy Statement construing Section 703(i) of Title VII. That Section creates an Indian exception for employment classifications that otherwise violate Title VII. It has no bearing on a tribal employment preference that does not constitute race or national origin discrimination, and therefore does not violate Title VII to begin with. Interior s policy and practice of approving tribal leases with tribespecific employment preferences is longstanding, predates Title VII, and is consistent with statutes endorsing such preferences in other related tribal contexts. Canons of construction strongly disfavor an implied repeal of longstanding federal policy and practice in the absence of clear congressional intent to the contrary particularly in the context of policies designed to protect and promote tribal sovereignty. Finally, the district court properly rejected EEOC s attempt at the eleventh hour literally the day before the hearing to re-open the summary judgment record and inject new alleged factual disputes into this case. Resolution of this case turns on the legal question whether the tribal member preference in this case constitutes a political classification, as opposed to discrimination on the basis of national 19

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 30 of 96 origin and that is the issue that was presented by EEOC s complaint and briefed by the parties on summary judgment. The district court s resolution of that legal question was correct, disposes of this case, and should be affirmed. STANDARD OF REVIEW This Court reviews the district court s grant of summary judgment de novo, applying the same standard for summary judgment applied in the court below. Karuk Tribe of Calif. v. U.S. Forest Serv., 681 F.3d 1006, 1017 (9th Cir. 2012) (en banc). This Court must determine, viewing the evidence in the light most favorable to [the non-movant], whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). Questions of law decided on summary judgment are reviewed de novo. Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770, 776 (9th Cir. 2010). This Court reviews the district court s decision to deny a motion to supplement the record for abuse of discretion. 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). 20

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 31 of 96 ARGUMENT I. Title VII Does Not Prohibit the Tribal Hiring Preference at Issue in this Case. Morton v. Mancari, 417 U.S. 535 (1974), is one of the seminal cases addressing the unique status of Indian tribes as sovereign political entities. In that case, the Supreme Court drew a critical legal distinction between employment preferences for tribal members that are based on political classifications, and preferences that discriminate on the basis of impermissible characteristics such as race or national origin. For the reasons explained below, the tribe-specific hiring preference in this case is a political preference, not discrimination based on race or national origin, and is therefore outside the scope of Title VII. A. Tribal hiring preferences that are rationally related to congressional policies promoting tribal selfgovernance and economic self-determination constitute political preferences. In Mancari, a group of non-indian employees of the Bureau of Indian Affairs ( BIA ) challenged the BIA s hiring preference for applicants who are members of federally recognized Indian tribes. 6 6 The BIA preference implements Section 12 of the Indian Reorganization Act of 1934, 25 U.S.C. 472, which accords a 21

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 32 of 96 They argued that the hiring preference (a) violated the Equal Employment Opportunity Act of 1972 ( EEOA ), which prohibits discrimination in federal employment based on race, color, religion, sex, or national origin (417 U.S. at 540 n.6, quoting 42 U.S.C. 2000e- 16(a) (Supp. II 1970)) 7 ; and (b) constituted unlawful discrimination on the basis of race under the Due Process Clause of the Fifth Amendment. The Supreme Court upheld the preference, holding that it did not constitute invidious racial discrimination, was a political classification subject to rational basis review rather than strict scrutiny, and was reasonably and rationally designed to further Indian self-government, a legitimate, nonracially based goal. Id. at 553 554. The EEOA does not itself contain explicit exceptions relating to Indians or tribes. Nonetheless, the Court looked to the congressional purpose behind the tribal exemptions in the EEOA s predecessor statute, Title VII of the Civil Rights Act of 1964, which reveal a clear preference for qualified Indians in the BIA. See Mancari, 417 U.S. at 537. The BIA preference applies only to members of federally recognized tribes. Id. at 553 n.24; see also EEOC Br. 22. 7 In general, the EEOA extended to most areas of federal employment the protections against discrimination set forth in Title VII. 417 U.S. at 546-547. 22

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 33 of 96 congressional sentiment that an Indian preference in the narrow context of tribal or reservation-related employment did not constitute racial discrimination of the type otherwise proscribed. 417 U.S. at 548 (emphasis added). In other words, the Court construed the tribal exemptions in the 1964 Act as premised on the understanding that certain kinds of preferences for tribal members do not constitute racial discrimination in the first place; and, although the EEOA did not itself contain such an exemption, it would be irrational[] and arbitrar[y] (id.) to conclude that preferences for tribal members were legal for purposes of one statute but constituted racial discrimination for the other. See also id. at 550 ( Any perceived conflict is more apparent than real. ) As further support for the lack of such a conflict, the Court observed that, shortly after the EEOA was enacted in 1972, Congress passed two new Indian preference laws. Id. at 548 (citing laws requiring Indians be given preference in government programs for training teachers of Indian children). The Court found it improbable, to say the least, that the same Congress which affirmatively approved and enacted these additional and similar Indian preferences was, at the 23

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 34 of 96 same time, condemning the BIA preference as racially discriminatory. Id. at 548-549. It noted, in addition, that for many years Indian preferences and anti-discrimination provisions had co-existed in Executive Branch orders governing federal hiring practices, and found no reason to presume that Congress affirmatively intended to erase the preferences that previously had co-existed with broad antidiscrimination provisions in Executive Orders. Id. at 549. In short, the Court held that [a] provision aimed at furthering Indian selfgovernment by according an employment preference within the BIA for qualified members of the governed group can readily co-exist with a general rule prohibiting employment discrimination on the basis of race. Any other conclusion can be reached only by formalistic reasoning that ignores both the history and purposes of the preference and the unique legal relationship between the Federal Government and tribal Indians. Id. at 550 (emphasis added). Next, the Court explained why the BIA preference for tribal members did not constitute racial discrimination under the Due Process Clause. Crucially, the Court explained that, [c]ontrary to the characterization made by appellees, this preference does not constitute 24

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 35 of 96 racial discrimination. Indeed, it is not even a racial preference. Id. at 553. The Court explained that it was, instead, a political preference: The preference is not directed towards a racial group consisting of Indians ; instead, it applies only to members of federally recognized tribes. This operates to exclude many individuals who are racially to be classified as Indians. In this sense, the preference is political rather than racial in nature. Id. at 553 n.24 (emphasis added). The Court continued, it is an employment criterion reasonably designed to further the cause of Indian self-government, directed to participation by the governed in the governing agency. It reasoned that the BIA Indian preference was therefore similar in kind to the constitutional requirement that a United States Senator, when elected, be a resident of the State that elected him, or the requirement that a member of a city council reside within the city governed by the council. Id. at 554. Like the state or city residence requirement for elected politicians, the BIA preference for members (i.e., citizens) of tribal political entities, with whom the United 25

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 36 of 96 States has a government-to-government relationship, is a rational political preference, and not a form of invidious discrimination. 8 In sum, the Court held that [a]s long as the special treatment [of Indians] can be tied rationally to the fulfillment of Congress unique obligation toward the Indians, such judgments will not be disturbed. Id. at 555. Because the BIA employment preference rationally served the non-racial goal of further[ing] the cause of Indian selfgovernment, it did not violate constitutional equal protection principles. Id. at 554. 9 8 Mancari is not an isolated case. The Supreme Court has repeatedly affirmed that federal regulation of Indian affairs is not based upon impermissible [racial] classifications. United States v. Antelope, 430 U.S. 641, 646 (1977). It is governance of once-sovereign political communities; it is not to be viewed as legislation of a racial group consisting of Indians. Id. (quoting Mancari, 417 U.S. at 553 n.24); see also Washington v. Wash. State Commercial Passenger Fishing Vessel Ass n, 443 U.S. 658, 673 n.20 (1979); Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463, 500 501 (1979); Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 479 480 (1976). 9 The challengers in Mancari attacked the BIA preference as one based on race rather than national origin, but they could just as easily have characterized it as premised on a group of discrete national origins (e.g., preferring individuals whose place of origin is any Indian reservation over all other individuals). Nothing in the reasoning or logic of Mancari, however, suggests that a national 26

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 37 of 96 B. The analysis in Mancari controls the instant case; EEOC s attempts to distinguish Mancari are unavailing. Consistent with Mancari, the tribal member hiring preference at issue in the Navajo leases is a political preference, rationally connected to the fulfillment of the federal government s general trust relationship with federally-recognized Indian tribes, and with the Navajo Nation in particular. EEOC insists that it constitutes unlawful national origin discrimination. But EEOC ignores a number of factors, unrelated to national origin, that demonstrate the legitimate purposes of the political preference in question. First, the right to direct the benefits of employment and other economic activity on the Reservation to the Nation s citizens is fundamental to the Nation s status as a sovereign political entity. The federal government has an established policy of encouraging tribal economic self-sufficiency, see, e.g., White Mountain Apache, 448 U.S. at 149; New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 335 (1983), and the Navajo preference directly serves that interest. origin claim would have fared any better in that case, and EEOC does not contend otherwise. 27

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 38 of 96 Second, the Navajo employment preference furthers the general trust relationship between the Nation and the United States because it involves tangible resources lands and subsurface minerals held by the United States in trust for the Navajo. Encouraging the development of those resources in a way that benefits the Nation and its members recognizes the Nation s sovereign ownership of those resources and honors the principle that extraction and use of trust resources should redound to the benefit of the Indians who share a common interest in those resources. Indeed, the Secretary approved the Navajo leases at issue here pursuant to his authorities under IMLA, which Congress specifically enacted to help achieve the goal of revitalizing Indian tribal governments by ensuring tribal autonomy over and promoting the greatest return on Indian property. See Navajo Nation, 537 U.S. at 511 n.16 (concerning the leases at issue here); see also id. at 493-494 ( In addition to provid[ing] Indian tribes with a profitable source of revenue [], the IMLA aimed to foster tribal selfdetermination by giv[ing] Indians a greater say in the use and disposition of the resources found on Indian lands. ) (internal citations omitted); Assiniboine & Sioux Tribes of Fort Peck Indian Reservation v. 28

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 39 of 96 Bd. of Oil & Gas Conservation of State of Mont., 792 F.2d 782, 796 (9th Cir. 1986); Felix Cohen, Handbook of Federal Indian Law 17.03[2][a] (2005 ed.) (ER 574-580). The Navajo preference serves these congressional purposes by promoting the Nation s existence as a selfsustaining political unit that can advance the welfare of its people through development of its trust resources. Third, the political nature of the relationship between the United States and the Navajo Nation is especially evident here. The Nation has both the inherent sovereign power and an express treaty right to exclude non-members from its territory and those rights include the lesser power to condition entry onto the Reservation by third parties. Jicarilla Apache Tribe, 455 U.S. at 144. The Nation s power to exclude reflects the unique sovereign status of the Navajo as a free people, who negotiated with the United States to ensure peace and the right to conduct their own affairs. Donovan v. Navajo Forest Prods. Indus., 692 F.2d 709, 712 (10th Cir. 1982). The Navajo hiring preference is a manifestation of these core attributes of territorial sovereignty: In return for the privilege of conducting business on the Reservation and 29

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 40 of 96 extracting or using the Nation s trust resources, the Nation insists upon a tribal hiring preference from its lessees. For all these reasons, like the BIA employment preference upheld in Mancari, the Navajo-specific employment preference, approved by Interior, is a political classification reasonably and directly related to a legitimate, nonracially based goal, and therefore distinct from proscribed forms of racial discrimination. Mancari, 417 U.S. at 554. EEOC s attempts to distinguish Mancari are unpersuasive. EEOC s principal line of attack is based on the fact that BIA employs a general Indian preference, which extends to members of all federallyrecognized tribes, whereas the Navajo preference was put in place by one tribe (and approved by Interior) for the benefit of that single tribe s members. That is a distinction without a difference, however. Nothing in Mancari suggests that a tribal preference may only constitute a political classification if the preference extends to members of all Indian tribes. What matters is the context of and purposes behind the preference: whether it draws distinctions based on political membership, and whether it is rationally related to the fulfillment of the federal government s unique responsibilities to Indian tribes. 30

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 41 of 96 In some contexts, a general Indian tribal preference may be appropriate and consistent with federal Indian policy. For example, the general Indian tribal preference required by the IRA applies to the hiring of federal employees by a national government agency, the BIA, which is in charge of programs for all Indian tribes and oversees the nation s tribal affairs as a whole. Here, by contrast, the Navajo hiring preference is implemented at the tribal rather than national level, for hiring by tribal lessees rather than by the federal government, and in the context of a particular tribe s sovereign decision to develop that tribe s trust resources for the benefit of its political constituents. Neither federal Indian policy, nor Mancari, mandates that the tribe in question must extend such a hiring preference to anyone who is a member of any federally-recognized tribe, no matter how unconnected the other tribe may be to the lessor-tribe s people and resources. EEOC s demand that the Navajo Nation must extend its hiring preferences to someone who lives near the reservation but belongs to an unrelated tribe from Colorado, for example, turns federal Indian policy on its head by requiring that economic opportunities on one tribe s 31

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 42 of 96 reservation be extended to non-members to the detriment of its own members. 10 Furthermore, like the BIA preference in Mancari, the Navajo Nation s hiring preference is granted to tribal members not as a discrete racial group, but rather, as members of [a] quasi-sovereign tribal entit[y]. Id. at 554 (emphasis added). Indeed, just as the BIA preference at issue in Mancari was based on tribal membership and as such operates to exclude many individuals who are racially to be classified as Indians (id. at 554 n.24) (emphasis added) but who are not members of federally-recognized Indian tribes so, too, is the Navajo Nation preference based on tribal membership. It does not apply to non-member individuals even if they have some degree of 10 It is arguably easier to defend, under the rationale of Mancari, a Navajo ordinance and lease that require a hiring preference for Navajo s own tribal members over all other non-members (whether Indian or non-indian), than it would be to defend such a hiring preference for Indians over non-indians (as EEOC advocates). Directing the economic and human resources benefits of the development of Navajo lands and resources to the members of the Navajo Nation is directly tied to the fulfillment of the federal government s general trust responsibility, rooted in treaties and congressional enactments concerning the Navajo Nation, and to the federal policy of promoting the Nation s self-governance and economic self-sufficiency. 32

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 43 of 96 Navajo ancestry. Again, for this purpose, it does not matter whether the preference in question applies to members of one tribe or members of multiple tribes either way, eligibility for the preference is based on membership in a political entity. Thus, in the context presented here, there is no doubt that the Navajo Nation s decision to give preference to its own citizens is a political classification reasonably and directly related to a legitimate, nonracially based goal (id. at 554): namely, the promotion of economic development, self-governance, and self-sufficiency of the Tribe. That is no less of a legitimate, nonracially based goal and one that is no less grounded in the unique legal status of Indian tribes under federal law (id. at 551), the historical relationships and guardian-ward status (id. at 551-552), and the proper fulfillment of [the federal government s] trust responsibility (id. at 553) than the cause of Indian self-government (id. at 554) that the Court saw as the core purpose behind the BIA Indian hiring preference in Mancari. In another attempt to distinguish Mancari, EEOC argues that the holding in that case is limited to hiring preferences for jobs that are political because they are governmental in nature (e.g., BIA 33

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 44 of 96 administration of federal Indian programs), and should not apply to the private sector mining jobs here. Br. 29. But Mancari did not view the BIA Indian preference as political because the jobs to which it applies are in the public as opposed to private sector. Rather, Indian hiring preferences are political in nature when they draw distinctions based on membership (i.e., citizenship) in a sovereign political entity as opposed to innate racial characteristics or ancestry or place of birth and when they promote the unique, political government-to-government relationship that exists between the United States and federallyrecognized Tribes. These criteria may be satisfied whether or not the type of job at issue is in the public sector. Moreover, EEOC s strained attempt at cabining the scope of Mancari is refuted by the Court s own recognition of what was at stake in that case: It noted that if, contrary to its analysis, the nation s anti-discrimination laws were deemed to be in conflict with the federal government s historically-rooted special treatment for Indians, an entire Title of the United States Code (25 U.S.C.) would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized. Id. at 552. 34

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 45 of 96 Finally, EEOC argues (Br. 30-31, 39) that the holding and rationale of Mancari are limited to Indian hiring preferences found in congressional enactments, whereas the preference at issue here is found in an Interior-approved lease and tribal ordinance. Once again, EEOC misses the boat. The first question presented in Mancari was whether the Indian hiring preference required by Section 12 of the IRA was abrogated by a subsequent statute that appeared to create a square conflict: the ban on discrimination in federal hiring on the basis of race or national origin in the EEOA, enacted by Congress in 1972 without any exceptions relating to Indians or tribes. The Court resolved the alleged conflict between the two statutes, not by finding that one law trumped the other, but rather by explaining why there was no conflict in the first place, given the fundamental nature of the tribal hiring preference it was, as a legal matter, a political preference as opposed to a preference based on impermissible characteristics. Congress, the Court found, clearly understood that a political Indian preference could co-exist in harmony with anti-discrimination principles, whether found in statute or executive orders. That analysis applies equally well to the current case. 35

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 46 of 96 Moreover, EEOC overlooks the second question presented in Mancari, in which the Court rejected a constitutional challenge to the BIA Indian preference. For that purpose, it did not matter that the BIA preference was contained in a statute (the IRA); if it constituted racebased discrimination it would have faltered under the Due Process Clause of the Fifth Amendment. Yet the Court applied essentially the same reasoning: because it was a political preference it did not constitute discrimination under Title VII or the Due Process Clause. Mancari cannot therefore be limited to tribal preferences contained in statutes. * * * * * In short, because the Navajo preference at issue in this case is in the nature of a political preference, in the sense discussed in Mancari, and therefore not a preference based on race or national origin, such a preference peacefully co-exists with and does not implicate the prohibitions on invidious discrimination found in Title VII (or, for that matter, in the EEOA of 1972, or the Fifth Amendment Due Process Clause). 36

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 47 of 96 C. Section 703(i) of Title VII Is Irrelevant to the Issue Presented By this Case, and EEOC s 1988 Policy Statement Construing that Section Is Therefore Inapposite. EEOC complains (Br. 31-32) that the district court failed to accord deference to EEOC s 1988 Policy Statement ( 1988 Statement ) interpreting Section 703(i) of Title VII. 11 But the court did not say the Statement was not entitled to deference; rather, it correctly noted (ER 20-21) that the Statement is inapposite because it interprets a provision of Title VII that is not controlling here. 12 11 EEOC Policy Statement on Indian Preference Under Title VII (May 16, 1988), 1988 WL 912195 (Peabody SER 1-7). 12 The district court also correctly noted (ER 12-13) that, as the agency vested with principal responsibility for overseeing federal Indian affairs and discharging the United States general trust responsibility to Indian tribes, see, e.g., 43 U.S.C. 1457; 25 U.S.C. 2 & 9, it is Interior rather than EEOC that deserves deference as to the political nature of a tribal hiring preference in an Interiorapproved tribal mining lease that is grounded the federal government s unique obligations to Indian tribes. See generally Bragdon v. Abbott, 524 U.S. 624, 642 (1988); Wheeler, 435 U.S. at 328 n.27 (crediting Interior s views on inherent tribal sovereignty and self-government). 37

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 48 of 96 1. The 1988 Statement Construes the Scope of the Indian Exception in Section 703(i), But There Is No Need to Invoke that Exception Where, as Here, a Tribal Preference Does Not Constitute National Origin Discrimination in the First Place. The purpose of the1988 Statement is to set[] forth the Commission s interpretation of the meaning and scope of the Indian preference provision contained in Section 703(i) of Title VII. (Peabody SER 1). Section 703(i) contains an exception for certain categories of employment practices that would otherwise violate Title VII s prohibitions. It provides as follows: 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). Noting that the provision uses the language, because he is an Indian, as opposed to language denoting tribal membership, EEOC interprets the Section 703(i) exception as applying only to general employment preferences for Indians versus non-indians, but not to preferences for members of a particular tribe. 38

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 49 of 96 Interior does not contest EEOC s interpretation that Section 703(i) does not contemplate tribe-specific Indian preferences. 13 It is simply beside the point. There is no need to consider whether the exception in Section 703(i) excuses a particular employment practice, if that practice does not constitute discrimination on the basis of race or national origin (or otherwise violate Title VII) in the first place. And EEOC s 1988 Policy Statement does not analyze what constitutes race or national origin discrimination in the first place. Most importantly, it does not discuss or provide any guidance on the Mancari Court s critical distinction between political preferences and discrimination based on race (or national origin). Nor does it address the specific question presented in this case: Whether an employment preference for 13 It is important to note that the Section 703(i) exception extends well beyond the circumstances presented here. It covers all private businesses operating on or near Indian reservations, even if the business (a) is not a tribal lessee and is not subject to a tribal employment ordinance, (b) is not operating pursuant to an Interiorapproved lease or contract, and (c) is not engaged in the development or use of the tribe s lands or resources. It is understandable that Congress would not have wanted such a private employer with no oversight or approval by the federal government or the tribe concerned, and little or no connection to the fulfillment of the federal-tribal trust responsibility to be in the position of unilaterally distinguishing between Indians from different tribes. 39

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 50 of 96 members of a particular Indian tribe, implemented by an employer on an Indian reservation in compliance with the terms of a tribal ordinance and Secretary-approved lease for the utilization of a tribe s own trust land and resources, is a political preference and thus beyond the scope of Title VII. Rather, the 1988 Statement assumes that the employment practices in question violate Title VII and proceeds to construe the scope of the Section 703(i) exception. Because the tribal preference in this case does not constitute national origin discrimination in the first place, there is no need to reach Section 703(i), and the 1988 Statement is therefore irrelevant. 2. EEOC s 1988 Statement Mischaracterizes Interior s Federal Contracting Regulations, Which Undercut, Rather than Support, EEOC s Position. EEOC notes (Br. 33) that its 1988 Policy Statement relied, in part, on certain federal contracting regulations issued by Department of the Interior, pursuant to the Indian Self-Determination and Education Assistance Act ( ISDEA ), 25 U.S.C. 450 et. seq. Even if EEOC s discussion of those regulations were accurate, EEOC relied on them to interpret a statutory provision (the Indian exception in Section 703(i) of Title VII) that is irrelevant to the question presented in this case. See 40

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 51 of 96 supra, 38-40. But EEOC s discussion of Interior s regulations is not accurate, and they do not support its position in this case. To begin with, EEOC s 1988 Policy Statement overlooks Interior s longstanding policy and practice of approving tribal leases with tribespecific hiring preferences. See, supra, 7-8; infra, 45-48. That is itself a glaring omission. But beyond that, EEOC erroneously asserts (in both its 1988 Policy Statement (Peabody SER 6) and its brief, Br. 33) that the 1987 version of Interior s ISDEA contracting regulations required contractors to adopt general Indian hiring preferences and prohibited them from adopting tribe-specific hiring preferences. That is not correct. EEOC cherry picks Interior s 1987 regulations by citing only to the provision setting forth a general rule that contractors must include a general Indian hiring preference when performing work that could be for the benefit of more than one tribe. 48 C.F.R. 1452.204-71 (1987). But EEOC fails to mention that, in a different part of the same regulation, Interior expressly allows for a tribe-specific hiring preference where the work is being performed on an Indian reservation for the benefit of a particular Indian tribe: Where the work under a contract is to be 41

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 52 of 96 performed on an Indian reservation, the contracting officer may... add[] specific Indian preference requirements of the Tribe on whose reservation the work is to be performed.... 48 C.F.R. 1404.7005(a) (1987); see also id. at 1404.7005(b) (1987) (referring to such preferences as tribal preference requirements, and making clear that [n]othing in these regulations shall be interpreted to preclude Tribes from independently developing and enforcing such requirements). Thus, contrary to the picture EEOC paints, the 1987 version of Interior s regulations endorsed, rather than repudiated, the use of tribe-specific hiring preferences for on-reservation work; and it is not accurate when EEOC says that its 1988 Statement had merely concurred with the[] administrative interpretation[] of its sister agencies. (Br. 33). In addition, EEOC erroneously implies (Br. 34) that it was only after Congress amended the ISDEA in 1994 that Interior changed its contracting regulations to permit tribe-specific hiring preferences. That implication is also not correct. The discussion of Indian hiring preferences in Interior s ISDEA contracting regulations has remained substantially the same, both before and after the 1994 amendments. Compare 1987 regulations, supra, with current version of same 42

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 53 of 96 regulations, 48 C.F.R. 1426.7003(a) & 1452.226 70 (general Indian preference) and 48 C.F.R. 1426.7005(a) (permitting tribe-specific preferences for contracts involving on-reservation work). Interior did not need to change this aspect of its ISDEA regulations because, in the 1994 amendments to the ISDEA, Congress essentially codified Interior s pre-existing policy (pre-dating the EEOC Policy Statement) of allowing tribe-specific hiring preferences. In particular, in the amendments, Congress ratified the distinction between self-determination contracts for the benefit of tribal organizations and Indians in general, on the one hand, and such contracts that are intended to benefit one tribe, on the other hand; in the latter situation, Congress clarified that the tribal employment or contract preference laws adopted by such tribe shall govern. Indian Self-Determination Act Amendments of 1994, Pub. L. No. 103-413, 108 Stat. 4250, 4251 (codified at 25 U.S.C. 450e(c)) (specifying that when a self-determination contract is intended to benefit one tribe, the tribal employment or contract preference laws adopted by such tribe shall govern with respect to the administration of the contract or portion of the contract. ); see also 140 Cong. Rec. 28,630 (1994) (statement of Rep. 43

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 54 of 96 Richardson) (noting that the new language was added to recognize tribal laws addressing employment preferences ). 14 Quite apart from whether these errors and omissions call into question the reliability of EEOC s analysis in its 1988 Policy Statement, Interior s consistent endorsement of tribe-specific preferences in its ISDEA regulations, and Congress ratification of Interior s position in the 1994 ISDEA Amendments, lend further context and support for Interior s longstanding policy and practice of approving tribal leases that include such preferences. 15 14 As EEOC notes (Br. 34), Interior s federal contracting regulations implementing the Indian Reservation Roads Program, adopted after the 1994 ISDEA amendments, draws a similar distinction. See 25 C.F.R. 170.619 (distinguishing between contracts serving a single tribe, which may include a tribal hiring preference, and contracts serving multiple tribes, which may include a general Indian hiring preference); see also id. at 170.914. 15 EEOC also references a Department of Labor federal contracting regulation. Br. 33; see also Peabody SER 5. But citation to that regulation is misplaced because it applies to government contracts and there is no government contract at issue here. Rather, at issue here is the propriety of a tribal lessee complying with a tribal employment ordinance and Interior-approved lease relating to onreservation development of the tribe s trust lands and resources. 44

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 55 of 96 D. Presumptions Against Implicit Repeal Confirm That Title VII Should Not Be Construed to Abrogate the Federal Government s Longstanding Practice of Approving Tribe-Specific Employment Preferences. As explained above, the holding and rationale of Mancari squarely support the validity of the Navajo tribal hiring preference at issue in this case. Even if Mancari somehow does not control this case, canons of statutory interpretation disfavor a reading of Title VII that implicitly repeals Interior s longstanding policy and practice of approving tribal preferences, or that implicitly abrogates the Navajo Nation s sovereign right to control economic activity on its reservation. 1. Canons of interpretation disfavor implicit repeal of prior statutes or longstanding Executive Branch practice. Interior has a longstanding policy and practice, which predates Title VII, of approving tribal leases and other tribal contracts that contain tribe specific employment preferences. As outlined above, the record in this case includes several such tribal mineral leases that predate Title VII, and another example of such a tribal coal lease dates back to 1899. See, supra, 7-8 & n.2. Furthermore, although the IMLA (under which Interior approved the Navajo leases in this case) does not address the issue of hiring preferences one way or the other, one of its 45

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 56 of 96 central goals is to promote tribal sovereignty and self-determination in mineral leasing, and it vests the Secretary with broad authority and discretion to approve tribal leases that serve the statute s purposes. See Navajo Nation, 537 U.S. at 495, 511 n.16. Despite repeatedly legislating in the area of tribal mineral development (including passing amendments to the IMLA itself), Congress has never questioned the validity of tribe-specific hiring preferences in tribal mineral leases. 16 Moreover, outside of the specific context of mineral leasing, Interior routinely approves hundreds if not thousands of other types of tribal business leases and contracts that contain tribe-specific employment preferences. Indeed, there is at least one federal statute pertaining specifically to the Navajo, predating Title VII, which expressly authorizes tribe-specific employment provisions for purposes 16 In enacting the Indian Mineral Development Act of 1982, 25 U.S.C. 2101 2108, for instance, the Senate Report highlighted that [t]ribal autonomy and self-determination should include the right to negotiate terms of contracts, in part because such contracts can provide a variety of opportunities that would benefit the long-term tribal socio-economic development such as involvement in resource management, training of tribal members for management positions, and participation in the decision-making process. S. Rep. No. 97-472, at 4 (1982). 46

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 57 of 96 of the projects authorized by that statute. See 25 U.S.C. 633 (1950 Navajo-Hopi Rehabilitation Act). 17 And such statutes are not limited to the Navajo. See, e.g., 16 U.S.C. 450oo-4 (codification of 1958 public law requiring employment preference for recognized members of the Minnesota Chippewa Tribe); 102 Stat. 2847, 16 U.S.C. 410pp-2(f) (1988) (expired) (requiring employment preference for members of the Zuni Tribe). Further, as noted above, in the 1994 amendments to the ISDEA, Congress ratified Interior s pre-existing policy (as reflected in Interior s then-existing federal contracting regulations, which are still 17 In 1973, the United States Commission on Civil Rights, a bipartisan agency established by Congress, held hearings on the Navajo Reservation focusing on the endemic problems confronting Navajo economic development. (ER 591-617). In 1975, it published its report and findings. (ER 628). Although a central component of the Commission s mission is to investigate complaints that citizens were being deprived of rights on the basis of their race or national origin (ER 629), one of its principal conclusions was that Navajospecific employment preferences on the reservation were not being adequately implemented or enforced. For example, the Commission criticized the BIA for mak[ing] no valid effort to monitor or enforce the [tribal] employment provisions that included Navajo preferences. (ER 648-649). The Report noted that a further obstacle was the weak wording of what is known as the Navajo preference clause in the tribe s contracts and leases, (ER 638), and cited with approval tribal efforts to get stronger Navajo preference provisions in approximately 100 contracts and leases with large employers. (ER 649). 47

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 58 of 96 in effect today) of endorsing tribe-specific hiring preferences in certain tribal self-determination contracts. See, supra, at 42-44 (discussing 25 U.S.C. 450e(c)). Notwithstanding this substantial historical record of administrative practice and congressional enactments, EEOC contends that, in enacting Title VII in 1964, Congress made the radical decision to abrogate this longstanding federal government policy and practice without so much as a word, while at the same time allowing the allegedly illegal practice to continue unabated for the next half century with no further comment or legislative intervention. EEOC s position, however, flies in the face of canons of statutory interpretation that disfavor repeal by implication. See Posadas v. Nat l City Bank, 296 U.S. 497, 503 (1936). While a later enacted statute... can sometimes operate to amend or even repeal an earlier statutory provision... repeals by implication are not favored and will not be presumed unless the intention of the legislature to repeal [is] clear and manifest. Nat l Ass n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662 (2007) (quoting Watt v. Alaska, 451 U.S. 259, 267 (1981)) (brackets in original) (emphasis added). There is no such clear and manifest 48

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 59 of 96 congressional intent to repeal here. And this presumption against implied repeal extends to longstanding Executive Branch practice as well as statutes: Long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the [action] had been [taken] in pursuance of its consent... Dames & Moore v. Regan, 453 U.S. 654, 686 (1981) (brackets in original) (citation omitted); accord United States v. Midwest Oil Co., 236 U.S. 459, 470-73 (1915) (although no explicit authority existed for President to withdraw public lands, the long-continued Executive Branch practice, done with the knowledge and acquiescence of Congress, creates presumption that withdrawals were made with its consent or in recognition of administrative power to manage public lands); Bob Jones Univ. v. United States, 461 U.S. 574, 601 (1983). Moreover, a further consequence of EEOC s position, if accepted, would be to create an irreconcilable conflict between Title VII and at least one subsequent congressional enactment the 1994 amendments to the ISDEA which expressly endorses tribe-specific employment preferences. Cf. Dawavendewa v. Salt River Project Agric. Improvement & Power Dist. ( Dawavendewa I ), 154 F.3d 1117, 1124 n.15 (9th Cir. 49

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 60 of 96 1998)) (noting, without resolving, the conflict with the ISDEA that would be created by EEOC s position). But interpreting statutes to create such a conflict (which would require a court to decide that one statute implicitly repeals the other) is disfavored where there is a plausible way to read them in harmony. Thus, a court will not infer a statutory repeal unless the later statute expressly contradict[s] the original act or unless such a construction is absolutely necessary... in order that [the] words [of the later statute] shall have any meaning at all. Nat l Ass n of Home Builders, 551 U.S. at 662 (brackets in original) (internal citations omitted); see also Mancari, 417 U.S. at 550 ( In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable. ) In this case, EEOC s position must be rejected because the two statutes may easily be read in harmony, i.e., premised on Congress understanding (as found in Mancari) that tribal member preferences do not necessarily constitute race or national origin discrimination in the first place. It is improbable, to say the least, that... Congress[,] which affirmatively approved and enacted these additional and similar [tribe- 50

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 61 of 96 specific] preferences [in the ISDEA amendments] was, at the same time, condemning the [Navajo lease preferences] as racially discriminatory. Mancari, 417 U.S. at 548-549. EEOC responds (Br. 38-40) that, just because Interior has engaged in a particular discretionary administrative practice for many years does not, itself, justify the continuation of that practice in the face of a conflicting statutory prohibition. Br. 38 (emphasis in original) (citing cases). But EEOC s response is a red herring, based on a distortion of Interior s position. Interior does not contend that an agency may excuse a statutory violation through a repeated administrative practice. The point, rather, is that the type of tribal employment preference at issue in this case, as a legal matter, does not constitute national origin discrimination and is therefore outside the scope of Title VII. Interior s longstanding administrative practice (and the canons of construction disfavoring implied repeal) is cited as additional support for this interpretation. 18 18 EEOC insinuates that, for the past five decades, the Secretary has been directing (Br. 39), enab[ling] (Br. 39) and giving permission to (Br. 40) private companies to ignore and violate federal law. See also, e.g., 41, 42 and 43. For the reasons expressed above, this 51

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 62 of 96 2. Canons of interpretation also preclude an implied abrogation of tribal sovereign authority. For similar reasons, EEOC s interpretation also runs afoul of the canons of construction that disfavor implied limitations on core attributes of inherent tribal sovereignty. Under fundamental principles of federal Indian law, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status. Wheeler, 435 U.S. at 323. Limitations on tribal self-government and internal affairs cannot be implied from a treaty or statute; they must be clearly expressed. United States v. Dion, 476 U.S. 734, 738-739 (1986); Bryan v. Itasca Cty., Minn., 426 U.S. 373, 392-393 (1976); Mancari, 417 U.S. at 555. accusation is patently false and based on a plain misreading of the Secretary s (and the Department of Justice s) views. Similarly, EEOC states that it know[s] of no legal authority for the principle that the [tribal] trust doctrine allows the Secretary to excuse a private, non-tribal business from complying with federal law. Id. at 41. Once again EEOC misreads the Secretary s position. EEOC fails to grasp that the federal trust responsibility is not an excuse to violate federal law, but a core component of the rationale, articulated in Mancari, for why certain forms of tribe-specific preferences constitute legitimate political classifications that are outside the scope of Title VII. 52

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 63 of 96 Prior to the enactment of Title VII, the Navajo Nation clearly retained the inherent sovereign authority to regulate its own economic activities and the activities of nonmembers who enter into consensual, commercial relationships with the tribe on tribal lands. See Montana, 450 U.S. at 564 565. And, as explained above, the Nation enjoys both an inherent sovereign right and a treaty right to condition access to its Reservation by non-members. See, supra, at 29-30; see also Mescalero Apache Tribe, 462 U.S. 324 at 333 ( A tribe s power to exclude nonmembers entirely or to condition their presence on the reservation is... well established ); Jicarilla Apache Tribe, 455 U.S. at 144. As a corollary to the power to exclude, the Navajo Nation has the lesserincluded authority to require lessees operating on the Reservation to give a preferential right to employment to tribal members. Should EEOC s position prevail, however, the practical effect would be to render the Nation s duly enacted ordinance (requiring lessees to adopt tribal hiring preferences) invalid and to impede the congressional goal of promoting tribal self-governance and economic self-sufficiency. Although Congress could abrogate the Navajo Nation s sovereign authority in this manner, courts cannot infer such a result 53

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 64 of 96 unless Congress intent is clear. For all the reasons given above, there is no such clear evidence of congressional intent in Title VII, and EEOC s position should be rejected. 19 3. The legislative history of Title VII further confirms that Congress did not intend to implicitly abrogate Interior s longstanding practice of approving tribe-specific employment preferences. No evidence exists, either in the text of Title VII or the Civil Rights Act s legislative history, that Congress intended to limit tribal sovereignty or to ban Interior s practice of approving tribal preferences. In fact, legislative history and contemporaneous assessment of the Civil Rights Act suggest the opposite: Congress believed that the Civil Rights Act would not affect Interior s programs to benefit specific Indian 19 This Court has recognized a general rule that federal statutes of general applicability apply to Indian tribes on tribal lands, while identifying certain specific exceptions to that rule. See Dawavendewa v. Salt River Project Agric. Improvement & Power Dist. ( Dawavendewa II ), 276 F.3d 1150, 1158 (9th Cir. 2002) (citing, e.g., Donovan v. Coeur d Alene, 751 F.2d 1113 (9th Cir. 1985)). That line of cases, however, is not directly relevant here, as Interior is not urging this Court to read an implicit exception into a statute of general applicability. Rather, this case turns on the legal distinction (see Mancari) between a preference based on race or national origin (which is covered by Title VII) and a preference based on a political classification (which is outside the scope of Title VII). 54

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 65 of 96 tribes programs well-known to Congress and Section 703(i) of Title VII (the Indian exception) was intended to protect, not to prohibit or restrict, such programs. In the winter of 1963, the House Committee on the Judiciary asked the Attorney General for a list of Federal programs that would be affected by Title VI of the Civil Rights Act, which prohibits the use of federal funds for discriminatory purposes. Then-Deputy Attorney General Nicholas Katzenbach replied to the Committee with a list of programs that would be affected. Importantly, his list intentionally omits programs of assistance to Indians. 110 Cong. Rec. 13,380 81 (1964). As Katzenbach explained: Indians have a special status under the Constitution and treaties. Nothing in [T]itle VI is intended to change that status or to preclude special assistance to the Indians. Id. This language, closely echoed by the Supreme Court eleven years later in Mancari, demonstrates an understanding, contemporaneous with the passage of the Civil Rights Act, that Indians enjoyed a special status under the law that the Civil Rights Act did nothing to displace. Senator Karl Mundt was the sponsor of Section 703(i) of Title VII. Senator Mundt was from South Dakota (home to nine Sioux tribes) and 55

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 66 of 96 spent much of his career working on Indian issues, including providing Indians with education, skills training, job opportunities, and other means of promoting economic self-sufficiency. (ER 582-584). In the late 1940s and early 1950s, the Senator began to promote a program in which the United States would transfer control of federal land located on or near reservations to tribes to lease out to private industry. ER 585; 103 Cong. Rec. 1386 (1957). The United States would then offer industry tax incentives to re-locate to the site, conditioned on providing skills training and preferential hiring to local tribal Indians. See H.R. 3942, 85th Cong. (1957). One of these initial projects was designed to assist a particular South Dakota Sioux reservation. It is in that context that Senator Mundt explained that including Section 703(i) in Title VII 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. 110 Cong. Rec. 13,702 (1964); Mancari, 417 U.S. at 546 n.20. EEOC dismisses Mundt s comment on the basis that it refers to Indian preference programs generally, and suggests that there is no reason to read the remark as 56

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 67 of 96 encompassing programs containing tribe-specific preferences. But history suggests otherwise. In conjunction with the program Senator Mundt championed, by 1956 the BIA had initiated a broader industrial development program designed to attract established industries capable of employing Indians to locate on or near reservations. (ER 587). The program began when BIA worked with the Navajo Nation to create a Central Office for the promotion of industrial development on and near Indian reservations. (ER 589-590). The first two projects under the program were a furniture plant near Gamerco, New Mexico, and a Lear Electronics plant in Flagstaff, Arizona, each of which adopted a tribe-specific preference. (ER 590). These industrial development programs were repeatedly couched as providing on and near Indian reservation employment language identical to that used in the aforementioned Mundt-sponsored amendment, which Mundt characterized as preserving Indian preference programs now in operation or later to be instituted. 110 Cong. Rec. 13,702. Had Mundt intended to preserve every aspect of the Indian preference programs he championed except for the tribe-specific 57

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 68 of 96 preferences, presumably he would have said so; but he did not. See Chisom v. Roemer, 501 U.S. 380, 396 (1991). Nor is there any other indication in the text or legislative history that Congress intended to draw such a distinction. To the contrary, if anything, the Mundt statement, combined with Congress decision to exempt tribes from the definition of employer and to include the Section 703(i) Indian exception, indicate that Congress was being careful to preserve inherent tribal sovereignty and self-governance. There is no basis for reading Title VII as impliedly abrogating the Navajo Nation s previously-held rights, and the legislative history confirms that such a reading would be in error. E. Dawavendewa I Does Not Control the Outcome of this Case. EEOC contends (Br. 23) that the district court erred by not following binding circuit precedent in Dawavendewa I, 154 F.3d 1117 (9th Cir. 1998). But Dawavendewa I does not answer the specific question presented in this case. In that case, the district court had dismissed a Title VII challenge to a hiring preference for Navajo tribal members in a lease between the Salt River Project Agricultural Improvement and Power District ( Salt 58

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 69 of 96 River ) and the Navajo Nation. Salt River predicated its motion to dismiss on the argument that preferences based on tribal affiliation are categorically valid under Title VII. Id. at 1119. This Court reversed, holding that discrimination on the basis of tribal affiliation can give rise to a national origin claim under Title VII. Id. at 1120 (emphasis added). 20 As a general matter, a private employer s unilateral decision (e.g., where that decision is not mandated by an Interior-approved lease or tribal ordinance) to favor members of one tribe over members of another tribe may well constitute national-origin discrimination within the meaning of Title VII. But Dawavendewa I does not hold that preferences based on tribal affiliation are always national origin discrimination. In particular, that decision (like the 1988 EEOC Policy Statement) does not specifically address the justifications here, in which 20 A significant portion of the Ninth Circuit s ruling was devoted to whether, assuming a tribe-specific employment preference would otherwise constitute national origin discrimination, such a provision would qualify for the Indian exception in Section 703(i) of Title VII. See 154 F.3d at 1120-1124. It is in that context and not in the context of what constitutes national origin discrimination in the first place that the Court gave some deference to EEOC s 1988 Policy Statement. 154 F.3d at 1121. 59

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 70 of 96 an employer is complying with a tribal ordinance and an Interiorapproved lease, both of which require a hiring preference for the tribe s own members for employment on the tribe s reservation involving utilization of the tribe s land or resources. Notably, neither Interior nor the Navajo Nation was a party to Dawavendewa I; so they are not bound by that decision. More to the point, Interior had not, until the most recent district court proceedings in this case, had an opportunity to present an affirmative case for (1) the validity of tribe-specific preferences under these particular circumstances; (2) its longstanding policy and practice of approving leases containing tribal preferences; and (3) the critical connection between such preferences, the federal trust responsibility, and Congress goals of promoting tribal self-governance and economic selfsufficiency. Indeed, this Court indicated that it decided Dawavendewa I on the assumption that issues regarding Native Americans interests in self-governance were not present. Id. at 1120 (emphasis added). Clearly, the panel did not have occasion to grapple with the specific arguments presented here by the two sovereign entities directly involved in the Navajo leasing program: Interior, representing the 60

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 71 of 96 United States in its capacity as general trustee for Indian tribes, and the Navajo Nation itself. 21 This Court confirmed the limited scope of Dawavendewa I when the case came up on appeal a second time, in Dawavendewa II, 276 F.3d 1150 (9th Cir. 2002). There, the Court noted that, in Dawavendewa I, it had reversed the dismissal of the complaint because, as described in the complaint, differential treatment based on tribal affiliation was actionable as national origin discrimination; because such treatment was capable of giving rise to liability, the suit could not be dismissed without further proceedings on the merits. Id. at 1154. This Court observed further that, when a petition for certiorari was filed in Dawavendewa I, the U.S. Solicitor General submitted an amicus brief noting that there were other legal arguments that could still be made to defend the tribal preference at issue. Id. And this Court concurred in the Solicitor General s submission that no court had yet considered... whether any legal justification, such as treaty rights or the federal 21 Regardless of whether the Salt River lease was actually approved by the Secretary (see EEOC Br. 20 n.3), the court of appeals did not mention that fact or address its legal significance, presumably because the parties did not raise it. 61

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 72 of 96 policy encouraging tribal self-governance, excused [Salt River] s Navajo preference policy, leaving those questions open. Id. Those questions would be left for another day, as dismissal of the suit was affirmed on Rule 19 grounds. Id. Moreover, if Dawavendewa I controlled the outcome of this case, there would have been no reason for this Court to encourage Peabody to implead the Secretary so that Interior could provide its position on the merits of the Title VII issue, stating: (ER 720). We vacate all of these rulings to allow reconsideration once the Secretary has been brought into the suit as a third-party defendant. This will allow the court to consider the arguments of the Secretary on the legality of the employment preferences.... [P]resentation of the Secretary s views in the district court... will be useful to us in the event of a further appeal. Finally, it is important to note that EEOC s current interpretation of Dawavendewa I is directly contrary to EEOC s interpretation of that case in three Supreme Court briefs filed by the Solicitor General on behalf of EEOC. First, as noted above, in the 1999 amicus brief on the petition for certiorari in Dawavendewa I, the Solicitor General argued that Supreme Court review of the Ninth Circuit s decision was not 62

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 73 of 96 warranted because, among other things, the court of appeals did not hold that discrimination based on tribal affiliation was per se national origin discrimination. See Br. for the United States as Amicus Curiae, Salt River Project Agric. Improvement & Power Dist. v. Dawavendewa, No. 98-1628 (ER 160-179). The Solicitor General construed the opinion in Dawavendewa I as leaving undecided whether the tribal employment preferences at issue could be deemed a political preference, rather than a preference based on national origin, and thus not subject to Title VII. (ER 172-173). 22 22 The Solicitor General explained that: The court of appeals [in Dawavendewa I] did not address the questions whether an on-reservation employer s preference for members of a particular Tribe in conformity with an ordinance of that Tribe (or the terms of a lease of the trust property of that Tribe) should be viewed as a political classification, [or] whether such a preference should be viewed as having the effect of preferring persons on the basis of political affiliation rather than national origin.... [Review] of those questions is therefore not warranted here. (ER 172-173). The EEOC General Counsel and other EEOC lawyers (including one counsel of record here) were on this brief. (ER 160). 63

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 74 of 96 Next, in 2005, at an earlier stage of the instant case, the Solicitor General (again speaking on behalf of EEOC) reiterated and confirmed the 1999 amicus brief s characterization of Dawavendewa I. (ER 158-159, at n. 7). Most recently, in an August 2011 brief filed in this case, the Solicitor General (on behalf of EEOC) observed that, [a]s a general matter, a private employer s unilateral decision to favor members of one Tribe over members of another Tribe constitutes national-origin discrimination within the meaning of Title VII. (ER 653). But the Solicitor General reiterated that the analysis may differ when an employer is complying with an Indian Tribe s law or ordinance that requires a preference for the Tribe s own members in employment on the Tribe s reservation, such as employment under a Secretaryapproved lease for the utilization or exploitation of the Tribe s own land or resources held in trust by the United States. Id. He explained that [u]nder those circumstances, the issue... is whether the tribal preference should then be regarded as a political classification rather than a classification based on national origin and thus beyond the scope of Title VII. Id. 64

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 75 of 96 In filing these briefs, the Solicitor General had authority to represent the position of EEOC and the United States as a whole. Cf. 28 U.S.C. 518(a) (vesting in the Solicitor General the authority to represent the United States before the Supreme Court); see 28 U.S.C. 519 & 42 U.S.C. 2000e-4(b)(2) ( [T]he Attorney General shall conduct all litigation to which [EEOC] is a party in the Supreme Court ). EEOC is bound by its representations to the Supreme Court. It cannot now argue for a different interpretation of Dawavendewa I. II. The District Court Properly Granted Summary Judgment and Did Not Abuse its Discretion by Denying EEOC s Last Minute Motion to Supplement the Record. For the above reasons, the district court correctly ruled as a matter of law that a tribe-specific employment preference adopted by a private employer, in compliance with a tribal ordinance and pursuant to an Interior-approved lease for economic activities on tribal lands, constitutes a political preference, not national origin discrimination, and therefore lies outside the scope of Title VII. EEOC now argues (Br. 44) that, even if that ruling is legally correct, there remains a disputed issue of fact as to whether Peabody was actually bas[ing] its hiring decisions on an applicant s tribal membership status. EEOC further 65

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 76 of 96 contends that the defendants failed to meet their burden of proving that Peabody was making distinctions based on tribal membership and not basing its hiring decisions on other allegedly impermissible characteristics (such as an individual s Navajo-sounding name or facial characteristics). EEOC argues that the district court therefore erroneously granted summary judgment without allowing discovery. EEOC s argument, however, is fatally flawed for several reasons. First, this is not how EEOC pled the case. The gravamen of EEOC s complaint was that Peabody s lease provision violated Title VII because it required Peabody to favor members of one Indian tribe over members of other tribes (and other non-member individuals). EEOC s second amended complaint, for example, states that it was lodged on behalf of three individual Charging Parties who are members of Indian tribes, but who are not members of the Navajo Nation. ER 689 11. Further, EEOC alleges that Peabody had engaged in impermissible discrimination on the basis of national origin because Peabody did not hire Charging Parties..., but instead hired members of the Navajo Nation for the open positions. (ER 690 13) (emphasis added); see also ER 688-689 6 (alleging that Peabody violated Title VII by refusing to 66

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 77 of 96 hire [Charging Parties] because they were Native Americans who were not members of the Navajo Nation. ) (emphasis added); ER 653 (framing issue in Solicitor General brief). EEOC did not allege in its complaint that Peabody was extending a hiring preference on the basis of characteristics other than tribal membership. Similarly, in its brief responding to the Secretary s motion for summary judgment, EEOC continued to frame the case as turning on the legal question whether Title VII prohibits discrimination based upon tribal affiliation. (ER 428). EEOC argued that the Secretary s motion should be denied because, in its view, the only permissible form of tribal hiring preference is a general Indian preference[]... for Indians as opposed to non-indians, and Title VII does not permit... preferences for Indians from one tribe at the expense of Indians from another tribe. (ER 429). This was the legal issue presented to and decided by the district court. EEOC s last ditch effort to change its legal theory should be rejected. 23 23 In the conclusion section of its response brief below, EEOC stated in passing that, if discovery were allowed, the evidence may well demonstrate that Peabody... used proxies for national origin such as facial features and surnames. (EEOC Resp. Br. 35). But EEOC 67

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 78 of 96 Second, EEOC did not proffer any evidence to support this different legal theory until literally the very last minute, and the district court properly rejected it on that basis alone. (ER 23). EEOC filed this case in 2001. For over a decade, the parties submitted numerous motions, and the case went to the court of appeals twice. Yet, not until the day before the district court s most recent hearing on summary judgment after the second remand from the court of appeals did EEOC move to supplement the record with evidence allegedly showing that Peabody was extending hiring preferences based on factors other than Navajo tribal membership. 24 The district court correctly rejected this motion. As the court explained, all of this evidence had been in the possession of EEOC since the late 1990 s, and did not contend that the alleged use of such proxies would constitute an independent violation of Title VII, and justify denying summary judgment, even if the district court rejected EEOC s principal legal theory that Title VII bars tribal preferences (id.). 24 EEOC contends that the evidence would have shown that, in the late 1990 s, a Peabody official denied that [Peabody] maintained a Navajo preference and represented, instead, that it maintained an Indian preference. (Br. 47). Even if EEOC s characterization of the evidence were correct, it is not clear why that evidence advances its cause. If Peabody had actually been giving a preference to all Indians, as opposed to a preference for Navajo tribal members, EEOC would have no complaint against Peabody. 68

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 79 of 96 EEOC offered no justification for its tardiness, or for why the court should re-open the record on the eve of the summary judgment hearing, effectively allowing EEOC to shift the focus of the case to the prejudice of the other parties. The district court s evidentiary ruling is reviewable only under a deferential abuse of discretion standard. Sheet Metal Workers Int l, 84 F.3d at 1192. Clearly, the district court acted well within its discretion here. Third, contrary to EEOC s assertion (Br. 45), the Secretary did not premise its motion for summary judgment on a fact-based defense. Nor did it raise an affirmative defense or invoke a statutory exemption to excuse conduct that would otherwise violate Title VII. Rather, the Secretary s defense was based on a purely legal proposition, i.e., that a tribe-specific preference, such as the one at issue here, constitutes a political preference that falls outside the scope of Title VII. Summary judgment was appropriate because EEOC s theory of liability was flawed as a matter of law, not because it was deficient as a matter of fact. Thus, EEOC s discussion (Br. 44-50) of which party carries the evidentiary burden is misplaced. The Secretary did not assume the burden of proving a defense as a factual matter. The underlying legal 69

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 80 of 96 question on which EEOC predicates its claim and the Secretary (taking the opposite position) bases her defense may be decided by the courts de novo. If this Court affirms the district court s resolution of that legal question in the Secretary s favor, EEOC s case must be dismissed. 25 For these reasons, this Court should proceed to review the district court s legal ruling upholding the validity of the tribal lease provision at issue. If it affirms that legal ruling, it should affirm the dismissal of the third party complaint against Interior. affirmed. CONCLUSION For the foregoing reasons, the district court s judgment should be Respectfully submitted, ROBERT DREHER Acting Assistant Attorney General 25 If EEOC s complaint is not that the tribe-specific hiring preference in the Interior-approved lease is illegal, but that Peabody was not abiding by the terms of that lease provision (i.e., if EEOC wants to assert that Peabody was actually implementing a hiring preference based on impermissible factors as opposed to Navajo tribal membership), that is a different argument for a different case. 70

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 81 of 96 July 17, 2013 DJ# 90-2-4-13546 s/ethan G. SHENKMAN Deputy Assistant Attorney General JAMES C. KILBOURNE Section Chief KRISTOFOR R. SWANSON* Environment & Natural Resources Div. United States Department of Justice P.O. Box 7415 Washington, D.C. 20044 202-514-2701 ethan.shenkman@usdoj.gov jim.kilbourne@usdoj.gov kristofor.swanson@usdoj.gov *Nicolas Hodges, an intern with the Department, made substantial contributions to portions of this brief. usdoj.gov STATEMENT OF RELATED CASES The Federal Appellees are unaware of any related cases within the meaning of Ninth Circuit Rule 28-2.6 that are pending in this or any other court. s/ethan G. Shenkman CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify that the foregoing Brief is proportionately spaced, has a typeface of 14 points, and contains 13,954 words. 71 s/ Ethan G. Shenkman

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 82 of 96 CERTIFICATE OF SERVICE I hereby certify that on July 17, 2013, I electronically filed the foregoing Brief and following Addendum with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit using the appellate CM/ECF system. I further certify that all participants in this case are registered CM/ECF users will be served by the appellate CM/ECF system. s/ Ethan G. Shenkman 72

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 83 of 96 ADDENDUM H.R. Rep. No. 58-3700, Pt. 2 (1905)

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 84 of 96 58rs Coxoe$ss, ~ HOUSE OF 8EP$ESE~TATIVES. ~ KEP T 3TW,.~d Sesxion. Part 2. AGREEMENT 1~'ITH INDIAN'S RESIDING ON THE SHO- SHUNE INDIAN KES~:RVATION, ETt;..IA~CARY IBS 190G. Committed to the Cumwittee of the «'hole House on the etatt~ of the L'nion and ordered to be printed. fir. '~ZZ(iEBALI)~ from the (:ommittee on Indian Agaire, submitted the following VIEWS OF THE MINORITY. [To a~~mpany H. R. 1i9S~l. ] The under~i~ned, members of the (committee on Indian Affairs, submit the following ret~ons for their opposition to certain proviaiona of ~i. ft. 17994: The bill is reported a.~ a substitute for H. K. 1381, which, ~cvith certain Senate amendments, had tx~en referred Lo the Committee on Indian Affairs. 1'he ~urpc»e of the bill is to rsstify and confirm an agreement with the lndian~ reyiding on the ~6oahone or ~` Ind Ri~~er Indian Ke~rvatioa, in the Mate of W~ omii~g, by which it iy proposed that 1,480,0(X) t~cres of land be ceded to the ~Tnited Stites by tie lndians residing on the reser~ ation. The bill purports to ratify an agreement made with the Indians vu April 21, 190. Tl~e agreement is a~uended in certain particulars, as ~E~t forth in the re~iort of the majority of the committee (Keport No. 3700, 58th Cong., 3d ae~tt.). Tk~e committee bars recommended the amendment of.article II of the agreement by the in3ertion of the following provision: Pra~ied, That nothing herein contained eball impwir the rights unciec the lease to Aamue ~tloyraen~ Mhich bas teen approved by the t~ec:retary of the Interior; but said Ik e eha.0 have for thirty ~laye from the dale of the approval of the surveys of said land a preferential right to locate, following the Ciovernn~e~~t ~un e} ~, not to eacerd six hundrod and forty scree of contiguous n inerai or coal Ianda ~n said reservation; that said Bosses at the time of entry of Ruch land ghali pay cash therefor at the rate..f ten doila~ per acre and eun+ender said Ieaee, and the same st~ali tie cancelled. Ia support of its action in recommending this amendment to the agreement the committee in it$ report says (p. Z, Report 3700): AemueBoyeen had a coal lease on the reservation covering a very large acreage, which v ae approved by the Secretary of We Interior, and it ieproposed tog~~ e trim the preference right to locate 640 scree of coal or mineral Ianda at the price at w hich coal lands on the reservation ZO miles from the railroad are Lo be sold. IInder this arrangement the Indiana obtain the h'~gbeet price for their lands under the circumetancee, and all etaime under a lease which might posaibty cloud the title to a very large acreage ie thereby proposed to be eztinguisheci.

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 85 of 96 T:TDIAN~ RE~IUINCi Ov ~fiu.lhoye RESRx~ ATIUN, FTC. 'Ch~~ n~inorit~ ~u ~~ unable to ii~rr~~~~ ~~ iti~ the u~njorit~ 's ~ iew. of tlii Irx.~+c~ ui the ri~t~t~+ ~~f I;~n~~t~n tlii~r~~iu~~ie r. They ar~~ ~~f opinic,n tlial :1tin~u, I~~~.~ a h. ~ i~~~ cl~iin~ ~~ittirr IPr~II AI' E'(~U1t2i~1I~' tl~tit ju~titi+~ti ttir ~~y~~~t to t~i~» of pr~~f~~r~~~~tiiil right, to lo~ ut~~ a~~- luncl to ix~ c~!h~u~~d to ~~~ttle>>z~~~nt undrr tlit~ 1 i11. i111(~ ~)1U tic~ularl~ a»~ tniiie~ral lu:~d utlier tlz~~n e ~~i lunti. "t'~, cic~ o is a ~fru,> inju.ti~ ~ to a~i ~~tl~er ~x~i~~~n» de irink to t~nt~~r a~~d ai~ttl~~ u~~~~n ttir. lands t~~ I,~~ o~x~uecl. liut ye~n i~ riot uitl~ ~ic~~~~ urnir~r tlie ~n u~,n~se~~i iui~~>»dn~c~nt a prrf~~rei~tia~ ri~l~t to luratc~ Inncl, but he chi~ ac~~uirean :il»olute title to t;-~~~ acres of land which can nc~t hr d~,ne i ~ :tnro~ir el:~. Ii~~~ ~~~n'~,u~,e,~,:~t~c~ ri ~,~Iit~ grow ~~ut of a tea~:>e madt~ h~' Ililll W1tI1 rllp Indiuny r~'~1t~111},,~ ~>t~ tf'e tifiu:~l une or ~~'iud lti~ ~~r ~~ ~r~ ativu in «'~ un~iu~;. "Che le~a~r ~~.~.~ appro~~ed b~ t6e tie~~ret~ir~ cif tl~e lnteri<~e un Uct~ h~~r ~. 1~'.+!. ['eider the IE~i~.~e l;o~'~en ~~ i~s ~,~i~ en tlir right to pro.- }~~~ct, for i~ period cif tti~ ~~ ~ eur~, ~~ de~crii~ed tecritor~ c~un~isting of 1 i~,~~~~~~ ucrey f~~t e~~al and for nothing else. '1'hc~ t~~rui of tf~~ {~~:~~~~ wt ~ ten ~ t~arri from the date of approrul (()rtc>t~r -~, l~:~u), :i~~~i thr i~rupi~ctin~ pericxl of tw o ~ ear> ~~ at. ~nclu~lc~d a~~ Dart of th~~ tt~r~ii..1t the espieation of the tw u ~ car~ prc,, x~~~ti~~~ ~ i~>d the le~~.~t~ upplic,~d ui~lt to :such territory de~c~ri~~ed iri ~uc~ ui~ l~~ of definite I~ ~ ~iti~~n a, were n~ prc,red b~ the ~ecretar~ of ttic Interior and filed in the I)~~purtni~~nt ~~f the Interior. lio~ ~en ~~a~ ~ uni x~iied undt~r the prop iyion~ of the leu~c to file ~citl: tl~e 5err~~tur~~ of t~~e Interior, within :i ceh~a~n1 1~~ time :ind ~~~itb~>ut unnec~~ ~iirr de~la~, ai~c1 subject tc> the appro~ :~l cif the 5ecretur~, a ~ u~e~ ~r plot huwinn dcnnitpi~ cl,r tand~ t~ K hick the iea~e ap~iied, ``d~~c~ il,- in;~ the ~:one h~~ l~rupeclt desi~tittte~d and fixed t~oundar~e.~, to 1>edetined b~ pr~~per ~ur~ e~." ~Cithin thrt>e months after di~co~erie:~ of coal, ~3o~ en wx~ al o rec{aired t~~ fi!e n~ap~ ~l~o~cing d~tinitely the location of hip di~roverie:~, ~ncl all iii~e~k and re~~rt~ «ere t<~!~e ~ erihed V y oath. Upon the tiling of mfip, ~f ai~co~ er~c~a un!i u~wr~ their ap~ro~ al b~ tle secretary of the Interior the ~~~~ee ~~a:s t eytitred forthrit,h to de~ elop and work dili- ~entl~~ a~~d tc~ the fullest practi~ :ihle extent the di~rorerie:~ de~crihrd in the nine tiled i~~, t3nd n~~~ro~ ed h~, the Pepartme~,t of the Interior. 13o~ eny hx~ ut~~ et c<~~upi~ed with and of these ~~ouctitiony. The lease ~il~o ~~rcn ided that extiiigui~tunent of ~tf~~~ Indian title tc~ the tnnd3 ~~o~ er~d b~~ the tease ~l~o~ild o~erat~ to terniin.~te tt~e leu~e and xll ri~h~~ xequired under it. 1'he right to allot the lands ~~o~~ere~cl h~ the leu5e ~ruy also reserved, and the ~cretar~~ of the InteriUr ~~~u~ c~t~thed K ilh poorer to aeclai e the let~e orfeited, abro~iited, and tt~rii~inuted apon xixt~~ da3 s' notice to the le.~~ee for any omission, t~e~;lt~i t. oc fail~~re of thq Iea~ee to perform and of hip obligations under tl~~ lease. tan No~-ember 2Z, 1900, as appears from the letter of the Secretsu;~ of the Interior to tha chairman of the C<'ommittee on Indian Ati',iir. cited December 15, 19~~~, and print~;d herewith, Boy~en subu~ittecl platy purporting to show location of coal deposits and indications of other mtnei~als, none of which were satisfactory to the SecreL.nry o~ the Interior, or.were ever a~prored by him, or met the rec~ uirements of the lease. At the same time ~3oysen pro~~osed tc~ surrender certain township3 covered by the let~e and to i eta~n certain other townships on which to mine coal and other rnir~ral~. The offer was rejected by the Department of the Interior.

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 86 of 96 INDIANS $ESIDIN(i ON SH08HONF. RE3EBVATTON~ ETC. 3 On January 22, 1901, Ba~sen'9 attet tion way ~~alled to the fa~~t that no hb:p~ had been taken b y him to cum nut Lhc~ termk of the IE~s.~e, although fifteen months hxd elap~rd ~inre igy appro~ ~il. \~~ r~pl~ waa erer made to ti~is couiiuunication, but on `lay ~}. 1! U1, Iio~ ~en npplied for a new leuye and ag~ n offered to surrender ceru in ~rtiong of the lend ~~o~ ered by the old lea. e. Ori.Tune J, I~0l, Bob yen wu5 nvtitic~d that hip leu~t~ ht~ct h~ it+3 pr~- ~ i~iou~ I~c~come inoperati~ e. The iett,~r containc~~i thiti tangiiuge: 1'~~u (BoyE+en) <ii~i not preaent an} mad+ ~~r plates :+uch ar+ arcs ~ ~mt~iziplated by the t~~rme of ru~~i I.ar~e ~ ittiin tt~e tiu~e rj~~~ricvi. 'the lk }~a~ttnrnt rrf~trkn1 to ape ri>~ r ~ rrgiin n~ukh tracing prc rx ntcki h~ }~uu, por}x~rtink t~~ rhuw cli~x ~~i ~ rir~ ~~f cuxl. but w #~i~~i~ di~i nvt in any w a~ iu~lics~le thc~ extent of the ~le}x>riu±, an~i ~ti~i n~>t l~n~~~ Nu~~h rlaiu~ed ~li:+ru~ Nri~w w rth rrtereu~~ t~~ an } ~'Ut[1N~ of the i~ubli~ durvr~~ ~ ~~r t~, x~sr naturai n.onument, w~ that thr~ mikht i~ i~ientided in the fit I~i~ du~i N'~lich truriny~+were nod ~ eritir~i i» ~ ~~ur uatl~, : e the l~ su~ requink~ mnf~ and ~3iatx to 1~~,,u~~l in a i~>ttrr ~~f.~annary 'l'_', 1~~1, ~~allr~i our atteutio~ t~~ ~~our failure up to that tia r t~ ~ ~~rupiy w~itli tht~ pro~~ir!iune of raid l~a~r in ree~~~v~t uf,the filink ~>t n~a~~+ au~i platy ~~( ~ii~~~~. ~ rit~r~~f ~~oal, at the rwwe time ~,ointing out the ~it fe~ ta anal ~iehc ie~aci~ N f the trariuy~r theretof~~re Nubniitt~~l by y~~u. Ycu Ra~ e nn heed to thir~ w arni»yt :~n~l ma+ir no etfott. ~ci iar x~ this Department ie int~,rentirl, within this K~,e~itieyl }~eri~h1 ~~f two cean+, nur in ta~~t after that tiv~e, to ~l~iknatr in the wanner pro~ idcrl in } ~~ur in~e any di:k ~ ery of rc>al. It is not claiwed e~ en b~ BoS~en that anf coal ~r:~.~ e~ er mined und~i the lea.~e. It iy ur ed, however, that heruu~e Ii~~~ ~~~n ~re~ended ~`~5.~ ~N) o~ ~530,~NH) ~or attornpy~k' feed+ in ~1"u~hin~±t~m, prelitninar~ ~ur~ e~~~s, and other es~~n~~~~ entirely spc~ ul:it.i~ c~ in ~~h~irartt~r uad indeix~ ident of any ~ntn~n~ o}x~ratior~s and cie~ elupiu~~~ t. 4on~r :~p~~cixt ~~ri~ il~~~en 51iou~d 1x~ Kit en t~~ hii1~ ire the~ ~~~nding hill. '1'i~e minrrit~ are unablt~ t~~ a~r~e Frith the ~~~ n~~uittet~ that lioc ~en no~~ hav and rigfitq under the {e~.~~~, th~it h~~ ~huul~l hr ~ir~~n xnt right t)c!)l'1~'1~@rf` 111 t~lp, t) K!illll~v Uf till' 1'l';1'C~'7it1{)ll. Ol' tflllt t`11~ ~t'il~i~~~(yut lil tt e ~li~;bte~t cloud t ie title to un~ purt r>f t}i~~ land t~~ 1 ~~ c~~~i~~d ~ii~ci~~r thr ~~i o~ i~ion ~f tl~e hill. It i:~ b~~lie~ ~~d that the lr2i ~~ h~~cit:n~ irn ~~~i~iti~ f~ },t th~~ f~iilurr ~,f I~C~~ ~c~n to ci mpl} Frith its plain r~~yuir+>>uent. f~,~ t~c~~tilin;,; cif uifi~ :. It i further tx~lie~ ~cl that Ro~ ~E~t~'~ ri~;ht~w µ E~rc~ t~~c~uiuuted i ~ th~~ ~t~~ - ~ ~~tfii ~ of the Interior under the pro~ isiun authuriziii hiiu to run~ ~~l :~ft~~r.. ~ixt~ d: ~ ~s notice to the le~:+~~e. [here i:~ an e~ en it~ore coiicluyi~ c r~~a~on fc~r ci~n~ in~; th;t thi: i+: :r can Ex,~~ibl~~ a~'~ct the tide to the iand~. ~c~ tioii l:i of tl,r l+~ii>~~ l~ruidea that-- In the e~ ent of the c ztinguiehment, «ich the c~>urent <~f th~~ Iii~lian=, ~f th~~ [rnliai~ title t the IandK c~~ere~ci t>~ this leaps, ttie n and therruenm this lease au~i all ri~l,~~ thnreunder shall terminate. 'The bill reported h~ the committee pugport~ to clo this ~t?p~' Lllllt~. IL iy entitled `A bill to i~utify acid t~m~~~cl aii :irc~~er~i~~i~t," etc. '1'h~~ fiat itrticle of the agreement pco~ ide:~ that '`the ~:iid Indiaiti~ i e~idin~,r can the ~~'ind Kiver or Shoshone Ke~erri tion, «'~ c~., f~~r the e~~n~idc~rution hereinafter r.~med, do 6ereb~ cede, grunt, and r~~tinqui~h to thf~ United St,~te~ all right, title, nnd~intere:~t which thus mn3 ha~ e to all t}ye~ lancl~ embraced within mid re.-~er~ Ktion,'' eta., find the hill i~ for the purpose of ratifying and confirming the ~gre~~~ment. ~s5umin~ that lio3 ~en Mill has :some rights iinde~i the!suss h~ th~~ provision» of ptira~rnph i:3 of the lease, thc~ a!l terminate wit~i the enactment of the bit!.

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 87 of 96 4 INDTANt3 BFAIDINti ON SHO~HONR 8E8EBVATION~ BTO. From the information at hand the minority believe that it is quite Probable that this reservation is rich in gas, oil, copper, gold, and iron. From the outset Boysen hag been endeavoring to obtain the right to mine other minerals than coal, which has beenpe rsi~tentis refused by the Department of ttie Interior. His first ap lication for a lease way for "coal and other winerals." In the severa~applicationr~ since made by him he has endeavored to obtain the right to mine for "the other minerals." He has made no,pretense that he has peen interested to any extent in the right to mine roal; his anxiety has been to obtain preferential rights to mine other ininei~la.. Thia reservation is more than :LOU miles from the nearest railroad, and during the entire term of this lease it would have been unprofitable to have attempted to mine co31. lay its amendment to the agreement the committee proposes to give ~3oysen an absolute right to locate and obtain a patent for 6~0 acres of coal or mineral land before the- reservation is opened, under the plea that in so doing an extinguishment of rights of much value is obtained. Boyyen hae not complied with the teimas of his lease; be has never mined coal; he huu~ not expended any money in the development of mines; he has ne~*er paid anythiug in ro`~altie~ to the Indiana; he 6x~ expended practically, nothing. on the land covered by the lease, and, in the opinion of the n~inorit~, it would be a groes injustice,#ndefeneible from any standpoint, to give him any preferences ~n locatiug land or any rights over other persons desiring to enter and to settle upon the lands to be o~eneci for settlement under the provisions of H. R. 1799. If the bill is to be enacted into law the minority urge that the provision inserted by the cou~mittee in reference to Boysen be eliminated from the bill. The minority calls attention to the fact that in the bill recommended to lie on the table, which passed both the Senate and House of Rspresentative~ at the last pion, no provision was made for 13ovsen. The minorit3~ further, recommend that section 2 of the bill tie amended b~ changing the date of opening from June 15,19QG, to ~lu~u~t 15,1906. The reservation is almost entirely surrounded b~ water. It is in a section of the country where there arp heavy ~now~ in winter. When the snow melts and the ice is freed in the streams they become so r~wollen that they are not fordable. There i~ but oc~e bridge cros~ing the streams that bound that portion of the reservation to be ceded and opened to settlement. It is located is the extre~ue northeast of the reser~ ation and affords the only means of access to the retiervation when the streams are unfordable. There was a s~rp difference of opinion as to whether t,'tie streatn~ were in flood prior to June 15, but it was agreed by all that during the period from June 15 to August 15 the Wtreams are not fordable. The minority believe it moat likely that it is most difficult to enter the reservation prior to August 15; and, desiring to give an even chance to afl who desire to settle upon the lands tc, be opaned for settlement, rec;omniend that the time of settlement ba changred from June lei. 1906. to August 15, 1806. JNO. H. STEPIiEN~I. FPM. T. ZENOR. Josx J. FrrzaEa~iu. JOHN DOIIdHEBTY. CRAB. ti. REID.

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 88 of 96 INDIANS Rl~3IDIN(i ON SHOSSONg RE88RVATION~ ETA. DBPAS7'NB~77' OT Tfl~ INTiRIOS~ fvarj i»gton, Dtctmber 15, 190.(. Sta: Replying to gonr c~ommnnication of the 12th instant, requesting information ae to mineral or oo~l lessee that have been oracle or are now m Force on the Shoshone or Wind River Indi n Beeervntion~ Wyo.~ more karticularly on that porti~~n of the reeer~ ation north of the Big Wind River, which ~e prc,poee~ to be opened t~ 1public entry by House bill ]3481 your at#~ntion is reepectfuiiy in~hted to the in~ loseci a~qy of Senate Docuruent No. 247, Fifty-sixth G nrreee~ Hrst session, which n~hraces a copy of a mining lease in favor of Asmue tioyeen, of Gray, Iov~a (see p. 4), anal a report from the Commissioner of Indian Affairn of March'.~.1, 1900 (see pp. 2. :;, 4 y, which ie an epitome of its terms, conditioner etc. ~ubeequently (N~vember 22, 1900) Mr. Boyeen eubmitteci plats purporting Lo al~ow location of coal deposits and indications of other minerale~ none of which were :u~tiafactory to the rx~cretary of the Interior or sere erer appmved by him, and pro- }~oeed to aun~encler the townships west of the Wind Riper rneridian, repreeentsd to Ise ~ alaable for coal, and to retain the remaining townships on w hick to mine coal at~ci other minerale~ ~tnd also the 8. ~j o~ T. 7 N., H. 2 E., adjoining said townships, true making the mining territory conti~tuoue. Ttye propcx+ition, however, was ~leelined by the Aepartment Janaary l5, 19A1. On January 22, 19U1, the Department called rir. Boyeeit'8 attention to the fact that no etepe had been tagen to carrq nut the terms of the lease, although Skeen montha had elated einoe its approval. No e~ply to this communication was received but on Aiav 4,1901, Mr. BOyBCII ii18(~p Rpplic~tion for a new lease and again propoee~ to eun~ender a certain portion of the land covered by the old lease. This sae refen+ed to the Inciiao Office for its conaideration~ and for a report and r~eommendation on the ne~~ proposition. Up to January 25, ]902, nn report had teen received on the gnbject, and the Department on that date called n~on the Indian 08ioe to report ~~ tiether rir. BoYsen had submitted any report of hia operations under the l ee since January 22, 1901, and sleo for an expre~ion of its viens on the whole subject. On June 9, 1902 Mr. Boyeen was notified (copy of letter herewith) that hie lease had by its express provisions, become inoperative and of no effect, and he was given ninety ~layein which to remove his pr~~rty from the reservation. i?pon tt~e recommendation of the Indian OfRce, the Departments on March 5,19C4~ indorsed its formal c~anceliation upon the lease. Ttse lesc+ee thus lost any rights or i~rivile};ea he may have acquired on the reeenation under said lease, and the agt~eement of April 21, 1904, with the Ehoehone and Arapaboe Indians cannot therefore 1,e ip any way affected thereby. Ay reference to the lease contained in the incic~eed ropy of tienate document it will be observed that alt of the laude covered thereby ~~ere within that portion of the reservation R hirh has been ceded to the United ~tatea Under date of May 8. 1904. a leaee~ dated February 16, 1904, aae approved b~ the Department in favor of C6arl~e Lahce, a half-breed Shoshone Indian for the coming of coal only on certain laude within the Shoshone Reservation for the term of five Beare from date thereof. The coneiueration ie a ro alty of 10 cents per ton of 2,000 pounds, to be paid quarterly. This lease is particu~arly described se follows: "C~mmenc~ng at or near the.mouth of the little Popo-ARie River on the south boundary line of said reeetvation, and embracing the coal laude in townships 1 and 2 eoutt~, in ran~e 2 east, as ehov~n by the Government surveys of said reee;rvat~on, the raid coal lan~a not eac~eding in extentpne section or 640 acres all together." It ie therefore entirely within the proposed diminished reservation. very respectfully, - E. A. HrresoocY~ Secrdary. Hon. Je~css $. SaBSxex, Chairman Gbm»iitlu oa Indian A8'aira, House of Rtpreatretativea. DBPAATYSXT OF TAB IHTEItIOH~ Washington, June 9, 19~0.~. 8rR: By the terms of the lease between the 6hoshone and Arapahoe tribes of Indians on the Wind River Reservation, in Wyoming, and yourself, approved, with certain conditions, by the Secretary of the Interior October 4, 1899, which oonditione were accepted by yon October 14, 1899 you were given the right durinpc the period of two yens to prospect and locate mines or deposits of o~ai upon the laade described in mid lease. with a condition ae follows: "Proi7d~d, haa~+xr, That it is eape+eeely anderetood by all parties hereto, that at the ezpirat~on of two yeas. during which prnepectiar may be done, tbie lease shall

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 89 of 96 INDIANA 8~8IDINQ ON SH08HONE BESEBVATION, STC. over relate toy anal include only such lands ae may be eu~braoecl within and ooc eyed ~y the appre~ c~l maps and plate eliowing the dieco~ery of said coal deposits." You did not present any maps or plate, euc:h ae are oontecvptated by the terms of said lease, within the time epeci6ecl. The Department retueed to approte certain mugh tracings pree~nted 1~~~ ~ ou purporting to show discoveries of coal, but which did not in any way indicate the extent of the depoeita~ and did not 1ocaW such elaimeci discn~ eriea with reference to any Bonier of the public s~irveye or to any natural monument, eo that they mir}~t be Identified in the field, and which tracings were not rerifieci by ~ ~~ur oath, n~ the lease required maps and plate to be; and in a letter of January `l~l,'190t, c~tled y~~ur attetttion to your failure up to Lhat time to comply H ith the proe i»ions of aaicl!sere in respect of the filing of maps and plate of diec~veries of coal, at the same tine pointing out the defects and de6cieuciee of the tracings themtnfore Fubmitted by you. You gat e no heed b this «arning and made no effort, eo far ae this Department is inf~rrmed~ within the e~ifie~i penal of tv o yeare, nor in~7act after that time, to c1epikitiate in the manner ~~rovided ~n your lease any diauwvery of wet. By means of this omi~ion and neglect nn our part there is no tract or parcel of land which the lease now cq~ere, relates to, or includes. By ita ex~reas ternis it became, at the end of paid period of tw n ~ eara, at~c~iutely ~noperati~e and of no effect. 1'ou have zoo right to conduct any further operations upon Said land in prostinr for or mining coal. thereon. An. efforts in that directiun w~itl render you iel~le to be treated ne a trese~ar~er and to iie ejected from fiaid rec+er~ation. Yon will be altoviced ninety da~ e from receipt hereof v ~thin which to remo~ e from. the land described in said lease nay property I~elongin~t to you. Aay such property.remaining there after the expiration of that ~~ericx~ will, under the terms of said lease, become the propert y of the Indiana and Kill be eo treated. Very re~pecttully, E. A. Hrrcacocg, Secretary. Mr. AeMUe BoYSSx, Gray, Ioura. r Bovssx L$, ss. This indenture of lease in triplicate, made and entered into this 1st day of Jnly, A. P. 189A, by and beth een the Sl~u~hone and Arapahoe tribes of Indiana (subject to the a~proral of the fiec retan of the ~aterior), oceupyinr aad residing upon the -- Wind KiverResercation,inthehtateof W~ominK, psrtvof thebrstpart, aad aemus Bo~~nen, of Gray, ~ndubon Co., IoH~a, party of the second part. ~Vherels said tribe of Italians o~rn paid lances and are now occupying and reaidiug upon tt~e said ~Vincl Ricer Res~~r~~ation, in the State of ~V~ oming; and «'harass the lands hereinaiterdeecribecl are in r,art rough, moantainou9lands, pre- Kmned to contain coal, and are not needed b} ~aicl trines for farming or agricultural purposes and are not desired for indi~zdual allotment, and the said tribes desire to secure an iacorne therefrom in the way of royalties for coal to t e mined therefrom by t.be party of the second part; and Whereas the said Indian tribes are authorized, under the provisions of the third ee~stion of the act of Congrera of February 28, 1891 26 Stat. L., p. 7A5). and as amended bx act of CongreRe Aa~ust 15, 1894, to Ieaae ~or mining purposes for the period herein named; an+i this lease ~s made by authority of the pr~ncipal chiefs and council, epeaking for said Indians, pursuant to a resolution of Indiana in council, minuteq of ~ hicl~ are hereto attached and made a dart of this agreement; end the truth of the foregoing recitals appearing, to the Indian agent at r-a~d Indianag encp, and the quantities and terms and conditions of this lease being recorrunended by the said Indian agent in charge of said Wind River Reservat;on, ae ie evidenced by his approyal hereof Now, therefore, this indenture witnesseth: 1. That the said~a:rty of the first part, for and in consideration of the enm of one dollar ($1) in handpa xi to them by the said party of the second part, the re~eeipt ;hereof ie hereby acknohledged, and in further cone~deration of the premiee~s and of tl~e prospecting and mining to be done and of the rents and royalties to be paid ae hereinafter epeci8ed, and of the covenants, atepuiatione, and conditions hereinafter contained and hereby agreed to be kept and performed by the saidpa rty of the secondpa rt, hie successors and assigns, 3oee by these presents lease and grant unto the said party of the second part for Lhe period of ten years from and after the date

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 90 of 96 INDIANS ~IDIN(~ ON 8HU8HONE 8B3&BVATION~ ETC. of the approvsl hereof bq the 8ecr~tary of the Interior, for the purpoef, of raining coal only the touoring-described portion of the said reeervation~ namely: All of t~e land, vrhen the Government survey ie eztended, which will comprise all of tl~e followin~described townships, vis: All of towiuhip No. seven (7~ north of range No. four (4) east of the Wind Ricer meridians ooataining 23,040 acres more or lees. All of township No. seven (?) north of range No. three (S) east of the Wind River meridian, containu'~g 23,040 acne, more or lees. :111 of tawnahip No. a~a (8) north of range No. two (2} east of the Wind River m~ ridian~ oontaimng 23,040 acres, more or lee. :111 of toxnehip No. eta (6) north of range No. three (3) east of the Wind River u eri~iian, contain~n~ 23,040 scree, more or lees. :111 of tovrnehip ho. six ~(6) north of range No. four (4) east of the Wind River meridian containmg 23,4!0 scree, more or lees. :ill of township.no. Sve (5) north of range No. one-(1) v~eet of the Wind Ri~ er meridian, eontaimng '13,010 aeree~ more or lees. All of toe nehip No. four (4) north of range No. cue (i) west of the Wind River u~ericlian, containing 23,410 scree, inure or lees. All of towi~ahip No. (four) 4 north of range No. three (3) west of the Hind River meridian,!ying north of the Big ~Viud Ricer containing 17,640 scree, more or lees. TogetLer with all mines and depoaits of cos in or upon the lands de6nitely located as herein provided, with the right to terry the same away and sell and dispose thereof for pm6t; and the party of the second part, hie eucc:eesore and aaeikne, shall ha~ e and ie hereby granted the right, during the penod of tw o 3 ea~, to enter upon and thoroughly prospect and locate mines or deposits of coal upon that part of said reservation generally deecrit,ed above; and there ie further granted to said party of the second part the n~ht to mine, market, and sell all coal u~on the lands de8uitely lo~ atecl us herein provided and may use eo inucli of the susses of said lands and eo much of the timber anti building atone found thereon as may be necessary, with H hich to construct all buildings, dwellings, or other improvements upon said lands that. may be_required in minimg said coal avd auc~~essfully conducting sa~~l pro~pectink and niinmg operations; and the said party of the second part, his euc+ceseore and,~i~,nie, shall also have and is hereby Rranted the right of n ay through, acrosa, and ~x~n said lands generally described ai~ove for the purpose of ingrese and egress to ruinee and for tranaporttng coal and sup~liee; an3 said party of the secondpa rt, hie successors and assigns, shall have and ~e hereby granted the right to use the Hater found in and upon said reeer~alion necessary in and about its eai<i business and for domestic uses, and may convey the same by espoeed pipes and open ditches, or is such other manner se the second party, hie successors and assigns, may determine, in, upon, and over the lease of said Sret party, whether Lhe said w ater is obtained on the said reser~ ation or not: Frovided~ ho~c~ er, And it ie expre~ly undee~tood by all parties hereto that at the expiration of tk o ysave, during x hich prospecting may be done, this lease shall cot er, relate to, and include only each lands as ins} he embrac~~l within and covered by the approved maps and plats showing the diacocery of said coal depoait8. As to the other lands ~sithin the general!finite descrit~ed in this article, the party of the secondpa rt, hie eucces~sore and ats~igne, shall ha~ e the privilege of using eo ninth of the timber and stone found thereon ea may be necessary with a hieh to construct all huilding~+, dwellinge~ or other improvements upon baici lands that may be required itt mining said coal and eucoeestully conducting ea~d mining operations, and also the right of way through, across, and upon said landau for the purpo.~e of Said mining operations, and also the further prig ile~e of using water found in and upon said reservation in and about said mining operat~ona and for domestic uses, and i~ay coii~ey the same by espoged pipes and open ditches in, upon, and o~ertheesid rc~ser~ ation~ whether said water ie obtained on sauce or nut. 2. It ie dietinctly etipnlated that the mining privileges granted t,~ this lease shall extend to and include only coal, and that no rights or pri~rilegee reapecting any other kind or character of mineral are granted or intended to be granted by this lease. 3. The party of the second part ehail, within a reasonable time and H ithont unnece~ ary delays Sle with the Secretary of the Interior, to be subject to hie approvai, a map or plat ehov~ ing desnitely the laude to which this said :ease ~s intended to apply, describing the same by properly designated and fixed boundaries, to be definefl by proper survey. Said ~ay~y of the second part shall Sle with the f~ecretarp of the Interior, eubjact to his a~provai, maps and plate showing all diecoveriee of coal within three menthe after ea~d discoveriea are made, and immediate!y upon the 81ing and approval of such map or mape~ plat or plate, the said party of the second part, hie eucceasore or aseigne, shall pra~eed to develop, mine, and worl~ the coal depoett therein described torthccith and prosecute the same with diugence; and sai3 party of 8 8-68-3-401 2-44

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 91 of 96 S _ INDIANS BSBIDIN(~ ON BSUSHUNL~ R~ERVATInN, STC. the second part, hie snca~eeors or assigns, shall likea iee file with the 8eer8tary of the Interior quarterly reports of all ~roepecting done and dieooveric~a made, also qusrterl~ reports of the.groee outp ut of a l his mining opesrs tione under this l~aee. All suc i maps anal reports shall be ~ erified by the oath of tl~e said party of the eeoond part. _ ~. The party of the second part, tiie aucoeeaore or aeeigme~ for and in oonedderation of tl~e privileges of prospecting and mining neon said deecrsbed lands, for the ~pericxl of time herein stated, hereby covenants and agreee+ to pay or c~aee to be paid, m Iaw - ful money of the United States, to the Secretary of the Interioq or eachpa rty or ~artiea ae he may de~irnate~ to be placed to the credit of said party of the Bret part and to lie paid to or expendeci for them ae the Secretary of the Interior may direct, the tollow~ng rents and royalties, namely: ~ aun~ of money equal to ten }per centum of thc+ market~valne of said c~o~al at the pla~~ mined. Such payments, or royalties, shall be made seery three months during the continuau~^e of this lease for ali coal mined or removed from said lands during the three months Iast preceding, and such payments shalt f~ere~cei~eci in full of all royaltir~ and demand N hateoever on the part of the party of the hret part against the parh~ of the second part, hie succesrore or aae~gnee for the period of time therein covered. b. his further covenanted and agreed by the party of he second part, hie eucceeeore or assigns, that he will openand operate eatd mines and deposits of coal and cause the game to be worked and mined in a workmanlike manner and to the fullest practicaule extent; that be wi11 protect ail mines, and w ill not commit or suffer and waste upon said laude or upon the mines thereof; that he w ill take food care thereof and surrender and return the said premises at the ez~iration of this lease to the party of the Sit part in as good condition ae when reoetved, excepting the removal of the coal ae herein provided, and the ordinary wear, tear, and unavoidable accidpnte in the proper use of the same for the parpoeea hereinbefore indicated; that he will not permit any naieance to be maintained upon the premises, nor allow an} into~icatinq lic~uore to be sold or Riven away to be used as a beverage on the premiae~; that he will not vee or permit the nee of said premises, or uny part thereof, for any other purpoee than that authorized by this lease. 8. It ie further covenanted and agreed that thep~t y of the second part, his euc - cesgor3and assignee shall keep an accurate account o~ said mining operations, ehowing the whole amount of coal mined or removed and the Indian agent ~n charge of esi~l re~er~~ation, or any otherap~ent or agents appointed by the Secretary of tl~e Interior, shall have the right at all times during the existence of this lease, on behalf of the party of the Srst part to make such res~onable examination of all books of account and mines as may ~e nec~seary to obtain all groper information desired re~arding the amount of product mined or removed, or being mined or rem^ved, from said laude under taie lease; and there shall be, and there ie hereby, creater~ a lien on all implements, tools, movable machinery, and other personal chattels belonging. to the party of the second p~rt~ hie eucxeaeore or aseigne, used in the said proepectang and mining operations, and npon all coal obtained from land herein leased, ae eecunty for the quarterly payment of said royalties and rents. 7. It ie further covenanted and agreed that no location under this lease shall obstruct or interfere with any highway, road, or trail now in nee without special permission fmm the Secretary of the Interior; and the nght of way across and over the landf which shall be includeii within the surveys and definite locations herein pro~ideci for is to be reserred to the party of the Sret part, the nee t.hereof, however, to be con- eietent and note to interfere with the mining operations of the said party of the second part, his successors or assigns In his operations. under this leaae said party of the second part, hie svcc~eeore or sesigne,.shall in no wise interfere with any personal or propertq nghte of any charaeterwhatsoever now existing in or that may be hereafteraoqsued by any individual Indian without Bret obtaining consent in wntinr of such Indian, and the payment of proper compensation, to be approved by the secretary of the Interior; and no right or pnvilegps herein granted shall be extended, eaerciaed, need, or operated to the impairment, injury, or p~jndice of any legitimate indoatry, business, or occupation of said Indians ae a tribe or as individnal8. 8. It is further stipulated andagre~i that where Indisae n~oa said re~eervation are qualised and willing to perform the character of labor required in carrying on the mining operations herein named, the party of the second part, hie sneceeeore or assigns, Rnll accord them a preference in selecting his employees eo far ae it may be ~ract~cable to do eo. 9. Alln~thte are reserved to the United States and to the Indians on said reeer~ation to make and accept allotments in severalty for the beaeht of said Indians at any tune in the future of such laude within the boundaries of this lease ae mxy at any time be deemed by the Secret~y of the Interior suitable for agricultural pnrpueea.

Case: 12-17780 07/17/2013 ID: 8708353 DktEntry: 30 Page: 92 of 96 INDIANS BEBIDIN(~ ON BHOL~HON$ BEBEBVATION~ ETU. 10. This lease and all rights and prlvilegee thereflnder are made and accepted by the psrt~ of the eeoond part hia euca~eeoee or assigns subject to ezietiug law or hws anti any Lq or lava hereafter acted pertaining to t~e said teservatioa. 11. 1n ao event shall the IInited 8tatee or the Secretary of the Interior, in hie o~cisl ar personal capacity be Ilable in damages or otherwise ender t6~ provisions of this lease ~n oonneactioa therewith. 12. No Member of or Delegato~ to Congress, officer, agent, or employee of the Govemment ehau at any time be admitted to share in this lease or in any wise derive any i,rnefit therefrom. 13. In the event of the erting~i~bment, with the consent of the I$diane~ of the Indian title to the lands covered by t~ lease, thc+n and thereupon this lease and all rikhte thereunder shall terminate. 14. In the event of any omission, neglect, or failare of the party of the eeo~nd part hie successors ur aeeigne~ to faithiully observe andpedorm any of hie obligations arieinguponand anderthe pravieione of the lease, the Secretary of the Interior may, without pre~udioe to any other lawful remedq or remedie,~, treat the same ae a eu~cient cause for the forfeiture, abrogation, or termination of this lease b~ him unless within eixt.y days after notice thereof from tine becretary of the Interior the, party of the eec~ond part, hie successors or assigns, shall not fully correct such omissions, neglect, or failure, and make gooci any lose or injnry.x;c~eioned thereby; or if thereafter such omission, neglect, or failure of the party of the secondpa rt, his successors or assigns, e},all be repeated, then; at any time within aiaty love theresfter~ the Secretorp of the Interior may, at his optton~ declare this lease forfeited, abrogated, or terminated; then, and in that c~ee, the party of the second part bie successors or assigns, shall wholly cacate the leaaeed precaieee within :0 days after notice thereof,and upon failureof the ~~arty of the secondpart, hie eua~eeore or aesigne to vacate said premises, the Secretary of the Interior eball have the right, on behalf o~ the Indians, to reenter the same and take possession thereof, uaing such force as may be deemed necee~ary to dispossess and remove therefrom the said party of the second part, his aucoeseors or aesi};ne; and it ie agreed and understood that any property of the said party of the second part, I~i~ eucoesaore or assigns, located.on ea~dpremuaea at the time of the forfeiture, abro- ~;ation or termination of tliia lease mad be removed therefrom by the partq of the ~econ~ part, hie succeseore or a$eigne, a thin such reasonable tune ae may be Szed by the Secretary of the Interior, not to exceed eia months from the forfeiture, abrogation, or termuiation of thia lease; and any property of the party of the secondpa rt, hi» successors or assigns, remaining upon said preniise~ after the expiration of the time eo fixed for ire removal, shall thereupon become the property of the said party of the first part, and may Ue treated ae aucli by the Secretary of the Interior. Provided, ho~cccyr~ That the arty of the second part, hie eucceseore or assigns, shall have eiz months after the eap~rataon of this lease ~n which to remove the buildings, machinery, and other property from said lands without hindrance by the party of the first part if the party of the second part, hie aueceesore or assigns, has performed ull the covenants and conditions inipoeed upon him by this lease. 15. The party of the second part shall execute and file in the Department of the Interior hie hood in the sum of ten thonpand dollars ($10,000), with sufficient earetiee, to be approved by the ~ecretarq of the Interior, conditioned for the faithful performnnce by the party of the sewed part, hie successors or assigns, of alt hie duties and obligataone under this lease. 16. It is further mtitually covenanted and agreed that the Secretary of the anterior be, and he is hereby, authorised and ewpowered to make such additions to this lease as ~n his judgement may not impair the nrhte sad privileges in the matter of the party of the fret part.. l7. It ie farther mutually covenanted and agreed that the agreements, atipulaeione, covenants, and conditions 1n this lease set forth shall extend to and be indinf, and obligating neon the te~, aseirne, and eucaesaora of each of the parti~ hereto. In witness whereo the said parties have hereunto set their hands and scale this the day and year Bret above written. Name. Tame. ~t esas~is (hie x msrk)~ BZAL. ~AARP Noes (hie z mark), ssel. Dice (hie z mark) ~Vesa~xrs, ssel. TeLiow (his z mark) BYAL. MoYVwvoA (hie x mark), essr,. Lois Brea (hie z mar3~), east. Ti~occo (hie z mark), a~ t. WeLwwtxo Burr. (hie a mark}, esw~.. WdA~IAIlNABIDI)IE (h~8 Z :~~nrk), sael. SP[TtNa BsAB (his a mark), asst. A81lUB BOYBSN, [t W.. By f088p WEI[I~. Hie ttttorrtey ~in jact for dames Boyaen..