Alfonso C. Sepulveda v. Salt River Pima-Maricopa Indian Community/Phownix Cenment Company 00-16358 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 00-16358 ALFONSO C. SEPULVEDA, Plaintiff-Appellee, v. SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY/PHOENIX CEMENT COMPANY DIVISION, et al., Defendants-Appellants. On Appeal from the United States District Court for the District of Arizona BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF THE PLAINTIFF-APPELLEE GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ROBERT J. GREGORY Senior Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4059 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("Commission") is the agency entrusted with the enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"), and other federal anti-discrimination statutes. In this case, the Defendants moved for summary judgment, invoking the doctrine of tribal sovereign immunity to bar the Plaintiff's claims of employment discrimination brought under, inter alia, Title VII and the ADEA. The district court denied summary judgment with respect to Phoenix Cement Company Division ("PCC"), holding that PCC was not immune from suit under either the ADEA or Title VII.<1> The Defendants have appealed the district court's immunity ruling to this Court. This case raises important issues concerning the tribal sovereign immunity doctrine, which the Defendants have invoked to bar suit under Title VII and the ADEA. The case, at least indirectly, also raises issues of statutory coverage under these federal statutes. The Commission, moreover, has a direct interest in this case because, in rejecting the Defendants' sovereign immunity argument, the district court relied heavily upon a 1996 Commission Decision, which involved a Title VII charge brought against PCC. To assist this Court in resolving the important legal issues raised by this appeal, the Commission, pursuant to F.R.A.P. 29(a), offers its views to the Court. STATEMENT OF THE ISSUES 1. Whether tribal sovereign immunity extends to separate business enterprises established or owned by an Indian tribe and, if so, whether such immunity extends only to those enterprises that qualify as subordinate economic organizations of the tribe. 2. Whether the district court properly denied summary judgment on the immunity issue, based on the limited factual record before the court. 3. Whether the 1996 Commission Decision addresses the issue of tribal sovereign immunity and, if not, whether the Decision nonetheless supports a finding of statutory coverage under Title VII and the ADEA. STATEMENT OF THE CASE The Salt River Pima-Maricopa Indian Community ("Community") is a federally-recognized Indian tribe. Defendants' Statement of Facts ("DSOF") ¶1. In 1987, the Community purchased PCC, an off-reservation company. Id. ¶2. At the time, the Community's Tribal Council stated that PCC was purchased to "preserve and promote the economy of the Tribe . . . and permit the development of additional employment and industrial opportunities on the reservation." Plaintiff's Separate Statement of Facts ("PSSOF") ¶7. PCC primarily manufactures and sells cement and building products. Id. ¶5. PCC operates some 100 miles off-reservation; only 5% of its employees are Native Americans. Id. ¶¶6,8. Although the Community is the sole owner of PCC and its assets and approves all financial transactions for the company, Defendants' Supplemental Statement of Facts ("DSSOF") ¶13,15, management of the company is entrusted to a Board of Directors, whose members are chosen by (and serve at the pleasure of) the Community. DSOF ¶3. The parties dispute several key facts bearing on the immunity question. The Plaintiff's facts show that PCC is an Arizona corporation with a registered office located outside the reservation. Commission Decision (April 10, 1996) at 2.<2> According to the Plaintiff's evidence, there is no requirement that members of the Board of Directors be members of the Community. Id. Indeed, there is evidence that, at times, a majority of Board members have not been members of the Community. PSSOF ¶8. There is also evidence that PCC is managed, as to its daily operations, by a non-Native American. Id. ¶11. The Defendants claim that PCC "is not a separate entity" and that the "Community is the sole employer of all [PCC] employees." DSSOF ¶¶13-14. As support for this assertion, the Defendants cite the fact that "[t]here is one federal tax I.D. number for all Community departments and divisions." DSSOF ¶15. The Defendants' evidence shows that PCC's Board of Directors is comprised of seven individuals, that the current Board chairman is the President of the Community, that one other Board member is a member of the Tribal Council, and that three other Board members are members of the Community. DSSOF ¶16. The Defendants also point to evidence that the President of PCC is Roger Smith, a member of the Community. Roger Smith Aff. ¶1. In denying the Defendants' motion for summary judgment, the district court relied on a 1996 Commission Decision, which was issued on a charge of discrimination filed against PCC. In that Decision, the Commission concluded that PCC did not constitute "an Indian tribe" as that term is used in Title VII, which exempts "an Indian tribe" from the Act's definition of "employer." 42 U.S.C. § 2000e(b)(1). The district court read the Decision as concluding that PCC "was not immune from suit." Order (July 7, 2000) at 5-6. The court disagreed with the Plaintiff's argument that the Commission's Decision was "binding on [the] Court under the doctrine of res judicata" but agreed that the Commission had "correctly interpreted [Title VII's] exemption for Indian tribes." Id. at 6. The court saw "no reason to distinguish between the meaning of 'Indian tribe' for purposes of [Title VII] . . . [and] the judicially-created doctrine of sovereign immunity." Id. at 6-7. The court took note of the Defendants' contention that PCC "is both integrated with and controlled by an Indian tribe" but found that the Defendants "have not persuaded the Court (or even argued) . . . that the purpose of the Company is to perform a governmental, as compared to a purely business or commercial, function." Id. at 7-8. The court concluded that, "[i]n the absence of evidence that [PCC] has a governmental purpose, this Court finds that the purposes of the doctrine of sovereign immunity . . . would not be served by extending immunity to [PCC]." Id. ARGUMENT This case raises important issues concerning the applicability of federal anti-discrimination statutes, such as Title VII and the ADEA, to tribal business enterprises. At the outset, we express our agreement with one of the points raised by the Defendants. In their brief, the Defendants argue that, "[i]n enacting the ADEA Congress did not abrogate tribal sovereign immunity to the extent of allowing private lawsuits for damages against Indian tribes." Appellants' Br. at 7. We agree that neither the ADEA nor Title VII evinces the requisite intent to override tribal sovereign immunity. The issue here, however, is not whether these statutes abrogate tribal immunity. The issue is whether the inherent immunity of the Community, not otherwise abrogated by these statutes, extends to an entity such as PCC. We note one further point (that we discuss in more detail below). The Court must be careful not to confuse the issues of immunity and coverage. It may be that many tribal businesses are immune from private suit under Title VII and the ADEA. That does not mean, however, that these businesses fall outside the reach of Title VII and the ADEA. Because tribal sovereign immunity does not bar suits by the federal government, it is entirely possible that a tribal business might be immune from private suit under Title VII and the ADEA but, nonetheless, covered under these statutes and, thus, subject to suit by the Commission. I. TRIBAL SOVEREIGN IMMUNITY EXTENDS TO AN INDIAN TRIBE, ITS GOVERNMENTAL AUTHORITIES AND AGENCIES, AND THOSE TRIBAL BUSINESSES THAT QUALIFY AS SUBORDINATE ECONOMIC ORGANIZATIONS OF THE TRIBE. "Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). "As a matter of federal law," an Indian tribe "possesses immunity from suit unless Congress has abrogated that immunity or the tribe has waived it." Big Horn County Elec. Cooperative, Inc. v. Adams, 219 F.3d 944, 954 (9th Cir. 2000); see, e.g., Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Eng'g, 476 U.S. 877, 890 (1986); Santa Clara Pueblo, 436 U.S. at 58; United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512 (1940). "It is settled that [an abrogation] of sovereign immunity 'cannot be implied but must be unequivocally expressed.'" Santa Clara Pueblo, 436 U.S. at 58. In the absence of abrogation or waiver, an Indian tribe is immune from suit under federal, as well as state, law. See, e.g., id. at 58-59 (immune from suit under the Indian Civil Rights Act); Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343, 356-58 (2d Cir. 2000) (immune from suit under the Copyright Act); Florida v. Seminole Tribe of Florida, 181 F.3d 1237, 1241-45 (11th Cir. 1999) (immune from suit under the Indian Gaming Regulatory Act); Florida Paraplegic Ass'n, Inc. v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126, 1130-34 (11th Cir. 1999) (immune from suit under Title III of the Americans with Disabilities Act); Ute Distrib. Corp. v. Ute Indian Tribe, 149 F.3d 1260, 1263-69 (10th Cir. 1998) (immune from suit under the Ute Partition Act); Dillon v. Yankton Sioux Tribe Housing Auth., 144 F.3d 581, 582-84 (8th Cir. 1998) (immune from suit under various federal civil rights statutes); In re Greene, 980 F.2d 590, 593-98 (9th Cir. 1992) (immune from suit under the Bankruptcy Code); E.F.W. & A.T.B. v. St. Stephen's Mission Indian High School, 51 F. Supp. 2d 1217, 1227-28 (D. Wyoming 1999) (immune from suit under federal civil rights statutes); James Joseph Morrison Consultants, Inc. v. The Sault Ste. Marie Tribe of Chippewa Indians, 1998 WL 1031492, **2-4 (W.D. Mich. Aug. 6, 1998) (immune from suit under RICO). The Supreme Court recently addressed the tribal sovereign immunity doctrine in Kiowa Tribe of Oklahoma v. Manufacturing Techs., Inc., 523 U.S. 751 (1998). Kiowa Tribe involved a state law claim brought against an Indian tribe for defaulting on a promissory note, which had been executed and delivered to an off-reservation non-tribal corporation. Id. at 753-54. The tribe's industrial development commission had negotiated the note, but the tribe itself had defaulted on the note; thus, the tribe itself was the named defendant in the suit. Id. The Supreme Court clarified that tribal sovereign immunity is a doctrine of federal common law. Id. at 754-59. Although asked to confine the doctrine to "reservations or to noncommercial activities," the Court refused to do so. Id. at 758. The Court ruled that "[t]ribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation." Id. at 760. Kiowa Tribe reaffirms the principle that an Indian tribe qua tribe enjoys broad immunity from suit. Although not addressed in Kiowa Tribe, it is also clear that the immunity doctrine has implications for other tribal entities. Many Indian tribes establish authorities or agencies to carry out the tribes' governmental functions. These tribal instrumentalities are immune from suit to the same extent as the tribe itself. See, e.g., Ninigret Development Corp. v. Narrangansett Indian Wetuomuck Housing Auth., 207 F.3d 21, 29 (1st Cir. 2000) (tribal housing authority, "as an arm of the Tribe"); Hagen v. Sisseton-Wahpeton Community College, 205 F.3d 1040, 1043 (8th Cir. 2000) (community college "chartered, funded, and controlled by the Tribe to provide education to tribal members on Indian land"); Pink v. Modoc Indian Health Project, Inc., 157 F.3d 1185, 1188-89 (9th Cir. 1998) (nonprofit health corporation created and controlled by Indian tribes, serving "as an arm of the sovereign tribes"), cert. denied, 528 U.S. 877 (1999); Pit River Home & Agric. Coop. Ass'n v. United States, 30 F.3d 1088, 1100 (9th Cir. 1994) ("federally recognized governing body" of the tribe); Weeks Constr., Inc. v. Oglala Sioux Housing Auth., 797 F.2d 668, 670 (8th Cir. 1986) ("a housing authority, established by a tribal council pursuant to its powers of self-government"). Sovereign immunity also extends, in some cases, to business enterprises established by an Indian tribe. Tribal businesses "have no inherent immunity of their own." Trudgeon v. Fantasy Springs Casino, 84 Cal. Rptr. 2d 65, 69 (Cal. Ct. App. 1999). They do, however, enjoy immunity "to the extent the immunity of the tribe, which does have inherent immunity, is extended to them." Id. In appropriate circumstances, sovereign immunity can be extended to businesses established for the benefit of the tribe. See, e.g., In re Greene, 980 F.2d at 592-98; World Touch Gaming, Inc. v. Massena Mgmt., LLC, 117 F. Supp. 2d 271, 275 (N.D.N.Y. 2000); James Joseph Morrison Consultants, Inc., 1998 WL 1031492, at *2; Trudgeon, 84 Cal. Rptr. at 67-72; Burnham v. Pequot Pharmaceutical Network, 1998 WL 345463, **3-4 (Conn. Super. Ct. June 19, 1998); Gavle v. Little Six, Inc., 555 N.W.2d 284, 292-96 (Minn. 1996); S. Unique, Ltd. v. Gila River Pima-Maricopa Indian Cmty., 674 P.2d 1376, 1382 (Ariz. Ct. App. 1983). Courts have formulated standards for determining when a tribal business can legitimately claim the protection of tribal sovereign immunity. The most common formulation is the "subordinate economic organization" test. Under that test, a tribal business or enterprise is entitled to immunity if it qualifies as a "subordinate economic organization" of the tribe. This Court has cited with favor to this test. See In re Greene, 980 F.2d at 593. A number of state courts have also applied variations of this test in ruling on the immunity question. See, e.g., Trudgeon, 84 Cal. Rptr. at 68-72; Gavle, 555 N.W.2d at 292-96; Wippert v. Blackfeet Tribe of the Blackfeet Indian Reservation, 859 P.2d 420, 426-28 (Mont. 1993); Seminole Police Dep't v. Casadella, 478 So. 2d 470, 471 (Fla. Dist. Ct. App. 1985); S. Unique, Ltd., 674 P.2d at 1379; White Mountain Apache Indian Tribe v. Shelley, 480 P.2d 654, 655-57 (Ariz. 1971). A lead authority in this area of the law is Dixon v. Picopa Constr. Co., 772 P.2d 1104 (Ariz. 1989). Dixon involved a tort action against the Picopa Construction Co., "a corporation formed under the laws of the Salt River Pima-Maricopa Indian Community" (the same Indian tribe involved in this case). Id. at 1105. The construction company invoked sovereign immunity. The Arizona Supreme Court held that the company did not qualify as a "subordinate economic organization" of the tribe and, thus, was not immune from suit. Id. at 1116. In reaching this conclusion, the court cited three factors. First, the court stressed that the construction company had a separate governing structure and an independent legal identity. The court noted that the company had "a board of directors, separate from the tribal government, which exercise[d] full managerial control over the corporation." Id. at 1109. The tribe was the sole shareholder of the company and, in that capacity, selected the board members. Id. at 1107. The company's charter, however, did "not require that either board members or corporate officers be selected from among [tribal] officers or even members." Id. at 1108. The company was separately incorporated and held "title to any acquired property in its own name." Id. at 1108, 1111 (stressing that the tribe had created "an artificial individual, a corporation, and charged it with all the power to act 'to the same extent as natural persons'"). The second factor cited by the court was that the construction company "was not formed to aid the [tribe] in carrying out tribal governmental functions." Id. at 1110. The company's charter defined the company "as an organization established for general business purposes." Id. at 1107. So far as the evidence showed, the company "was simply a for-profit corporation involved in construction projects." Id. at 1110. There was no evidence that the company "had limited itself to tribal projects." Id. There was no evidence that the company "was intended to act or did act as an extension of tribal government." Id. at 1111. Finally, the court concluded that extending immunity to the construction company would not further "the federal policies behind the immunity doctrine." Id. The court found that "extending immunity to [the construction company] would not further the federal policy seeking to protect tribal assets" because the tribe had taken out an insurance policy to protect the company's "corporate liability" and the company's charter "exonerate[d] the [tribe] from corporate liability." Id. Nor, in the court's view, was the tribe's "self-determination imperiled by [the court's] assertion of jurisdiction." Id. The incident giving rise to the tort action occurred off-reservation, without involvement by the tribe or one of its governing authorities. Id. at 1112. Holding the company accountable for its conduct did not "in any fashion limit the [tribe's] powers nor the manner in which it exercise[d] those powers." Id. We believe that the "subordinate economic organization" test, as applied in Dixon (and like cases), provides a workable framework for resolving claims of tribal sovereign immunity advanced by business entities established or owned by an Indian tribe. Some tribal businesses are sufficiently linked to the tribe itself to merit the protection of the immunity doctrine. Such enterprises may be established for the very purpose of carrying out projects on the reservation for the benefit of the tribe. See, e.g., White Mountain Apache Indian Tribe, 480 P.2d at 655-57 (tribal timber company organized for the purpose of cultivating the tribe's on-reservation timber resources). Or, they may have a broader economic mission but one that is closely integrated with the tribe's ability to "'raise revenues and provide employment for [its] members.'" Trudgeon, 84 Cal. Rptr. at 69-70 (on-reservation gaming casino "created for the specific purpose of improving the financial and general welfare of the tribe" and "owned wholly by the tribe as a governmental unit, rather than being organized under the laws of the state"). In other cases, the connection between the tribe and the tribal business may be more attenuated. The "subordinate economic organization doctrine allows Indian tribes to conduct their economic affairs through subordinate governmental agencies without fear of an unintended waiver of immunity." Dixon, 772 P.2d at 1109. The doctrine also ensures, however, that a business, not closely integrated with the tribe in purpose or structure, cannot unfairly immunize itself from suit. It might be argued that at least one of the factors applied under the "subordinate economic organization" test -- whether the purpose of the tribal business entity is commercial or governmental -- has been superseded by the Supreme Court's decision in Kiowa Tribe, which makes clear that "[t]ribes enjoy immunity from suits" regardless of whether the underlying activities are "governmental or commercial." 523 U.S. at 760. We agree with the district court, however, that the governmental/commercial distinction retains at least some significance in cases involving tribal business entities. Order (July 7, 2000) at 7 n.2. Kiowa Tribe involved a law suit against an Indian tribe, not an entity established by the tribe. The tribe itself had defaulted on the promissory note giving rise to the law suit. "Because Kiowa involved liability of a tribe and not a tribal business entity, the court did not consider the possible relevance of the governmental/commercial distinction in determining the liability of tribal entities." Trudgeon, 84 Cal. Rptr. at 69. Tribes enjoy inherent immunity; tribal businesses are immune only if a tribe's immunity is extended to them. "In view of that fact, it is possible to imagine situations in which a tribal entity may engage in activities which are so far removed from tribal interests that it no longer can legitimately be seen as an extension of the tribe itself" and, thus, cannot claim immunity, "notwithstanding the fact it is organized and owned by the tribe." Id. Prior to Kiowa Tribe, it was well-established that the sovereign immunity of the tribe itself extended to disputes arising from commercial "enterprises and transactions." E.g., Maryland Cas. Co. v. Citizens Nat'l Bank of West Hollywood, 361 F.2d 517, 521 (5th Cir. 1966) (describing as "not material" the fact that the tribe "was engaged in an enterprise private or commercial in character, rather than governmental"). Kiowa Tribe merely reaffirmed this longstanding principle in the face of arguments that the Court should restrict the doctrine to the tribe's on-reservation, governmental activities. The decision did not undermine the established framework for determining when the immunity of a tribe can be properly extended to those business entities established by the tribe. Significantly, this view is consistent with the position taken by the United States, as amicus curiae, in Kiowa Tribe. The United States filed a brief in support of the tribe's petition for certiorari. In that brief, the United States noted that a then pending petition for certiorari in Gavle v. Little Six, Inc., No. 96-1215 (filed Jan. 29, 1997) "presents similar questions concerning the immunity of a business corporation owned by a Tribe and organized under tribal law." Brief for the United States (June 1997) at 19 n.8. The United States suggested that because the "interposition of a corporate entity in No. 96-1215 somewhat complicates the immunity issue in that case," Kiowa Tribe "appears to be the better vehicle for resolution of the conflict among the state and federal courts on the immunity question." Id. After the Supreme Court granted certiorari in Kiowa Tribe, the United States filed an amicus brief on the merits. In that brief, the United States argued for a broad immunity doctrine with respect to an Indian tribe's commercial dealings. The United States, however, stressed that the "promissory note on which respondent sued was signed in the name of the Tribe itself, and it specifically reserved the Tribe's 'sovereign rights.'" Brief for the United States (Aug. 25, 1997) at 18 (1997 WL 523859). The United States acknowledged that "certain tribal entities specially chartered to engage in commercial activities may be subject to suit in some cases." Id. II. THERE ARE GENUINE ISSUES OF MATERIAL FACT PRECLUDING SUMMARY JUDGMENT ON THE IMMUNITY QUESTION. For the foregoing reasons, we believe that, in cases of this nature, the immunity analysis turns on an intensely fact-specific inquiry -- whether the entity claiming the protection of the immunity doctrine, in this case PCC, is a "subordinate economic organization" of an Indian tribe. In ruling on this issue at the summary judgment stage, a court must construe the evidence in a light most favorable to the non-moving party. See McDade v. West, 223 F.3d 1135, 1139 (9th Cir. 2000) (in reviewing summary judgment disposition, the "appellate court must view the evidence in the light most favorable to the plaintiff and determine whether there are any disputed issues of material fact"). In several key respects, the facts, as put forth by the Plaintiff, closely parallel the facts in the Dixon case, discussed above. First, there is evidence that PCC has a separate governing structure and an independent legal identity. PCC is not a mere functionary of the tribe; it is not even a corporation established by the tribe itself. It is an Arizona corporation that the tribe purchased in 1987. As with the construction company in Dixon, PCC is overseen by a Board of Directors, with no apparent requirement that the members of the Board be members of the Community. In practice, PCC is managed, on a day-to-day basis, by a non-Native American. The Plaintiff's evidence also suggests that PCC was not "formed to aid the Community in carrying out tribal governmental functions." Dixon, 772 P.2d at 1110. PCC is a for-profit corporation that performs work 100 miles outside the reservation. Unlike some tribal businesses, which provide a much-needed source of jobs for tribal members, only 5% of PCC's workforce consists of members of the Community. Finally, "the federal policies behind the immunity doctrine" do not appear to be implicated in this case, accepting the Plaintiff's evidence as true. Id. at 1111. PCC is an Arizona corporation and presumably exposed to liability only to the extent of its own assets (as opposed to the Community's). The incidents giving rise to these suits arose off-reservation; the plaintiffs are not members of the Community. Holding PCC accountable for its actions does not "limit the Community's powers nor the manner in which it exercises those powers." Id. at 1112. The Defendants are not without their factual rejoinders. The Defendants claim that PCC is not a separate entity and that its employees are employees of the Community. The Defendants point out that the Community is the sole owner of PCC, that the Community approves all financial transactions for PCC, and that members of PCC's Board of Directors are chosen by (and serve at the pleasure of) the Community. The Defendants claim that the majority of current Board members are members of the Community, that the Board Chairman is President of the Community, and that the President of PCC is a Community member. There is also evidence that, in purchasing PCC, the Community's Tribal Council stated that PCC was purchased to "preserve and promote the economy of the Tribe."<3> On balance, we believe that the evidence mitigates against the grant of summary judgment at this stage of the case. The evidence does not compel a finding, as a matter of law, that PCC is the type of tribal enterprise so closely integrated with the tribe itself that it qualifies as a "subordinate economic organization" of the Community. Instead, construed in the light most favorable to the Plaintiff, it supports a finding that PCC, in its organization, purpose, and conduct, is attenuated from the Community itself. Further factual development might reveal that PCC is not a separate legal entity. It might reveal that the revenues generated by PCC are vital to the Community's "'[s]elf-determination and economic development,'" making PCC's purpose more governmental than commercial. Trudgeon, 84 Cal. Rptr. 2d at 70. On the current record, however, we believe that the district court properly denied the Defendants' motion for summary judgment. III. THE 1996 COMMISSION DECISION DOES NOT ADDRESS THE ISSUE OF SOVEREIGN IMMUNITY BUT DOES PROVIDE SUPPORT FOR STATUTORY COVERAGE IN THIS CASE, AS DO THE DECISIONS OF THIS COURT. Although we agree that the district court properly denied summary judgment in this case, we feel compelled to respond to the issues raised by the 1996 Commission Decision. In denying the Defendants' motion for summary judgment, the district court relied heavily on the fact that in a 1996 Decision on a charge filed against PCC, the Commission concluded that PCC was a covered employer under Title VII because it did not fall within the statutory exemption for "an Indian tribe." The district court construed this Decision as concluding that PCC "was not immune from suit." Order (July 7, 2000) at 5. The district court found no reason to distinguish between what it described as "the meaning of 'Indian tribe' for purposes of establishing immunity under Title VII" and "the judicially-created doctrine of sovereign immunity." Id. at 7. The district court has misread the Commission Decision. The Commission Decision was not addressing the issue of sovereign immunity. The Decision was addressing the issue of statutory coverage under Title VII. In its Decision, the Commission cited a number of cases applying federal statutes of general applicability to tribally owned businesses. Commission Decision (April 10, 1996) at 4 n.6. These cases all involved the issue of statutory coverage, not immunity. The Commission determined that the term "Indian tribe," as used in the exemption provision of Title VII's definition of "employer," means "an entity that possesses the traits of sovereignty and territoriality." Id. at 3. The Commission relied, in part, on a textual analysis, noting that, while Title VII's definition of employer exempts the "United States" and "a corporation wholly owned by the Government of the United States," the definition does not exempt a "corporation" owned by an Indian tribe; only the "Indian tribe" itself is exempt. Id. at 2 n.2; see 42 U.S.C. § 2000e(b). The Commission also drew support from the evidence of Congress' purpose in including the Indian tribe exemption in Title VII. Clearly, the Commission's focus was on the interpretive issues raised by the Indian tribe exemption in Title VII, not on the discrete question of sovereign immunity. At first glance, it may appear that the immunity and coverage determinations must go hand-in-hand. This, however, is not the case. Tribal sovereign immunity is a federal common law doctrine. Immunity applies regardless of whether a statute covers an Indian tribe, unless, in covering tribes, Congress has "'unequivocally expressed'" an intent to abrogate immunity. Santa Clara Pueblo, 436 U.S. at 58. Statutory coverage is determined on the basis of principles of statutory interpretation. The coverage determination is made without regard to the standards for tribal sovereign immunity. See id. at 58-59 (sovereign immunity barred suit against an Indian tribe even though the federal Act in question concededly "modifie[d] the substantive law applicable to the tribe"). This distinction is not simply academic. Tribal sovereign immunity, when it applies, bars a suit by a private individual, private company, or state government. It does not, however, bar an action by the federal government. That is so because "tribal sovereignty does not extend to prevent the federal government from exercising its superior sovereign powers." Quileute Indian Tribe v. Babbit, 18 F.3d 1456, 1459-60 (9th Cir. 1994); see also United States v. Red Lake Band of Chippewa Indians, 827 F.2d 380, 382 (8th Cir. 1987) ("it is an inherent implication of the superior power exercised by the United States over the Indian tribes that a tribe may not interpose its sovereign immunity against the United States"); United States v. White Mountain Apache Tribe, 784 F.2d 917, 920 (9th Cir. 1986) (the "Tribe's own sovereignty does not extend to preventing the federal government from exercising its superior sovereign powers"). It follows that an Indian tribe or tribal entity might be immune from private or state suit. That same tribe or entity, however, might nonetheless be covered under a federal statute, thus giving rise to an enforcement action by an agency of the federal government. A recent decision of the Eleventh Circuit, Florida Paraplegic Ass'n, Inc. v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126 (11th Cir. 1999), illustrates the point. In that case, the Eleventh Circuit held that "a restaurant and entertainment facility owned and operated by the Tribe" was covered under Title III of the Americans with Disabilities Act ("ADA"). Id. at 1127. The court cited the statutory canon that a "general statute presumptively governs Indian tribes and will apply to them absent some superseding indication that Congress did not intend tribes to be subject to that legislation." Id. at 1129. The court agreed with "the majority of [its] sister courts that have applied this test that tribe-run business enterprises acting in interstate commerce do not fall under the 'self-governance' exception to the [presumptive] rule that general statutes apply to Indian tribes." Id. Although ruling that the tribal business was covered under Title III of the ADA, the court held that the tribe was entitled to claim immunity from suit for its restaurant and entertainment enterprise. The court stressed that, even where a federal statute applies to an Indian tribe because the statute is a "'general statute[] in terms applying to all persons' that [does] not explicitly exclude Indians," tribal sovereign immunity may still apply. Id. at 1130. In holding that immunity applied, the Eleventh Circuit acknowledged that "Congress's failure to abrogate Indian tribes' sovereign immunity under Title III of the ADA limit[ed] the means available to enforce its public accommodation requirements in tribe-owned and -operated enterprises." Id. at 1134. The court stressed, however, that this omission on Congress's part did not render the statue "toothless" because the federal government had enforcement authority under Title III and was not constrained by sovereign immunity. Id. Thus, although the tribe was immune from private suit, the federal government could "pursue an action against Indian tribes failing to comply with Title III just as it may enforce the act against any other entity that violates the statute."<4> Id. at 1135. This Court's precedent reflects the immunity/coverage distinction. In the immunity area, this Court has spoken broadly. This Court has stated that tribal sovereign immunity "involves a right which courts have no choice, in the absence of waiver, but to recognize." California v. Quechan Tribe of Indians, 595 F.2d 1153, 1155 (9th Cir. 1979). This Court has extended immunity to a tribal-owned furniture business. In re Greene, 980 F.2d at 593-97. This Court has applied immunity to a tribal organization with respect to "misconduct occurr[ing] outside of the reservation land." Pink, 157 F.3d at 1189. This Court has sounded a different note when the federal government is the party-plaintiff and the issue is one of statutory coverage only. In that context, this Court has invoked a presumption that "'a general statute in terms applying to all persons includes Indians and their property interests.'" Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d 1113, 1115 (9th Cir. 1985). This Court has cited three exceptions to this presumptive rule: "(1) the law touches 'exclusive rights of self-governance in purely intramural matters'; (2) the application of the law to the tribe would 'abrogate rights guaranteed by Indian treaties;' or (3) there is proof 'by legislative history or some other means that Congress intended [the law] not to apply to Indians on their reservations.'" Id. at 1116. This Court has narrowly construed these exceptions, holding, in particular, that the self-government exception is designed to except only those "purely intramural matters such as conditions of tribal membership, inheritance rules, and domestic relations." Id. (holding that it would be error to "bring within the embrace of 'tribal self-government' all tribal business and commercial activity"). In a variety of contexts, this Court has extended federal statutes of general applicability to tribal commercial activity, whether conducted by the tribe itself, a member of the tribe, or a business or enterprise established by the tribe. See, e.g., Lumber Industry Pension Fund v. Warm Springs Forest Products Indus., 939 F.2d 683, 684-87 (9th Cir. 1991) (ERISA); United States Dep't of Labor v. Occupational Safety & Health Review Comm'n, 935 F.2d 182, 183-87 (9th Cir. 1991) (OSHA); Donovan, 751 F.2d at 1115-18 (OSHA); Confederated Tribes of Warm Springs v. Kurtz, 691 F.2d 878, 882 (9th Cir. 1982) (federal tax laws); United States v. Farris, 624 F.2d 890, 893-94 (9th Cir. 1980) (Organized Crime Control Act of 1970). This Court has also taken a narrow view of the term "Indian tribe," as used in federal statutes, in those cases in which immunity principles are not implicated. In Navajo Tribal Utility Auth. v. Arizona Dep't of Revenue, 608 F.2d 1228, 1230-33 (9th Cir. 1979), this Court held that the Navajo Tribal Utility Authority, a "subordinate economic enterprise" of the Navajo Indian Tribe, did not constitute an "Indian tribe or band" for purposes of a federal jurisdictional statute. This Court stressed that the jurisdictional statute made "no provision for wholly controlled or owned subordinate economic tribal entities." Id. at 1231. Similarly, in Inecon Agricorporation v. Tribal Farms, Inc., 656 F.2d 498, 500-01 (9th Cir. 1981), this Court held that a tribal business did not merit the protection of a statute regulating the agreements of "any tribe of Indians." The 1996 Commission Decision is consistent with these views of statutory coverage. The Decision notes that "courts and administrative agencies" have frequently applied federal statutes to "tribally owned businesses." Commission Decision (April 10, 1996) at 4 n.6. The Decision opines that Title VII's Indian tribe exemption applies only to the Indian tribe itself or "an arm or instrumentality of the tribe," defined as an entity that "performs essentially governmental functions on the tribe's behalf" and is "integrated with and controlled by the tribe." Id. at 4. The Decision stresses that the tribal exemption does not explicitly reference tribal corporations, although, in the same provision, the statute exempts the "United States" and "a corporation wholly owned by the Government of the United States." See 42 U.S.C. § 2000e(b). In this case, the relevant factors strongly support coverage under both Title VII and the ADEA.<5> Both Title VII and the ADEA are statutes of general applicability that presumptively apply to Indian tribes. There is no treaty at issue in this case. Nor is this a case in which subjecting PCC to suit will intrude upon "'exclusive rights of self-governance in purely intramural matters.'" Donovan, 751 F.2d at 1116. PCC is a cement company that performs work some 100 miles outside the Community's reservation, employing only a handful of Community members. The dispute in this case does not involve "purely intramural matters such as conditions of tribal membership, inheritance rules, and domestic relations" (id.) and, thus, does not fall within this Court's self-government exception to coverage. Title VII's exemption for Indian tribes does indicate that Congress intended to place Indian tribes outside the reach of the statute. PCC, however, is not an Indian tribe. Nor is PCC an "arm or instrumentality of the tribe" performing "governmental functions on the tribe's behalf." Order (April 10, 1996) at 4. Just as the tribal enterprise in Navajo Tribal Utility Auth., 608 F.2d at 1230-33, was not an "Indian tribe" within the meaning of the federal jurisdictional statute at issue in that case, PCC is not an "Indian tribe" within the meaning of Title VII's Indian tribe exemption. Notably, while Title VII exempts Indian tribes from its definition of employer, the ADEA contains no such exemption, despite the fact that the ADEA otherwise incorporates, almost word-for-word, Title VII's definition of employer. See 29 U.S.C. § 630(b). The omission of an Indian tribe exemption in the ADEA's definition of employer supports the view that Congress intended to cover Indian tribes (and their instrumentalities) under the ADEA. See generally Florida Paraplegic, 166 F.3d at 1128-30 (Title III of the ADA held to apply to Indian tribes, despite the fact that Title I of the ADA exempts Indian tribes, where Title III, in contrast to Title I, contains no exemption for tribes); but cf. EEOC v. Fond du Lac Heavy Equip. Constr. Co., 986 F.2d 246 (8th Cir. 1993) (intent to cover Indian tribes under the ADEA not so clear that it permits the ADEA to override a legitimate claim of tribal sovereignty); EEOC v. Cherokee Nation, 871 F.2d 937 (10th Cir. 1989) (same). In any event, even without this statutory hook, there are compelling arguments, under this Court's coverage framework, see Donovan, 751 F.2d at 1115-16, that the ADEA applies to the type of commercial enterprise at issue in this case.<6> CONCLUSION Tribal sovereign immunity does extend, in some cases, to business enterprises established or owned by an Indian tribe. The district court properly denied summary judgment with respect to whether the Community's tribal immunity extends to PCC. The 1996 Commission Decision does not address the immunity issue as such but does support a finding of statutory coverage in cases of this nature. Respectfully Submitted, GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ROBERT J. GREGORY Senior Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 January 5, 2001 (202) 663-4059 CERTIFICATE OF COMPLIANCE I, Robert J. Gregory, hereby certify that this brief complies with the type-volume limitations imposed under F.R.A.P. 32(a)(7)(B)(i) and F.R.A.P. 29(d). The brief contains 6826 words. Robert J. GregoryCERTIFICATE OF SERVICE I, Robert J. Gregory, hereby certify that on this 5th day of January, 2001, two copies of the attached brief were sent by first-class mail, postage prepaid, to each of the following counsel of record: Philip J. Shea SNELL & WILMER, L.L.P. One Arizona Center Phoenix, AZ 85004-2202 Robert L. Earle FOSTER & EARLE P.O. Box 3870 Sedona, AZ 86340 Robert J. Gregory 1 The court dismissed the Plaintiff's Title VII claim on other grounds. 2 The Commission Decision was attached as an exhibit to the Plaintiff's Response to Defendants' Motion to Dismiss and later incorporated into the Plaintiff's Separate Statement of Facts. The Commission Decision is discussed in more detail at infra pp. 20-21, 27. 3 The Tribal Council also stated that PCC would "permit the development of additional employment and industrial opportunities on the Reservation." Plainly, PCC, an off-reservation company that employs only a handful of Community members, has not furthered that objective. Nor is there any clear indication in this record that PCC has in fact "preserve[d] and promote[d] the economy of the Tribe." 4 Florida Paraplegic presents a scenario not unlike current law, under the ADEA, with respect to state governments. In Kimel v. Florida Bd. of Regents, 120 S. Ct. 631 (2000), the Supreme Court held that the ADEA did not abrogate states' Eleventh Amendment immunity. The Court's decision means that states are immune from ADEA suits "by private individuals." Id. at 650. It does not mean, however, that states are immune from suit by the federal government, which is not constrained by the Eleventh Amendment immunity bar. See Alden v. Maine, 527 U.S. 706, 755-56 (1999). Since states are otherwise covered under the ADEA, they are subject to suit by the federal government. 5 We recognize that the Plaintiff's Title VII claim was dismissed on other grounds. We address the Title VII coverage issue because it is the subject of the 1996 Commission Decision on which the district court relied and has some bearing on the coverage issue under the ADEA 6 In this case, there appears to be no distinction between immunity and coverage. PCC arguably falls outside the protection of the immunity doctrine and is covered under the ADEA and Title VII. In other cases, however, the tribal business might have a closer connection to the tribe. In such a case, the tribal business might be immune but, nonetheless, subject to the reach of the statute.