Robert Reich, Secretary of Labor v. Great Lakes Indian Fish and Wildlife Commission

4 F.3d 490, 1993 WL 327979

• Court: Court of Appeals for the Seventh Circuit
• Decided: December 9, 1993
• Docket: 92-4035
• Status: Published

Opinions

POSNER, Circuit Judge.

The Department of Labor asked the district court to enforce a subpoena directed against the Great Lakes Indian Fish and Wildlife Commission, seeking evidence that the Commission is violating the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., which so far as relevant here requires employers to pay employees one and a half times their regular wages for work in excess of forty hours a week. The district judge refused to enforce the subpoena, on the ground that the Commission is not subject to the Act. The Department has appealed. Its first argument, which need not detain us long, is that the court should have enforced the subpoena without resolving the question of statutory coverage, instead deferring the question until and unless the Department proceeded against the Commission for violations of the Act. If it were doubtful whether the Commission was failing to pay time and a half for overtime, or if the question whether the Commission is subject to the Act could not be resolved without the information sought by the subpoena, the deferral suggested by the Department would be proper. Neither condition is satisfied. The Commission admits that it does not pay time and a half for overtime; and the question of statutory coverage is independent of any information that the subpoena might produce, as it is a question purely of law. The Commission should not be burdened with having to comply with a subpoena if, as the district court believed, the agency issuing it has no jurisdiction to regulate the wages that the Commission pays. Questions of regulatory jurisdiction are properly addressed at the subpoena-enforcement stage if, as here, they are ripe for determination at that stage. EEOC v. Cherokee Nation, 871 F.2d 937 (10th Cir.1989); United States v. Newport News Shipbuilding & Dry 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); United States v. Frontier Airlines, Inc., 563 F.2d 1008, 1009 (10th Cir.1977); cf. Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 216, 66 S.Ct. 494, 509, 90 L.Ed. 614 (1946). Compliance with a subpoena is a burden, and one that a person or institution that can show it is not subject to the regulatory regime in aid of which the subpoena was issued should not be required to bear. Cf. id. at 217, 66 S.Ct. at 509.

The Great Lakes Indian Fish and Wildlife Commission is a consortium of thirteen Chippewa Indian tribes that inhabit the Great Lakes region. The Commission was created in 1984 in order to enforce the usufructuary rights that the Chippewas retained under a series of nineteenth-century treaties with the United States. Sokaogon Chippewa Community v. Exxon Corp., 2 F.2d 219, 224 (7th Cir.1993); Lac Courte Oreilles Band v. Voigt, 700 F.2d 341, 362-65 (7th Cir.1983). The Chippewa surrendered in these treaties most of their rights to the occupation of land outside of Indian reservations, but retained the right to use a great deal of that land for traditional Indian activities (which incidentally have a religious as well as economic significance for the Indians), such as fishing for walleye pike and muskellunge, hunting deer and moose, and gathering wild rice and the sap of maple trees, provided that they could do these things without prejudice to lawful occupiers of the land. Today these retained rights, though greatly curtailed by the spread of white occupation, still extend over tens of thousands of square miles in states abutting the Great Lakes. The Great Lakes Indian Fish and Wildlife Commission supervises these activities. It fixes hunting, fishing, and gathering seasons for the various species of animal and plant covered by the usufructuary rights, sets limits on the amounts and type of catch permitted, and polices compliance with its regulations. The last function is the most labor intensive. It consists not only of assuring that Indian hunters, fishers, and gatherers do not exceed the authorized catch, use unauthorized methods, or fish, hunt, or gather out of season, but also of protecting the Indians from interference by white hunters, fishers, and gatherers. Many white people in the Great Lakes region as elsewhere in the United States either do not understand or do not accept the privileges that the Indian treaties grant Indians. Forbidden themselves to spear fish, for example, white fishermen resent the fact that Indians are permitted to do so. This resentment sometimes boils over into violence. Hence the field employees of the Commission are not only uniformed but also armed. They are in fact a combination of game wardens and policemen. The State of Wisconsin has deputized them to exercise state as well as tribal law enforcement functions in the areas that they patrol.

The work of the Commission is seasonal because the usufructuary rights that it administers are seasonal. And during the seasons for fishing and hunting the principal species, the work of the Commission’s field employees — its game warden police — takes place virtually round the clock, not only because the hours of daylight are long and hunting and fishing take place throughout them, but also because the Indians like to spear fish at night, by torchlight. The seven-day-a-week, twenty-four-hour-a-day character of the work of these Indian police is similar to that of law enforcement officers generally, only accentuated by the seasonality of the Commission’s responsibilities. If employed by state or local governments these police would have no federal legal entitlement to time and a half for overtime; their employer would be free within broad limits not only to substitute compensatory time off for overtime premium pay but also to measure hours worked by a work month rather than a work week, so that an employee who worked more than 40 hours in a particular week would not be entitled even to compensatory time off unless he had exceeded 160 hours in the entire month. 29 U.S.C. §§ 207(k), 207(o). Because the Fail’ Labor Standards Act does not mention Indians, the Department of Labor takes the position that these exemptions are inapplicable to the warden-policemen of the Great Lakes Indian Fish and Wildlife Commission. The Department’s able counsel acknowledged at argument that the difference in treatment between these tribal law enforcement officers and state or local policemen makes no sense, but contended that the difference can be erased only by Congress. She added reassuringly that it was only a question of money. The Commission’s activities are financed primarily by a grant from the Department of the Interior, and if the Commission is required to pay its warden-policemen overtime it can always ask the Department for additional funding and the Department can in turn ask Congress for a supplemental appropriation.

Indian treaties are deemed the legal equivalent of federal statutes and they can therefore be modified or even abrogated by Congress. United States v. Dion, 476 U.S. 734, 738, 106 S.Ct. 2216, 2219, 90 L.Ed.2d 767 (1986). Nevertheless, partly no doubt out of a sense of guilt for the mistreatment of Indians by the U.S. government, partly in recognition that Indian tribes like states retain at least vestiges of sovereignty, and partly perhaps as a straightforward application of the “canon of construction” that repeals by implication are disfavored, the presumption is that a statute does not modify or abrogate Indian treaty rights. Id. at 738-40, 106 S.Ct. at 2219-20; Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 690, 99 S.Ct. 3055, 3076, 61 L.Ed.2d 823 (1979). The Fair Labor Standards Act does not mention Indians. It was enacted in 1938, at a time when Indian problems were not at the forefront of the national policy agenda. Nothing in the legislative history suggests that Congress thought about the possible impact of the Act on Indian rights, customs, or practices. If therefore the Chippewa had a treaty right to employ law enforcement officers on any terms, the Fair Labor Standards Act would be presumed not to abrogate the right by forcing the Great Lakes Indian Fish and Wildlife Commission to pay time and a half for overtime. Cf. EEOC v. Fond du Lac Heavy Equipment & Construction Co., 986 F.2d 246 (8th Cir.1993); Donovan v. Navajo Forest Products Industries, 692 F.2d 709 (10th Cir.1982). But one searches the treaties in vain for such a right. So far as pertains to this case the only rights granted are rights to hunt, fish, and gather. There is no mention of the system for enforcing these rights, let alone any reference to the terms of employment of those hired to enforce it.

But we cannot end our consideration of the appeal with that observation. The ultimate question is the meaning fairly to be attributed to the Fair Labor Standards Act. Obviously the Act is broadly enough worded to apply to the Commission’s warden-policemen without semantic strain. Indeed, read literally against the background of the exemption for state and local law enforcement officers, it covers the Commission’s law enforcement officers because the Commission is not a state or local agency. And literal readings of statutes — readings that refuse to take into account any ambiguities that are not visible on the face of the statute — are rather in vogue in the Supreme Court these days, see, e.g., Connecticut National Bank v. Germain, - U.S. -, -, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992); West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 98, 111 S.Ct. 1138, 1146-47, 113 L.Ed.2d 68 (1991); William N. Eskridge, Jr., “The New Textualista,” 37 UCLA L.Rev. 621 (1990), despite what might seem compelling objections. Herrmann v. Cencom Cable Associates, Inc., 978 F.2d 978, 982 (7th Cir.1992). The Department of Labor’s invocation of the “plain meaning” canon, however, is parried by the Commission’s invocation of the canon that not only treaties but (other) federal statutes as well are to be construed so far as is reasonable to do in favor of Indians. Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766-68, 105 S.Ct. 2399, 2403-04, 85 L.Ed.2d 753 (1985); EEOC v. Cherokee Nation, supra, 871 F.2d at 939. And even literalists do not interpret statutes literally when doing so would produce a result senseless in the real world. E.g., Green 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). Even literalists, that is to say, acknowledge the applicability to statutes of the principle of contract interpretation that allows the court to seek meaning beneath the semantic level not only when there is an “intrinsic” ambiguity in the contract but also when there is an “extrinsic” one, that is, when doubt that the literal meaning is the correct one arises only when one knows something about the concrete activities that the contract was intended to regulate. FDIC v. W.R. Grace & Co., 877 F.2d 614, 620-21 (7th Cir.1989). In Citicorp Industrial Credit, Inc. v. Brock, 483 U.S. 27, 107 S.Ct. 2694, 97 L.Ed.2d 23 (1987), a case in which the Supreme Court refused to recognize an implicit exemption to the Fair Labor Standards Act, the Court did not stop with the “plain language” of the Act, but went on to examine the legislative intent. Id. at 36, 107 S.Ct. at 2700.

The Department of Labor’s lawyer acknowledges what we have described as the statutory analogue of extrinsic ambiguity. A literal reading of the Fair Labor Standards Act would create a senseless distinction between Indian police and all other public police. Nothing in the Act alerts the reader to the problem; you have to know that there are Indian police to recognize it. But once it is recognized, the Act, viewed as a purposive, rational document, becomes ambiguous, creating room for interpretation. We cannot think of any reason other than oversight why Congress failed to extend the law enforcement exemption to Indian police, especially when engaged in the sort of seasonal activities in which the defendant’s warden-police engage; more important, no reason has been suggested to us. The Department’s lawyer speculated that the Indians must simply have failed to lobby for an exemption; and we know that in legislation as in other areas of life it is the squeaky wheel that gets oiled. As she also said, it is only a question of money, and maybe the Commission can get more money from Congress, although Congress is not at the moment in a very giving mood. It is only a question of money for state and local policemen as well, yet we can imagine the howls that would go up from the state and local law enforcement community if Congress tried to repeal its exemption from the overtime provisions of the Act.

The case for exempting the tribal policemen is stronger than that for exempting ordinary police. We mentioned the intensely seasonal character of their work. An additional consideration is that even though there is no treaty right to employ law enforcement officers on whatever terms the tribal organization sets and the officers are willing to accept, it has been traditional to leave the administration of Indian affairs for the most part to the Indians themselves. They have their own courts, their own tribal governments, their own police. It is true that these institutions are mainly for the regulation of the reservations, but the exercise of usufruc-tuary rights off the reservation is as important to the Indians as the exercise of their occupancy rights within the reservations and maybe more so, since only about a third of all Indians live on reservations. An effective system of property rights, we have long been reminded by skeptics about laissez-faire, depends upon regulations establishing and enforcing those rights. Robert L. Hale, “Coercion and Distribution in a Supposedly Non-Coercive State,” 38 Pol.Sci.Q. 470 (1923); Cass R. Sunstein, After the Rights Revolution: Reconceiving the Regulatory State 20 (1990). The warden-policemen of the Great Lakes Indian Fish and Wildlife Commission are an important element of the scheme for regulating Indian property rights. The courts have spoken of the “inherent sovereignty” of Indian tribes and have held that it extends to- the kind of regulatory functions exercised by the Commission with respect to both Indians and non-Indians. South Dakota v. Bourland, — U.S. -, -, 113 S.Ct. 2309, 2319, 124 L.Ed.2d 606 (1993); Montana v. United States, 450 U.S. 544, 565-66, 101 S.Ct. 1245, 1258, 67 L.Ed.2d 493 (1981); United States v. Wheeler, 435 U.S. 313, 325, 98 S.Ct. 1079, 1087, 55 L.Ed.2d 303 (1978). The idea of comity — of treating sovereigns, including such quasi-sovereigns as states and Indian tribes, with greater respect than other litigants — counsels us to exercise forbearance in construing legislation as having invaded the central regulatory functions of a sovereign entity.

Of course the Indians have no constitutional immunity from such intrusion; after Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), even the states do not. But even when it has no constitutional backing, comity is a proper consideration in statutory interpretation. So the Supreme Court has held in insisting that if Congress wants to alter the traditional balance between the states and the federal government it make its intention unmistakable. United States v. Bass, 404 U.S. 336, 349-50, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971); Will v. Michigan Dept. of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 2308, 105 L.Ed.2d 45 (1989); Gregory v. Ashcroft, — U.S. -, -, 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), that “federalism uniquely concerns States; there simply is no Tribe counterpart,” goes too far. Indian tribes, like states, are quasi-sovereigns entitled to comity. Comity argues for allowing the Indians to manage their own police as they like, even though no treaty confers such prerogatives, until and unless Congress gives a stronger indication than it has here that it wants to intrude on the sovereign functions of tribal government.

The Department’s lawyer argued that application of the overtime provisions of the Fair Labor Standards Act would benefit the Commission’s law enforcement officers, who are of course themselves Indians, even if it hurt their employer. Well, it might, but then again it might not — for there is a lively debate over whether regulations of the employment relation such as minimum wage and overtime regulations actually benefit the ostensible beneficiaries, since by making labor more expensive such regulations may cause disemployment. See, e.g., Mechmet v. Four Seasons Hotel, Ltd., 825 F.2d 1173, 1176 (7th Cir.1987); Finis Welch, Minimum Wages: Issues and Evidence (1978); The Economics of Legal Minimum Wages (Simon Rotten-berg ed. 1981); Charles Brown, Curtis Gilroy & Andrew Kohen, “The Effect of the Minimum Wage on Employment and Unemployment,” 20 J.Econ.Lit. 487 (1982). It is not our business to try to resolve such a debate, and anyway the resolution would not decide this case. The relevant comity is a duty of forbearance not to individual Indians but to Indian governments, and it would be a conspicuous breach of comity to accuse the latter, as the Labor Department’s lawyer came close to doing at the oral argument, of not being guided by a sincere concern for the best interests of the former. We must bear in mind also that the principal beneficiaries of the activities of the Great Lakes Indian Fish and Wildlife Commission are not the Commission’s employees; they are the Indian fishermen, hunters, and gatherers whom the Commission serves and protects.

We realize that other general federal statutes regulating employment, notably ERISA and OSHA, have been applied to Indian agencies when, as in the present case, no treaty right was at stake. Smart v. State Farm Ins. Co., supra, 868 F.2d at 933-36; Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113 (9th Cir.1985); U.S. Dept. of Labor v. OSHRC, 935 F.2d 182 (9th Cir.1991); Lumber Industry Pension Fund v. Warm Springs Forest Products Industries, 939 F.2d 683 (9th Cir.1991). But the employees in those cases were engaged in routine activities of a commercial or service character, namely lumbering and health care, rather than of a governmental character. They were not law enforcement officers, who if they had been employed by a state or local government would have been exempt from the law. Similarly distinguishable is Confederated Tribes v. Kurtz, 691 F.2d 878 (9th Cir.1982), refusing to recognize an implied exemption from federal excise taxation for a tribal sawmill. We do not hold that employees of Indian agencies are exempt from the Fair Labor Standards Act. We hold only that those agencies’ law-enforcement employees, and any other employees exercising governmental functions that when exercised by employees of other governments are given special consideration by the Act, are exempt. We have the support of the Cherokee Nation case, cited earlier. Noting that Title VII of the Civil Rights Act of 1964 explicitly exempts Indian ■ tribes but that the Age Discrimination in Employment Act does not, the Tenth Circuit held that it would read the Indian tribal exemption into the latter statute. The court was rectifying an oversight. We do the same today, actuated by the same purpose of making federal law bear as lightly on Indian tribal prerogatives as the leeways of statutory interpretation allow.

Affirmed.