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EEOC v. Fond du Lac Heavy Equip. & Constr. Co.

United States Court of Appeals for the Eighth Circuit

June 12, 1992, Submitted ; February 19, 1993, Filed

No. 91-3561


 [*247]  HANSEN, Circuit Judge.

The Equal Employment Opportunity Commission (EEOC) brought a discrimination claim under the Age Discrimination in  [*248]  Employment Act (ADEA), 29 U.S.C. § 621 et seq., against Fond du Lac Heavy Equipment and Construction Company and Fond du Lac Band of Lake Superior Chippewa. Fond du Lac Band of Lake Superior Chippewa is a federally recognized Indian tribe that chartered and wholly owns the equipment and construction company. The company was located on the reservation and occasionally did work off the reservation land.

The suit was brought on behalf of Marvin Pellerin, a member of the tribe, who was allegedly denied employment by the company because of his age. The district court 2 adopted the reasoning in EEOC v. Cherokee Nation, 871 F.2d 937 (10th Cir. 1989), which held that the ADEA does [**2]  not apply to Indian tribes, and dismissed the case. The EEOC appeals.

] Indian tribes possess the "'inherent powers of a limited sovereignty which has never been extinguished.'" United States v. Wheeler, 435 U.S. 313, 322, 55 L. Ed. 2d 303, 98 S. Ct. 1079 (1978) (quoting F. Cohen, Handbook of Federal Indian Law 122 (1945)). "Although no longer 'possessed of the full attributes of sovereignty,' they remain a 'separate people, with the power of regulating their internal and social relations.'" Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55, 56 L. Ed. 2d 106, 98 S. Ct. 1670 (1978) (citations omitted). "However, Congress has plenary authority to limit, modify or eliminate the powers of local self-government which the tribes otherwise possess." Id. at 56 (citations omitted). The question presented in this case is whether Congress did so when enacting the ADEA.

The Supreme Court has stated that ] "general acts of Congress [**3]  apply to Indians as well as to all others in the absence of a clear expression to the contrary." Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 120, 4 L. Ed. 2d 584, 80 S. Ct. 543 (1960). This general rule in Tuscarora, however, does not apply when the interest sought to be affected is a specific right reserved to the Indians.  United States v. Winnebago Tribe of Nebraska, 542 F.2d 1002, 1005 (8th Cir. 1976). Specific Indian rights will not be deemed to have been abrogated or limited absent a "clear and plain" congressional intent. United States v. Dion, 476 U.S. 734, 738, 90 L. Ed. 2d 767, 106 S. Ct. 2216 (1986) (citations omitted); Winnebago Tribe, 542 F.2d at 1005 (citations omitted). A clear and plain intent may be demonstrated by an "express declaration" in the statute, by the "legislative history," and by "surrounding circumstances." Dion, 476 U.S. at 739.

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986 F.2d 246 *; 1993 U.S. App. LEXIS 2676 **; 61 Fair Empl. Prac. Cas. (BNA) 105; 60 Empl. Prac. Dec. (CCH) P42,039

Equal Employment Opportunity Commission, Appellant, v. Fond du Lac Heavy Equipment and Construction Co., Inc., and Fond du Lac Band of Lake Superior Chippewa, Appellees.

Subsequent History: Rehearing and Rehearing En Banc Denied April 6, 1993, Reported at 1993 U.S. App. LEXIS 7003.

Prior History:  [**1]  Appeal from the United States District Court for the District of Minnesota. District No. CIV 5-91-53. Paul A. Magnuson, U.S. District Judge.

Disposition: Affirmed


tribes, tribal, self-government, intent of congress, legislative history, reservation, sovereignty, employees, treaty, rights

Governments, Native Americans, Authority & Jurisdiction, Property Rights, International Trade Law, Trade Agreements, Labor Provisions, Legislation, Overbreadth, Labor & Employment Law, Age Discrimination, Scope & Definitions, General Overview, Business & Corporate Compliance, Discrimination, Federal & State Interrelationships, Interpretation, Discriminatory Employment Practices, Covered Employers, Employment Relationships, At Will Employment, Definition of Employers, Title VII Discrimination, Employers