No. 06-17261 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _______________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. PEABODY WESTERN COAL COMPANY, Defendant-Appellee, and THE NAVAJO NATION, Rule 19 Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court For the District of Arizona _______________________________________________________ REPLY BRIEF OF EQUAL EMPLOYMENT OPPORUNITY COMMISSION AS APPELLANT _______________________________________________________ RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel SUSAN R. OXFORD U.S. EQUAL EMPLOYMENT Attorney OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7010 Washington, D.C. 20507 Tel (202) 663-4791, Fax (202) 663-7090 TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . .ii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 I. EEOC's Amended Complaint Seeks Relief Only Against Peabody and Not Against the Navajo Nation . . . . . . . . . . . . . . . . . . . . .3 II. The District Court Erred in Ruling that the Navajo-Hopi Rehabilitation Act Rendered the Navajo Preference Lawful . . . . . . . . . 7 A. Peabody's Navajo Preference is Inconsistent with Title VII's Indian Preference Exemption . . . . . . . . . . . . . . . . . . . . . . . .7 B. The Rehabilitation Act Does Not Apply to Peabody's Coal- Mining . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 C. In the Alternative, if the Secretary Approved Peabody's Leases Pursuant to the Rehabilitation Act, the Act's Navajo/Hopi Preference is Superseded by Title VII . . . . . . . . . . . . . . . . . . 15 D. The Navajo Preference is not Justified by Tribal Sovereign Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 III. Secretary of Interior's Absence Does Not Warrant Dismissal . . . 22 IV. The District Court Failed to Give EEOC Adequate Opportunity for Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . 31 ATTACHMENTS A. EEOC: Policy Statement on Indian Preference under Title VII, (May 16, 1988) B. U.S. Commission on Civil Rights, The Navajo Nation: An American Colony (1975) (excerpts) CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Pages Alarm Indus. Commc'ns Comm. v. F.C.C., 131 F.3d 1066 (D.C. Cir. 1997) . . .14 Austin v. Andrus, 638 F.2d 113 (9th Cir. 1981) . . . . . . . . . . . . . . 13 Dawavendewa v. Salt River Project Agric. Improvement & Power Dist. (Dawavendewa II), 276 F.3d 1150 (9th Cir. 2002) . . . . . . . . . . . .27, 28 Dawavendewa v. Salt River Project Agric. Improvement & Power Dist. (Dawavendewa I), 154 F.3d 1117 (9th Cir. 1998) . . . . . . . . . . . 8, 9, 10 Dugan v. R.J. Corman R. Co., 344 F.3d 662 (7th Cir. 2003) . . . . . . . . .29 EEOC v. Peabody Western Coal Co., 400 F.3d 774 (9th Cir. 2005) . . . passim Export Group v. Reef Indus., 54 F.3d 1466 (9th Cir. 1995) . . . . . . . . . 9 Hulteen v. AT&T Corp., 498 F.3d 1001 (9th Cir. 2007) (en banc) . . . . . . 9 Icon Group v. Mahogany Run Dev. Corp., 829 F.2d 473 (3d Cir. 1987) . . . . 6 Ingle v. Circuit City, 408 F.3d 592 (9th Cir. 2005) . . . . . . . . . . . . 4 In re Surface Mineral Regulation Litig., 627 F.2d 1346 (D.C. Cir. 1980) . .10 Kwai Fun Wong v. United States, 373 F.3d 952 (9th Cir. 2004) . . . . . . 4 Martin v. Wilks, 490 U.S. 755 (1989) . . . . . . . . . . . . . . . . . . . 6 Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) . . . . . . . . . 19 Montana v. Blackfeet Tribe of Indians, 471 U.S. 759 (1985) . . . . . . 19, 20 Morton v. Mancari, 417 U.S. 535 (1974) . . . . . . . . . . . . 9, 10, 16, 17 Office of Personnel Mgmt. v. Richmond, 496 U.S. 414 (1990) . . . . . . . . 26 Rebel Oil Co. v. Atlantic Richfield, 146 F.3d 1088 (9th Cir. 1998) . . . 4 South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998) . . . . . . . . . 19 Tenaska Washington Partners II v. United States, 34 Fed. Cl. 434 (Fed. Cl 1995) . . . . . . . . . . . . . . . . . . . . . . 26 United States v. Lummi Indian Tribe, 235 F.3d 443 (9th Cir. 2000) . . . . 4 United States v. Navajo Nation, 537 U.S. 488 (2003) . . . . . . . . . . . .14 Utah Power & Light Co. v. United States, 243 U.S. 389 (1917) . . . . . . 26 FEDERAL STATUTES 5 U.S.C. §702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 25 U.S.C. §§396a-396g . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 25 U.S.C. §§631-640 . . . . . . . . . . . . . . . . . . . . . . . . . . .2, 8 25 U.S.C. §631 . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 25 U.S.C. §631(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 25 U.S.C. §631(7) . . . . . . . . . . . . . . . . . . . . . . . . . . .12, 14 25 U.S.C. §632 . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12 25 U.S.C. §633 . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 25 U.S.C. §634 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 25 U.S.C. §635 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 25 U.S.C. §639 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 25 U.S.C. §640 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 42 U.S.C. §§ 2000e et seq. . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. §2000e-2(a)-(d) . . . . . . . . . . . . . . . . . . . . . . . . 7 42 U.S.C. §2000e-2(i) . . . . . . . . . . . . . . . . . . . . . . . . passim FEDERAL REGULATIONS 25 C.F.R. Part 162 . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 25 C.F.R. §162.103(a) . . . . . . . . . . . . . . . . . . . . . . . . . . .14 25 C.F.R. §§211.57 . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 41 C.F.R. §60-1.5(a)(6) (1978) . . . . . . . . . . . . . . . . . . . . . 22 41 C.F.R. §60-1.5(a)(7) . . . . . . . . . . . . . . . . . . . . . . . . 8, 22 FEDERAL RULES Fed. R. Civ. P. 14(a) . . . . . . . . . . . . . . . . . . . . . . . . . . .24 Fed. R. Civ. P. 19 . . . . . . . . . . . . . . . . . . . . . . . . passim Fed. R. Civ. P. 19(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Fed. R. Civ. P. 19(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Fed. R. Evid. 106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 MISCELLANEOUS 43 Fed. Reg. 49240 (Oct. 20, 1978) . . . . . . . . . . . . . . . . . . 22 Black's Law Dictionary (8th ed. 2004) . . . . . . . . . . . . . . . . . . 4 Cohen's Handbook of Federal Indian Law (2005 ed.) . . . . . . . . . . . 8, 19 EEOC: Policy Statement on Indian Preference under Title VII, 8 Fair Empl. Prac. Manual (BNA) 405:6647 (May 16, 1988) . . . . . .8, 22 Laycock, Douglas, Modern American Remedies (3d ed. 2002) . . . . . . . . . 5 Pub. L. 85-740 (Aug. 23, 1958) . . . . . . . . . . . . . . . . . . . . 12, 15 Taylor, Theodore W., Report on the Navajo-Hopi Long Range Rehabilitation Act of 1950 (64 Stat 44) . . . . . . . . . . . . . . . 18, 29 U.S. Commission on Civil Rights, The Navajo Nation: An American Colony (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 INTRODUCTION In this case, now before this Court for the second time, the Equal Employment Opportunity Commission sued Peabody Western Coal Company under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq., for refusing to hire several Native Americans because they were not Navajo. Despite this Court's holding in the first appeal that the Navajo Nation could be joined under Rule 19, F.R.C.P., see EEOC v. Peabody Western Coal Co., 400 F.3d 774 (9th Cir. 2005) (Peabody I), the district court has again erroneously dismissed the Commission's action. The district court ruled that the Nation cannot be joined, that the Secretary of Interior is also a necessary party who cannot be joined, and that Peabody and the Nation are entitled to summary judgment on the ground that a 1950 federal statute authorizes Peabody's actions here. In our opening brief, EEOC argued that the district court committed legal error in holding that EEOC seeks affirmative relief against the Navajo Nation. EEOC Brief (Brf) at 15-19. Misguided by this erroneous premise, the district court concluded that the Nation could not be joined: (1) because EEOC is not authorized to sue an Indian tribe under Title VII; (2) because joining the Nation would violate the Rules Enabling Act since it would allegedly permit EEOC to sue an Indian tribe even though Title VII does not permit such a suit; and (3) because only the Attorney General, and not EEOC, can sue a governmental entity like the Navajo Nation. EEOC's Excerpts of Record (ER) 11-13. We explained in our opening brief that each of these conclusions is unsupportable. EEOC Brf 20-22. The Commission also argued that the district court erred as a matter of law in holding that the Navajo-Hopi Rehabilitation Act of 1950, 25 U.S.C. §§631-640, authorizes the Navajo hiring preference in Peabody's 1964 and 1966 leases. A proper reading of that Act demonstrates that the hiring preference in §633 is limited to the specific project categories listed in §631, none of which encompasses Peabody's coal-mining enterprises. EEOC Brf 28-36. Furthermore, we explained that the district court abused its discretion when it converted the Nation's motion to dismiss into a motion for summary judgment without giving the Commission adequate notice and opportunity to conduct discovery. Id. at 23- 28. We also explained in our opening brief that the district court erred as a matter of law in finding the Secretary of Interior "necessary" to this litigation under Rule 19(a), and abused its discretion under Rule 19(b) in holding the lawsuit should be dismissed rather than proceed without the Secretary. Id. at 36-48. Finally, we explained that the district court erred in striking a properly authenticated Department of Interior report offered by EEOC and in failing to exclude, as irrelevant, two form leases submitted by Peabody. Id. at 48-53. In their respective response briefs, Peabody Coal and the Navajo Nation essentially parrot the erroneous analysis of the district court. In addition, for much of their arguments they rely on information that, while undeniably significant from a socio-historical perspective, is simply not germane to resolution of the legal issues to be decided on appeal. ARGUMENT I. EEOC's Amended Complaint Seeks Relief Only Against Peabody, and Not Against the Navajo Nation. In EEOC's opening brief we argued that, contrary to the district court's finding, EEOC's Amended Complaint includes no claim against, and seeks no relief from, the Navajo Nation. EEOC Brf 15-19.. We noted that, when this Court held, in Peabody I, that EEOC could add the Nation as a Rule 19 defendant, a critical factor in this Court's reasoning was its conclusion that EEOC "seek[s] no affirmative relief against the Navajo Nation." See 400 F.3d at 782; see also id. at 783 ("[T]he EEOC has no claim against [the Nation] and is not seeking any affirmative relief directly from that party. . . . [T]he EEOC is not seeking to hold the Navajo Nation liable under Title VII . . . ."). Based on language in the original complaint, which is identical in all material respects to that in the Amended Complaint, compare ER45-46 with ER50-51, this Court held that the Nation could be joined precisely because EEOC did not seek to enjoin or impose any relief on the Navajo Nation. See EEOC Brf 18 (citing Peabody I, 400 F.3d at 780). We further argued, in our opening brief, that this Court's prior ruling on this issue constitutes the law of the case. Since neither the relevant facts nor the governing legal principles have changed, the district court was obliged to adhere to this Court's determination on this question. See EEOC Brf 19 (citing Ingle v. Circuit City, 408 F.3d 592, 594 (9th Cir. 2005) (lower court precluded from reconsidering issue previously decided by higher court in same case)).<1> There is no merit to Appellees' contention that EEOC seeks "affirmative relief" against the Navajo Nation based on the alleged "practical effect" of the Amended Complaint.<2> See Navajo Nation (NN) Brf 45-48; Peabody Brf 16-21. "Relief" is commonly defined as "[t]he redress or benefit, . . . (such as an injunction or specific performance), that a party asks of a court." Black's Law Dictionary 1317 (8th ed. 2004). The definition refers the reader to "remedy," defined as "[t]he means of enforcing a right or preventing or redressing a wrong; legal or equitable relief." Id. at 1320. That definition further explains that the two most common remedies are judgments entitling plaintiffs to collect sums of money from defendants, and orders requiring defendants to refrain from wrongful conduct or to undo its consequences. Id. (citing Douglas Laycock, Modern American Remedies 1 (3d ed. 2002)). The redress EEOC seeks in this case is to enjoin Peabody from engaging in discrimination on the basis of national origin; to order Peabody to provide equal employment opportunities for non-Navajo workers; and to order Peabody to make whole those individuals who were unlawfully denied employment opportunities. ER50-51. If EEOC ultimately prevails on the merits and the district court imposes the requested relief, Peabody will no longer be free to discriminate on the basis of tribal affiliation and will have to compensate any persons whom it wrongly excluded in the past.<3> In such circumstances, Peabody will be obligated to comply with any resulting court order or risk being held in contempt of court. Such a court order would impose absolutely no obligations on the Navajo Nation, however. As this Court noted, a judgment in EEOC's favor "will not bind the Navajo Nation in the sense that it will directly order the Nation to perform, or refrain from performing, certain acts." Peabody I, 400 F.3d at 780.. The Nation will not be obligated to change its hiring practices nor provide any monetary relief. The Nation would be bound by the judgment only in the sense that the judgment would protect Peabody from subsequent litigation by the Nation seeking to enforce the preference. See Martin v. Wilks, 490 U.S. 755, 765 (1989) (Rule 19 defendant "bound by [district court's] judgment or decree"); Peabody I, 400 F.3d at 780 (judgment "will preclude the Nation from bringing a collateral challenge to the judgment"); Icon Group v. Mahogany Run Dev. Corp., 829 F.2d 473, 478 (3d Cir. 1987) ("essential purpose[]" of Rule 19 is "to ensure that a judgment will have res judicata effect").. The Nation asserts repeatedly that a judgment in this case would impact 326 other business leases, offering this as proof that EEOC seeks affirmative relief against the Nation. See, e.g., NN Brf 16-17, 35-36; see also Peabody Brf 19. This is a red herring; none of those leases is at issue here.<4> A ruling in EEOC's favor would not, as a matter of law, invalidate any of those leases, nor would it impose any obligations on either the Nation or these other businesses. Such a ruling might motivate the Nation and these other lessees to bring their agreements into compliance with Title VII. That parties may be influenced to change their behavior does not constitute "affirmative relief," however, for the critical reason that the district court could not mandate such an outcome by means of a judgment in this case. II. The District Court Erred in Ruling that the Navajo-Hopi Rehabilitation Act Renders the Navajo Preference Lawful. A. Peabody's Navajo Preference is Inconsistent with Title VII's Indian Preference Exemption. In our opening brief we argued that, in enacting Title VII, Congress prohibited employers from discriminating based on "national origin," see, e.g., 42 U.S.C. §2000e-2(a)-(d), but exempted preferential treatment for Native Americans by businesses located on or near an Indian Reservation under 42 U.S.C. §2000e-2(i).<5> See EEOC Brf 34. The Navajo Nation suggests that the Navajo- specific hiring preferences contained in the Peabody leases and other business leases are necessary to meet the economic needs of tribal members. E.g. NN Brf 12-13, 46-47. In enacting an Indian preference in Title VII, Congress recognized the economic needs of Native Americans and acted consistent with the federal government's trust relationship with them.<6> As this Court has held, however, the preference Congress enacted in Title VII does not authorize businesses to favor the members of one tribe over another, but only Native Americans over non-Native Americans. See Dawavendewa v. Salt River Project Agric. Improvement & Power Dist. (Dawavendewa I), 154 F.3d 1117, 1119-24 (9th Cir. 1998);. see also EEOC: Policy Statement on Indian Preference under Title VII, 8 Fair Empl. Prac. Manual (BNA) 405:6647, 405:6653 (May 16, 1988) (Attachment A); 41 C.F.R. §60-1.5(a)(7) (federal contractors permitted to give employment preference to Indians living on or near Indian reservation, but "such a preference shall not . . . discriminate among Indians on the basis of . . . tribal affiliation"). Appellees argue that the Navajo preference in Peabody's leases is authorized under the Navajo-Hopi Rehabilitation Act of 1950, 25 U.S.C. §§631-640, and that the Act's Navajo/Hopi employment preference, 25 U.S.C. §633, fits within Title VII's Indian preference exemption. NN Brf 28-29; see also Peabody Brf 34. Peabody further suggests that even if its leases were entered into pursuant to the Indian Mineral Leasing Act of 1938 (IMLA), 25 U.S.C. §§396a-396g, the Secretary's discretionary practice of including tribal-specific hiring preferences in mineral leases also fits within Title VII's Indian preference exemption. Peabody Brf 34; see also NN Brf 31. Both arguments are easily dismissed. Irrespective of whether the Navajo preference in these leases satisfies the other elements of §2000e-2(i) (e.g., that the policy be "publicly announced"), a Navajo preference is not exempt under Title VII because it is tribal-specific, and this Court held in Dawavendewa I that Congress' use of the term "Indian" in Title VII precludes distinctions based on membership in a particular tribe. See Dawavendewa I, 154 F.3d at 1120-24.<7> In arguing that Title VII permits tribal-specific preferences, Appellees rely on the floor comment of Senator Karl Mundt that Title VII's Indian preference exemption would allow Indians "to benefit from Indian preference programs now in operation or later to be instituted." NN Brf 28-29; Peabody Brf 34-35; see Morton v. Mancari, 417 U.S. 535, 546 n.20 (1974). Since Title VII authorizes "Indian preferences," not "Navajo preferences" or "tribal preferences," Senator Mundt's use of the phrase "Indian preference programs" in his floor comment suggests an interpretation consistent with this Court's. See Dawavendewa I, 154 F.3d at 1121-22. Indeed, when Senator Mundt made this statement, there were numerous federal statutory preferences for Indians over non-Indians, with which Congress would have been familiar. See Mancari, 417 U.S. at 541 n.8 (listing examples). Senator Mundt's comment indicates Congress intended to continue its longstanding practice of authorizing employment preference for Indians over non- Indians.<8> B. The Rehabilitation Act Does Not Apply to Peabody's Coal-Mining. The district court erred as a matter of law in holding that the Rehabilitation Act authorized Peabody to give employment preference to Navajo workers over non-Navajo Native Americans. In §631, Congress authorized and directed the Secretary of Interior to undertake a "program of basic improvements" for the Navajo and Hopi tribes with federal funds that Congress specifically ear-marked for fourteen enumerated project categories. In §633, Congress authorized employment preferences for Navajo and Hopi Indians in projects undertaken pursuant to the Act. A plain reading of the Rehabilitation Act limits the §633 employment preference to the projects identified in §631. EEOC Brf 29. Coal mining, on the other hand, is governed by the IMLA. No provision in the IMLA or its implementing regulations authorizes any employment preferences of any kind. EEOC Brf 32. Since the Rehabilitation Act does not apply to coal mining leases, and since the IMLA, which does apply, contains no hiring preference, there is no statutory overlap and Peabody's employment practices must be judged under Title VII's standards. Id. at 29-33. Although Peabody's coal-mining was undertaken without Rehabilitation Act funding and began several years after the date by which Congress directed Rehabilitation Act projects to be completed (by April 19, 1960, if possible, see 25 U.S.C. §632), Peabody and the Navajo Nation argue in their respective Answer Briefs that the Rehabilitation Act's Navajo/Hopi employment preference applies to the Peabody leases. See NN Brf 28-34; Peabody Brf 22-35. Appellees rely, for the most part, on former Interior Secretary Stewart Udall's statements that his staff approved the Peabody-Navajo coal mining leases pursuant to the Rehabilitation Act. See NN Brf 30; Peabody Brf 23, 29-30. Secretary Udall's testimony notwithstanding, these mineral leases were not approved pursuant to the Rehabilitation Act. The $88,570,000 that Congress initially authorized to be appropriated for "a program of basic improvements" on the Navajo and Hopi reservations consisted of fourteen enumerated project categories. 25 U.S.C. §631.. Congress specified the exact amount to be spent on each project category, see id., and directed these enumerated projects to be completed within ten years, if possible.<9> 25 U.S.C. §632. In 1958, Congress added $20 million to the allocation for roads in subsection 631(7), bringing the total to $108.57 million. See Pub. L. 85-740 (Aug. 23, 1958). Since then, Congress has not authorized any other money for these Rehabilitation Act projects, and Congress never expanded the list of §631 projects it enumerated in 1950. Congress allocated $500,000 for "[s]urveys and studies of timber, coal, mineral, and other physical and human resources." See 25 U.S.C. §631(3). No money was allocated for coal mining itself, nor was there any need for such federal funding. Congress would have understood that if the "surveys and studies" revealed the presence of coal, private business would step forward to invest in the actual coal-mining operations, and this is what happened. See Austin v. Andrus, 638 F.2d 113, 114 (9th Cir. 1981) (describing how Peabody's 1964 and 1966 leases evolved from a study of mineral resources commissioned by the Bureau of Indian Affairs in the 1950s with Rehabilitation Act funding).<10> This is undoubtedly what Secretary Udall meant when he said "coal leasing and related development" was "the centerpiece of the resources development program" under the Rehabilitation Act.<11> RE55. Nothing in the Rehabilitation Act's plain language or intent, however, warrants construing the phrase "projects undertaken pursuant to this subchapter"-to which the Navajo/Hopi employment preference applied, see 25 U.S.C. §633-to include Peabody's privately-funded coal-mining operations pursuant to leases signed in 1964 and 1966, several years after Congress intended the Rehabilitation Act projects to be completed. Indeed, this Court stated in Peabody I that these leases were approved under the IMLA. See 400 F.3d at 776; see also United States v. Navajo Nation, 537 U.S. 488, 495 (2003) (Peabody mines coal on Navajo land pursuant to leases covered by IMLA).<12> That Congress indicated additional funds might be appropriated later and prefaced the list of Rehabilitation Act projects with the phrase "shall include," see §631, does not make the list of projects non-exclusive, as Peabody argues. See Peabody Brf 31 (citing Alarm Indus. Commc'ns Comm. v. F.C.C., 131 F.3d 1066, 1070 (D.C. Cir. 1997). Congress authorized a specific amount of total project funding for a "program of basic improvements," specified that the improvements "shall include the following projects," and then provided the amount of funding authorized for each of the fourteen enumerated project categories, the sum of which exactly equals the total amount Congress authorized in the original legislation. In 1958, Congress authorized an additional $20 million and directed that it be added to road construction in §631(7).<13> Congress did not give the Secretary discretion to add any additional projects beyond the fourteen listed in §631, and the phrase "shall include" cannot be read otherwise here. In sum, nothing in the Rehabilitation Act suggests Congress intended the employment preference that it authorized for §631 projects to apply to future, private business undertakings. This conclusion remains unchanged even where, as here, the private business undertakings are the hoped-for results of Rehabilitation Act expenditures. See Peabody Brf 31-32.. Because Peabody's coal-mining operations fall outside the Rehabilitation Act's §631 projects, the Rehabilitation Act does not conflict with Title VII, which controls Peabody's actions here. C. In the Alternative, if the Secretary Approved Peabody's Leases Pursuant to the Rehabilitation Act, the Act's Navajo/Hopi Preference is Superseded by Title VII. We explained in EEOC's Opening Brief that if the Rehabilitation Act and Title VII cannot be construed harmoniously, Title VII must control. See EEOC Brf 33-36. Appellees' contrary arguments are unavailing. Peabody argues that the Navajo preferences in the Rehabilitation Act and in Peabody's leases both survive Title VII because Title VII does not indicate a "clear and manifest repeal" of them. Peabody Brf 34. To the contrary, the fact that Congress fashioned a specific Indian preference exemption in Title VII constitutes "clear and manifest" congressional intent that employers should conform their practices to the exemption as it was enacted. See 42 U.S.C. §2000e-2(i). . The Nation argues that the Rehabilitation Act prevails over Title VII because the Navajo/Hopi preference in the Rehabilitation Act is more specific than the general Indian preference in Title VII, citing Mancari, supra. See NN Brf 33-34; Peabody Brf 33-34. Mancari, however, actually supports EEOC's position. See EEOC Brf 35. Mancari addressed whether the Equal Employment Opportunity (EEO) Act of 1972, which extended Title VII's non-discrimination requirements to the federal sector, implicitly repealed an existing statutory hiring preference for Indians in the Bureau of Indian Affairs (BIA) dating back to 1934.<14> 417 U.S. at 537. The BIA preference, which was not tribal-specific but was for Indians over non-Indians, see id. at 538, was "an important part of the sweeping Indian Reorganization Act of 1934" aimed at providing a greater degree of self-government to Indian tribes. Id. at 542. The 1972 EEO Act said nothing about this Indian preference for BIA employees. Id. at 547. The Supreme Court looked for evidence of congressional intent and concluded that Congress could not have meant, by its silence, to implicitly repeal a federal policy that had been in existence, in one form or another, for 140 years. Considering the unique purpose of the BIA to provide greater Indian participation in their own self-government, the Court held that the 1972 amendments did not impliedly repeal the earlier, more specific authorization of an Indian preference within the BIA. Mancari, 417 U.S. at 547-50 ("Indian preference statute is a specific provision applying to a very specific situation"). Applying Mancari's congressional intent principles here yields the opposite result. Unlike the 1972 EEO Act, Title VII is not silent with respect to employment preferences for Indians-Congress expressly authorized a specific form of Indian preference, for "any individual because he is an Indian living on or near a reservation," 42 U.S.C. §2000e-2(i). Congress could have authorized, instead, a preference for the members of the tribe on whose reservation the business was located, but it did not. Rather, Title VII addresses the subject of Indian preferences, establishes a clear and specific rule that is applicable to all covered employers including Peabody, and grants a preference for Indians over non-Indians (but not members of one tribe over another). As a result, assuming arguendo that Title VII and the Rehabilitation Act are found to be irreconcilable- either because the Rehabilitation Act's preference is found to apply beyond the projects specified in §631 or because the Peabody leases are determined to be a §631 project-Mancari's guidelines lead to the conclusion that Title VII's specifically-tailored Indian preference supercedes the Rehabilitation Act's Navajo/Hopi preference. See EEOC Brf 35-36. There is no merit to Appellees' contention that Congress' post-1964 amendment of portions of the Rehabilitation Act without repealing §633 demonstrates Congress intended the Rehabilitation Act preference to continue alongside Title VII. See Peabody Brf 35; NN Brf 10-11. Congress' only alterations to the Rehabilitation Act after enactment of Title VII were the 1974 repeal of §640, which had established a Congressional review panel, and the 1996 repeal of §639, which had provided federal welfare payments to states. Both provisions mandated affirmative Congressional action and, therefore, it was necessary for Congress to repeal them when they were no longer needed. Congress had no similar need to repeal §633, however, because by the time Title VII became effective in July 1965, the §631 projects to which the hiring preference applied were either completed or nearing completion. See ER124-28 (1973 Department of Interior report showing that the last year any Rehabilitation Act funds were allocated was 1962).<15> D. The Navajo Preference is not Justified by Tribal Sovereign Powers. The Navajo Nation argues that tribes have inherent sovereign power to condition entry onto the reservation, see NN Brf 7-8, and that it has exercised this power by enacting its own Navajo employment preference which it requires in all business leases. See id. at 29, 31-32. A tribe's inherent sovereign powers include many things, but not the right to condition entry onto Indian land by requiring a private business to violate an otherwise applicable federal law.<16> See Cohen's Handbook of Federal Indian Law at §4.01[1][b] (2005 ed.) (tribes' broad sovereign powers subject to limitations imposed by federal law); cf. Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 138 (1982) (discussing differences between a tribe's rights as landowner and as sovereign with respect to mineral leases). Unless specifically exempted by Congress, businesses operating on a reservation are bound by federal laws of general application. See Cohen §5.01[3] at 396 (Indian Commerce Clause "permits federal regulation of non-Indians doing business on Indian reservations"); see also U.S. Const., art. VI (Constitution and laws of the United States are "the supreme Law of the Land"); cf. South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998) ("Congress possesses plenary power over Indian affairs, including the power to modify or eliminate tribal rights."); Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 764 (1985) ("Constitution vests the Federal Government with exclusive authority over relations with Indian tribes."). The Nation apparently recognizes that its sovereign powers do not allow it to require businesses operating on the reservation to ignore federal law, because its current business leases require the lessee "to abide by . . . all applicable laws, regulations and ordinances of the United States." See, e.g., NNRE 145, 150, 155, 162, 169, 175, 182, 188. That the Nation has established its own employment preference policies, see NN Brf 31-32, does not relieve Peabody of the obligation to comply with Title VII's prohibition against discrimination based on national origin, even when Peabody is doing business on the Navajo Reservation pursuant to a lease agreement with the Nation. The Nation asserts that its preference policies "have been specifically approved by the United States Commission on Civil Rights and the Department of Labor," citing the Commission's (CCR) 1975 Report The Navajo Nation: An American Colony at 49 (Attachment B). See NN Brf 11, 32. The CCR Report, however, casts strong doubt on the consistency of the Department of Interior's policy. The CCR noted that the BIA routinely failed to include a Navajo hiring preference in its contracts and used, instead, an "Indian preference" or "local preference." CCR Report at 124, 134-35. The CCR further observed that the BIA had never sued a contractor for violation of a contract's employment provisions and "had never cancelled or even threatened to cancel a contract for noncompliance with its employment provisions." Id. at 125, 135. The CCR's statement that a Navajo preference was approved by the Solicitor of Labor's (SOL) Office as a legal interpretation under Title VII, see id. at 49, 135, requires clarification. First, although the CCR references generally a legal interpretation of the SOL, that document is not a part of the record in this case. Lacking this evidence, it is not possible to ascertain what the SOL's interpretation says or address its content. More importantly, when the Commission on Civil Rights commented in 1975, the Department of Labor (DOL) had not yet issued any regulations on the subject and EEOC had not yet issued any formal guidance. In 1978, DOL promulgated regulations for government contractors expressly permitting Indian preferences, but disallowing preferences based on tribal affiliation. The DOL regulation provides that employment preference to Indians living on or near an Indian reservation is permitted by federal contractors, but "such a preference shall not . . . discriminate among Indians on the basis of . . . tribal affiliation." See 43 Fed.Reg. 49240, 49243 (Oct. 20, 1978), promulgating 41 C.F.R. §60-1.5(a)(6), now codified at 41 C.F.R. §60-1.5(a)(7).. This regulation is consistent with EEOC's longstanding position, which EEOC articulated in 1988. Specifically, EEOC's Policy Statement explains that §2000e-2(i) authorizes preferential treatment of Indians versus non-Indians, but not among Indians based on tribal affiliation. See EEOC: Policy Statement on Indian Preference Under Title VII, 8 Fair Empl. Prac. Manual (BNA) 405:6647, 405:6653 (May 16, 1988) (Attachment A). Whatever the SOL said in a 1973 opinion is immaterial given these two official agency interpretations of the requirements of Title VII. DOL's regulation prohibiting tribal preferences, which is consistent with EEOC's interpretation of §2000e-2(i), undermines any force the 1973 opinion letter may have once had. III. The Secretary of Interior's Absence Does Not Warrant Dismissal In EEOC's opening brief, we explained that the Secretary is not a party to these lease agreements, has no legally protected interest in the leases, and, therefore, is not needed to render complete relief in this litigation. Indeed, if the Secretary has any "interest" arising from his role in approving these leases and allegedly in drafting them, it would be premised solely on protecting the interests of the Navajo Nation. The Nation, however, as a Rule 19 defendant in this litigation, can capably protect itself. Thus, the district court erred as a matter of law in ruling that the Secretary's presence is necessary. Given the absence of any cognizable interest, the district court abused its discretion in dismissing EEOC's lawsuit rather than proceeding without the Secretary. EEOC Brf 36-48. Appellees' arguments in support of the district court are unavailing. Peabody argues, for example, that the Secretary's presence is necessary so Peabody can obtain "redress" from the conflicting requirements of the federal government, asserting that, at a minimum, it "should be able to seek injunctive and declaratory relief" from the agency that allegedly required it to discriminate. Peabody Brf 38-39.. If Peabody had such a cross-claim against the Secretary, however, nothing prevented it from filing a third-party complaint under Rule 14(a), F.R.C.P.<17> See EEOC Brf 38. Peabody had no need to wait for some other party to join the Secretary, as the Nation suggests. NN Brf 36. Peabody's failure to exercise its procedural rights cannot justify dismissal of EEOC's claim against Peabody. In any event, to the extent Peabody suggests the conflicting requirements here arose from the discretionary actions of two different agencies, see Peabody Brf 38, Peabody misunderstands the nature of the conflict. Only the actions of the Secretary of Interior arose from administrative discretion. Congress gave the Secretary authority under the IMLA to regulate mineral leasing on Indian land. The Secretary adopted regulations that require mineral leases to be on forms prescribed by the Secretary, unless the Secretary approves otherwise. According to Appellees, the forms the Secretary prescribed (which were never promulgated as part of the regulatory code but were apparently made available to interested parties) included a tribal-specific hiring preference.<18> Thus, the hiring preference in the leases was generated by actions of the Secretary, but it was neither dictated by Congress nor subjected to the rigors of the formal rule-making process. EEOC, on the other hand, is enforcing a congressional determination, found in Title VII, that prohibits national origin discrimination but exempts Indian preferences when they fit within the standards Congress established in 42 U.S.C. §2000e-2(i). In contrast to the Secretary's discretionary inclusion of a tribe- specific hiring preference in mineral lease forms, it is Congress, not EEOC, and federal law, not agency discretion, that prohibits employment preferences based on tribal affiliation under Title VII.<19> Peabody incorrectly describes this situation as involving "the irreconcilable positions of two federal agencies." See Peabody Brf 46. Although the respective positions of EEOC and the Secretary differ, this poses no problem as a matter of law. As this Court observed in Peabody I: Resolving whether and how Title VII applies is a matter of statutory interpretation and thus involves simply implementing policy determinations Congress has already made. The issues here are entirely legal, and are of a sort "familiar to the courts." 400 F.3d at 784. This Court noted in Peabody I that it "regularly review[s] the actions of federal agencies to determine whether they comport with applicable law" and that an issue does not become unreviewable simply because it is a controversy between departments of the federal government. Id. As Peabody acknowledges (Peabody Brf 44), a federal agency "is only empowered to act within the statutory guidelines establishing its power" and "any action exceeding its statutory authority is void." Tenaska Washington Partners II v. United States, 34 Fed. Cl. 434, 440 (Fed. Cl. 1995) (citing Office of Personnel Mgmt. v. Richmond, 496 U.S. 414, 424 (1990)); See also Utah Power & Light Co. v. United States, 243 U.S. 389, 408-09 (1917) ("United States is neither bound nor estopped by acts of its officers or agents in entering into an arrangement or agreement to do or cause to be done what the law does not sanction or permit"). The Secretary's inclusion of a tribal-specific hiring preference in its standard mineral lease forms, although lawful prior to 1964, became unlawful when Title VII went into effect in July 1965. Thus, from July 1965 on, the Secretary's actions in this regard "exceeded [his] statutory authority" and, therefore, are not a defense to Peabody's failure to hire non-Navajo workers. The Secretary does not need to be a party here for the court to make this determination. A ruling in EEOC's favor on the merits in this case would not, however, in and of itself, require the Secretary to change his prescribed forms or to "overhaul" his "approval-practice for contracts on lands of the Navajo tribe," as Appellees assert. Peabody Brf 41; NN Brf 35-37. Any such changes would not arise from a court order in this case, but would merely reflect the Secretary's interest in ensuring that the Interior Department's policies conform to judicial interpretations of federal law. Nothing in the record suggests the Secretary might void these leases if the Navajo hiring preference was held to violate Title VII. See Peabody Brf 41-43; NN Brf 37-38.. The Nation obtains valuable royalties from these two leases, and there is absolutely no basis to think the Secretary would deprive the Nation of this source of funds against the wishes of the Nation itself.<20> The Nation, on the other hand, has asserted that, if EEOC prevails, the Nation may ask the Secretary to cancel these leases. NN Brf 35-36, 38 & n.10. This supports EEOC's position that the Nation should be joined, but the Secretary need not. Peabody's reliance on Dawavendewa v. Salt River Project Agr. Improvement & Power Dist. (Dawavendewa II), 276 F.3d 1150, 1156 (9th Cir. 2002), is also unavailing. In Dawavendewa II, this Court noted that in an action involving a lease or contract, it is necessary under Rule 19 to join those who are a party to the contract if the contract may be set aside. See id. at 1157 ("we reaffirm the fundamental principle [that] a party to a contract is necessary, and if not susceptible to joinder, indispensable to litigation seeking to decimate that contract.") (emphasis added). Dawavendewa II does not suggest it is necessary to join anyone who might, in any manner, be affected by a court's ruling. Peabody Brf 40. As the Secretary is not a party to these leases, he has no legally-cognizable interest and is not "indispensable" within the meaning of Rule 19. The Nation argues that it would be prejudiced without the Secretary's presence because the Navajo employment preference "was a material inducement and consideration for the Nation and the Secretary to grant rights to Peabody for Navajo coal." NN Brf 39. The Nation cites to nothing in the record to support this assertion, however. In any event, since the IMLA regulations permit parties to deviate from the form lease upon application, 25 C.F.R. §211.57, the Nation and Peabody can minimize or eliminate any potential prejudice they fear they might experience from a ruling in EEOC's favor, see NN Brf 39-40; Peabody Brf 46, by asking the Secretary to re-form this aspect of the leases to comport with Title VII. Thus, the district court abused its discretion in finding the Secretary indispensable. IV. The District Court Failed to Give EEOC Adequate Opportunity for Discovery.<21> In EEOC's Opening Brief, we explained that the district court abused its discretion when it failed to give EEOC the requisite notice that it was converting the Nation's motion to dismiss into a motion for summary judgment. Even though there had never been any discovery in this litigation, ER41, the district court "narrowly tailored" the order granting EEOC's motion for discovery to specified issues relating to the declarations of Secretary Udall and the nine records custodians of the Navajo Nation, ER36-38, strictly limited EEOC's requested time for discovery to 51 days on that basis, ER38, 29-31, and observed that it had not yet decided whether it would address the merits. ER34-35. Consequently, when the district court subsequently ruled on the merits without further notice, ER7-8, EEOC was unfairly deprived of the opportunity to respond fully to the Nation's factual representations concerning the relationship between the Rehabilitation Act and the Peabody leases. See EEOC Brf 7-8, 23-28. Appellees mischaracterize the facts when they argue that EEOC had more than five months to respond to the Nation's motion; did not object to the district court's denial of EEOC's requested time; and obtained all the discovery EEOC sought. See NN Brf 20-24; Peabody Brf 51-52. The Nation filed its 40-page motion on February 9, 2006. EEOC's first requested extension was based simply on the number and complexity of the issues the Nation raised. See R.90. On April 13, 2006, EEOC requested a 90-day period of discovery. R.95. No discovery could take place while this motion was pending. By order entered May 22, 2006, the district court finally granted limited discovery, but denied EEOC's request for 90 days. See R.108 (ER32-41). Thus, although the Nation had filed its motion in February, it was not until May 22 that EEOC was able to engage in the first discovery of this litigation, and then only on the abbreviated schedule that the district court permitted. The district court granted less time than EEOC requested in each of EEOC's applications for discovery, and made it clear that no further applications for time would be granted except for "compelling good cause." ER29-41. Under those circumstances, EEOC reasonably concluded that further requests for discovery would have been futile. CONCLUSION For the foregoing reasons, EEOC respectfully asks this Court to reverse the district court's dismissal and remand this matter for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel ____________________________________ SUSAN R. OXFORD, Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7010 Washington, D.C. 20507 Tel. (202) 663-4791 Fax (202) 663-7090 susan.oxford@eeoc.gov DATED: October 26, 2007 CERTIFICATE OF COMPLIANCE This Reply Brief exceeds the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 7,499 words. See Fed. R. App. P. 32(a)(7)(B)(i). Accompanying this Reply Brief is a motion seeking, for good cause, leave to file an over-length brief. The brief was prepared using the Microsoft Word word processing system, in 14-point proportionately-spaced Times New Roman type for both text and footnotes. See Fed. R. App. P. 32(a)(5). ____________________________________________ Susan R. Oxford, EEOC Attorney Dated: October 26, 2007 CERTIFICATE OF SERVICE I hereby certify that on this 26th day of October, 2007, I caused an original and 15 copies of Appellant EEOC's reply brief to be filed with the Clerk of the Court by Federal Express, next-day delivery, and two copies of the brief to be served on each of the parties' counsel by the same means on the same day at the addresses shown below identified below: Mary E. Bruno, Esq. GREENBERG TRAURIG, LLP 2375 East Camelback Road, Suite 700 Phoenix, Arizona 85016 Counsel for Defendant Peabody Western Coal Company Paul E. Frye and Lisa M. Enfield, Esqs. FRYE LAW FIRM, PC 10400 Academy N.E., Suite 310 Albuquerque, New Mexico 87111 Counsel for Rule 19 Defendant Navajo Nation Tod F. Schleier and Bradley H. Schleier, Esqs. SCHLEIER JELLISON & SCHLEIER, PC 3101 N. Central Avenue, Suite 800 Phoenix, Arizona 85012 Counsel for Proposed Intervenors Mariano and Sahu _________________________________________ Susan R. Oxford, Attorney for EEOC DATED: October 26, 2007 *********************************************************************** <> <1> Peabody argues that application of the law of the case doctrine is discretionary and, therefore, reviewed for abuse of discretion. Peabody Brf 20. This Court has held, however, that a district court abuses its discretion when it fails to apply the doctrine unless one of the requisite conditions is present. See Rebel Oil Co. v. Atlantic Richfield, 146 F.3d 1088, 1093 (9th Cir. 1998). There are five such conditions: (1) the first decision was clearly erroneous; (2) there was an intervening change in the law; (3) the evidence on remand was substantially different; (4) other changed circumstances exist; or (5) a manifest injustice would otherwise result. See United States v. Lummi Indian Tribe, 235 F.3d 443, 452- 53 (9th Cir. 2000). Appellees have not demonstrated that any of these five conditions existed here, and none applies. <2> Construing a complaint's relief section is a question of law subject to de novo review by this Court. Cf. Kwai Fun Wong v. United States, 373 F.3d 952, 961 (9th Cir. 2004) (whether complaint states a cause of action on which relief could be granted is question of law). <3> Peabody could, as permitted by Title VII, implement an employment preference for Native Americans generally. See 42 U.S.C. §2000e-2(i). Neither Peabody nor the Navajo Nation has asserted, much less proven, that a hiring preference for Indians living on or near the Navajo Reservation would not meet the economic needs the Nation cites as the basis for requiring the Navajo preference. See, e.g., NN Brf 8 (describing economic and social needs of Navajo tribal members). <4> The Nation suggests these 326 businesses leases are all currently active. See, e.g., NN Brf 5, 15, 17. The record, however, shows these leases are either "current or recently expired," NNRE 15-28, without indicating how many fall into which category. Thus, although the Nation attempts to paint a picture of hundreds of leases being impacted, there is simply no proof of how many current leases actually exist. <5> Section 2000e-2(i) provides it is not an unlawful employment practice for "any business or enterprise on or near an Indian reservation" to give "preferential treatment" to "any individual because he is an Indian living on or near a reservation" pursuant to "any publicly announced employment practice of such business or enterprise." <6> The trust doctrine "evolved from early treaties with tribes." It "is one of the cornerstones of Indian law" and "is often the motivating factor for legislative initiatives." Cohen's Handbook of Federal Indian Law §5.04[4][a], [b] at 418-19, 423 (2005 ed.). The doctrine does not favor one tribe over another but, as Secretary Udall explained, "applie[s] to all . . . the recognized native tribes." ER76; see also ER77, 81-82 (trust responsibility "applied nationwide" "for all of the Native Americans whose groups were recognized as tribal governments under law"). Nothing in Title VII's Indian preference exemption, which references "any individual," suggests Congress included this exemption to benefit Indian tribes, as the Navajo Nation incorrectly states. See NN Brf 29. <7> Whether a tribal-specific preference is exempt under §2000e-2(i) was the precise question addressed by this Court in Dawavendewa I. See 154 F.3d at 1118. Consequently, this Court's interpretation of §2000e-2(i) in Dawavendewa I is stare decisis here. See Hulteen v. AT&T Corp., 498 F.3d 1001, 1009-10 (9th Cir. 2007) (en banc) (three-judge panel will follow prior circuit decision unless a court of last resort overrules prior decision or undercuts its reasoning); cf. Export Group v. Reef Indus., 54 F.3d 1466, 1472 (9th Cir. 1995) (statements only dicta when "not necessary to the decision"). <8> If Senator Mundt meant to endorse tribe-specific preferences, on the other hand, Title VII's plain language, as it has been construed by this Court, would properly prevail over the statement of a single legislator. See In re Surface Mineral Regulation Litig., 627 F.2d 1346, 1362 (D.C. Cir. 1980) (statutory language more reliable source of congressional meaning than expressed views of individual members of Congress). <9> EEOC does not contend that the entire Rehabilitation Act had only a ten-year life. See Peabody Brf 30; NN Brf 32. At least four provisions-the revolving loan fund, land leasing for up to 25 years, the payment of public benefits, and establishment of a joint congressional committee-have no attached time limit. See 25 U.S.C. §§634, 635, 639, 640. In contrast, Congress specified in §632 that the "foregoing program" (referring to the projects in §631) "shall be prosecuted in a manner which will provide for completion of the program, so far as practicable, within ten years." Thus, it is the §631 projects that Congress directed to be completed within ten years, and it is those projects to which the §633 Navajo/Hopi employment preference applies. <10> The Nation mischaracterizes this Court's decision in Austin. Austin did not state that "the Peabody leases were approved under the Rehabilitation Act" nor did it hold that the "Rehabilitation Act governs these leases." See NN Brf 13, 30. Austin simply described the Peabody leases' historical background, including a Rehabilitation Act-funded survey of mineral resources. Austin, 638 F.2d at 114. <11> We agree with Peabody that coal leasing ultimately became a "centerpiece" of "the Rehabilitation Act's purpose to promote economic development on Navajo lands" and, as such, became "a central part of the Act's objectives." Peabody Brf 29-30 (emphasis added). Peabody's coal mining operations are not, however, one of the Rehabilitation Act's projects. <12> Recognizing that the Rehabilitation Act's business site leasing regulations, 25 C.F.R. Part 162, do not apply to mineral leasing, NN Brf 30 n.8; see 25 C.F.R. 162.103(a), Appellees urge that the Rehabilitation Act and the IMLA be construed together. See NN Brf 31; Peabody Brf 23. By its plain language, however, the Rehabilitation Act's hiring preference does not apply to private business undertakings outside of the §631 projects. Construing the IMLA and Rehabilitation Act together cannot serve to enlarge the scope of the Rehabilitation Act's preference. Nothing in IMLA law and regulations provides authority for the Secretary's inclusion of a tribal-specific employment preference in mineral lease forms. <13> Peabody wrongly asserts (Brf 31 n.14) that the record does not indicate the extent of subsequent appropriations. The Historical and Statutory Notes to 25 U.S.C.A. §631 indicates that the only subsequent appropriation under the Rehabilitation Act was the additional $20 million for roads and trails added in 1958. See Pub. L. 85-740. <14> According to the Court, the federal policy of giving Indians hiring preference in the Indian Service (now the BIA) dates at least as far back as 1834. Id. at 541. <15> We argue the district court erroneously struck this 1973 Report on the Navajo- Hopi Long Range Rehabilitation Act of 1950 prepared by Theodore W. Taylor of the BIA. See EEOC Brf 48-51. <16> Except where Congress has provided otherwise, tribes have inherent sovereign power to determine the form of tribal self-government and the composition of tribal membership; to regulate domestic relations and inheritance among tribal members; to levy taxes; to administer civil and criminal justice; and to exclude persons from tribal territory. See Cohen §§4.01[2][a]-[e]. These broad sovereign powers are, however, subject to limitations imposed by federal law. Id. at §4.01[1][b]. <17> Peabody asserts it has a claim, albeit without monetary relief, under 5 U.S.C. §702. See Peabody Brf 38. If Peabody is correct, and this case is remanded, it can assert its cross-claim at that time, as that statute constitutes a waiver of the United States' sovereign immunity. See EEOC Brf 39. <18> The only DOI lease forms in the record are dated 1957. See ER90-100. EEOC is appealing the district court's refusal to strike those forms on the grounds that Appellees offered no evidence these 1957 forms were in use in 1964 and 1966, when the Peabody leases were negotiated and approved. EEOC Brf 51-52; compare Peabody Brf 26. The argument above is offered only assuming arguendo that the Secretary included a tribal-specific hiring preference in 1964 and 1966, a proposition for which the record currently contains no admissible evidence. <19> Given that Title VII apprises the public of what constitutes lawful and unlawful employment practices, there is no denial of due process here, as Peabody vaguely asserts. Peabody Brf 38. <20> EEOC plainly has not abandoned this argument, see EEOC Brf 44-46, as Peabody wrongly suggests. See Peabody Brf 43 & n.18. <21> We rely on our arguments in our opening brief respecting the district court's evidentiary rulings. See EEOC Brf 48-53. We note, however, that the Nation criticizes EEOC for offering only a few pages from the 1973 Taylor Report, arguing this violates the rule of completeness. See NN Brf 25-26. That common law rule is designed to permit a party to request the additional pages be included, not bar the pages offered. See Dugan v. R.J. Corman R. Co., 344 F.3d 662, 669 (7th Cir. 2003). This principle is now addressed by Evidence Rule 106, which provides that when part of a writing is offered into evidence by one party, an adverse party may require the introduction at that time of any additional portion that in fairness should be considered contemporaneously. See Fed.R.Evid. 106. Thus, under Evidence Rule 106, the Nation could have requested the inclusion of additional pages of the Report when EEOC first offered this in district court. The rule does not justify omitting the pages that EEOC offered.