Kurt Snyder, et al. v. The Navajo Nation

Appellants in these consolidated appeals are law enforce-ment
officers of the Navajo Nation Division of Public Safety
("DPS") who filed actions against both the Navajo Nation and
the United States claiming violations of the Fair Labor Stan-dards
Act ("FLSA"), 29 U.S.C. §§ 201-219. The district court
dismissed the claims against the Navajo Nation, holding that
law enforcement was an intramural matter within the meaning
of Donovan v. Couer d'Alene Tribal Farm, 751 F.2d 1113
(9th Cir. 1985), and that the FLSA therefore did not apply to
plaintiff law enforcement officers. The court also dismissed
the claims against the United States. The tribal law enforce-ment
officers appeal both dismissals. We affirm.

The FLSA establishes various employee protections and
employment standards including premium pay for overtime
work. Appellants claim the tribe and United States are in vio-lation
of this act because Appellants are regularly required to
work overtime and the tribe makes only delayed, sporadic and
partial payments for overtime. Appellants also assert that they
should receive the same compensation as law enforcement
officers employed by the Bureau of Indian Affairs ("BIA")
who do similar work.
Claims Against the Tribe

[1] The FLSA is a statute of general applicability. Ruther-ford
Food Corp. v. McComb, 331 U.S. 722, 727 (1947). Such generally applicable statutes typically apply to Indian tribes.
Fed. Power Comm'n v. Tuscarora Indian Nation, 362 U.S.
99, 116 (1960). There is an exemption, however, where the
law would interfere with tribal self-government. The exemp-tion
protects "exclusive rights of self-governance in purely
intramural matters." Couer d'Alene Tribal Farm, 751 F.2d at
1116; EEOC v. Karuk Tribe Housing Auth., 260 F.3d 1071,
1078 (9th Cir. 2001) (hereinafter "Karuk"); See also EEOC v.
Fond du Lac Heavy Equipment and Construction Co., Inc.,
986 F.2d 246, 249-51 (8th Cir. 1993) (holding that the ADEA
was not applicable because the tribe's right of self-government
would be affected in the intramural matter of on
reservation tribal employment); Nero v. Cherokee Nation of
Okla., 892 F.2d 1457, 1463 (10th Cir. 1989) (holding that
race discrimination statutes did not apply to a tribe's designa-tion
of tribal membership criteria).

[2] In Couer d'Alene Tribal Farm, we explained that the
tribal self-government exception applied to intramural matters
and we specifically mentioned, as examples, conditions of
tribal membership, inheritance rules, and domestic relations.
751 F.2d at 1116. In Karuk, we followed Couer d'Alene
Tribal Farm and held that the employment of a tribal mem-ber,
by the tribe's housing authority, on the reservation was
an intramural matter and that federal age discrimination stat-utes
did not apply. 260 F.3d at 1079-80. While we have not
cabined the intramural exception to those listed in Couer
d'Alene Tribal Farm, we have been careful to allow such
exemptions only in those rare circumstances where the imme-diate
ramifications of the conduct are felt primarily within the
reservation by members of the tribe and where self-government
is clearly implicated.

In NLRB v. Chapa de Indian Health Program, Inc., 316
F.3d 995 (9th Cir. 2003) (hereinafter "Chapa de"), we consid-ered
whether the National Labor Relations Act applied to
tribes and tribal organizations. Id. at 998. We determined that
a financially independent, nonprofit tribal organization, which
contracted to provide services to the tribe as well as others,
and operated outside a reservation, was not exempt. Id. at
1000. Chapa de recognized that despite the relationship
between self-government and health services, the commercial
nature of the labor relations involved left the activity outside
the ambit of the intramural matters exception. Id. at 999-1000.
There, as have other circuits, we were careful to distinguish
between what is a governmental function and what is primar-ily
a commercial one. Id.; Reich v. Mashantucket Sand &
Gravel, 95 F.3d 174, 180-81 (2d Cir. 1996).

[3] In this case we are concerned with employees hired to
enforce the law. The Navajo Nation's DPS maintains law and
order within the reservation and this is a traditional govern-mental
function. The FLSA contains an express exemption for
state and local law-enforcement officers. 29 U.S.C. §§ 207(k),
207(o). Tribal law enforcement clearly is a part of tribal gov-ernment
and is for that reason an appropriate activity to
exempt as intramural. See Reich v. Great Lakes Indian Fish
and Wildlife Comm'n, 4 F.3d 490, 492-94 (7th Cir. 1993)
(noting that state and local police have no federal entitlement
to time and a half for overtime and that Congressional failure
to include tribal or Indian police in the exemption was likely
a mere oversight).

Appellants argue that these officers' activities are not intra-mural
because they are not performed exclusively on the res-ervation.
Appellants claim that incidental contacts and travel
off the reservation preclude application of the intramural
affairs exception. They rely, for example, on officers' visits
with law enforcement agencies in the states the reservation
borders.

There is no question that tribal officers travel off the reser-vation
to assist other agencies engaging in investigation of
crimes that affect the reservation and Navajo citizens. The
FBI, United States Attorney's Offices, and federal courthouses to which DPS officers travel are necessarily located
off the reservation.

[4] When officers travel to provide information or to testify
in such locations, however, they do so because of a crime that
occurred on the reservation or directly affected the interests of
the tribal community. Thus, such services performed off-reservation
nevertheless relate primarily to tribal self-government
and remain part of exempt intramural activities.

Such travel does not relate to any non-government purpose.
Nor does it provide primary benefits to persons with no inter-est
or stake in tribal government. See, e.g., Chapa de, 316
F.3d at 999-1000. Indeed, none of the officers' official travel
is aimed at benefiting any private organization or nonmember.
Employed by an arm of the tribal government, officers serve
the tribe's governmental need for law enforcement to promote
the welfare of the tribe and its members.

[5] Our decision is entirely consistent with, and more nar-row
than, the only other circuit opinion to consider the appli-cability
of the FLSA to tribal law enforcement. See Great
Lakes Indian Fish and Wildlife Comm'n, 4 F.3d at 492-495.
In that case, the Seventh Circuit held that the FLSA did not
apply to law enforcement activities of wildlife officers
employed by a consortium of thirteen Indian tribes to enforce
usufructuary treaty rights relating to property located outside
the reservation. Id. The officers in that case worked almost
exclusively off the reservation. Id. at 494. Even so, the court
reasoned that the investigation and enforcement of tribal prop-erty
rights off the reservation was at least equal to if not more
important to the Indians than the exercise of their right to
occupancy within the reservation. Id. at 495. This case is eas-ier,
because we deal only with incidental off-reservation
travel directly related to the investigation of possible criminal
conduct on the reservation. If the off-reservation enforcement
of tribal rights in Great Lakes did not bring the officers within
the purview of the FLSA, then the incidental off-reservation
travel by these plaintiffs does not either.

[6] Appellants also point out that at least some of the plain-tiffs
are not Navajo, suggesting this may be a material fact.
Yet the non-Navajo officers represent fewer than four percent
of those employed by the Navajo DPS. The rest are tribal
members. More important, all the officers work on the reser-vation
to serve the interests of the tribe and reservation gover-nance.
We therefore affirm the district court's determination
that the FLSA does not apply to the Navajo Nation's DPS and
its decision to dismiss the tribe.
Claims Against the United States

The claims against the United States are in reality claims
against the tribe, which is appellants' true employer. Appel-lants
have joined the United States only through a tenuous
link. It involves the tribe's self-determination contract and a
statutory provision that limits the tort liability of the tribe for
employees' torts.

The Indian Self-Determination and Education Assistance
Act of 1975 ("ISDEAA"), Public Law 93-638, authorizes fed-eral
agencies to contract with Indian tribes to provide services
on the reservation. 25 U.S.C. §§ 450-450n. The purpose of the
ISDEAA is to increase tribal participation in the management
of programs and activities on the reservation. Congress
wanted to limit the liability of tribes that agreed to these
arrangements. Congress therefore provided that the United
States would subject itself to suit under the Federal Tort
Claims Act ("FTCA") for torts of tribal employees hired and
acting pursuant to such self-determination contracts under the
ISDEAA. Pub. L. No. 101-512, Title III, § 314, 104 Stat.
1959 (codified at 25 U.S.C. § 450f note) (hereinafter § 314).

The Navajo Nation contracted with the BIA to provide law
enforcement on the Navajo Reservation under a self-determination
contract, or so-called "638 Contract." Thus, the
United States arguably agreed to assume liability under the
FTCA for tribal officers' torts. Appellants, however, do not assert a tort claim against the United States under the FTCA.
The ISDEAA would not appear to apply.

[7] Appellants seize upon a provision in the ISDEAA, that
states that Indian contractors are deemed to be a part of the
BIA and that any civil action "shall be deemed to be an action
against the United States. . . ." § 314. Appellants assert that
the provision means they are employees of the BIA for all
purposes and can properly bring their FLSA suit against the
United States under 29 U.S.C. § 216(b). Congress, however,
did not intend section 314 to provide a remedy against the
United States in civil actions unrelated to the FTCA. See gen-erally
Demontiney v. United States, 255 F.3d 801, 807 (9th
Cir. 2001); FGS Constructors, Inc. v. Carlow, 64 F.3d 1230,
1234 (8th Cir. 1994); Comes Flying v. United States, 830
F.Supp. 529, 530-31 (D.S.D. 1993); General Accounting
Office Report No. 00-169, Federal Tort Claims Act: Issues
Affecting Coverage for Tribal Self-Determination Contracts
6, 16 (July 2000) (GA Report). The United States is therefore
an inappropriate party to this action. The district court reached
the correct result when it dismissed the claims against the
United States.