Equal Employment Opportunity Commission v. Peabody Western Coal Company; Navajo Nation, Rule 19 Defendant

Peabody Western Coal Co. ("Peabody”) mines coal at the

Black Mesa Complex and Kayenta mines on the Hopi and

Navajo reservations in northeastern Arizona under leases with

the tribes. At issue in this appeal are two leases with the

Navajo Nation ("the Nation”) that permit Peabody to mine

coal on Navajo reservation land. Each lease requires Peabody

to give preference in employment to "Navajo Indians.” Both

leases received approval from the Department of the Interior

("Interior”) under the Indian Mineral Leasing Act of 1938,

25 U.S.C. §§ 396a, 396e ("IMLA”). Since at least as early as

the 1940s, Interior-approved mineral leases, including the two

at issue here, have routinely included tribal hiring preference

provisions.

EEOC V. PEABODY 4 WESTERN COAL CO.

This appeal is the latest stage in a long-running legal

dispute about the tribal hiring preferences.1 The Equal

Employment Opportunity Commission ("EEOC”) sued

Peabody in the District of Arizona in 2001, alleging that

Peabody's implementation of the tribal hiring preference

constituted national origin discrimination in violation of Title

VII of the Civil Rights Act of 1964. The EEOC also claimed

that Peabody had violated Title VII's record-keeping

requirements. See 42 U.S.C. § 2000e-8(c). Several years of

litigation on procedural matters resulted in the joinder of the

Nation under Federal Rule of Civil Procedure 19 and

impleader of the Secretary and Assistant Secretary of the

Interior (collectively, "the Secretary”) under Federal Rule of

Civil Procedure 14. The principal issue now before us is the

EEOC's claim that Title VII prohibits the tribal hiring

preference contained in the Peabody leases.

In the decision now on appeal, the district court granted

summary judgment against the EEOC on the merits. It held

that the Navajo hiring preference in the leases is a political

classification, rather than a classification based on national

origin, and therefore does not violate Title VII. We have

1 The previous opinions in this case are EEOC v. Peabody Coal Co.

(Peabody I), 214 F.R.D. 549 (D. Ariz. 2002); EEOC v. Peabody W. Coal

Co. (Peabody II), 400 F.3d 774 (9th Cir. 2005); EEOC v. Peabody W.

Coal Co. (Peabody III), No. CV 01-01050, 2006 WL 2816603 (D. Ariz.

Sept. 30, 2006); EEOC v. Peabody W. Coal Co. (Peabody IV), 610 F.3d

1070 (9th Cir. 2010); and EEOC v. Peabody W. Coal Co. (Peabody V),

No. 01-CV-01050, 2012 WL 4339208 (D. Ariz. Sept. 20, 2012). Other

issues pertaining to Peabody's operations on the Nation's land have also

been the subjects of litigation, in this court and elsewhere. See United

States v. Navajo Nation, 537 U.S. 488 (2003); Peabody Coal Co. v.

Navajo Nation, 373 F.3d 945 (9th Cir. 2004); Navajo Nation v. Peabody

Holding Co., 209 F. Supp. 2d 269 (D.D.C. 2002); see also Clinton v.

Babbitt, 180 F.3d 1081, 1083–86 (9th Cir. 1999).

EEOC V. PEABODY WESTERN COAL CO. 5

jurisdiction over the EEOC's appeal pursuant to 28 U.S.C.

§ 1291. We agree with the district court that the tribal hiring

preference is a political classification. We therefore affirm.

I. Background

Peabody's predecessor-in-interest entered into two leases

with the Navajo Nation. The first, Lease No. 8580, signed in

1964, permits Peabody to mine coal on the Navajo

reservation. The second, Lease No. 9910, signed in 1966,

permits Peabody to mine on reservation land formerly held in

trust for both the Navajo and Hopi tribes, now partitioned

between the tribes.

In Lease No. 8580, Peabody "agrees to employ Navajo

Indians when available in all positions for which, in the

judgment of [Peabody], they are qualified, and to pay

prevailing wages to such Navajo employees and to utilize

services of Navajo contractors whenever feasible.” The lease

also provides that Peabody "shall make a special effort to

work Navajo Indians into skilled, technical and other higher

jobs in connection with [its] operations under this lease.”

Lease No. 9910 contains a similar provision, and also states

that Peabody "may at its option extend the benefits of [the

hiring preference] to Hopi Indians.” Interior drafted the

leases and required the inclusion of the Navajo hiring

preferences. The leases were approved by Interior under the

IMLA. Peabody IV, 610 F.3d at 1075.

In 1998, two members of the Hopi Tribe and one member

of the Otoe Tribe filed discrimination charges with the

EEOC. They alleged that they had applied to Peabody for

positions for which they were qualified, and that they were

not hired because they were not Navajo. After an

EEOC V. PEABODY 6 WESTERN COAL CO.

investigation, the EEOC sued Peabody in federal district

court in Arizona in 2001. The EEOC alleged that Peabody's

implementation of the tribal hiring preference provisions

constituted national origin discrimination forbidden by Title

VII.

After the EEOC brought its Title VII claims, Peabody

moved for summary judgment. The district court granted the

motion on two grounds, holding that the suit presented a

nonjusticiable political question and that the Nation was a

necessary party for whom joinder was not feasible. Peabody

I, 214 F.R.D. at 560–61. We reversed, holding that the suit

did not present a political question and that Rule 19 joinder

was feasible, provided that the EEOC sought no affirmative

relief against the Nation. Peabody II, 400 F.3d at 778. The

Supreme Court denied review. Peabody W. Coal Co. v.

EEOC, 546 U.S. 1150 (2006) (mem.).

On remand, the EEOC amended its complaint to join the

Nation under Rule 19. The district court again granted

summary judgment against the EEOC. It held that the EEOC

sought affirmative relief against the Nation, defeating Rule 19

joinder; that the Secretary was a necessary party for whom

joinder was not feasible; and that the tribal hiring preference

did not violate Title VII because it was authorized by the

Navajo-Hopi Rehabilitation Act of 1950, 25 U.S.C.

§§ 631–638. Peabody III, 2006 WL 2816603.

On appeal, we reversed in part and vacated in part. We

again held that joinder of the Nation was feasible. We held

further that, although the EEOC could not join the Secretary

as a defendant under Rule 19, Peabody or the Nation could

implead the Secretary as a third-party defendant under Rule

14(a) on claims for injunctive or declaratory relief. We

EEOC V. PEABODY WESTERN COAL CO. 7

vacated the judgment on the Title VII claim in order to allow

the district court to consider the Secretary's arguments.

Peabody IV, 610 F.3d 1070. The Supreme Court again

denied review. EEOC v. Peabody W. Coal Co., 132 S. Ct. 91

(2011) (mem.).

On remand, the EEOC filed a second amended complaint.

Peabody impleaded the Secretary and counterclaimed against

the EEOC for declaratory relief. The district court granted

the EEOC's motion to dismiss Peabody's counterclaims.

The Secretary then moved for summary judgment on

Peabody's third-party complaint on the ground that the tribal

hiring preferences in the leases were permissible under Title

VII. The Nation and Peabody also moved for summary

judgment.

The day before argument on those motions, the EEOC

moved to supplement the record with the declaration and

supporting documents of a former EEOC investigator who

had interviewed Peabody's hiring officials in 1999. The

district court denied the motion as untimely, noting that the

information that the EEOC sought to introduce had long been

available, and that, in any event, the information was not

relevant because it pertained to pre-1999 practices.

The district court upheld the tribal hiring preferences in

the leases. After "an examination of the status of Indian

tribes in general and their relationship to the federal

government,” and drawing on the principles the Supreme

Court articulated in Morton v. Mancari, 417 U.S. 535 (1974),

the court held that the preference was a political classification

rather than a national origin classification. The EEOC timely

EEOC V. PEABODY 8 WESTERN COAL CO.

appealed the grant of summary judgment and the denial of its

motion to supplement the record.

II. Standard of Review

We review de novo a district court's grant of summary

judgment. Kang v. U. Lim Am., Inc., 296 F.3d 810, 814 (9th

Cir. 2002). We review for abuse of discretion a district

court's denial of a motion to supplement the record. Sheet

Metal Workers' Int'l Ass'n Local Union No. 359 v. Madison

Indus., Inc., of Ariz., 84 F.3d 1186, 1192 (9th Cir. 1996).

III. Discussion

A. Title VII National Origin Discrimination

The EEOC argues that Title VII prohibits hiring

preferences based on tribal affiliation, which it contends is a

form of impermissible national origin discrimination. The

EEOC is responsible for overseeing the implementation and

enforcement of Title VII. 42 U.S.C. § 2000e-14. The

Secretary argues that the tribal hiring preferences are based

on political classifications that Title VII does not reach. The

Secretary maintains that tribal hiring preferences serve to

promote tribal self-governance in accordance with

congressionally mandated federal Indian policy. None of the

parties has argued that Chevron deference applies to the

EEOC's or Interior's interpretations of the statutes each is

charged with administering. See Chevron, U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

The question before us is one of first impression. But we

do not walk on untrodden ground. We have previously stated

that differential treatment in employment based on tribal

EEOC V. PEABODY WESTERN COAL CO. 9

affiliation can give rise to a Title VII national origin

discrimination claim. See Dawavendewa v. Salt River Project

Agric. Improvement & Power Dist. (Dawavendewa I),

154 F.3d 1117 (9th Cir. 1998). Outside the context of Title

VII, however, we have recognized that where differential

treatment serves to fulfill the federal government's special

trust obligation to the tribes as quasi-sovereign political

entities, tribal preferences are permissibly based on political

classifications. Means v. Navajo Nation, 432 F.3d 924, 932

(9th Cir. 2005); Kahawaiolaa v. Norton, 386 F.3d 1271, 1278

(9th Cir. 2004); see Mancari, 417 U.S. 535.

For the reasons that follow, we hold that the tribal hiring

preferences in the Peabody leases are based on tribal

affiliation, a political classification. We also hold that Title

VII does not prohibit differential treatment based on this

political classification.

1. Statutory Framework

We begin by reviewing the relevant provisions of the

IMLA and of Title VII.

a. The Indian Mineral Leasing Act of 1938

The Peabody leases are authorized and governed by the

IMLA. See United States v. Navajo Nation, 537 U.S. 488,

495 (2003). That statute provides, in relevant part:

On and after May 11, 1938, unallotted

lands within any Indian reservation or lands

owned by any tribe, group, or band of Indians

under Federal jurisdiction, except those

specifically excepted from the provisions of

EEOC V. PEABODY 10 WESTERN COAL CO.

sections 396a to 396g of this title, may, with

the approval of the Secretary of the Interior,

be leased for mining purposes, by authority of

the tribal council or other authorized

spokesmen for such Indians, for terms not to

exceed ten years and as long thereafter as

minerals are produced in paying quantities.

25 U.S.C. § 396a.

The IMLA was "designed to advance tribal

independence.” Navajo Nation, 537 U.S. at 494. Congress

"aimed to foster tribal self-determination by giving Indians a

greater say in the use and disposition of the resources found

on Indian lands.” Id. (internal quotation marks and alteration

omitted). The IMLA was intended (1) to achieve "uniformity

so far as practicable of the law relating to the leasing of tribal

lands for mining purposes,” H.R. Rep. No. 1872, 75th Cong.,

3d Sess., at 1 (1938); (2) to ensure that Indians received "the

greatest return from their property,” id. at 2; and (3) to "bring

all mineral-leasing matters in harmony with the Indian

Reorganization Act,” id. at 3. See Montana v. Blackfeet Tribe

of Indians, 471 U.S. 759, 767 n.5 (1985).

The Indian Reorganization Act ("IRA”), also known as

the Wheeler-Howard Act, enacted four years prior to the

IMLA, has been described as "probably the most important

single statute affecting Indians . . . since its passage.” Elmer

R. Rusco, A Fateful Time: The Background and Legislative

History of the Indian Reorganization Act, at ix (2000). The

drafters of the IRA sought to reverse half a century of

assimilationist policy. See id. at 62, 180. The IRA was a

comprehensive reform statute, providing, among other things,

for tribal self-government, restoration of lands to tribal

EEOC V. PEABODY WESTERN COAL CO. 11

ownership, economic development, and vocational training.

Indian Reorganization Act, 48 Stat. 984, Pub. L. No. 73-383

(1934) (codified as amended at 25 U.S.C. § 461 et seq.). In

the decades since its enactment, the IRA has been criticized

for the lack of involvement of Indian communities during the

drafting process, as well as for perceived failures in its

implementation. Rusco, supra, at x–xi, 190. But it remains

the case that the statute was conceived as a means to restore

tribal sovereignty and to promote the tribes' self-governance

and economic independence. Mancari, 417 U.S. at 542 &

n.12 (quoting the statement of John Collier, Commissioner of

Indian Affairs, that the IRA "is designed not to prevent the

absorption of Indians in white communities, but rather to

provide for those Indians unwilling or unable to compete in

the white world some measures of self-government in their

own affairs”); see generally Rusco, supra.

In enacting the IMLA, Congress expressly intended to

further the policy goals articulated in the IRA. In the IMLA,

Congress delegated broad discretion to the Secretary to

approve mineral leases. See Navajo Nation, 537 U.S. at

494–95. The IMLA does not mention hiring preferences of

any kind, but in the exercise of its discretionary authority,

Interior since the 1940s has routinely approved mineral leases

that require a tribe's lessee to give preference in hiring to

members of that tribe. This long-established practice serves

to ensure that the economic value of the mineral leases on

tribal lands inures to the benefit of the tribe and its members,

consistent with the purpose of the IMLA.

Stewart Udall, Secretary of the Interior when the Peabody

leases were prepared, stated in a declaration and in a

deposition that Interior negotiated and drafted the leases. He

affirmed that the Navajo preference provisions were a "key

EEOC V. PEABODY 12 WESTERN COAL CO.

provision,” given the economic importance of coal resources

on the reservations. Peabody IV, 610 F.3d at 1075. Secretary

Udall understood Interior's role in approving mining leases

as carrying out a special trust duty owed to Indian tribes in

general and, with respect to these leases, owed in particular

to the Navajo and Hopi tribes whose coal was being mined.

b. Title VII of the Civil Rights Act of 1964

Title VII prohibits discrimination in employment on the

grounds of "race, color, religion, sex, or national origin.”

42 U.S.C. § 2000e-2(a). The EEOC contends that the tribal

preference in the leases violates the prohibition against

national original discrimination. Title VII does not define

"national origin.” The legislative history tells us very little

about Congress's understanding of the term. The only

discussion of "national origin” came in the context of

permitting employers to indicate hiring preferences based on

sex, religion, or national origin where those qualities are a

"bona fide occupational qualification.” That discussion

centered on the distinction between discrimination based on

race and discrimination based on national origin.

Representative James Roosevelt stated, "May I just make

very clear that 'national origin' means national. It means the

country from which you or your forebears came from. You

may come from Poland, Czechoslovakia, England, France, or

any other country.” EEOC, Legislative History of Titles VII

and XI of the Civil Rights Act of 1964, at 3179–80 (1968);

110 Cong. Rec. 2549 (1964). Representative John Dent

stated, "National origin, of course, has nothing to do with

color, religion, or the race of an individual. A man may have

migrated here from Great Britain and still be a colored

person.” EEOC, supra, at 3180; 110 Cong. Rec. 2549 (1964).

EEOC V. PEABODY WESTERN COAL CO. 13

Title VII contains two provisions specifically addressing

Indian tribes. First, it provides that the term "employer” does

not include "an Indian tribe,” thus excluding Indian tribal

governments entirely from coverage under Title VII.

42 U.S.C. § 2000e(b). Second, Section 703(i), known as the

"Indian Preference exemption,” expressly permits preferential

hiring over non-Indians of Indians living on or near

reservations. It provides:

Nothing contained in this subchapter shall

apply to any business or enterprise on or near

an Indian reservation with respect to any

publicly announced employment practice of

such business or enterprise under which a

preferential treatment is given to any

individual because he is an Indian living on or

near a reservation.

42 U.S.C. § 2000e-2(i).

The legislative history of Section 703(i) is sparse. We at

least know that it was intended to help remedy past and

present discrimination against Indians as a "minority group.”

See 110 Cong. Rec. 13,702 (statement of Sen. Karl Mundt).

We have previously noted that "the primary impetus behind

§ 703(i) was concern that by enacting Title VII Congress

would render unlawful otherwise permissible hiring

preferences for Native Americans.” Malabed v. N. Slope

Borough, 335 F.3d 864, 871 (9th Cir. 2003). The exemption

was designed "to protect existing or future preference

programs.” Id.; see also 110 Cong. Rec. 13,702 (statement of

Sen. Karl Mundt) (stating that Section 703(i), along with the

exclusion of Indian tribes from Title VII's definition of

"employer,” "will assure our American Indians of the

EEOC V. PEABODY 14 WESTERN COAL CO.

continued right to protect and promote their own interests and

to benefit from Indian preference programs now in operation

or later to be instituted”). But the legislative history and

statutory text give little indication as to Congress's views, if

any, on preferences for tribal members over Indians from

other tribes, as distinct from general preferences for Indians

over non-Indians.

The EEOC issued a policy statement in 1988 in which it

concluded that Section 703(i) is limited to general Indian

hiring preferences and does not, in itself, authorize

preferential employment practices based on tribal

affiliation—a statement to which we have accorded

deference. See Dawavendewa I, 154 F.3d at 1121. But this

statement does not end the inquiry. That Section 703(i) does

not itself authorize or create an exemption for tribal hiring

preferences on or near Indian reservations does not dispose of

the question before us: whether Title VII's prohibition against

national origin discrimination prohibits the tribal hiring

preferences in the mineral leases.

2. Tribal Affiliation and National Origin

The correspondence between tribal membership, on the

one hand, and national origin, on the other, is not self-evident.

See generally Matthew L.M. Fletcher, Tribal Membership

and Indian Nationhood, 37 Am. Indian L. Rev. 1 (2013).

Tribal membership, often based on blood quantum and

lineage, see id. at 4, incorporates notions of race and ethnicity

that the drafters of Title VII explicitly understood the term

"national origin” to exclude. The federal government's

interactions with Indians have, in many cases, shaped their

political structures and constituencies, such that even the

notion of the tribe may lack direct correlation with actual or

EEOC V. PEABODY WESTERN COAL CO. 15

historical group politics. See Felix S. Cohen, Handbook of

Federal Indian Law § 3.02[3], at 133 (Nell Jessup Newton

ed., 2012); see also id. § 14.03[2][b], at 954 ("[T]he very

concept of enrollment and maintenance of citizenship lists is

largely an artifact of federal actions.”); Carole Goldberg-

Ambrose, Of Native Americans and Tribal Members: The

Impact of Law on Indian Group Life, 28 Law & Soc'y Rev.

1123, 1131–33 (1994). Nonetheless, our decision in

Dawavendewa I established that, at least in some cases, a

tribal hiring preference can give rise to a Title VII national

origin discrimination claim.

At issue in Dawavendewa I was the claim of a Hopi

Indian who had been denied employment at a power station

on a Navajo reservation, the Salt River Project ("SRP”),

pursuant to a tribal hiring preference in the power company's

lease agreement with the Navajo Nation. Id. at 1118. We

held at the pleading stage that the plaintiffs had stated a Title

VII national origin discrimination claim sufficient to survive

a motion to dismiss. Id. at 1124. We observed that, in its

implementing regulations, the EEOC has given the term

"national origin” an expansive construction that could

plausibly be read to encompass tribal affiliation. Id. at 1119.

The EEOC "defines national origin discrimination broadly as

including, but not limited to, the denial of equal employment

opportunity because of an individual's, or his or her

ancestor's, place of origin; or because an individual has the

physical, cultural or linguistic characteristics of a national

origin group.” 29 C.F.R. § 1606.1 (2012). We also drew on

our own broad construction of the term. In Pejic v. Hughes

Helicopters, Inc., 840 F.2d 667 (9th Cir. 1988), we had

written: "Unless historical reality is ignored, the term

'national origin' must include countries no longer in

existence. Given world history, Title VII cannot be read to

EEOC V. PEABODY 16 WESTERN COAL CO.

limit 'countries' to those with modern boundaries, or to

require their existence for a certain time length before it will

prohibit discrimination.” Id. at 673 (citation omitted).

In light of this, we held in Dawavendewa I that,

"[b]ecause the different Indian tribes were at one time

considered nations, and indeed still are to a certain extent,

discrimination on the basis of tribal affiliation can give rise

to a 'national origin' claim under Title VII.” 154 F.3d at

1120. We noted that "Native Americans' interests in selfgovernance”

were not at issue. Id. We suggested that the

presence of such interests would trigger a separate analysis,

grounded in the Supreme Court's decision in Mancari, and its

recognition that at least some forms of preferential treatment

of Indians are based on political classifications rather than

national origin. Id.; see infra Subsection III.A.3. We also

held, giving EEOC's 1988 policy statement "due weight,”

that Section 703(i) did not authorize tribal hiring preferences.

Dawavendewa I, 154 F.3d at 1121–22.

The EEOC contends that our analysis must begin and end

with Dawavendewa I. But four years later, in a second appeal

in that case, we limited the scope of what we had earlier

written. In Dawavendewa v. Salt River Project Agricultural

Improvement & Power District (Dawavendewa II), 276 F.3d

1150 (9th Cir. 2002), we heard an appeal from the district

court's dismissal of a claim for failure to join the Nation as a

defendant under Rule 19. We affirmed. In doing so, we

specifically rejected the plaintiffs' contention that we had

previously held that Salt River Project's hiring practices

violated Title VII. We wrote in Dawavendewa II that

Dawavendewa I

EEOC V. PEABODY WESTERN COAL CO. 17

held only that a hiring preference policy based

on tribal affiliation, as described in the

complaint, stated a [national origin

discrimination] claim upon which relief could

be granted. . . . [W]e did not address the

merits of the Nation's proffered legal

justifications in defense of the challenged

hiring preference policy. In particular, we

declined to consider whether the Nation's

1868 Navajo Treaty, the federal policy

fostering tribal self-governance, the [Navajo

Preference in Employment Act], or any other

legal defense justified SRP's hiring preference

policy.

Dawavendewa II, 276 F.3d at 1158 (emphasis added)

(citation omitted). We observed that "[i]n appropriate

situations, federal law yields out of respect for treaty rights or

the federal policy fostering tribal self-governance.” Id. As

we explain below, this case presents such a situation.

3. Tribal Affiliation as Political Classification

In Mancari, non-Indian employees of the Bureau of

Indian Affairs ("BIA”) sued to enjoin the implementation of

a provision of the IRA that granted appointment and

promotion preferences to Indians seeking positions in the

BIA. See 25 U.S.C. § 472. The plaintiffs argued that the

preference was contrary to, and impliedly repealed by, the

1972 Equal Employment Opportunity Act's ("EEOA”)

prohibition against race-based discrimination in federal

employment, and that it constituted invidious racial

discrimination in violation of the Due Process Clause of the

EEOC V. PEABODY 18 WESTERN COAL CO.

Fifth Amendment. Mancari, 417 U.S. at 537, 547. The Court

rejected both arguments. Id. at 551, 553–54

The Court held that the EEOA had not impliedly repealed

the BIA employment preference. Id. at 551. The Court noted

that the "overriding purpose of [the IRA] was to establish

machinery whereby Indian tribes would be able to assume a

greater degree of self-government, both politically and

economically,” and that the participation of Indians in the

operation of the BIA was crucial to achieving that goal. Id.

at 542–43. The Court observed that Title VII explicitly

exempts tribal employers from its coverage and permits the

preferential hiring of Indians on or near Indian reservations.

Id. at 547–48. "It would be anomalous to conclude that

Congress intended to eliminate the longstanding statutory

preferences in BIA employment, as being racially

discriminatory, at the very same time it was reaffirming the

right of tribal and reservation-related private employers to

provide Indian preference.” Id. at 548. The Court noted

further that Congress had enacted Indian preferences in other

legislation contemporaneous to Title VII, which suggested

that it likely did not intend to repeal the Indian preference in

the IRA by passing Title VII. Id. at 548–49.

The Court also held that the Indian employment

preference did not constitute invidious racial discrimination

in violation of the Due Process Clause. The IRA reflected the

congressional determination that "proper fulfillment of its

trust [obligations] required turning over to the Indians a

greater control of their own destinies.” Id. at 553. The Court

reasoned that "[t]he preference . . . is granted to Indians not

as a discrete racial group, but, rather, as members of quasisovereign

tribal entities whose lives and activities are

governed by the BIA in a unique fashion.” Id. at 554. The

EEOC V. PEABODY WESTERN COAL CO. 19

Indian employment preference was not based on a racial

designation but on a political preference that triggered only

rational-basis review. Id. "As long as the special treatment

can be tied rationally to the fulfillment of Congress' unique

obligation toward the Indians, such legislative judgments will

not be disturbed.” Id. at 555. The preference was

"reasonable and rationally designed to further Indian selfgovernment”

and did not violate due process. Id.

The Court has reaffirmed Mancari on several occasions.

The Court continues to distinguish between permissible

differential treatment of Indian tribes based on political

classifications, on the one hand, and impermissible

differential treatment of groups based on racial or national

origin classifications, on the other. In Rice v. Cayetano,

528 U.S. 495 (2000), the Court stated,

Of course, as we have established in a

series of cases, Congress may fulfill its treaty

obligations and its responsibilities to the

Indian tribes by enacting legislation dedicated

to their circumstances and needs. As we have

observed, "every piece of legislation dealing

with Indian tribes and reservations . . .

single[s] out for special treatment a

constituency of tribal Indians.”

Id. at 519 (citations omitted) (alteration in original) (quoting

Mancari, 417 U.S. at 552). We have applied the distinction

in our own cases. See, e.g., Kahawaiolaa, 386 F.3d at 1278;

see also Means, 432 F.3d at 932–33 (applying Mancari and

upholding against an equal-protection challenge a law

subjecting to tribal criminal jurisdiction a person who is not

EEOC V. PEABODY 20 WESTERN COAL CO.

a member of the tribe, but is an enrolled member of a

different Indian tribe).

We recognize that Mancari addressed a political

classification providing a general Indian hiring preference

rather than a tribe-specific preference. But Mancari's logic

applies with equal force where a classification addresses

differential treatment between or among particular tribes or

groups of Indians. Indeed, based on Mancari, the Court has

specifically upheld differential treatment among Indians. In

Delaware Tribal Business Committee v. Weeks, 430 U.S. 73

(1977), the Court addressed Congress's distribution of an

award by the Indian Claims Commission for claims arising

out of an illegal sale of Delaware tribal lands in the

nineteenth century. Congress distributed funds to two

federally recognized tribes—the Cherokee Delawares and the

Absentee Delawares—and to members of those two tribes.

Id. at 79–80. However, Congress did not distribute funds to

the Kansas Delawares, an unrecognized tribe, or to its

members, even though the Kansas Delawares, like Cherokee

Delawares and Absentee Delawares, were descendants of the

Delawares whose lands had been illegally sold. Id. at 79–82.

In upholding the differentiation between the two groups of

Delawares, the Court wrote that "the legislative judgment

should not be disturbed '[a]s long as the special treatment can

be tied rationally to the fulfillment of Congress' unique

obligation toward the Indians.'” Id. at 85 (alteration in

original) (quoting Mancari, 417 U.S. at 555); see also

Kahawaiolaa, 386 F.3d at 1279 ("Congress certainly has the

authority to single out a constituency of tribal Indians in

legislation dealing with Indian tribes and reservations.”

(internal quotation marks omitted)).

EEOC V. PEABODY WESTERN COAL CO. 21

The Navajo tribal hiring preferences in this case are based

on the policy considerations that undergird Mancari. As we

have noted above, Congress intended the IMLA to be read in

harmony with the IRA, which had been enacted only four

years earlier. A key purpose of the IRA was the advancement

of tribal self-government. "[T]he IMLA aimed to foster tribal

self-determination by giving Indians a greater say in the use

and disposition of resources found on Indian lands.” Navajo

Nation, 537 U.S. at 494 (internal quotation marks and

alteration omitted). Where the exploitation of mineral

resources on a particular tribe's reservation is concerned, the

federal government's responsibility necessarily runs to that

tribe, not to all Indians.

We therefore have no difficulty concluding that the tribal

hiring preferences here are based on a political classification

within the meaning of Mancari. Peabody accords preference

in hiring to members of the Navajo Nation, pursuant to the

terms of Interior-approved leases. Interior viewed those

preferential hiring provisions as useful in ensuring that the

economic benefits flowing from the "most important

resource” on the Navajo reservation accrued to the tribe and

its members. Measures intended to preserve for the Nation

and its members the fruits of the resources found on the

tribe's own land are "rationally designed” to fulfill the federal

government's trust obligations to the tribe.

This conclusion, however, does not completely answer

the question before us. Mancari did not involve a claim

brought directly under Title VII. Title VII was implicated

only to the extent the plaintiffs claimed that the EEOA, an

amendment to Title VII, impliedly preempted the BIA hiring

preference. See 417 U.S. at 537. The precise question before

us is whether Title VII's specific prohibition on national

EEOC V. PEABODY 22 WESTERN COAL CO.

origin discrimination extends to what the Supreme Court

would later characterize in Mancari as a political

classification. We conclude that Title VII does not prohibit

differential treatment based on tribal affiliation, the political

classification at issue here.

As we described above, Title VII contains two provisions

concerning Indians: (1) an exclusion of tribal governments

from the definition of "employer,” and (2) a general

exemption from Title VII for preferential hiring of Indians.

The Indian preference exemption expressly permits the

preferential hiring of "an Indian living on or near a

reservation.” 42 U.S.C. § 2000e-2(i). "There is no

universally applicable definition” of the term "Indian.”

Cohen, supra, § 3.03[1], at 171. Title VII itself does not

contain a definition of the term, but we noted in

Dawavendewa I that it is "generally used to draw a distinction

between Native Americans and all others.” 154 F.3d at 1121.

The EEOC would have us infer from the Indian hiring

preferences expressly authorized in Section 703(i) that Title

VII allows only preferences that distinguish between Indians

and non-Indians. See 42 U.S.C. § 2000e-2(i). We disagree

with the EEOC's interpretation. Section 703(i) is an

exemption from Title VII. The nature of the exemption helps

us understand the reach of Title VII's prohibitions. The term

"Indian” in Section 703(i) of Title VII describes a broad

nonpolitical class. The term covers any Indian living on or

near a reservation; qualification as an Indian under Section

703(i) is not based on the political classification of tribal

affiliation. The Indian preference exemption contained in

Section 703(i) is therefore necessary to clarify that Title VII's

prohibition against racial or national origin discrimination

does not extend to Indians.

EEOC V. PEABODY WESTERN COAL CO. 23

Congress was plainly aware that Title VII could have

ramifications for Indian communities, and it saw clearly the

need to mitigate those possible effects. For that reason,

Congress excluded tribal employers from Title VII's scope

and exempted general Indian hiring preferences. See

110 Cong. Rec. 13,702 (statement of Sen. Karl Mundt)

(stating that Section 703(i), along with the exclusion of Indian

tribes from Title VII's definition of "employer,” "will assure

our American Indians of the continued right to protect and

promote their own interests and to benefit from Indian

preference programs now in operation or later to be

instituted”). However, Congress did not carve out from Title

VII's prohibitions any similar exemption for preferences

based on tribal affiliation. That Congress could have created

such an exemption or exception, but saw no need to do so,

suggests that it did not understand Title VII to reach tribal

affiliation because such affiliation is a political classification.

See Andrus v. Glover Constr. Co., 446 U.S. 608, 616–17

(1980) ("Where Congress explicitly enumerates certain

exceptions to a general prohibition, additional exceptions are

not to be implied . . . .”).

Title VII is a general antidiscrimination statute. Both the

text and the legislative history show that Congress anticipated

possible effects of Title VII on federal Indian policy and

crafted provisions specifically designed to preserve the status

quo. Interior's approval of mineral leases containing tribal

hiring preferences is a well-established practice that long

predates the enactment of Title VII. Tribal hiring preferences

were, and are, intended to further the policy goals embodied

in the IRA and the IMLA. Nothing indicates that Congress

viewed Title VII as a recalibration of its policy toward tribal

communities that had been articulated in its prior legislation.

Nor is there any suggestion that Congress viewed Title VII as

EEOC V. PEABODY 24 WESTERN COAL CO.

a specific disapproval of Interior's longstanding and settled

practice of approving tribal hiring preferences in mineral

leases. Cf. Dames & Moore v. Regan, 453 U.S. 654, 686

(1981) ("[L]ong-continued practice, known to and acquiesced

in by Congress, would raise a presumption that the [action]

had been [taken] in pursuance of its consent.” (alterations in

original) (quoting United States v. Midwest Oil Co., 236 U.S.

459, 474 (1915)).

We therefore conclude that Title VII does not reach the

tribal hiring preferences in the Peabody leases and affirm the

district court's grant of summary judgment against the EEOC.

B. Motion to Supplement the Record

The EEOC argues that the district court erred in denying

its motion to supplement the record. On the eve of oral

argument in the district court, the EEOC sought to include in

the record a declaration and documents from a former EEOC

investigator who interviewed former Peabody hiring officials

about hiring practices in 1999. The EEOC sought to use this

information to demonstrate that Peabody gave hiring

preferences to Indians who were not affiliated with the

Navajo Nation, and thereby made hiring decisions based on

national origin rather than tribal membership. The district

court denied the motion as untimely.

The district court did not abuse its discretion in denying

leave to supplement the record. There is no discernible

reason why the EEOC could not have sought to introduce this

evidence much earlier in the proceedings. See Fed. R. Civ. P.

6(b)(1)(B), (c)(1) (providing that motions must be served at

least fourteen days prior to the hearing, unless the moving

party has failed to act because of excusable neglect). At the

EEOC V. PEABODY WESTERN COAL CO. 25

time of the EEOC's eleventh-hour motion, the motions to

dismiss and for summary judgment had been pending for

several months. The information, collected in 1999, had been

in the EEOC's possession for more than a decade.

We also note that the information is relevant only to an

entirely new theory of relief. From the beginning of this

litigation, the EEOC had argued that Peabody's contractual

hiring practices violate Title VII because the leases give

hiring preference to members of the Nation. By seeking to

introduce the supplemental information, the EEOC sought to

argue that Peabody makes individual hiring decisions based

on national origin criteria, rather than on tribal membership.

In the circumstances, we find no abuse of discretion in the

district court's decision prohibiting the EEOC from raising a

new theory at such a late stage in this lengthy litigation. We

express no opinion on the legal merit of the EEOC's new

theory, even assuming it could be supported by admissible

evidence.

C. Record-keeping Claim

In addition to its Title VII national origin discrimination

claim, the EEOC alleged in its complaint that Peabody had

violated the record-keeping requirements of Title VII,

42 U.S.C. § 2000e-8(c), by failing to "make and preserve

records relevant to the determination of whether unlawful

employment practices have been or are being committed.”

The district court granted the defendants' motions for

summary judgment and dismissed the EEOC's claims with

prejudice, but it did not specifically mention the recordkeeping

claim.

EEOC V. PEABODY 26 WESTERN COAL CO.

Although the EEOC states in its opening brief on appeal

that it "continues to assert” the record-keeping claim, the

brief is devoid of any argument in support of that claim.

Generally, we do not consider claims that are not

"specifically and distinctly argued” in the opening brief.

United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992)

(internal quotation marks omitted). We see no reason to

deviate from our usual practice in this case. We therefore

conclude that the EEOC has waived its record-keeping claim

on appeal.

Conclusion

We hold that the district court correctly granted summary

judgment to the defendants and third-party defendants and

that the EEOC has waived on appeal its record-keeping claim.

We also hold that the district court acted within its discretion

in denying the EEOC’s motion to supplement the record.

AFFIRMED.