Robert REICH, Secretary the Labor, Plaintiff-Appellant,v.good LAKEns INDIone FISH and also WILDLIFE COMMISSION, Defendant-Appellee.
You are watching: Great lakes indian fish and wildlife commission
unified claims Court that Appeals,saturday Circuit.
argued June 10, 1993.determined Aug. 27, 1993.Rehearing and also suggestion for RehearingEn Banc refuse Dec. 9, 1993.
Steven J. Mandel, Allen H. Feldman, Dept. The Labor, Appellate Litigation, Washington, DC, william J. Stone, Ellen L. Moustache (argued), UNITED STATE Dept. The Labor, Office of the Sol., Washington, DC, for plaintiff-appellant.
James E. Zorn, good Lakes India Fish & Wildlife Com"n, Odanah, WI, Douglas B.L. Endreboy (argued), anne D. Note, Sonosky, Chambers, Sachse & Endreson, Washington, DC, because that defendant-appellee.
before POSNER and also COFFEY, Circuit Judges, and ESCHBACH, high level Circuit Judge.
POSNER, Circuit Judge.
the room of labor request ns area court come enpressure a subpoena command versus ns good Lakes India Fish and also Wildlife Commission, seekinns evidence the ns commission ins violatinns ns fair job requirements Act, 29 U.S.C. Secs. 201 et seq., i m sorry therefore much together relevant below calls for employers come salary employee one and a half times their continuous wperiods for work in excess that forty hours a week. The district judge refoffered to enforce the subpoena, on ns ground the ns the supervisory board is no subject to ns Act. Ns department has appealed. Itns first argument, i beg your pardon need not detain us long, ins that the courns have to have actually imposed ns subpoena withthe end resolving ns Concern the statutory coverage, insteAD deferring the Concern till and unmuch less the room behavior versus ns the supervisory board because that violation of the Act. If it were skeptical whether ns commission wtogether failing to pay time and a fifty percent for overtime, or if ns Question whether ns board of directors is topic to the Acns might no be refixed withthe end the indevelopment sought by the subpoena, ns deferral argued by ns room would be proper. Neither condition is satisfied. The board of directors admitns that it does no salary tins and a fifty percent for overtime; and also the Inquiry of statutory coverEra is independenns that any type of indevelopment that the subpoena might produce, as it is a Concern pudepend that law. Ns commission need to not it is in burdened via having actually come comply with a subpoena if, as ns district courns believed, ns firm issuinns it has no jurisdictitop top come manage the weras the the commission pays. Inquiries of regulation jurisdicti~ above are correctly handle in ~ ns subpoena-enforcement stAge if, together here, lock to be ripe because that determicountry in ~ the stage. EEOC v. Cherokee Nation, 871 F.2d 937 (10th Cir.1989); unified says v. Newport News Shipstructure & dried Dock Co., 837 F.2d 162, 165-66 (4th Cir.1988); EEOC v. Ocean City Police Dept., 820 F.2d 1378 (4th Cir.1987); FTC v. Shaffner, 626 F.2d 32, 36 (7th Cir.1980); joined says v. Frontier Airlines, Inc., 563 F.2d 1008, 1009 (10th Cir.1977); cf. Oklahoma push posting Co. V. Walling, 327 U.S. 186, 216, 66 S.Ct. 494, 509, 90 L.Ed. 614 (1946). Compliance via a subpoena is a burden, and a that a Human or college the deserve to display it ins not subject to ns regulation routine in help the which the subpoena wtogether issued need to not be compelled to bear. Cf. Id. In ~ 217, 66 S.Ct. In ~ 509.
the good Lakens Indione Fish and also Wildlife the supervisory board ins a consortium that thirteen Chippewa Indian tribes that inhalittle bit the good Lakes region. The commission was developed in 1984 in order come enpressure the usufructuary rights that ns Chippewtogether retained under a collection that nineteenth-century treaties with ns united States. Sokaogon Chippewa area v. Exx~ above Corp., 2 F.2d 219, 224 (7th Cir.1993); Lac Courte Oreilles Band also v. Voigt, 700 F.2d 341, 362-65 (7th Cir.1983). The Chippewa surcalculation in this contract Most that their legal rights to the occupati~ above that land external that Indian reservations, but preserved the ideal come usage an excellent deal that the land for Timeless Indian activities (which incidentallied have actually a religious as well as economic significance because that the Indians), such together fishinns because that walleye pike and muskellunge, searching deer and also moose, and also collection wild rice cream and also the sans the maple trees, gave the they could execute this points withthe end prejudice cream come lHorrible occupierns that the land. Now this retained rights, though significantly curtailed through the spreAD the white occupation, stiltogether extfinish end tens of countless square miles in claims abuttinns the great Lakes. Ns excellent Lakes India Fish and also Wildlife commission supervisens this activities. It fixens hunting, fishing, and also collection seasons for the various species that animal and also tree extended by ns usufructuary rights, setns boundaries ~ above ns amounts and form that Catch permitted, and also polices compliance through its regulations. Ns critical attribute ins the Most job intensive. Ins is composed not just that assuring that India hunters, fishers, and also gatherers carry out no exceed ns authorized catch, use unauthorized methods, or fish, hunt, or gatshe the end the season, yet additionally that protecting ns indians from interference by white hunters, fishers, and also gatherers. Many type of white people in ns good Lakens area as somewhere else in the joined says eitshe do not understand also or perform no accept the privilegens the ns India contract approve Indians. Forbidden us come spear fish, because that example, white anglers resent ns fact that india to be allowed to perform so. Thins resentment occasionally boil end right into violence. Thus the area employees that ns commission are no just unicreated however likewise armed. They are in fact a mix the Video Game wardens and also policemen. The State the Wisconsin has deputized lock to practice state and tribatogether legislation enforcemenns features in ns locations the they patrol.
ns occupational the the board of directors is seasonal Because the usufructuary civil liberties that ins administerns are seasonal. And also During ns seasons for fishing and also searching ns primary species, ns work-related the ns Commission"s field employees--its Game warden police--takens place virtually round the clock, not only Since ns hrs that daylight to be lengthy and also searching and also fishing take place throughout them, yet additionally Because ns indians prefer come spear fish in ~ night, by torchlight. The seven-day-a-week, twenty-four-hour-a-day character that ns job-related of these Indione police cream ins similar to the the legislation enforcement officers generally, only accentuated by the seasonality the ns Commission"ns responsibilities. If work by state or neighborhood federal governments these police would have actually no commonwealth legal entitlement come tins and a fifty percent for overtime; their employer would certainly be cost-free wislim broADVERTISEMENT limits no only to instead of compensatory time off because that overtins premium pay yet also come measure hrs worked by a occupational month quite than a job-related week, for this reason the one employee that worked more than 40 hrs in a details week would no it is in entitle even come compensatory tins turn off unmuch less he hAD exceeded 160 hours in ns entire month. 29 U.S.C. Secs. 207(k), 207(o ). Due to the fact that the fair labor requirements Act does not point out Indians, the department the labor takens ns place the these exemptions to be inapplicable come ns warden-policeguys of ns good Lakens Indione Fish and also Wildlife Commission. Ns Department"ns maybe counsel recognized in ~ dispute that the difference in treatment between this tribatogether regulation enforcemenns police officers and also state or regional policeguys renders no sense, however contended that the difference can it is in erased only by Congress. She added reassuringly that it was just a Concern the money. Ns Commission"ns tasks to be sponsor mainly through a approve from the room the ns Interior, and if the board of directors is compelled come salary itns warden-policemen overtins ins have the right to always asking the department for added funding and the department can consequently asking conference for a supplepsychological appropriation.
Indian contract are considered the legatogether tantamount the federal law and lock deserve to Therefore be modified or also abrogated through Congress. Joined says v. Dion, 476 UNITED STATE 734, 738, 106 S.Ct. 2216, 2219, 90 L.Ed.2d 767 (1986). Nevertheless, partly no doubns out the a sense of guilt because that ns mistreatment that indians through ns UNITED STATE government, partially in acknowledgment the India tribes favor claims maintain in ~ leastern vestiges of sovereignty, and also partially possibly together a straightfront application the the "can~ above that construction" the repeals through implicitly are disfavored, ns presumpti~ above ins the a state doens not modify or abrogate India treaty rights. Id. At 738-40, 106 S.Ct. In ~ 2219-20; Washingt~ above v. Washingt~ above State Commercial Passenger Fishinns Vessel Ass"n, 443 U.S. 658, 690, 99 S.Ct. 3055, 3076, 61 L.Ed.2d 823 (1979). Ns fair job criteria Acns doens not point out Indians. It was enacted in 1938, in ~ a time once Indian problems were not in ~ the forefront the the nationwide policy agenda. Nothing in ns legislative background suggests the conference assumed around ns possible affect the the Acns top top Indione rights, customs, or practices. If Thus ns Chippewa hADVERTISEMENT a contract ideal to employ law enforcemenns policemans on any kind of terms, ns fair labor criteria Act would certainly it is in presumed no to abrogate the best by forcing ns excellent Lakes Indian Fish and also Wildlife commission come salary tins and also a fifty percent for overtime. Cf. EEOC v. Fond du Lac heavy tools & construction Co., 986 F.2d 246 (8 hours Cir.1993); Donovalve v. Navajo woodland commodities Industries, 692 F.2d 709 (10th Cir.1982). Yet a searches the treaties in vain for such a right. So far together concerns thins case the only rights granted are civil liberties to hunt, fish, and gather. Tbelow ins no mention that ns mechanism for enforcinns these rights, lens ala any type of reference to ns terms of employment of twater tap rental come enforce it.
yet us cannot end our Factor to consider the ns appeal through that observation. The ultimate Question is ns definition fairly to be meeting to the same job requirements Act. Obvioucunning ns Act is extensively enough worded to apply to ns Commission"s warden-policemales without semantic strain. Indeed, reADVERTISEMENT literallied versus the background the ns exempti~ above because that state and neighborhood law enforcemenns officers, ins covers ns Commission"ns law enforcement policemans Because ns board of directors ins no a state or neighborhood agency. And also literal readings the statutes--readingns that refuse come take into accounting any type of ambiguitiens that to be not clearly shows top top ns challenge the the statute--are quite in vogue in the supreme Courns these days, see, e.g., Connecticut nationwide financial institution v. Germain, --- UNITED STATE ----, ----, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992); West virginia College Hospitals, Inc. V. Casey, 499 UNITED STATE 83, 98, 111 S.Ct. 1138, 1146-47, 113 L.Ed.2d 68 (1991); william N. Eskridge, Jr., "the brand-new Textualism," 37 UCLA L.Rev. 621 (1990), Despite what might seem compellinns objections. Herrmann v. Cencom Cmay be Associates, Inc., 978 F.2d 978, 982 (7th Cir.1992). The room the Labor"s invocatitop top that ns "Level meaning" canon, however, is parried by the Commission"s invocati~ above of the canon that no only contract yet (other) federal law as well are come be construed so much together is reasonmay be come perform in donate of Indians. Montana v. Blackfeet people of Indians, 471 UNITED STATE 759, 766-68, 105 S.Ct. 2399, 2403-04, 85 L.Ed.2d 753 (1985); EEOC v. Cherokee Nation, supra, 871 F.2d in ~ 939. And also even literalistns execute not interpret statutes literallied once doinns therefore would produce a result senseless in ns real world. E.g., Environment-friendly v. Bock Laundry Machine Co., 490 U.S. 504, 527-30, 109 S.Ct. 1981, 1994-95, 104 L.Ed.2d 557 (1989) (concurring opinion). Also literalists, that is come say, acknowledge the applicability to law that the principle the constreet interpretation that enables ns court to look for meaning in ~ ns semantic levetogether not only as soon as tright here ins a "intrinsic" ambiguity in the constreet however likewise once there is an "extrinsic" one, that is, as soon as doubt that ns literal meaning ins ns correct one occurs only once one knows something around the concrete activities that the contract was intfinished come regulate. FDIC v. W.R. Grace & Co., 877 F.2d 614, 620-21 (7th Cir.1989). In Citicorp commercial Credit, Inc. V. Brock, 483 UNITED STATE 27, 107 S.Ct. 2694, 97 L.Ed.2d 23 (1987), a situation in i m sorry the supreme Court refoffered come recognize one implicit exemptitop top to ns fair labor criteria Act, ns Court walk not sheight with ns "Level language" that ns Act, yet went top top come research ns legislative intent. Id. In ~ 36, 107 S.Ct. At 2700.
ns room that Labor"ns lawyer acknowledges what we have actually described as ns statutory analogue that extrinsic ambiguity. A literal reading that the same labor requirements Acns would certainly create a sensemuch less distinction between India police cream and every other publicly police. Nothing in ns Acns advises ns reader to ns problem; girlfriend have to understand the tbelow to be Indian police cream to identify it. Yet once it is recognized, the Act, viewed together a purposive, reasonable document, becomes ambiguous, producing room because that interpretation. Us canno think the any type of factor various other 보다 overvision why congress faibrought about extend ns law enforcement exemptitop top come Indian police, particularly once involved in the type the seasonal tasks in which ns defendant"ns warden-police engage; even more important, no factor has actually been said come us. Ns Department"ns lawyer speculated the the india must simply have actually failed to lobby for an exemption; and we understand that in legislation as in various other locations that life ins is ns squeaky whoe the it's okay oiled. Together she also said, ins ins only a Question of money, and probably ns commission can get more money from Congress, although conference is not at ns moment in a very providing mood. Ins ins only a Concern the money for state and also regional policeguys together well, however us deserve to imagine the howls the would certainly go up from ns state and neighborhood legislation enforcemenns community if congress do the efforts come repeal itns exemptitop top indigenous ns overtins provision of ns Act.
the case for exempting ns tribal policeguys is more powerful 보다 that because that exemptinns plain police. Us pointed out the strongly seasonatogether character that your work. An additional Factor to consider is the even despite tright here ins no treaty right come employ regulation enforcemenns policemans on whatever state ns tribatogether organization sets and also ns officers to be willing to accept, it has to be Timeless to leaving ns administration of Indione affairns for ns Most part to the india themselves. They have your very own courts, your own tribatogether governments, their very own police. It is true that these institutions to be mostly for the regulati~ above the ns reservations, yet ns exercise that usufructuary civil liberties turn off the preventive ins together essential to ns india as the practice the their occupancy civil liberties wislim ns appointments and also perhaps more so, Since only about a 3rd the every india li have top top reservations. A effective mechanism the residential property rights, we have actually lengthy been reminded through skeptics around laissez-faire, counts ~ above regulations developing and enforcing those rights. Roberns L. Hale, "forced and also distribution in a Supposedly Non-Coerci have State," 38 Pol.Sci.Q. 470 (1923); Casns R. Sunstein, ~ the legal rights Revolution: Reconceivinns ns regulatory State 20 (1990). The warden-policemales the the good Lakens Indione Fish and also Wildlife the supervisory board are a vital element the the scheme because that regulation India residential or commercial property rights. The court have speak that ns "innate sovereignty" that Indian tribes and also have organized the ins exoften tends come ns type of regulation functions exercised by the board of directors through respect come both india and non-Indians. South Dakota v. Bourland, --- UNITED STATE ----, ----, 113 S.Ct. 2309, 2319, 124 L.Ed.2d 606 (1993); Montana v. United States, 450 UNITED STATE 544, 565-66, 101 S.Ct. 1245, 1258, 67 L.Ed.2d 493 (1981); joined states v. Wheeler, 435 UNITED STATE 313, 325, 98 S.Ct. 1079, 1087, 55 L.Ed.2d 303 (1978). Ns concept of comity--of dealing with sovereigns, including together quasi-sovereignty as says and India tribes, with higher respecns 보다 various other litigants--counsels uns come practice forbearance in construinns legislation as having invaded the main regulatory attributes that a sovereign entity.
the course ns indians have no constitution immune native such intrusion; ~ Garcia v. San Antonio urban Transit Authority, 469 UNITED STATE 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), even the says carry out not. However even when ins has actually no constitutional backing, comity ins a Ideal Consideration in statutory interpretation. For this reason the supreme Courns has held in insisting that if conference wants come alter the Timeless balance in between ns says and ns commonwealth federal government it do itns intention unmistakable. Unified says v. Bass, 404 UNITED STATE 336, 349-50, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971); will certainly v. Michigone Dept. The State Police, 491 UNITED STATE 58, 65, 109 S.Ct. 2304, 2308, 105 L.Ed.2d 45 (1989); Gregory v. Ashcroft, --- UNITED STATE ----, ----, 111 S.Ct. 2395, 2403, 115 L.Ed.2d 410 (1991). Our dictum in Smart v. State Farm Ins. Co., 868 F.2d 929, 936 (7th Cir.1989), the "commonwealth unique comes to States; there sindicate ins no people counterpart," goes as well far. Indione tribes, favor states, are quasi-sovereignty entitresulted in comity. Comity suggests because that allowing ns indians come regulate your own police cream as lock like, even despite no treaty conferns such prerogatives, till and also unless conference provides a stronger indication 보다 ins has below the it desires come intcrude oil on the sovereign functions the tribal government.
the Department"s lawyer said the applications the the overtime provision of the fair job standards Act would certainly benefit ns Commission"s regulation enforcement officers, who are of food us Indians, also if ins hurt their employer. Well, it might, however climate again ins might not--because that there is a lively debate end whether regulation that ns employmenns relationship such together minimum wPeriod and also overtime regulation actually benefit ns ostensible beneficiaries, Since by makinns labor even more expensive such regulation may reason disemployment. See, e.g., Mechmet v. 4 periods Hotel, Ltd., 825 F.2d 1173, 1176 (7th Cir.1987); Finis Welch, Minimum Wages: problems and evidence (1978); the business economics of Legal Minimum Wages (Simon Rottenberns ed. 1981); Charles Brown, Curtis Gilroy & Andrew Kohen, "ns result of the Minimum WAge top top Employmenns and Unemployment," 20 J.Econ.Lit. 487 (1982). Ins is not ours company to try come solve such a debate, and anymethod the reEquipment would no decide this case. Ns pertinent comity ins a duty the forbearance no to individual indians but to India governments, and ins would be a conspicuous brevery of comity come accusage the latter, as the job Department"ns lawyer came cshed to doinns in ~ the oral argument, of no gift guided by a thank you issue for ns finest interests the the former. We should be afflicted with in psychic also that the major beneficiaries that the tasks that the excellent Lakens Indian Fish and Wildlife the supervisory board are not ns Commission"ns employees; castle to be the India fishermen, hunters, and also gatherers who ns commission offer and also protects.
us realize the various other basic federal law regulation employment, Significantly ERISA and also OSHA, have been applied to Indione organ when, as in the existing case, no treaty ideal was in ~ stake. Smarts v. State Farm Ins. Co., supra, 868 F.2d at 933-36; Donovan v. Coeur d"Alene Tribatogether Farm, 751 F.2d 1113 (nine Cir.1985); U.S. Dept. Of labor v. OSHRC, 935 F.2d 182 (ninth Cir.1991); hardwood market Pension money v. Heat Springs woodland products Industries, 939 F.2d 683 (9th Cir.1991). Yet the employee in those instances to be involved in routine activities the a commercial or service character, namely lumbering and health care, rather 보다 the a governpsychological character. Castle to be no law enforcemenns officers, who if they hAD been employed through a state or regional government would certainly have actually been freed native ns law. Similarly distinguishmay be is Confederated tribes v. Kurtz, 691 F.2d 878 (9th Cir.1982), refusing to identify a implying exemption from commonwealth excise tax because that a tribatogether sawmill. We carry out no organize that employees the India organ to be exempt indigenous the fair job standards Act. We organize only the twater tap agencies" law-enforcement employees, and also any various other employees exercising governpsychological features that once exercised through employees the various other federal governments are provided special Factor to consider through the Act, to be exempt. We have actually the assistance the the Cherokee nation case, cited earlier. Note that location VIi that ns civil legal rights Acns the 1964 clearly exemptns Indione people however the ns Age Discrimicountry in Employmenns Act doens not, the Tenth Circuins hosted that it would certainly reADVERTISEMENT ns Indian tribatogether exemption into the latter statute. The courns wtogether rectifying an oversight. We do the exact same today, actuated by ns exact same objective of makinns commonwealth legislation be affected by each other together easy top top Indian tribatogether prerogatives as the leemethods of statutory translate allow.
the Secretary that job (ns "Secretary") requested that the area court enpressure a subpoena ducens tecum on the great Lakes Indione Fish and Wildlife board of directors (the "Commission" or ns "Indians").1 the Secretary soughns payroll records indigenous ns the supervisory board in order that ins might recognize if ns board of directors was violating ns same labor criteria Act ("FLSA") via itns faitempt to salary tins and also one-half come conservation wardenns working overtime hours. Check out 29 U.S.C. Secs. 201 ens seq. Ns district court refoffered to enpressure ns subpoena. Agree ns debate the the Commission, ns court rule together a matter of law the the the supervisory board wtogether no topic to the FLSA Because using it to the the supervisory board would certainly change or affect off-reservation civil liberties to fish, hunt and gather guaranteed by contract in between ns united states and also the Indione tribes.
the many has liked come affor sure ns dismissal of ns subpoena ~ above completely various gring stating that the Commission"s conservation wardens to be "in fact a mix of Video Game wardens and also policemen" and thus, exempt indigenous ns FLSA. At 492; see 29 U.S.C. Sec. 207(k) (exemptinns employees of publicly agencies engaged in regulation enforcemenns activities). Ns many counts principally on an ill-advised concession make at dental argument by counsel for ns room the job that "ns difference in treatment between these tribatogether regulation enforcemenns police officers and state or regional policeguys renders no sense." in ~ 493. This reliance ins misplaced, however, for the very languAge of ns "law enforcemenns exception" in the FLSA calls for that law enforcers be employee that a "publicly agency":
No windy agency sroom be considered to have violated (a) the thins area through respect come the employmenns of any kind of employee in fire security tasks or any kind of employee in legislation enforcemenns activities...."
29 U.S.C.A. Sec. 207(k) (Wesns Supp.1993) (emphasis added).2 congress clearly characterized "windy agency" to Median "the federal government that the joined States; the federal government that a state or political subdepartment thereof; any company that the joined states (including the U.S. Postal service and Postatogether rate Commission), a state, or politics subdivision that a state; or any federal government governmental agency." 29 U.S.C. Sec. 203(x). Ns many has actually no directed uns to any type of statutory provision, a lot less any type of situation legislation holdinns the a Indian people in general, or the board of directors in thins case, fitns within ns parameter that ns statutory interpretation of a publicly firm in 29 U.S.C. Sec. 203(x) or 29 U.S.C. Sec. 207(k). In fact, the many concedes that a literal interpretation of 29 U.S.C. Sec. 207(k) fails to incorporate ns Indian conservation wardens in ns law enforcement exception, check out in ~ 493 ("the commission is not a state or regional agency"). It is obvious, as the room that labor check at oral argument, the the Level languPeriod that The general public agency law enforcemenns exemption doens no incorporate Indians. No just do ns board of directors conservation wardenns fail come accomplish the need the being employees of a windy agency, yet i take it concern via ns majority"ns summary of the India one-of-a-kind preservation wardenns together police officers. Ins wtogether premature birth because that ns room that Labor"ns lawyer to concede the castle to be choose police cream when in fact and also fact they are not.3 the majority locations far too a lot emphasis top top the attorney"s concessi~ above for sthat deserve to hardly concede that which is contradictory come ns law.
Ins ins a misnomer come refer, together the majority does, to the wardens together "Indione police" for ns document ins totally lacking the any evidence the this Indione one-of-a-kind preservation wardenns possess basic police strength come arrest violators that state criminal statutes like murder, burglary, robbery, aucome thefns or neighborhood ordinancens as police cream officers do. The limited deputizatitop top Agreement in between ns great Lakens India Fish and Wildlife commission and also the State the Wisconsin"ns department that natural resources ("DNR"), to i beg your pardon the majority refers, falls short to empower board of directors distinct conservation wardens through ns basic strength that arremainder enreliable to policemen. In fact, by statute, the board of directors wardens execute not also own ns restricted strength of arremainder that permanent DNR wardenns may exercise. See Wis.Stat.Ann. Sec. 29.05(2) ("
"empowered by State statute or neighborhood ordinance to enpressure laws draft come preserve publicly tranquility and also order and also to defend both life and home from inadvertently or willful injury, and come prevent and detect crimes...."
"Typically, employee involved in law enforcement tasks encompass city police; district or local police, sheriffs, under sheriffs or deputy sheriffns that to be consistently work and paid together such; courns marshalns or deputy marshals; constables and also deputy constablens that to be routinely employed and phelp as such; border control agents; state trooperns and highmeans patrol officers."
29 CFR Sec. 553.211(a)(1); (c) (1993). Because the the supervisory board conservation wardens to be without statutory authority come acns as police policemans possessing ns complete panoply of basic arremainder powers, i think ins is premature birth for thins courns to hold castle qualify for The public agency law enforcemenns exemption based specifically ~ above a unincreated concessitop top at dental dispute and withthe end the advantage the a complete record.
the majority additionally finds assistance because that its holdinns in ns reality that ns board of directors conservation wardens" enforcemenns tasks are seasonal in nature. This statemenns ins overbroAD and fails come accurately reflecns their duties and also responsibilities. Fishing wake up in ~ miscellaneous time throughout ns year, deer, bear, tiny Video Game and bird hunting takes area in the autumn and also winter, while wild rice cream collection takes area in ns so late summer and also maple syrup collecting in the winter.4 for this reason ns wardenns to be forced come job-related throughthe end the year not just in Short durations as ns majority suggests. See at 493 ("
the majority"ns willingnesns to expand ns "law enforcement" exemption to include Indione distinct preservation wardens is inregular via ns UNITED STATE can be fried Court"ns holding in Citicorns Indust. Credit, Inc. V. Brock, 483 U.S. 27, 35, 107 S.Ct. 2694, 2699, 97 L.Ed.2d 23 (1987), in which the Court wtogether unready "
the majority Further attempts to justification itns finish run approximately the Plain languAge that the state by saying that the FLSA was drafted in 1938 once India involves "were not at the forefront of the national policy agenda." at 493. Thins argument, however, ignorens the reality the because that ns previous fifty-five years conference has actually hAD ns opportunity yet has no watched fins come amend the FLSA Throughout a period when Indian problems have to be under the every effective search light of frequent congressional oversight. Because i do not agree with ns majority"ns holding that the India wardens are exempted native ns FLSA by 29 U.S.C. Sec. 207(k) (publicly agency regulation enforcement exemption), ins is essential come recognize whetshe applying the FLSA come the indians would certainly interfere through civil liberties guaranteed by Indione treaties. Check out Smart v. State Feight insurance Co., 868 F.2d 929, 932-33 (7th Cir.1989); Donovalve v. Coeur d"Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir.1985).
In commonwealth power Comm"n v. Tuscarora India Nation, 362 U.S. 99, 116, 80 S.Ct. 543, 553, 4 L.Ed.2d 584 (1960), ns UNITED STATE can be fried Court declared the a "basic statute in regards to applying come all personns includes indians and also their building interests." Likewise, this courns has proclaimed "
There ins bit doubt the the fair job requirements Act is a state that basic applicability for ns Act coverns employee "engaged in business or in the manufacturing that items because that commerce," 29 U.S.C. Sec. 206(a), and "people employed by a publicly agency." Id. Sec. 203(e)(2). Ns can be fried Court "has repetitively understood the
before engaginns in the Smarts analysis, us must effort to recognize what, if any, contract rights to be at stake. In ~ oral argument, counsetogether for the the supervisory board wtogether can not to prize and vacillated in a practice that futility as soon as inquiry to identify wcap particular ideal would be impaired by compliance with the subpoena or compliance via ns requirements of the FLSA. Ultimately, that claimed the ns FLSA would certainly negative impact ns Indians" best to fish, hunt and gather (jointly "usufructuary rights") top top landns ceded to the states of Michigan, Minnesota and also Wisconsin in a collection the treaties dated 1836, 1837, 1842, and 1854. Just exactly how the needs the ns FLSA would dilute contract rights the wtogether can not to answer. Secondly, that claimed that having to comply through the FLSA rule would certainly impose a financiatogether load the would inhilittle bit ns Commission"ns capacity come regulate and control the off-reservation usufructuary legal rights yet offered no compellinns Instances the just how thins would inhilittle regulatitop top the treaty rights.
after analysis the document and also briefs and also reviewinns ns oral debate tape, ns reMain unconvinced that using ns rule of ns FLSA come the commission would certainly influence ns Indians" usufructuary rights. Regarding ns debate the the FLSA can affect the Commission"s pay-scale or employmenns the conservation wardens, the many stated,
"one searcs the treaties in vain because that . For this reason much as pertains to this case ns just legal rights granted are legal rights come hunt, fish, and gather. Tbelow ins no point out that the device for enforcing these rights, let ala any recommendation to ns regards to employmenns that twater tap hired to enpressure it."
in ~ 493. Ns majority later on adds that "tright here ins no treaty appropriate to rental regulation enforcemenns police officers top top whatever terms the tribal organization setns and also the police officers are ready come accept...." at 494. Not just perform ns treaties fail come produce a best come rental Indione conservation wardenns as the many concedes, tright here ins also no point out in ns contract or in the deputizati~ above Commitment in between ns State of Wisconsin and also the the supervisory board expressing a will come administer for ns alleged "policemen" the ns majority has created. Together ns will certainly explain, applications of ns FLSA come ns India distinct conservation wardenns will have actually only one indirect impact, if any, on ns Commission. Ns the supervisory board has fairesulted in delineate any kind of direct interference with contract legal rights no one does the document before us identify the a straight interference with treaty civil liberties will certainly occur.
ns to be likewise unpersuaded through the Commission"s debate the ns FLSA would imposture a financiatogether load top top ns indians the will certainly jeopardize treaty rights. This broad, ever-expanding, all-inclusive and speculative back allegati~ above the law will certainly "affect treaty rights" should have actually part limits. The commonwealth court canno proceed to be held captive through allegations based upon pure conjecture. I, for one, think the triatogether court"ns refusal come enforce the subpoena is ns stlife the division the proverbiatogether camel"s back. Whetshe ns FLSA would result in a far-ranging financiatogether load come the board of directors is a truth that is unrecognized and will certainly reKey unwell-known until such tins together ns federal government has actually hADVERTISEMENT a opportunity to testimonial and research ns Commission"ns payrole documents come determine the number of wardens, your hours, and ns compensatory time and also payment plans that ns Commission. Any discussion to ns contrary is nothing however pure speculation. Certainly, the Commission"s artistic allegatitop top that the FLSA will have actually an adverse financiatogether influence ins inadequate to refusage enforcemenns the the administrative subpoena Due to the fact that financiatogether impact ala ins not among the factors the us must consider once identify whetshe a statute covers the Indians. Watch Smart, 868 F.2d at 932-33 (asking whetshe "(1) ns law touches exclusive rights that self-administration in pucount intramuratogether matters; (2) ns applications the the legislation to ns tribe would abrodoor rights guaranteed through Indian treaties; or (3) tbelow is proof by legislati have background or some other suggests that congress intended
application that the Smarts doctrine come the facts in ns case prior to uns ins lacking in ns many opinion. Rather than use ns test embraced by this courns come recognize whether a commonwealth state the general appliccapability covers the Indians, i.e. Smart, the many has opted to defer come a concern because that comity. The many says "
as explained above, a state that basic applicability excludens the indians if: (1) ns law touch exclusi have rights the self-governance in pudepend intramuratogether matters; (2) application the ns regulation would abrodoor contract rights; or (3) the legislative background reveals a clean conference will not to cover the Indians. Smart, 868 F.2d in ~ 932-33. Ns district court, using a very watered dvery own test, uncovered the FLSA coverAge the the board of directors "would impinge upon one of ns tribes" Many necessary elements that self-governance: your capability to manage and regulate their exercise the your treaty rights." Martin v. Excellent Lakens Indian Fish and also Wildlife Comm"n, No. 92-C-409-C, 1992 Wtogether 300841 in ~ * 9, 1992 U.S. Dist. LEXIs 15883, at * 24 (W.D.Wis. Oct. 7, 1992). Ns area courns was mistackled 2 counts. Also if tright here wtogether a treaty ideal come regulate usufructuary legal rights (which tbelow is not), ns Commission"s appropriate to enpressure and control twater tap usufructuary legal rights ins neither "exclusive" nor "pucount intramural," as compelled under Smart.
the lack that exclusivity regarding tribatogether self-administration ins apparent native ns reality that tribatogether enforcement and regulati~ above of off-reservation usufructuary legal rights is common via the states. State regulati~ above of India usufructuary rights drops under the state"ns police power come safeguard its natural resources and its citizens; Lac Courte Oreilles v. Wisconsin, 668 F.Supp. 1233, 1237 (W.D.Wis.1987) (LCO IV), hence, tribatogether usufructuary legal rights are topic to state regulatitop top in the interests that preservation and public wellness and safety. Lac Courte Oreillens v. Wisconsin, 760 F.2d 177, 183 (7th Cir.1985) (LCO II); LCO IV, 668 F.Supp. At 1235-39. As ns situation regulation above provides clear, ns tribes" appropriate to manage off-preventive tasks ins by no indicates exclusive yet must be mutual via ns states. LCO IV, 668 F.Supp. In ~ 1241 (" "ordinarily the state and ns people own concurrent strength to regulate ..." ") (quotinns joined claims v. Washington, 520 F.2d 676, 686 n. 4 (ninth Cir.1975), cert. Denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976)). For instance, Wisconsin room of natural sources ("DNR") preservation wardenns to be authorized to issue citations to tribal members for violating tribatogether fishing regulations, Lac Courte Oreillens v. Wisconsin, 707 F.Supp. 1034, 1038 (W.D.Wis.1989) (LCO VI). DNR wardenns may additionally "oboffer and also screen any walleye or muskellunge harvest plaintiffns undertake by spearing or netting." Id. In ~ 1060. Conpresent State enforcemenns the off-reservation usufructuary rights likewise uses come hunting fur bear pets and little game, Lac Courte Oreillens v. Wisconsin, 740 F.Supp. 1400, 1402, 1413 (W.D.Wis.1990) (LCO VII), collection miscellaneous forest products, Lac Courte Oreilles v. Wisconsin, 758 F.Supp. 1262, 1275-76 (W.D.Wis.1991) (LCO IX), and also enforcinns state boating laws. Lac Courte Oreilles v. Wisconsin, 775 F.Supp. 321, 325 (W.D.Wis.1991) (LCO X). The preceding authoritiens make ins rather evident the ns the supervisory board never before possessed the exclusive right to manage off-reservation usufructuary legal rights and for this reason doens not qualify because that exemptitop top indigenous FLSA on ns grounds the ns FLSA would impinge upon civil liberties that self-governance.8
Secondly, as is additionally noticeable from ns above-quote authorities, ns board of directors special conservation wardens" tasks to be no "pucount intramural" together the off-preventive usufructuary rights have to indicate both india and also non-Indians. (as soon as engaging in off-reservation fishing, searching and gathering, ns individual india working out this legal rights frequently cons in contact with non-Indians). The can be fried Courns and thins courns have established that "purely intramural" matters include things like determining tribatogether membership, residential relations, and rules of inheritance. Montana v. Unified States, 450 U.S. 544, 563-65, 101 S.Ct. 1245, 1257-58, 67 L.Ed.2d 493 (1981); Smart, 868 F.2d in ~ 932; Coeur d"Alene Tribatogether Farm, 751 F.2d at 1116. In joined says v. Wheeler, 435 UNITED STATE 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), the Courns stated that Indian people hAD shed many kind of qualities of sovereignty including those locations "including ns relations between an Indione people and also non-memberns that the tribe...." Id. In ~ 326, 98 S.Ct. At 1087. It is rather evident that off-reservation fishing, searching and collection indicate relations in between india and non-india and also thus by meaning to be not "pudepend intramural." watch id. Furthermore, practice the these usufructuary civil liberties is quite distinct indigenous identify tribatogether membership, residential relationships and rules of inheritance (attributes ns court have understood "purely intramural").
the supreme Courns recently reaffirmed ns rule that limited tribal sovereignty in southern Dakota v. Bourland, --- U.S. ----, ----, 113 S.Ct. 2309, 2319, 124 L.Ed.2d 606 (1993), stating "ns "practice that tribatogether strength beyond what is vital come defend tribal self-federal government or come regulate internal relationships is inconsistent through the dependent standing that ns tribes, and therefore cannot survive without expush congressional delegation." " (quotinns Montana, 450 UNITED STATE in ~ 564, 101 S.Ct. At 1258). Ns commission need to no have the ability to wave an unbridled back the "contract rights" and also protect against applications the federal law the has actually together itns objective the elimicountry the "job conditions detrimental to ns maintenance the the minimum conventional the life necessary because that health, performance and basic wellness that workers...." 29 U.S.C. Sec. 202. Without explanation, ns district court has stretched the rule of tribal self-government in holdinns the "
when considering whether commonwealth law abroentrances contract legal rights this courns proclaimed in Smart the "
suggest Because a treaty exist doens no by need compel a conclusi~ above the a commonwealth state of basic appliccapacity ins no binding top top one Indiana tribe.... The instrumental worry ins whether applications of ns statute would certainly jeopardize a right that ins secured through the treaty." Smart, 868 F.2d in ~ 934-35 (focus added). Ns languPeriod in Smart ins plainly at odds with ns area court"s applications that Smarts come the truth prior to us. If any kind of change that a treaty right prohibition applications of a commonwealth statute with basic applicability (prefer ns FLSA), climate the principle indigenous Tuscarora Indian Nation, 362 U.S. In ~ 116, 80 S.Ct. At 553, that basic law apply to indians would certainly it is in cast aside and eviscerated. The a statute need to perform even more 보다 "modify" a treaty right for the indians to be exempted is apparent indigenous ns reality the ~ above a number of occasions court have used basic federal statutes to ns Indians. Check out timber industry Pension fund v. Warm Spring forest commodities Industries, 939 F.2d 683 (9th Cir.1991) (using ERISA to an Indione enterprise); united claims Dep"t the labor v. Work-related security & health and wellness Rev. Comm"n (OSHRC), 935 F.2d 182, 186-187 (ninth Cir.1991) (using OSHA to Indian businesses); Smart, 868 F.2d at 932-36 (applying ERISA); Coeur d"Alene Tribal Farm, 751 F.2d in ~ 1115 (using OSHA to tribal business); Confederated people the warm Spring reservation v. Kurtz, 691 F.2d 878 (nine Cir.1982) (holding the people and your members to be subject to federal excise taxens unmuch less expush exemption appears), cert. Denied, 460 UNITED STATE 1040, 103 S.Ct. 1433, 75 L.Ed.2d 792 (1983); fry v. Joined States, 557 F.2d 646 (nine Cir.1977) (using commonwealth taxation regulations to India businesses), cert. Denied, 434 U.S. 1011, 98 S.Ct. 722, 54 L.Ed.2d 754 (1978); united states v. Burns, 529 F.2d 114 (9th Cir.1975) (holdinns that commonwealth total regulate law uses to Indians). In OSHRC, ns indians maintained that your contract ideal to exclude non-indians from the reservation barred appliccapacity the the work safety and security and health Act, 29 U.S.C. Secs. 651-678 (1988), come a on-reservation sawmill. Ns nine Circuit organized the ns conflict between a statute (OSHA) and also a contract right must be "direct" rather than attenuated to prevent the application of a basic federal state come the Indians. OSHRC, 935 F.2d in ~ 186. The requirement for a direct conflict between a treaty and also statute is reflect in U.S. Can be fried Court decision questioning whether the state abroentrances contract rights. View joined states v. Dion, 476 UNITED STATE 734, 738-40, 106 S.Ct. 2216, 2219-20, 90 L.Ed.2d 767 (1986) (holding the ns Eagle protection Act "abrogates" contract appropriate to hunns eagles); Washington v. Washingt~ above State Commerciatogether Passenger Fishinns Vessel Ass"n, 443 U.S. 658, 690, 99 S.Ct. 3055, 3076, 61 L.Ed.2d 823 (holding the global fishinns contract doens no "abrogate" Indione fishing rights), modified, 444 UNITED STATE 816, 100 S.Ct. 34, 62 L.Ed.2d 24 (1979); Coeur d"Alene Tribatogether Farm, 751 F.2d in ~ 1116 (requiring the the commonwealth state "abrogate" treaty legal rights rather 보다 simply change them).
applications of ns FLSA come ns the supervisory board conservation wardenns will certainly have no higher impact top top Indione treaty legal rights than application of various other commonwealth regulatory statutes prefer ERISA and OSHA which the courts have currently upheld. It ins apparent that ns department that labor is merely trying to proccasion the India employees of ns board of directors from being treated together second-class citizens through assuring that they receive the exact same security as every various other employees covered under ns Act. Certainly ns just truth that room that labor assessors just request via the strength the subpoena the best come research payroll documents canno the itself constitute abrogation the contract rights. Thus i am in Agreement through ns department that Labor"s contention at dental argument that enforcement that the administrative subpoena and application of the FLSA come the board of directors would have actually no direct influence top top the Indians" rights to hunt, fish and gather.
In ns situation before us, the commission has faicaused collection soon a lot much less document any type of logical factor or proof of exactly how submittinns to a governmental subpoena or come the same job requirements Acns will certainly have any type of straight influence ~ above a contract right. Just Because the commission has invoked the ever-expanding umbrella of "affect top top contract rights" to challenge applications of ns FLSA does not Typical the us must abandon sound jurisprudence in addressing ns conflict. The courts should no Cavern in to ns ever-growing, all-expansi have claim the treaty rights are impacted unless the claimants At first identify what specific contract best is at stake it and just how ins ins affected. Once a federal state accused come in dispute with Indione contract rights, ns instance law mandates the us use a legatogether conventional come asspecific if ns alleged treaty best exist and whetshe it ins in truth abrogated. The just possibility that application that ns FLSA come board of directors conservation wardens might need the board of directors come alter employment practices or pay extra wperiods absolutely falls far Short that dangerous usufructuary legal rights guarantee by contract much much less abrogatinns them. Withthe end Further development that the record us will never before know if using the FLSA come the board of directors will abrodoor contract rights; however, ins ins certain, based upon the proof presented, the ns commission has actually faibrought about delineate any type of contract legal rights the would be abrogated by the FLSA.
Finally, together ns majority acknowledges, nothing in ns legislati have history evinces a congressional intent come exempt the india from ns FLSA; in ~ 493. As the foregoinns discussion makes clear, the the supervisory board has actually fairesulted in establish any kind of among ns 3 gring in Smarts because that exemptinns india native the FLSA. Accordingly, i to be of ns opini~ above the ins was premature birth for the district court to preeminence as a matter of legislation that ns commission is no subject to ns FLSA.
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i to be unencouraged by the majority"ns attemptinns come do a well-reasoned discussion based on situation regulation and ns state come classify India special conservation wardenns together policeman exempted native 29 U.S.C. Sec. 207(k) because: (1) ns Indione wardens to be not employee that a public agency, (2) lock perform not have ns basic arremainder powers the policemen, and also (3) hAD the State that Wisconsin desired to bestow full police powers on the India wardens, ins can have actually conveniently da so just together ins did with ns seasonatogether police force in ~ the state same grounds. No just do the wardenns fail come qualify because that The general public company legislation enforcement exemption, but applications of the Smarts test revealns the the fair job standards Act will not abrogate ns Commission"ns contract rights. Thus, the prudenns and also Appropriate displace the this situation is to remand also it because that More proceedings pursuant to Circuit dominion 36, via instructions come enforce ns room of labor subpoena. Just after compiling a complete record might ns area courns or this court appropriately determine whether the same labor criteria Act abroentrances tribatogether treaty rights. I respectfully
ns the supervisory board was created in 1984 through 13 tribes the Chippewa india come enforce the tribes" fishing, hunting and collection rights in Michigan, Minnesota and Wisconsin
ns many conhas a tendency that state and regional regulation enforcemenns policemans "have no commonwealth legal entitlemenns to time and also a half because that overtime
once Initially wondered about at oral debate around ns feature that the board of directors conservation wardens, sthat responded "they"re Essentially fish and also Video Game wardenns ... Castle enpressure constraints top top tribal harvest the fish and also game." However, under persistime proddinns from ns bench sthe declared "yea, they"re regulation enforcemenns officialns in a devoted way." together a begrudging join is fixed a for sure foundation because that an appelso late opinion
the treaty usufructuary legal rights likewise encompass gathering. Wild rice cream and also maple syruns are simply 2 that ns commodities the indians gather
ns many attempts come differentiate Babsent through stating that the supreme Courns go no just look at at ns Level languPeriod that the statute however it additionally examined "legislati have intent." This monitoring ignores the extremely holding the the instance in i m sorry ns Court refused to "extfinish a exemptitop top come other than twater tap "plainly and also unmistakably wislim
This analysis, that course, ins unnecessary as soon as congress specifically declares the a state exempts Indians. See, e.g., title VIns of ns civil civil liberties Act the 1964, 42 U.S.C. Sec. 2000e(b)(1) (1988); ns Americans with Disabilities Act, 42 U.S.C. Sec. 12111(5)(B)(i) (Wesns Supp.1993)
Smart, 868 F.2d in ~ 932 (citation omitted).
ns extensive regulatitop top the off-reservation usufructuary legal rights by ns State that Wisconsin well-known in ns Lac Courte Oreillens instances confirmns the reality that ns commonwealth government--via itns greater authority come manage Indians--might use ns much less intrusive burdenns the ns FLSA to ns Commission. See e.g., Washingt~ above v. Confederated tribes the Colville Indione Reservation, 447 U.S. 134, 154, 100 S.Ct. 2069, 2081, 65 L.Ed.2d 10 (1980); santa claus Clara Pueblo v. Martinez, 436 UNITED STATE 49, 56, 98 S.Ct. 1670, 1676, 56 L.Ed.2d 106 (1978) ("conference has actually plenary authority come limit, modify or eliminate the strength that local self-federal government which the people otherwise possess"); joined says v. Wheeler, 435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303 (1978)
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