No. 06-17261 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _______________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. PEABODY WESTERN COAL COMPANY, Defendant-Appellee, and THE NAVAJO NATION, Rule 19 Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court For the District of Arizona _______________________________________________________ BRIEF OF EQUAL EMPLOYMENT OPPORUNITY COMMISSION AS APPELLANT _______________________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS U.S. EQUAL EMPLOYMENT Assistant General Counsel OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7010 SUSAN R. OXFORD Washington, D.C. 20507 Attorney Tel (202) 663-4791, Fax (202) 663-7090 TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . .4 Decisions on Remand. . . . . . . . . . . . . . . . . . . . .7 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 12 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Standard of Review I..The district court erred as a matter of law in dismissing EEOC's lawsuit on the grounds that EEOC's Amended Complaint seeks affirmative relief against the Navajo Nation . . . . . . 15 II. The district court abused its discretion when it failed to give EEOC notice that it was converting the Nation's motion to dismiss into a motion for summary judgment and adequate opportunity for discovery . . . . . . . . . . . . . . . . . . . . . . 23 III.The district court erred as a matter of law in concluding that the Navajo-Hopi Rehabilitation Act authorizes Peabody to give hiring preference to Navajos. . . . . . . . . . . . . . . . . . . . . . . . . . 28 IV. The district court erred as a matter of law in ruling that the Secretary is a necessary party, and abused its discretion in ruling that the Secretary is an indispensable.. . . . . . . . . . . . . . . . . 36 A. The Secretary is not a necessary party under Rule 19(a). . . . . 37 B. The Secretary is not "indispensable" to this lawsuit under Rule 19(b) . . . . . . . . . . . . . . . . . . . . . . . . 46 V. The district court abused its discretion by striking an EEOC exhibit and failing to strike two forms submitted by Peabody. . . . . . 48 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 54 STATEMENT OF RELATED CASES . . . . . . . . . . . . . . . . . . 55 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 55 ADDENDUM of Relevant Statutes CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES APHETI v. Taylor Resources, 299 F.3d 1007 (9th Cir. 2002). . . . . . . . 38 Al-Safin v. Circuit City Stores, 394 F.3d 1254 (9th Cir. 2005) . . . . . 19 Beyene v. Coleman Sec. Services, 854 F.2d 1179 (9th Cir. 1988) . . . . . 48 Chao v. Bremerton Metal Trades Council, 294 F.3d 1114 (9th Cir. 2002).33-34 Childress v. Darby Lumber, 357 F.3d 1000 (9th Cir. 2004) . . . . . . . . 15 Confederated Tribes of Chehalis Indian Reservation v. Lujan, 928 F.2d 1496 (9th Cir.1991) . . . . . . . . . . . . . . . . . . 14, 35, 47 Davenport v. International Brotherhood of Teamsters, 166 F.3d 356 (D.C. Cir. 1999) . . . . . . . . . . . . . . . . . . 16 Dawavendewa v. Salt River Project Agr. Import and Power District (Dawavendewa II), 276 F.3d 1150 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . 41, 47 Dawavendewa v. Salt River Project Agricultural Improvement & Power District (Dawavendewa I), 154 F.3d 1117 (9th Cir. 1998) . . . . . . . . . . . .2, 34 Delta Savings Bank v. United States, 265 F.3d 1017 (9th Cir. 2001) . . .19 Department of Army v. Blue Fox, 525 U.S. 255 (1999). . . . . . . . . . . 39 Disabled Rights Action Committee v. Las Vegas Events, 375 F.3d 861 (9th Cir. 2004) . . . . . . . . . . . . . . . . 38, 40 EEOC v. Peabody Coal Co., 214 F.R.D. 549 (D. Ariz. 2002) . . . . . . . . .3 EEOC v. Peabody Western Coal Co., No. 01-1050-PHX-MHM (D. Ariz. Sept. 30, 2006) (9/30/06 Order). . . . . . . . . . . . . . . . . . . . . . . . . . . passim EEOC v. Peabody Western Coal Co., 400 F.3d 774 (9th Cir. 2005) . . . passim Federal Home Loan Bank of S.F. v. Hall, 225 F.2d 349 (9th Cir. 1955). . 17 In re Glacier Bay, 944 F.2d 577 (9th Cir. 1991). . . . . . . . . . . . . 36 Grove v. Mead Sch. District, 753 F.2d 1528 (9th Cir. 1985) . . . . . . . 24 Icon Group v. Mahogany Run Development Corp., 829 F.2d 473 (3d Cir. 1987). . . . . . . . . . . . . . . . . . . . . 18 Ingle v. Circuit City, 408 F.3d 592 (9th Cir. 2005). . . . . . . . . . . 19 Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004). . . . . . . . . . . . . . 15 Kwai Fun Wong v. United States, 373 F.3d 952 (9th Cir. 2004) . . . . . . 15 LaRaza Unida of So. Alameda County v. Volpe, 488 F.2d 559 (9th Cir. 1973). . . . . . . . . . . . . . . . . . . . . . . . . 17 Makah Indian Tribe v. Verity, 910 F.2d 555 (9th Cir. 1990) . . . . . 14, 35 Martin v. Wilks, 490 U.S. 755 (1989) . . . . . . . . . . . . . . . . . . 17 Monterey Mechanical Company v. Wilson, 125 F.3d 702 (9th Cir. 1997) .39, 40 Morton v. Mancari, 417 U.S. 535 (1974) . . . . . . . . . . . . . . . 11, 32 N. Alaska Envtl. Ctr. v. Hodel, 803 F.2d 466 (9th Cir. 1986) 42, 43, 44, 46 Nat'l Indian Youth Council v. Andrus, 501 F. Supp. 649 (D.N.M. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . 43, 44 Navajo Nation v. United States, 68 Fed. Cl. 805 (Ct. Fed. Cl. 2005). . . . . . . . . . . . . . . . . . . . . .30, 31, 46 Penobscot Nation v. Ga.-Pac. Corp., 254 F.3d 317 (1st Cir. 2001) . . .17-18 Poafpybitty v. Skelly Oil Co., 390 U.S. 365 (1968) . . . . . . . . . . . 45 Salveson v. W. States Bankcard Association, 731 F.2d 1423 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 United States v. Hughes Aircraft, 243 F.3d 1181 (9th Cir. 2001). 19, 20, 22 United States v. Navajo Nation, 537 U.S. 488 (2003). . . . . . . . . passim United States v. Trident Seafoods, 92 F.3d 855 (9th Cir. 1996) . . . . . 32 Vieux Carre Prop. Owners v. Brown, 875 F.2d 453 (5th Cir. 1989). . . . . 16 Wilbur v. Locke, 423 F.3d 1101 (9th Cir. 2005) . . . . . . . . . . . 43, 44 Wilson v. U.S. Department of Interior, 799 F.2d 591 (9th Cir. 1986) . . . 5 FEDERAL STATUTES 5 U.S.C. §702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 25 U.S.C. §396a. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5 25 U.S.C. §§396a-396g. . . . . . . . . . . . . . . . . . . . . . .7, 31, 32 25 U.S.C. §§631-633. . . . . . . . . . . . . . . . . . . . . . . . . . . 33 25 U.S.C. §631 . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 25 U.S.C. §632 . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30, 50 25 U.S.C. §633 . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 25 U.S.C. §635 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 28 U.S.C. §1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. §1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. §1337. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. §1343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. §1345. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. §1491. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 28 U.S.C. §1491(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . 39 28 U.S.C. §2072(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 28 U.S.C. §2072(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 28 U.S.C. §2107(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. §2671 et seq . . . . . . . . . . . . . . . . . . . . . . . . . 39 28 U.S.C. §2674. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 42 U.S.C. §§ 2000e et seq. . . . . . . . . . . . . . . . . . . . . . . . .2 42 U.S.C. § 2000e(b) . . . . . . . . . . . . . . . . . . . . . . . . 23, 34 42 U.S.C. §2000e(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 22 42 U.S.C. §2000e(n). . . . . . . . . . . . . . . . . . . . . . . . . . . 22 42 U.S.C. §2000e-2(a). . . . . . . . . . . . . . . . . . . . . . . . 33, 34 42 U.S.C. §2000e-2(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . .2 42 U.S.C. §2000e-2(i). . . . . . . . . . . . . . . . . . . . . . . . 33, 34 42 U.S.C. §2000e-5(f)(1) . . . . . . . . . . . . . . . . . . . . . . 10, 22 42 U.S.C. §§2000e-5(f)(3). . . . . . . . . . . . . . . . . . . . . . . . .1 42 U.S.C. §2000e-8(c). . . . . . . . . . . . . . . . . . . . . . . 1, 2, 38 FEDERAL REGULATIONS 25 C.F.R. §162.1 et seq. . . . . . . . . . . . . . . . . . . . . . . . . .7 25 C.F.R. §162.103(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . .7 25 C.F.R. Part 211 . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 25 C.F.R. Part 212 . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 25 C.F.R. §211 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . 31 25 C.F.R. §§211.1 et seq . . . . . . . . . . . . . . . . . . . . . . 31, 32 25 C.F.R. §211.1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . .7 25 C.F.R. §211.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 25 C.F.R. §§211.20(d). . . . . . . . . . . . . . . . . . . . . . . . . . 52 25 C.F.R. §§211.57 . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 FEDERAL RULES Fed. R. App. P 4(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . .1 Fed. R. Civ. P. 12(b). . . . . . . . . . . . . . . . . . . . . . . . 23, 24 Fed. R. Civ. P. 14(a). . . . . . . . . . . . . . . . . . . . . . . . . . 38 Fed. R. Civ. P. 19(a), (b) . . . . . . . . . . . . . . . . . . . . . passim Fed. R. Civ. P. 19(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 37 Fed. R. Civ. P. 19(a)(2)(i), (ii). . . . . . . . . . . . . . . . . . 37, 44 Fed. R. Civ. P. 26(b)(1) . . . . . . . . . . . . . . . . . . . . . . . .7-8 Fed. R. Civ. P. 33(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . 26 Fed. R. Civ. P. 43(e). . . . . . . . . . . . . . . . . . . . . . . . . . 48 Fed. R. Civ. P. 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Fed. R. Civ. P. 56(f). . . . . . . . . . . . . . . . . . . . . . . .7-8, 15 Fed. R. Civ. P. 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Fed. R. Evid. 401. . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Fed. R. Evid. 402. . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Fed. R. Evid. 803(8) . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Fed. R. Evid. 803(8)(A). . . . . . . . . . . . . . . . . . . . . . . . . 50 Fed. R. Evid. 803(8)(B). . . . . . . . . . . . . . . . . . . . . . . . . 50 Fed. R. Evid. 901(b)(7). . . . . . . . . . . . . . . . . . . . . . . 14, 50 MISCELLANEOUS Royster, Judith V., "Mineral Development in Indian Country: The Evolution of Tribal Control over Mineral Resources," 29 Tulsa L.J. 541, 554-55 (Spring/Summer 1994) 5, 32, 45 Wood, Mary Christina, "Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited," 1994 Utah L. Rev. 1471, 1480 (1994) . . . . . . . . .5 JURISDICTIONAL STATEMENT The district court had jurisdiction to hear this Title VII lawsuit under 28 U.S.C. §§1331, 1337, 1343, 1345, and 42 U.S.C. §§2000e-5(f)(3), 2000e-8(c). The district court granted the Navajo Nation's motion to dismiss and entered final judgment on October 2, 2006. RE1-26.<1> EEOC filed a notice of appeal on November 27, 2006, within 60 days after judgment was entered. RE174. This appeal is, therefore, timely under 28 U.S.C. §2107(b) and Federal Rule of Appellate Procedure 4(a)(1)(B). This Court has appellate jurisdiction under 28 U.S.C. §1291. STATEMENT OF THE ISSUES 1. Did the district court err as a matter of law when it dismissed EEOC's lawsuit against Peabody Western Coal Company on the ground that EEOC's Amended Complaint, naming the Navajo Nation as a Rule 19 defendant, sought affirmative relief against the Nation? 2. Did the district court abuse its discretion by failing to give EEOC notice that it was converting the Nation's motion to dismiss into a motion for summary judgment and adequate opportunity for discovery? 3. Did the district court err as a matter of law in ruling that the Navajo-Hopi Rehabilitation Act of 1950 authorizes Peabody to engage in tribal-specific hiring preferences? 4. Did the district court abuse its discretion when it dismissed EEOC's lawsuit on the additional ground that the Secretary of the Interior is an indispensable party? 5. Did the district court abuse its discretion by striking an EEOC exhibit and denying EEOC's motion to strike two forms relied upon by Peabody? STATEMENT OF THE CASE In this lawsuit, EEOC alleges that Peabody Western Coal Company—a company that mines coal on the Navajo reservation under leases with the Navajo Nation—violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq., by refusing to hire a number of Native Americans because they are not Navajo.<2> RE47-50. EEOC also alleges that Peabody violated Title VII's record-keeping provision, 42 U.S.C. §2000e-8(c), by failing to retain employment applications. RE50. Without admitting or denying that it had discriminated against non-Navajo job applicants, Peabody defended on the grounds that if it did discriminate, it did so only because its mining leases with the Navajo Nation expressly require it to give hiring preference to Navajos. RE24. Prior to any discovery, Peabody moved for summary judgment on two grounds: (1) the Navajo Nation is an indispensable party to the lawsuit that cannot be joined under Title VII and (2) the validity of the hiring preference is a nonjusticiable political question because the terms of the leases, including the Navajo hiring preference, were expressly approved (and possibly required) by another federal agency. R.38. Peabody did not move for summary judgment regarding EEOC's recordkeeping claim. See id. The district court granted Peabody's motion on both grounds and dismissed EEOC's lawsuit. EEOC v. Peabody Coal Co., 214 F.R.D. 549 (D. Ariz. 2002). EEOC appealed, and this Court reversed. EEOC v. Peabody Western Coal Co., 400 F.3d 774 (9th Cir. 2005) (Peabody I). This Court agreed that the Navajo Nation is a necessary party to effect complete relief, but found that joinder is feasible. This Court ruled that tribal sovereign immunity does not prevent joinder, because EEOC is an agency of the United States. Id. at 778, 781. This Court found no impediment in the absence of statutory authority for EEOC to sue the Navajo Nation because EEOC seeks only to ensure complete relief regarding Peabody's violations and does not seek any affirmative relief against the Nation. Id. at 781-84. This Court also held that EEOC's lawsuit does not present a nonjusticiable political question. Id. at 784- 85. Finally, this Court vacated the judgment as to EEOC's record-keeping claim. Id. at 785. This Court did not reach the merits of the Commission's claims. Id. at 784- 85. EEOC filed an Amended Complaint naming the Nation as a Rule 19 defendant, but continuing to assert claims only against Peabody, and seeking the identical relief from Peabody—and only from Peabody. The Nation moved to dismiss on a number of grounds. The district court granted the Nation's motion on the grounds that EEOC's amended complaint sought affirmative relief against the Nation; the Navajo- Hopi Rehabilitation Act of 1950 authorized Peabody's actions; and the Secretary of Interior was an indispensable party who could not be joined because of sovereign immunity. EEOC filed this appeal. STATEMENT OF FACTS Since 1970, Peabody has mined coal at the Black Mesa Complex and Kayenta Mine located on Navajo and Hopi reservations in northeastern Arizona pursuant to three leases that Peabody's predecessor, Sentry Royalty Company, negotiated with the Navajo and Hopi tribes. Peabody I, 400 F.3d at 776; EEOC v. Peabody Western Coal Co., No. 01-1050-PHX-MHM (D. Ariz. Sept. 30, 2006) (9/30/06 Order) at 5-6 (RE5-6). The two leases at issue here—entered into with the Navajo Nation in 1964 and 1966 and known, respectively, as the 8580 and 9910 Leases—were approved by the Department of Interior (DOI) under the Indian Mineral Leasing Act of 1938 (IMLA), 25 U.S.C. §§396a-396g. See Peabody I, 400 F.3d at 776. The IMLA authorizes a tribal council to lease lands within an Indian reservation to a private company for "mining purposes," including the mining of coal. 25 U.S.C. §396a.<3> Individual tribes negotiate the leases, which must then be approved by the Secretary of the Interior (SOI or Secretary) or his designee.<4> Id. Delegating authority to Indian tribes to lease their tribal lands for mining constituted a marked change from prior federal law, which authorized the federal government to enter into mining leases without a tribe's approval. See United States v. Navajo Nation, 537 U.S. 488, 493-94 (2003).<5> Both leases at issue in this litigation require Peabody to give hiring preference to Navajos, and both leases give the Secretary and the Navajo Nation the right to void the lease if a lease term is violated. 9/30/06 Order at 6 (RE6). Stewart L. Udall, who was the Secretary when these leases were signed, stated that DOI staff drafted these leases and required the inclusion of the Navajo employment preference. Id. at 7 (RE7). He conceded, however, that he had no personal recollection concerning the negotiation or the approval of these two leases. RE72-75. Udall stated that the coal leasing with Peabody was undertaken pursuant to the Navajo-Hopi Rehabilitation Act of 1950." Udall Deposition (Dep.) at 44 (RE77). In the Navajo-Hopi Rehabilitation Act of 1950 (Rehabilitation Act), 25 U.S.C. §§631-638, Congress allocated $108.57 million for specified infrastructure projects to assist the Navajo and Hopi tribes to become economically self-sufficient, and directed the Secretary of the Interior to use these funds to undertake "a program of basic improvements for the conservation and development of the resources of the Navajo and Hopi Indians." Id. §631. The Act designated $40 million for roads and trails, $30 million for hospitals, schools, and common service facilities, $21.5 million for soil and water conservation, irrigation, and public water supply, $5 million for a revolving loan fund, and $1 million for "development of industrial and business enterprises." Id. §631(1), (2), (4), (7), (9)-(12), (14). Congress directed the Secretary to complete this infrastructure construction program "so far as practicable, within ten years from April 19, 1950." Id. §632. Section 633 authorized the Secretary to give Navajo and Hopi Indians "preference in employment on all projects undertaken pursuant to this subchapter . . . without regard to . . . civil-service and classification laws." Id. §633. The Act designated $500,000 for "surveys and studies of timber, coal, mineral, and other physical and human resources." Id. §631(3). Other than surveying natural resources, however, nothing in the Act specifically relates to coal mining. Although the Act authorizes the leasing of tribal lands for "development of natural resources," id. §635, the federal regulations implementing this section, 25 C.F.R. §162.1 et seq., expressly exclude "[m]ineral leases, prospecting permits, or mineral development agreements." See id. §162.103(a)(1) (general leasing of Indian lands for purposes other than mineral development). Leasing of tribal lands for mineral development is covered under regulations the Secretary promulgated under the IMLA. See 25 C.F.R. §211.1(a) (noting authority derives from 25 U.S.C. §§396a-396g). Nevertheless, former Secretary Udall stated that "coal leasing and related development was the centerpiece of the resources development program" under the Rehabilitation Act. Udall Declaration (Decl.) ¶ 3 (RE55); see 9/30/06 Order at 14 (RE14). Decisions on remand The district court converted the Nation's motion to dismiss, which Peabody joined on several grounds, into a motion for summary judgment and granted the motion. 9/30/06 Order (RE1-25). The district court had earlier denied EEOC's request for a 90-day period of discovery. EEOC sought discovery under Federal Rules of Civil Procedure 26(b)(1) and 56(f) because the Nation relied on numerous factual submissions outside the pleadings. See R.95. The district court stated that neither of the procedural rules EEOC cited applied in this situation and chastised EEOC for assuming that the Nation's reliance on matters outside the pleadings meant the court would "automatically convert the pending Motion to dismiss into a motion for summary judgment." R.108 (5/18/06 Order) at 3-4 (RE34-35). The court stated: [T]he Court will make its own determination as to whether the extraneous materials in support of the 12(b)(6) basis for dismissal will be considered. If those documents are not considered, then the Court will not convert the Motion to dismiss into a motion for summary judgment. Id. at 4 (RE35). The district court granted EEOC a 30-day period of discovery limited to addressing factual matters pertaining to the Udall declaration and business site leases between the Navajo Nation and other companies containing similar employment preference provisions. Id. at 7 (RE38). EEOC thereafter requested six additional weeks of discovery on the grounds that 30 days was inadequate to receive answers to interrogatories and obtain relevant documents prior to conducting depositions. R.109. The district court granted three additional weeks. R.114 (6/1/06 Order) at 2-3 (RE30-31). The district court did not advise the parties, until it issued its decision on the merits, that it had decided to treat the matter as a motion for summary judgment. RE7-8. Before explaining why it was ruling in the Nation's and Peabody's favor, the district court struck two EEOC exhibits, one an excerpt from a report of the Bureau of Indian Affairs ("BIA"), ruling them unauthenticated hearsay. 9/30/06 Order at 3-5 (RE3-5). The district court denied EEOC's motion to strike two purported BIA forms relied on by Peabody, ruling them relevant to the proceedings and properly authenticated by private counsel stating he obtained the forms from a legal practice manual. Id. at 5 (RE5). Turning to the merits, the district court acknowledged that it was obliged to follow this Court's "binding precedent," but concluded that EEOC's filing of the Amended Complaint placed the case "in a different posture" and that the Nation and Peabody asserted arguments "not . . . squarely addressed" by this Court's prior decision. Id. at 9 (RE9). Among such arguments, according to the district court, was the Nation's claim that EEOC's Amended Complaint seeks "affirmative relief" against it. Id. at 10-11 (RE10-11). EEOC's Amended Complaint requested "a permanent injunction enjoining Peabody . . . and all persons in active concert or participation with it, from engaging in discrimination on the basis of national origin." See id. at 10 (quoting Amended Complaint, Prayer for Relief ¶A) (RE50). Although the district court acknowledged that the Amended Complaint did not expressly name the Navajo Nation as a party to be enjoined from discriminating in violation of Title VII, the district court found "no doubt" that the Nation "falls within the scope of affirmative relief sought by EEOC." Id. According to the court, if EEOC prevailed and obtained the broad relief the Amended Complaint seeks against Peabody, "the Navajo Nation would then be enjoined from implementing and requiring such lease provisions in the future" because the Nation "would already be subject to injunctive relief from [the district court] based upon the determination that such provisions are contrary to Title VII." Id. On this basis, the district court concluded that "EEOC seeks affirmative relief not only against Peabody Coal but the Navajo Nation as well." Id. at 11 (RE11). The district court ruled that this conclusion required dismissal of EEOC's lawsuit for three reasons. First, the district court held that the Nation cannot be joined as a Rule 19 defendant because Indian tribes are exempt from Title VII's definition of "employer." Id. The district court then applied the four factors of Federal Rule of Civil Procedure 19(b) and concluded that EEOC's lawsuit should not proceed in the absence of the Navajo Nation. Id. at 11-12 (RE11-12). Second, the district court held that permitting EEOC's lawsuit to proceed with the Nation as a Rule 19 defendant would violate the Rules Enabling Act, 28 U.S.C. §2072(a), because it would enlarge the scope of EEOC's litigation authority and modify the substantive limitations on EEOC's right to sue employers under Title VII. 9/30/06 Order at 12-13 (RE12-13). Third, the district court concluded that joinder was barred because Title VII authorizes only the Attorney General, and not EEOC, to sue a governmental entity. Id. at 13 (RE13) (citing 42 U.S.C. §2000e-5(f)(1)). The district court ruled, in addition, that Peabody's actions were expressly authorized by a provision in the Navajo-Hopi Rehabilitation Act of 1950 that authorizes employment preference for Navajo and Hopi Indians "on all projects undertaken pursuant to this subchapter." Id. at 13-16 (RE13-16) (citing 25 U.S.C. §633 and Morton v. Mancari, 417 U.S. 535, 550 (1974)). Lastly, the district court held that dismissal is necessary because the Secretary of Interior, who cannot be joined because of the federal government's sovereign immunity, is an indispensable party under Federal Rule of Civil Procedure 19(b). Id. at 16-24 (RE16-24). The district court reasoned that complete relief cannot be accorded without the Secretary because Peabody would be deprived of the opportunity to assert a cross-claim against the Secretary for requiring Peabody to discriminate in favor of Navajo job applicants. Id. at 18-19 (RE18-19). The district court further reasoned that the Secretary has an interest in this lawsuit because the Secretary required the hiring preference and retains the right to cancel the lease for noncompliance with any provision, and that the Secretary's ability to protect this interest would be impeded if the case proceeded in his absence. Id. at 19-21 (RE19- 21). The district court also concluded that non-joinder of the Secretary would create a substantial risk of multiple, inconsistent obligations for Peabody and that dismissal was the appropriate course of action based on the first three factors of Rule 19(b). Id. at 21-24 (RE21-24).<6> SUMMARY OF ARGUMENT The district court erred as a matter of law when it dismissed EEOC's lawsuit on the grounds that EEOC's Amended Complaint impermissibly seeks affirmative relief against the Navajo Nation. This Court already determined in Peabody I that EEOC was not seeking any affirmative relief against the Nation. EEOC's Amended Complaint seeks the identical relief against Peabody—and only against Peabody—that EEOC sought against Peabody in its initial complaint. Since the relevant circumstances have not changed in any material respect, this Court's prior ruling on this issue is the law of the case, and the district court erred in ignoring it. The district court's erroneous conclusion on "affirmative relief" led it to make three additional legal errors: that the Navajo Nation is an indispensable party under Rule 19(b); that joining the Nation would violate the Rules Enabling Act by expanding EEOC's litigation authority; and that joining the Nation would conflict with Title VII's provisions limiting suits against governmental entities to the Attorney General. Since the district court based all three conclusions on the same faulty premise—that the Nation cannot be joined because EEOC seeks affirmative relief against it—dismissal of EEOC's lawsuit on these bases is incorrect as a matter of law. The district court also abused its discretion by failing to give EEOC sufficient opportunity for discovery so EEOC could respond fully to the Nation's motion to dismiss based on the Rehabilitation Act, which the district court converted into a motion for summary judgment without advance notice to the parties. Although the district court allowed EEOC some discovery, the court abused its discretion by denying EEOC's requests for additional discovery, thereby limiting EEOC's ability to explain why the Rehabilitation Act does not apply here. In any event, the district court erred as a matter of law in concluding that the Rehabilitation Act governs these leases. The Rehabilitation Act directed the Secretary to give hiring preference to Navajo and Hopi Indians in projects undertaken pursuant to the Act, but those projects were for the most part completed by 1960, several years before these leases were signed, and were limited to specific infrastructure construction, surveys of natural resources, and specified loan and relocation programs. Indian mineral leasing, on the other hand, is governed by the Indian Mineral Leasing Act of 1938, which contains no hiring preference of any kind. Title VII and the Rehabilitation Act are thus readily harmonized because the leases at issue in this lawsuit are not covered by the Rehabilitation Act's Navajo hiring preference. Even assuming, arguendo, that Peabody and the Nation entered into these leases pursuant to the Rehabilitation Act, Title VII's later-enacted nondiscrimination provisions control over the earlier-enacted Rehabilitation Act. The district court also erred as a matter of law in ruling that the Secretary of Interior is "necessary" under Rule 19(a). The Secretary is not a party to the leases, has no legally-cognizable interest in these leases, and is not needed to render complete relief. Furthermore, even if the Secretary is "necessary," a proper balancing of the equities dictates that EEOC's suit against Peabody should proceed without the Secretary. The district court abused its discretion in ruling that the Secretary is indispensable. Finally, the district court abused its discretion in striking a properly- authenticated DOI report, which is admissible under Federal Rule of Evidence 901(b)(7). The district court also abused its discretion in refusing to strike two form leases submitted by Peabody, as Peabody failed to demonstrate that these 1957 forms were relevant here. ARGUMENT Standard of Review This Court reviews de novo the legal conclusions underlying a decision regarding joinder, Peabody I, 400 F.3d at 778, but otherwise reviews for abuse of discretion a district court's dismissal of an action based on a finding that a party is "indispensable." See Confederated Tribes of Chehalis Indian Reservation v. Lujan, 928 F.2d 1496, 1498 (9th Cir. 1991); Makah Indian Tribe v. Verity, 910 F.2d 555, 557 (9th Cir. 1990). This Court reviews for abuse of discretion a district court's decision to convert a motion to dismiss into a motion for summary judgment, Salveson v. W. States Bankcard Ass'n, 731 F.2d 1423, 1430 (9th Cir. 1984), but reviews de novo the court's grant of summary judgment. Childress v. Darby Lumber, 357 F.3d 1000, 1005 (9th Cir. 2004). This Court applies an "abuse of discretion" standard when reviewing a district court's evidentiary and discovery rulings, including a decision denying discovery sought pursuant to Federal Rule of Civil Procedure 56(f). Jones v. Blanas, 393 F.3d 918, 926 (9th Cir. 2004). I. The district court erred as a matter of law in dismissing EEOC's lawsuit on the grounds that EEOC's Amended Complaint seeks affirmative relief against the Navajo Nation. EEOC's Amended Complaint includes no claim against the Navajo Nation, and the Prayer for Relief in the Amended Complaint mentions only Peabody. The district court nevertheless incorrectly concluded that the Amended Complaint seeks affirmative relief against the Navajo Nation, and then relied on that erroneous conclusion to justify dismissing EEOC's lawsuit against Peabody on three separate bases. The underlying conclusion—a position never advanced by the Nation—is wrong as a matter of law and conflicts with this Court's prior determination, which is binding on the district court under the law of the case doctrine.<7> In Peabody I, this Court ruled that EEOC could join the Navajo Nation as a Rule 19 defendant, notwithstanding EEOC's inability to sue Indian tribes under Title VII. See 400 F.3d at 780-84. This Court held that naming the Nation as a Rule 19 defendant would facilitate complete relief by binding the Nation through res judicata, and that any resulting judgment would not "bind the Navajo Nation in the sense" of "order[ing] the Nation to perform, or refrain from performing" any act, but would "preclude the Nation from bringing a collateral challenge to the judgment." Id. at 780. A critical factor in this Court's reasoning was its finding that EEOC "seek[s] no affirmative relief against the Navajo Nation." Id. at 782. Indeed, this Court distinguished Vieux Carre Prop. Owners v. Brown, 875 F.2d 453 (5th Cir. 1989), and Davenport v. Int'l Brotherhood of Teamsters, 166 F.3d 356 (D.C. Cir. 1999), in part on the basis that the plaintiffs in those cases sought to "impose an injunction directly on a party against whom the plaintiff could not state a cause of action." Peabody I, 400 F.3d at 782. In its motion to dismiss, the Nation conceded that EEOC's Amended Complaint does not seek any affirmative relief against it. See R.89 at 1-2, 29. Nevertheless, the district court wrongly concluded that the Amended Complaint placed this case in a different posture because EEOC seeks to enjoin "Peabody . . . and all persons in active concert or participation with it, from engaging in discrimination on the basis of national origin." See RE10. The quoted language, which is identical to EEOC's original complaint, does not indicate EEOC seeks affirmative relief against the Navajo Nation. It is standard language derived from Federal Rule of Civil Procedure 65(d), which states: "Every order granting an injunction . . . is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise." (Emphasis added).<8> It establishes the scope of a court's order to ensure it is effective but not overly broad. This language does not, and cannot, create a cause of action that otherwise does not exist, nor can it authorize relief against a party where there is no cause of action. To the extent the district court believed that EEOC literally is seeking to enjoin the Navajo Nation through this standard phraseology, the court misconstrued the meaning entirely. To the extent the court meant that declaratory and injunctive relief against Peabody has the same effect as enjoining the Nation, the court is simply wrong. Certainly, as a Rule 19 defendant, the Nation would be "bound by [the district court's] judgment or decree." See Martin v. Wilks, 490 U.S. 755, 765 (1989). But that is only true in the sense that the Nation could not challenge the order collaterally in another forum. See Peabody I, 400 F.3d at 780 (judgment "will preclude the Nation from bringing a collateral challenge to the judgment"); see also Penobscot Nation v. Ga.-Pac. Corp., 254 F.3d 317, 325 (1st Cir. 2001) (res judicata prevents tribe from relitigating issue decided in earlier case); Icon Group v. Mahogany Run Dev. Corp., 829 F.2d 473, 478 (3d Cir. 1987) ("essential purpose[]" of Rule 19 is "to ensure that a judgment will have res judicata effect"). As a Rule 19 defendant here, the Nation could not be enjoined by the district court to do anything or to refrain from doing anything, and the Nation would not be subject to any contempt of court ruling based on Peabody's failure to comply with anything the Court ordered Peabody to do or to refrain from doing. See Peabody I, 480 F.3d at 780 ("judgment will not bind the Navajo Nation in the sense that it will directly order the Nation to perform, or refrain from performing, certain acts"). In any event, this Court already resolved this question in Peabody I, and the district court erred in revisiting the issue. As noted, the relief the Commission seeks in the Amended Complaint, which is directed solely toward Peabody, is identical to the relief EEOC sought in its original complaint. Compare RE45-46 (original complaint) with RE50-51 (Amended Complaint). In Peabody I, this Court considered, and rejected, Peabody's arguments that the Commission's original complaint inappropriately sought affirmative relief against the Navajo Nation. See RE177-80 (Appellee Peabody's Response Brief in EEOC v. Peabody Western Coal Co., No. 02-17305 (9th Cir.) at 23-25); Peabody I, 400 F.3d at 780-83. As this Court unequivocally explained, "[T]he EEOC has no claim against the party it seeks to join and is not seeking any affirmative relief directly from that party. . . . [T]he EEOC is not seeking to hold the Navajo Nation liable under Title VII . . . ." Id. at 783. Absent changed circumstances, and there has been no material change here, the district court was bound by this Court's prior ruling that EEOC's complaint does not seek affirmative relief against the Nation. See United States v. Hughes Aircraft, 243 F.3d 1181, 1186 (9th Cir. 2001) (law of the case doctrine requires district court to follow appellate court's resolution of an issue in all subsequent proceedings in same case); see also Ingle v. Circuit City, 408 F.3d 592, 594 (9th Cir. 2005) (lower court generally precluded from reconsidering an issue previously decided by a higher court in same case).<9> Moreover, it is immaterial that this Court did not discuss directly the wording on which the district court relied, because the "law of the case" doctrine "applies to both the appellate court's ‘explicit decisions as well as those issues decided by necessary implication.'" Al-Safin v. Circuit City Stores, 394 F.3d 1254, 1258 (9th Cir. 2005) (citation omitted). Since EEOC's Prayer for Relief is identical in the amended and original complaints, the district court was not at liberty to deviate from this Court's prior binding ruling that EEOC's lawsuit does not seek any affirmative relief against the Navajo Nation. The district court's error on this point led the court to reach three other, equally erroneous rulings, all of which are necessarily reversible because they contravene the critical, binding conclusion of this Court—unchanged by the Amended Complaint—that EEOC's lawsuit against Peabody seeks no affirmative relief against the Navajo Nation. First, the district court erroneously held that the Nation is an indispensable party to this lawsuit under Rule 19(b). RE11-12. Having concluded that the Nation could not be joined because the Amended Complaint sought affirmative relief against the Nation and EEOC is not authorized under Title VII to sue Indian tribes, RE11, the court then ruled that EEOC's suit should be dismissed rather than proceed without the Nation. RE11-12. This is reversible error because the district court's underlying premise—that the Nation cannot be joined because EEOC seeks affirmative relief against it—conflicts directly with this Court's prior ruling on this very question, which the district court was bound to follow. See Hughes Aircraft, 243 F.3d at 1186.<10> The district court also erred as a matter of law in dismissing EEOC's lawsuit on the ground that joining the Nation as a Rule 19 defendant would violate the Rules Enabling Act. The Rules Enabling Act provides that procedural court rules governing federal district courts "shall not abridge, enlarge or modify any substantive right." See 28 U.S.C. §2072(b). Since Title VII expressly exempts Indian tribes from the definition of "employer," EEOC has no statutory authority to pursue legal action against an Indian tribe or to seek any affirmative relief against an Indian tribe for a violation of Title VII. Respectful of these limitations, EEOC has not asserted any claim against the Nation nor sought any affirmative relief against the Nation, joining the Nation as a Rule 19 defendant solely to ensure that any relief awarded against Peabody is protected from collateral attack by the Nation. The district court's misperception that EEOC's Amended Complaint seeks affirmative relief against the Navajo Nation led the court to conclude that the Rules Enabling Act bars the Nation from being joined to this lawsuit because "EEOC's requested relief is inconsistent with [EEOC's] substantive rights." RE12; see also RE13 ("now with the benefit of the Amended Complaint asserted by EEOC, it appears to this Court that EEOC is in fact seeking to enlarge or modify its substantive rights under Title VII against the Navajo Nation"). This reasoning is wrong as a matter of law and has already been rejected by this Court, which ruled: [b]ecause EEOC is not seeking to hold the Navajo Nation liable under Title VII, we reject Peabody's argument that our reading of Rule 19 conflicts with the Rules Enabling Act's restriction . . . . Joinder of the Nation does not, and cannot, create any substantive rights that EEOC may enforce against the Nation, and EEOC does not contend otherwise. Peabody I, 400 F.3d at 783 (citation omitted). This ruling is correct. Furthermore, it is now the law of the case, and the district court was bound to follow it. See Hughes Aircraft, 243 F.3d at 1186. Lastly, the district court committed legal error in dismissing EEOC's lawsuit on the ground that Title VII's limitations on EEOC's authority to sue governmental entities prevents EEOC from naming the Navajo Nation as a Rule 19 defendant in this case. RE13.<12> The district court acknowledged that this Court rejected this argument when it was previously asserted by Peabody. Id. (citing Peabody I, 400 F.3d at 781). The district court nevertheless erroneously concluded that "EEOC is not merely seeking relief against Peabody Coal, but all parties acting in concert with it, which includes the Navajo Nation" and that such relief "is not to be asserted by the [EEOC], but the Attorney General after conciliation efforts between EEOC and the Navajo Nation." Id. Since the district court's underlying premise that EEOC seeks affirmative relief against the Nation is incorrect, the district court's ruling on this point is wrong as a matter of law. The EEOC does not seek affirmative relief against the Nation, so Title VII imposes no impediment to joinder of the Navajo Nation as a Rule 19 defendant here. See Peabody I, 400 F.3d 781-84. II. The district court abused its discretion when it failed to give EEOC notice that it was converting the Nation's motion to dismiss into a motion for summary judgment and adequate opportunity for discovery. The district court converted the Nation's motion to dismiss based on the Rehabilitation Act into a motion for summary judgment and then granted it. The district court abused its discretion in doing so without first giving the Commission notice and an adequate opportunity to conduct relevant discovery.<13> The Nation moved under Federal Rule of Civil Procedure 12(b) to dismiss EEOC's Amended Complaint for lack of subject matter jurisdiction, arguing that when Congress enacted Title VII in 1964, it expressly preserved the tribal-specific hiring preferences previously authorized in the Rehabilitation Act. R.89 at 24-27. Perhaps recognizing the weakness of this argument on the question of subject matter jurisdiction,<14> the district court recharacterized it as an argument that the Rehabilitation Act authorizes the employment preference at issue, "thus suggesting that EEOC has failed to state a claim." 9/30/06 Order at 8 (RE8).<15> Before entertaining the Nation's motion to dismiss as a motion for summary judgment, the district court was obligated to notify EEOC that it was converting the motion and then to provide EEOC with adequate opportunity for discovery on the merits. Grove v. Mead Sch. Dist., 753 F.2d 1528, 1532 (9th Cir. 1985) (opportunity to respond to summary judgment motion "must include time for discovery necessary to develop facts justifying opposition to the motion"). When the Nation filed its motion, there had been no discovery yet in this lawsuit. The Commission requested 90 days for discovery; the district court granted 51 (30 days initially plus an additional 21 days upon a second motion) for narrowly-tailored discovery. See 5/18/06 and 6/1/06 Orders (RE29-41). In so doing, the district court specified that the Nation's motion was a Rule 12(b) challenge, not a Rule 56 motion, and indicated it had not yet decided whether it would consider any materials outside the record. See discussion supra at 7-8. The 51-day discovery period—a little over half what the Commission sought initially—did not allow EEOC adequate time to obtain and analyze all of the information needed to respond fully to a motion for summary judgment. For example, one critical fact concerns whether Peabody and the Nation entered into these leases pursuant to the Rehabilitation Act (as the Nation contends) or the IMLA (as EEOC contends).<16> In addressing this issue, the Commission sought to demonstrate that expenditures on the infrastructure projects Congress identified in the Rehabilitation Act, 25 U.S.C. §631, were completed several years before these leases were entered into. The Commission argued that this shows these leases were not, in fact, "projects" undertaken pursuant to the Rehabilitation Act, for which Navajo and Hopi Indians must be given preference in employment. See 25 U.S.C. §633. As proof, EEOC relied on a BIA report from the DOI's library. The district court struck this document as not properly authenticated. The Commission disputes this ruling, see discussion infra at 48-51, but assuming arguendo the district court was correct, given additional time the Commission could have provided other documentation to show the absence of any Rehabilitation Act expenditures regarding coal mining contemporaneous with these leases. There are several other avenues of discovery EEOC would have pursued, had it been given adequate opportunity for discovery. See, e.g., Affidavit of Katherine Kruse (RE58-60). The Navajo Nation submitted Udall's declaration, stating he was personally involved in the planning and decisionmaking that culminated in the Peabody leases; the leases were entered into under the Rehabilitation Act; and DOI drafted the leases and required them to contain a Navajo hiring preference. Decl. ¶¶ 1-3, 7 (RE55-56); see also Udall Deposition (Dep.) at 28, 39-40, 44, 46, 50-52 (RE73, 76-79). The district court relied heavily on this testimony. After initially stating in his deposition that he signed the leases himself, Udall clarified that he did not sign either lease, could not recall approving either lease personally, and could not recall issuing any regulations or guidelines as to what should be in these leases. Dep. at 34 (RE75). He stated that he believed the leases were negotiated and drafted by the DOI Solicitor's staff, but he could not recall who, in particular. Id. at 32-33 (RE74). One of the primary legislative purposes of the IMLA was to shift responsibility for negotiating mining leases to Indian tribes. Udall's testimony suggests a conflict with this purpose, as well as with his own statement that the hiring preferences in question were "bargained for" by the Navajo Nation. Id. at 60 (RE81). Additional discovery from persons directly involved in the development of these leases could have assisted EEOC in clarifying the points on which Udall had no recollection and could have provided additional factual support for EEOC's position that these mining leases were authorized by and approved under the IMLA, not the Rehabilitation Act. Additional discovery could have also led the EEOC to information to rebut the Nation's argument that the Secretary is indispensable in this case. EEOC was unable to pursue such additional avenues, however, because by the time EEOC propounded its interrogatories and document requests (the day after the court granted EEOC's request for discovery on May 22, 2006), received answers and documents (30 days later, see Fed. R. Civ. P. 33(b)(c)), and then noticed and conducted Udall's deposition on July 6, 2006, only one week remained in the seven weeks of discovery permitted by the court. Additional time for discovery would have also permitted EEOC to test the accuracy of Peabody's assertion (advanced in the memorandum that Peabody filed concurrently with EEOC's opposition to the Nation's motion) that these two leases were based on DOI forms that mandate a tribal-specific employment preference. R.119 at 9-12. Peabody submitted two form leases dated October 1957 taken from the appendix of a legal practice treatise. RE90-100. Peabody claimed that these two forms came from DOI and that they, therefore, prove the DOI required the Navajo Nation and Peabody to include tribal-specific hiring preferences in mining leases in 1964 and 1966. R.119 at 9. The affidavit on which Peabody relied, signed by a member of the Arizona bar in private practice, demonstrates only that the forms were taken from the legal treatise. See R.137, Attachment B (RE170). It does not demonstrate that DOI actually required mining leases to contain the hiring preference provision as a condition for Secretary approval or whether, consistent with the legislative intent of the IMLA, Indian tribes could negotiate their own terms when leasing land to private companies for mining, even if they started off using a DOI-designated lease form. More importantly, this evidence does not indicate whether the DOI used these particular forms in 1964 and 1966 and, if so, whether the hiring preferences they contain were mandatory or merely a guide. The court's failure to allow adequate discovery deprived EEOC of the opportunity to discover evidence to support its claims concerning this and other factual points and to challenge the inferences the Nation and Peabody asserted based on their evidence. III. The district court erred as a matter of law in concluding that the Navajo-Hopi Rehabilitation Act authorizes Peabody to give hiring preference to Navajos. The district court concluded that the leases at issue are governed by the Rehabilitation Act, relying largely on the declaration and deposition of former Secretary Udall. RE14-15. The court rejected EEOC's contrary contention, stating "the discovery requested by EEOC and performed in this case simply does not support such a position." RE14-15. The court then held that the Rehabilitation Act's tribal-specific employment preference provision could be harmonized with Title VII's more general Indian preference exemption, reasoning that "the Rehabilitation Act applies only in limited circumstances" whereas "Title VII's Indian Preferences exemption applies broadly to all other such provisions that are implemented outside the scope of the Rehabilitation Act." RE15-16. Both conclusions are erroneous.<17> Evidence in the record indicates these leases were authorized under and regulated by the IMLA, not the Rehabilitation Act. The IMLA contains no employment preference of any kind and does not purport to regulate employment. Thus, no conflict exists between the provisions of the statutes, and Title VII controls. Even assuming, arguendo, that the leases were entered into pursuant to the Rehabilitation Act, Title VII's later-enacted exemption for "Indian" preferences impliedly repealed the earlier, tribal-specific preference in the Rehabilitation Act. The district court erred in concluding that these leases were entered into pursuant to the Rehabilitation Act. The Act's plain language demonstrates that Congress was focusing on the creation of basic infrastructure elements so the Navajo Nation could take advantage of future opportunities for economic development and thereby gain greater economic independence. See 25 U.S.C. §631; discussion supra at 6-7. Congress intended these federally funded projects to promote "a self- supporting economy and self-reliant communities" and to "lay a stable foundation" on which Navajo and Hopi Indians could engage in "diversified economic activities and ultimately attain" improved standards of living. See §631 (outlining Act's goals). Section 632 directed the Secretary to complete these federally funded projects, to the extent possible, "within ten years from April 19, 1950." Section 633 directed the Secretary, in administering these projects, to give Navajo and Hopi Indians "preference in employment on all projects undertaken pursuant to this subchapter . . . without regard to . . . civil-service and classification laws." Thus, Congress wanted Navajo and Hopi workers to receive preference for jobs generated by these discrete, time-limited projects to build roads, schools, and hospitals and to survey coal and other tribal resources. The Navajo Nation entered into the coal-mining leases at issue here with Peabody's predecessor some five years after Congress intended the Rehabilitation Act projects to be completed. See §632. These leases were not "undertaken" by the Secretary, as were the projects under the Rehabilitation Act. More importantly, these leases do not fall within any of the project categories that Congress identified in the subsections 631(1)-(14). Although these leases serve as a significant source of income and economic development for the Navajo Nation, they are not themselves Rehabilitation Act projects but are merely part of the desired outcome of such projects. See §631 (Congress hoped §631 projects would "lay a stable foundation" for future "economic activities" including "development of [Navajo] resources"); see Navajo Nation v. United States, 68 Fed. Cl. 805, 812 (Ct. Fed. Cl. 2005) (Rehabilitation Act "does not explicitly govern mineral leasing" although "coal- leasing was one means of attaining the [Act's] goals of rehabilitation"). These leases, like all other mineral leases entered into before and after enactment of the Rehabilitation Act, were authorized by, and regulated under, the IMLA. As discussed supra at page 5, Congress enacted the IMLA in 1938 to provide Indian tribes with increased self-determination regarding their natural resources such as coal and other minerals, shifting the Secretary's role from making decisions for Indian tribes to approving business leases that tribes negotiated themselves. Navajo Nation, 537 U.S. at 493-94, 507-08. When Congress enacted the Rehabilitation Act in 1950, it was to provide time-limited funding for specific, pressing infrastructure needs involving two particular tribes. Congress was not replacing the existing system for Indian mineral leasing reflected in the IMLA and its implementing regulations. See 25 U.S.C. §§396a-396g; 25 C.F.R. §§211.1 et seq. (2006). Indeed, Peabody admitted in answers to interrogatories that the 8580 Lease was entered into pursuant to IMLA, RE111, and the Navajo Nation, in arguments presented in both the Supreme Court and the Federal Circuit, initially took the same position. See, e.g., Nation's Proposed Findings of Uncontroverted Fact in Navajo Nation v. United States, No. 93-763 (Ct. Fed. Cl.) ("The original 8580 Lease and the 1987 amendments to the 8580 Lease were approved under the Indian Mineral Leasing Act of 1938.") (RE190-91).<18> The Supreme Court rejected the Nation's position that the IMLA and related statutes obligate the United States to reimburse the Nation for lost royalties arising from the Secretary's alleged breach of trust in failing to raise the royalty rate for the 8580 Lease in 1984. See Navajo Nation, 537 U.S. at 511-14. Only on remand did the Nation re-focus its breach-of-trust argument to the Rehabilitation Act and other treaties, statutes and regulations. See Navajo Nation v. United States, 68 Fed. Cl. at 808-12 (Nation invoking Rehabilitation Act "with renewed vigor" on remand, having previously relied on it primarily for background), appeal pending, No. 2006-5059 (Fed. Cir.). The Nation's belated shift in position reflects a change in the Nation's litigation strategy in Navajo Nation, but it does not alter the plain meaning of the relevant statutory provisions and implementing regulations, which make clear that Indian mining leases are authorized under the IMLA. Neither the IMLA nor its implementing regulations contain any statutory authorization for hiring preferences of any kind. See 25 U.S.C. §§396a-396g; 25 C.F.R. §211 et seq. (2006); see also Royster, supra n.5, 29 Tulsa L.J. at 583 (under 1938 IMLA, tribes lacked opportunity "to bargain for such favorable terms as tribal employment preferences"). The IMLA governs Indian mineral leasing; Title VII governs nondiscrimination in employment. Peabody's hiring decisions are, therefore, subject to the same nondiscrimination provisions under Title VII as apply to other private employers, and any hiring preference for Navajo job applicants by Peabody must be tested under Title VII standards. Traditional rules of statutory construction further reinforce this conclusion. When two federal statutes address the same subject in different ways, courts are instructed, first, to attempt to avoid any conflict by reading the two laws harmoniously and thus giving effect to both if possible. See Morton v. Mancari, 417 U.S. 535, 551 (1974) (when two statutes are capable of co-existence, court's duty is to regard each as effective); United States v. Trident Seafoods, 92 F.3d 855, 862 (9th Cir. 1996) ("[T]o the extent that statutes can be harmonized, they should be."). Title VII and the Rehabilitation Act meet this test. By its plain terms, the Navajo and Hopi employment preference in the Rehabilitation Act applies only to the publicly funded infrastructure projects identified in §§631(1)-(14), which Congress instructed the Secretary, in section 632, to complete, as far as possible, by April 19, 1960. See 25 U.S.C. §§631-633. In contrast, private business endeavors like these mining leases, which developed on the Navajo and Hopi reservations because of the groundwork laid by the Rehabilitation Act's section 631 projects, are not "projects undertaken pursuant to this subchapter." 25 U.S.C. §633. Rather, such endeavors are the fruition of Congress's intent in enacting the Rehabilitation Act. Accordingly, by its own terms the Rehabilitation Act's Navajo-Hopi employment preference does not encompass private enterprises like the coal mining Peabody began in 1970 pursuant to these leases. Such activities fall, instead, under Title VII's regulatory domain. See 42 U.S.C. §2000e-2(a), (i). Construing the Rehabilitation Act in this fashion gives full effect to both the Rehabilitation Act and Title VII, and eliminates any conflict between the two statutes' respective employment preference provisions. Alternatively, if this Court concluded that these leases fall within the Rehabilitation Act and, therefore, that the Rehabilitation Act and Title VII cannot be harmonized in this fashion, Title VII must control. If two conflicting federal statutes cannot be harmonized, courts look to congressional intent to determine which statute controls. Chao v. Bremerton Metal Trades Council, 294 F.3d 1114, 1119 (9th Cir. 2002). Here, Congress expressed its intent in Title VII, by barring national origin discrimination broadly in 42 U.S.C. §2000e-2(a) and then providing two, explicit exemptions relevant to Native Americans in 42 U.S.C. §§2000e(b) and 2000e-2(i). Congress's plain intent in enacting Title VII was to provide broad, nationwide prohibitions against workplace discrimination. See, e.g., 42 U.S.C. §2000e-2(a) (specifying unlawful employment practices). Congress carved out a few specific exceptions to this policy, including an exception allowing private employers to discriminate in favor of Indians living on or near a reservation. 42 U.S.C. §2000e- 2(i).<19> Under section 2000e-2(i), Native Americans may lawfully be accorded an employment preference under Title VII as long as it involves a publicly announced employment practice of a business or enterprise located on or near an Indian reservation to provide preferential treatment to "any individual because he is an Indian living on or near a reservation." Id. §2000e-2(i) (emphasis added). This exception permits an employer to favor Indians over non-Indians; it does not permit an employer to discriminate among the members of different tribes. Dawavendewa I, 154 F.3d at 1124 ("exception does not include preferences based on tribal affiliation"). Title VII's broad prohibition against discrimination based on national origin, with its very narrow exception for "an Indian living on or near a reservation," reflects Congress's intent regarding employment opportunities for Native American workers. Had Congress wanted to permit tribal-specific hiring preferences instead of the existing preference for Indians generally, it could easily have provided preferential treatment for "any individual because he is a member of the tribe on or near whose reservation the business is located." Congress elected, instead, to incorporate a broader protection for Indians generally, reflecting the government's role as Trustee for all recognized Indian tribes. See Confederated Tribes of the Chehalis Indian Reservation v. Lujan, 928 F.2d 1496, 1500 (9th Cir. 1991) (where potential intertribal conflicts exist, United States cannot properly represent any of the tribes) (citing Makah Indian Tribe v. Verity, 910 F.2d 555, 560 (9th Cir. 1990)). Thus, this is not a case where Congress, in a later statute, was silent concerning an earlier, inconsistent provision. Courts in that situation hesitate to find an implied repeal. Mancari, 417 U.S. at 449, 537, 551-55 (holding that Congress's silence in the anti-discrimination provisions of Equal Employment Opportunity Act of 1972, which prohibits discrimination in federal employment, did not impliedly repeal 1934 statutory preference for employing Indians in BIA). Here, in contrast, Congress specified in Title VII what accommodations are permitted for Indian employment, and otherwise barred national origin discrimination in the workplace. To the extent Title VII and the Rehabilitation Act conflict, the later-enacted provisions of Title VII control. Cf. In re Glacier Bay, 944 F.2d 577, 583 (9th Cir. 1991) (finding two federal statutory schemes inconsistent and holding later-enacted statute controls to extent of inconsistency). The district court erred as a matter of law in granting summary judgment to the Navajo Nation and Peabody on this basis and dismissing EEOC's lawsuit. IV. The district court erred as a matter of law in ruling that the Secretary is a necessary party, and abused its discretion in ruling that the Secretary is an indispensable party. The district court erred in concluding that the Secretary of Interior is a necessary and indispensable party to this lawsuit.<20> RE16-24. The district court's determination that the Secretary is "necessary" is a legal ruling subject to de novo review by this Court. See Peabody I, 400 F.3d at 778 (citation omitted). The Secretary satisfies none of the bases for "necessary party" under Rule 19(a). As a result, this Court need not reach the question of whether the district court erred in concluding that this suit should be dismissed rather than proceed without the Secretary. Even assuming arguendo that it might be generally desirable to join the Secretary because he approved the leases in 1964 and 1966 and retains the ability to cancel leases for noncompliance, given that the Secretary cannot be joined, the district court abused its discretion in dismissing EEOC's suit instead of permitting it to proceed in the Secretary's absence. A. The Secretary is not a necessary party under Rule 19(a). Rule 19 provides two measures for determining when a party is "necessary," i.e., should be joined, if feasible: when "in the person's absence complete relief cannot be accorded among those already parties" or when the absent person "claims an interest" regarding the subject of the lawsuit and disposition in his absence may "as a practical matter impair or impede the person's ability to protect that interest" or "leave any of the persons already parties subject to a substantial risk of incurring . . . inconsistent obligations." Fed. R. Civ. P. 19(a)(1), (2)(i)-(ii).<21> Neither measure under Rule 19(a) is met here. First, complete relief can be accorded among those already parties. EEOC seeks a permanent injunction enjoining Peabody from discriminating on the basis of national origin and ordering Peabody "to institute and carry out policies, practices, and programs which provide equal employment opportunities for non-Navajo Native Americans and which eradicate the effects of its past and present unlawful employment practices." RE50 (Amended Complaint, Prayer for Relief, ¶¶A, B). To the extent Peabody continues to provide an employment preference in connection with its mining operations on the Navajo reservation, this would require Peabody to extend preferential treatment to any Native American living on or near the Navajo and Hopi reservations, consistent with Title VII. See 42 U.S.C. §2000e-2(i). Second, EEOC seeks an order requiring Peabody to pay monetary compensation to the Native American job applicants whom Peabody did not hire because they were not Navajo. RE50-51 (Relief ¶¶C, E, F). Third, EEOC seeks an order requiring Peabody to make and preserve relevant business records in accordance with Title VII's recordkeeping requirements, 42 U.S.C. §2000e-8(c). RE50-51 (Relief ¶D). The Secretary's presence is not required in order for the court to award any of this "complete relief" to the parties. See Disabled Rights Action Comm. v. Las Vegas Events, 375 F.3d 861, 879-80 (9th Cir. 2004) (meaningful relief possible without absent party); APHETI v. Taylor Resources, 299 F.3d 1007, 1014-15 (9th Cir. 2002) (complete relief available without state environmental agency in suit by citizen group to enforce environmental laws against private company). The district court erroneously concluded that without the Secretary, complete relief would not be available because Peabody would be denied the possibility of a cross-claim against the Secretary for requiring it to discriminate. RE18-19. Federal Rule of Civil Procedure 14(a) permits a defendant, as a third-party plaintiff, to assert a cross-claim against a non-party. Peabody has never sought to file such a cross- claim against the Secretary, however, and did not even assert that such a claim might exist when Peabody originally moved to dismiss EEOC's lawsuit in 2002. Rather, Peabody raised this argument for the first time in its response to the Nation's motion to dismiss. See R.119 at 13-15. In any case, neither Peabody nor the district court has pointed to any basis for such a cross-claim against the Secretary or any other government official, and to our knowledge none exists. It is axiomatic that in order for Peabody to assert a claim against the federal government, there must be not only an alleged injury arising out of the government's actions, but also an explicit basis for the claim and an express waiver of the United States's sovereign immunity from suit. See Navajo Nation, 537 U.S. at 502-03; Dep't of Army v. Blue Fox, 525 U.S. 255, 260 (1999) ("Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit."). Congress has waived its immunity for a range of claims for monetary relief and nonmonetary relief. See, e.g., Federal Tort Claims Act, 28 U.S.C. §2671 et seq.; Tucker Act, 28 U.S.C. §1491; Administrative Procedures Act (APA), 5 U.S.C. §702.<22> Neither Peabody nor the district court has identified any such claim that might be relevant here. Monterey Mechanical Company v. Wilson, 125 F.3d 702 (9th Cir. 1997), on which the district court relied, see RE18-19, is inapposite. That case involved a contractor's challenge to a California state law that required the plaintiff to choose among subcontractors based on whether they were minority-owned in violation of the Equal Protection Clause. This Court's ruling that the company had standing to challenge a California law, 125 F.3d at 706-08, does not address whether a private business like Peabody can assert a claim against the federal government under circumstances such as here. Since Monterey did not involve a federal defendant, it provides no guidance regarding claims against a federal agency. The district court identified no other authority for concluding that the Secretary's absence deprived Peabody of the chance to assert a cross-claim against the Secretary. The court thus erred in considering the Secretary "necessary" under the first criterion in Rule 19(a). Nor does the Secretary have any interest in the litigation that would be impaired if suit proceeds in the Secretary's absence. The district court mistakenly likened the Secretary's interest to that of the Navajo Nation. See RE21. EEOC's suit here does not seek to "set aside" these two mining leases, but only to enjoin Peabody's actions regarding one lease provision. Cf. Disabled Rights Action Committee, 375 F.3d at 881.<23> Nevertheless, we agree that the Nation has a legally- cognizable interest in this lawsuit. See RE19-20 (noting that this Court "found the Navajo Nation to possess an interest" in a similar lawsuit because of the Nation's "status as a contracting party to the lease agreements at issue and the possibility that an adverse ruling would threaten its contractual interests") (citing Dawavendewa v. Salt River Project Agr. Imp. and Power Dist. (Dawavendewa II), 276 F.3d 1150, 1156 (9th Cir. 2002)). The Secretary, on the other hand, is not a party to these leases and, therefore, does not share the Nation's contractual interest in the outcome of this litigation. Navajo Nation, 537 U.S. at 510 n.13 (observing, with respect to 8580 Lease, that Court of Federal Claims found, and Nation did not dispute, that "Secretary is not a signatory to the Lease" and "the Lease is not contractually binding on him").<24> The district court reasoned, however, that the Secretary "play[ed] an active role in approving the leases and requiring specific Navajo employment preference provisions," and "retains the authority to terminate the lease in the event of non- compliance." RE19. The only evidence of the Secretary's alleged involvement in these leases are Udall's statements, who served as Secretary of Interior from 1961 to 1969. See RE55 (Decl., ¶2); RE71-75 (Dep. 21-29, 32-34). The court infers too much from these statements, however, when it represents that the Secretary "play[ed] an active role" in these particular leases. RE19. Udall conceded that he did not personally sign the leases as approving official, RE72 (Dep. 25), was not personally involved in their negotiations or approval, did not recall who was, and did not recall issuing any regulations specifying what these leases should contain. RE74-75 (Dep. 32-34). In any event, the signature of the Secretary's designated agent on these leases signifies only the Secretary's approval as required by the IMLA. Following enactment of the IMLA in 1938, primary contracting responsibility for coal-mining leases has rested with the tribe and the mining company. United States v. Navajo Nation, 537 U.S. at 494 ("The IMLA, designed to advance tribal independence, empowers Tribes to negotiate mining leases themselves, and, as to coal leasing, assigns primarily an approval role to the Secretary."), 507 (IMLA does not impose detailed fiduciary responsibilities on Secretary, but "simply requires Secretarial approval before coal mining leases negotiated between Tribes and third parties become effective."). The Secretary's "interest" in the leases, arising from his role as Trustee for the Navajo Nation, is limited to ensuring that private entities do not take unfair advantage of the tribe's valuable resources. Thus, apart from assisting the Nation in protecting the Nation's interests, the Secretary has no separate, identifiable interest in this matter that could conceivably be impaired if this lawsuit proceeds in the Secretary's absence.<25> The Secretary's statutory role in approving these leases differs markedly from the role and, therefore, the legal interests of the Navajo Nation as the party that entered into the leases with Peabody and benefits directly from them based on royalties and tax payments. Whatever role the Secretary played in the process that led to the leases between the Nation and Peabody, the Secretary does not possess the type of legally cognizable interest contemplated by Rule 19(a), and the district court erred as a matter of law in finding the Secretary to be a "necessary" party on this basis. Indeed, in contrast to the Nation's clear desire to maintain the job preference challenged in this litigation, there is no evidence the Secretary claims any interest in enforcing these tribal-specific hiring preferences beyond the Nation's own interests, which the Nation is fully able to represent here. Cf. Wilbur v. Locke, 423 F.3d 1101, 1113 (9th Cir. 2005) (ability of absent party to protect its interest is not impaired where its interest is adequately represented by an existing party) (citation omitted); Nat'l Indian Youth Council v. Andrus, 501 F. Supp. 649, 683 (D.N.M. 1980) ("Tribe's viewpoint as to what is best for the Navajo people respecting the use of tribal lands is of premiere importance.").<26> This Court has stated that "[i]f the interest requirement is not satisfied, [it] need not reach the factors in clauses 2(i) and (ii) [of Rule 19(a)]." N. Alaska Envtl. Ctr. v. Hodel, 803 F.2d 466, 468 (9th Cir. 1986). Nevertheless, consideration of these factors further demonstrates that the Secretary's presence is not necessary. Since the Secretary has no legal interest in these leases, the Secretary faces no danger that any interest might be impaired if this litigation proceeds in the Secretary's absence. Furthermore, no party faces a risk of multiple, inconsistent obligations if this litigation proceeds without the Secretary, let alone a substantial risk, as Rule 19(a)(2)(ii) requires. Peabody does not risk separate litigation by the Navajo Nation to enforce the contract, because the Nation's presence as a Rule 19 defendant would protect Peabody against such a consequence under the collateral estoppel doctrine. Nor does Peabody face a substantial likelihood of a contract enforcement action by the Secretary, because the Secretary is not even a party to these leases. The district court speculated, however, that the Secretary may terminate these leases if Peabody is enjoined from giving hiring preference only to Navajos. RE19- 20. Although its analysis on this point is unclear, we surmise that the court means termination of the leases would somehow expose Peabody to inconsistent obligations. It is not evident that this is what Rule 19 means by "inconsistent obligations." More importantly, it appears that the risk of this happening is far from "substantial," as Rule 19(a) requires. Neither Peabody nor the Navajo Nation has offered a single example where the Secretary invalidated a mining lease contrary to a tribe's wishes, nor have they offered any other evidence that the Secretary might do so here.<27> Given the Secretary's role as trustee for Native American tribes, it defies logic that the Secretary would intentionally deprive the Navajo Nation of a significant source of income on this basis. The royalties Peabody pays to the Navajo Nation under these leases have generated millions of dollars of revenue for the Nation over the past 35 years. Navajo Nation, 537 U.S. at 495. Termination of a major source of income for an Indian tribe would therefore be an extraordinary measure that the Secretary would likely undertake only in the most extreme circumstances, and then only at the insistence or acquiescence of the Navajo Nation. See Royster, supra note 6, at 564-65 & n.150 (cancellation of lease for violation of lease term or condition is not mandatory and Secretary may order other remedies such as damages).<28> Cancellation of the leases by the Secretary is even more farfetched when considered against the backdrop of the Nation's ongoing litigation against the United States. In Navajo Nation v. United States, Civ. Action No. 93-763 L (Ct. Fed. Cl.), appeal pending, No. 2006-5059 (Fed. Cir.), the Nation is claiming $600 million in damages against the government on the grounds that the Secretary failed, in 1984, to increase Peabody's coal mining royalty rate from 12.5 to 20 percent. See Navajo Nation v. United States, 68 Fed.Cl. at 806. Given this on-going legal battle over whether the United States must compensate the Nation for lost royalties dating back to 1984, it is inconceivable that the Secretary would unilaterally cancel these leases and risk further litigation over the additional monetary losses the Nation would thereby incur. B. The Secretary is not "indispensable" to this lawsuit under Rule 19(b). If this Court agrees that the Secretary is not "necessary" under Rule 19(a), this Court need not consider the remaining elements of Rule 19 joinder. See N. Alaska Envtl. Ctr., 803 F.2d at 468 (since government not a necessary party, court need not consider whether joinder is feasible or government's presence would be indispensable) (citation omitted). In any case, the elements of "indispensable party" are absent here, and the district court abused its discretion in concluding that the case should be dismissed rather than proceed without the Secretary. Rule 19(b) provides that if a person meeting the elements of Rule 19(a) cannot be joined, "the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable." Fed. R. Civ. P. 19(b). Under the rule, courts consider four factors in determining whether a party is indispensable: (1) the potential prejudice to any party or to the absent party; (2) whether relief can be shaped to lessen or avoid any such prejudice; (3) whether adequate relief can be rendered without the absent party; and (4) whether plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. Id.; see also 9/30/06 Order at 22 (RE22) (citing Dawavendewa II, 276 F.3d at 1161). We agree with the district court, on the fourth element, that if the case is dismissed for nonjoinder, EEOC will lack an adequate remedy because there is no alternative forum in which to pursue this claim. See RE23. The court erred, however, in finding this and the other three factors insufficient to permit this suit to proceed without the Secretary. Contrary to the court's determination, no party to this lawsuit would be prejudiced if the litigation were to proceed without the Secretary. In Confederated Tribes of the Chehalis Indian Reservation v. Lujan, this Court observed that the prejudice to the absent party in that case "stems from the same legal interests that makes the Quinault Nation a necessary party to the action." 928 F.2d at 1499. Here, in contrast, the Secretary has no legal interest in this litigation and so will not be prejudiced by any ruling in the case. Likewise, neither Peabody nor the Nation will be prejudiced by the Secretary's absence. The subject matter of this litigation relates solely to the application of federal anti-discrimination statutes to a single lease term to which the Navajo Nation and Peabody agreed. Even if the Navajo hiring preference is held to violate Title VII, that result will not produce any "prejudice" arising out of the Secretary's absence from this litigation. Thus, there is no need to consider whether it is possible to shape relief to reduce any such prejudice. Finally, as we explained, adequate—indeed complete—relief can be rendered without the Secretary. See supra at 37-38. In sum, consideration in "equity and good conscience" can lead to only one conclusion—the lawsuit should proceed without the Secretary. V. The District Court Abused its Discretion By Striking an EEOC Exhibit and Failing to Strike Two Forms Submitted by Peabody. The district court erred in striking an EEOC exhibit obtained from the DOI and in failing to strike two lease forms submitted by Peabody. Evidence submitted pursuant to Fed. R. Civ. P. 43(e) to support a motion to dismiss must comply with the Federal Rules of Evidence, including the rules governing hearsay, authentication, and relevance. Beyene v. Coleman Sec. Servs., 854 F.2d 1179, 1183 (9th Cir. 1988). The DOI report EEOC submitted complies with federal evidence rules; Peabody failed to establish that its documents are relevant.<29> Although hearsay statements are generally inadmissible, Federal Evidence Rule 803(8) exempts "reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report." The DOI report that EEOC submitted falls squarely within this exemption. EEOC offered an excerpt from a 1973 report entitled "History of the Navajo-Hopi Long Range Rehabilitation Act of 1950 [64 Stat 44]," by Theodore W. Taylor, Assistant to the Commissioner, Bureau of Indian Affairs. RE123-29. The BIA is within the DOI, and the document cover is stamped "Natural Resources Library, U.S. Department of Interior, Washington, D.C." RE123. An EEOC research librarian, Holly Wilson, attested that she found this 122-page document in the DOI's document catalog, after which another EEOC employee physically located the document in DOI's library in Washington, D.C., and photocopied it. RE166-67. Ms. Wilson's affidavit states that the DOI's catalog identified this as a report prepared by Mr. Taylor in response to the request of Henry M. Jackson, Chairman of the Committee on Interior and Insular Affairs (the same information printed on the second page of EEOC's excerpt). Id. The rest of the excerpt consists of the table of contents and a chart entitled "Summary of Funds Allocated against Authorizations Contained in the Navajo-Hopi Long Range Program, 64 Stat. 44, April 19, 1950."<30> RE127-29. The Rehabilitation Act directed the Secretary to provide Congress with an account of the expenditure of funds under the Act during the period covered by the program. 25 U.S.C. §632. Mr. Taylor's 1973 report plainly fits this congressional mandate. It is a "report[], or statement[], or data compilation" of a public agency setting forth both "the activities of the office or agency," see Evidence Rule 803(8)(A), as well as "matters observed pursuant to duty imposed by law as to which . . . there was a duty to report." See Rule 803(8)(B). The district court erred in granting the Navajo Nation's motion to strike this document on the grounds that it was not properly authenticated. Evidence Rule 901(b)(7) states that public records or reports can be authenticated by: Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept. The excerpted pages are from a document "authorized by [the Rehabilitation Act] to be recorded." The affidavit of Holly Wilson establishes that the document was "filed in a public office," the DOI. It is "a purported public record, report, statement or data compilation . . . from the public office where items of this nature are kept," the DOI library. The document satisfies the authentication requirements of Rule 901, and the court abused its discretion in striking this document. The district court concluded that a handwritten notation on the second page—"Pulled together and final draft prepared by Theodore W. Taylor, BIA"—suggests the document may be a draft rather than the final version. 9/30/06 Order at 3-4 (RE3-4) ("With such doubt surrounding the document's authenticity, the Court will not consider it as evidence."). The notation more likely indicates that this is the final version, but even if it is a draft, that would affect only the weight the factfinder might accord the document, not its admissibility. Since the document meets the criteria for both authentication and hearsay rule exemption, the district court abused its discretion in striking it and prejudiced EEOC's ability to rebut the Nation's summary judgment claims. The district court also abused its discretion when it denied EEOC's motion to strike two lease forms submitted by Peabody. Peabody offered the October 1957 forms to show that the Secretary required a tribal-specific employment preference in all mining leases. See id. at 5 (RE5). A member of the Arizona state bar attested that the forms were obtained from a 1977 treatise, "Natural Resources Law on American Indian Lands," which indicated the forms had been obtained from the BIA. RE170. Peabody, however, failed to establish that the forms are relevant to the legal issues in this litigation. Under Rule 402, evidence is admissible if it is "relevant" and not inadmissible for some other reason. "Relevant evidence" is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Federal Evidence Rule 401. Peabody justifies its hiring preference for Navajos based on leases signed in 1964 and 1966. The forms Peabody offers are dated October 1957. One can suppose the forms may actually be from the DOI, but there is no record evidence that the Secretary required Indian tribes and potential lessees to use the language in these forms when negotiating leases in 1964 and 1966. Moreover, there are different categories of Indian land which can potentially be leased to mining companies, including "allotted" land owned by individual Native Americans and land owned by an Indian tribe and held in trust by the United States. See 25 C.F.R. §211.3 (definition of "Indian lands"); compare 25 C.F.R. Part 211 (leasing of tribal lands for mineral development) with 25 C.F.R. Part 212 (leasing of allotted lands for mineral development). Nothing in the record indicates DOI used the same lease form for these different categories of Indian land, and the hiring preferences in the 1957 forms read as if they actually apply to an individual landowner rather than an Indian tribe. See, e.g., R.119, Ex. E, ¶ (19) ("Indian Labor – The lessee shall employ Indians, giving priority to lessor and other members of its tribe") (RE99). Finally, nothing on the face of the lease forms or in the record indicates whether the Secretary created these forms simply as a guide for negotiations, or instead mandated that negotiated leases contain all of these terms, including the hiring preference, to receive DOI approval. Current regulations confirm that Indian tribes have discretion in drafting mining leases. See 25 C.F.R. §§211.20(d), 211.57 (Indian mineral owner may submit "negotiated leases" to Secretary for approval; provisions of standard lease "may be changed, deleted, or added to by written agreement of all parties" with Secretary's approval). The flexibility this suggests would likely permit an Indian tribe and a mining company to fashion an Indian hiring preference that comports with Title VII. Thus, even assuming these form leases came from the DOI, nothing in the record establishes these were the forms actually used in 1964 and 1966, when the leases at issue here originated, or that the Secretary would not have approved a negotiated lease with a hiring preference that conformed to Title VII. As a result, the forms do not make it more or less likely that the Navajo hiring preferences included in the Peabody leases were mandated by the Secretary. Peabody failed to demonstrate that the forms it submitted are relevant in this case, and the district court abused its discretion when it denied EEOC's motion to strike these forms. CONCLUSION For the foregoing reasons, EEOC respectfully asks this Court to reverse the district court's dismissal and remand this matter for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ____________________________________ SUSAN R. OXFORD, Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7010 Washington, D.C. 20507 Tel. (202) 663-4791 Fax (202) 663-7090 susan.oxford@eeoc.gov DATED: July 25, 2007 STATEMENT OF RELATED CASES Pursuant to Ninth Circuit Local Rule 28-2.6, Appellant Equal Employment Opportunity Commission hereby states that it is not aware of any related cases pending in the Ninth Circuit Court of Appeals. CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 13,882 words. See Fed. R. App. P. 32(a)(7)(B)(i). The brief was prepared using the Microsoft Word word processing system, in 14-point proportionately-spaced Times New Roman type for both text and footnotes. See Fed. R. App. P. 32(a)(5). See attached form. ____________________________________________ Susan R. Oxford, EEOC Attorney Dated: July 25, 2007 ADDENDUM OF RELEVANT STATUTES AND REGULATIONS Relevant provisions of Title VII of the Civil Rights Act of 1964 42 U.S.C.A. § 2000e(b): (b) The term "employer" means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined in section 2102 of Title 5), or (2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of Title 26, except that during the first year after March 24, 1972, persons having fewer than twenty-five employees (and their agents) shall not be considered employers. 42 U.S.C.A. § 2000e-2(a): (a) Employer practices It shall be an unlawful employment practice for an employer-- (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C.A. § 2000e-2(i): (i) Businesses or enterprises extending preferential treatment to Indians 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. Relevant provision of Indian Mineral Leasing Act of 1938 25 U.S.C.A. § 396a: 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 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. Relevant provisions of Navajo-Hopi Rehabilitation Act of 1950 25 U.S.C.A. § 631 In order to further the purposes of existing treaties with the Navajo Indians, to provide facilities, employment, and services essential in combating hunger, disease, poverty, and demoralization among the members of the Navajo and Hopi Tribes, to make available the resources of their reservations for use in promoting a self-supporting economy and self-reliant communities, and to lay a stable foundation on which these Indians can engage in diversified economic activities and ultimately attain standards of living comparable with those enjoyed by other citizens, the Secretary of the Interior is authorized and directed to undertake, within the limits of the funds from time to time appropriated pursuant to this subchapter, a program of basic improvements for the conservation and development of the resources of the Navajo and Hopi Indians, the more productive employment of their manpower, and the supplying of means to be used in their rehabilitation, whether on or off the Navajo and Hopi Indian Reservations. Such program shall include the following projects for which capital expenditures in the amount shown after each project listed in the following subsections and totaling $108,570,000 are authorized to be appropriated: (1) Soil and water conservation and range improvement work, $10,000,000. (2) Completion and extension of existing irrigation projects, and completion of the investigation to determine the feasibility of the proposed San Juan-Shiprock irrigation project, $9,000,000. (3) Surveys and studies of timber, coal, mineral, and other physical and human resources, $500,000. (4) Development of industrial and business enterprises, $1,000,000. (5) Development of opportunities for off-reservation employment and resettlement and assistance in adjustments related thereto, $3,500,000. (6) Relocation and resettlement of Navajo and Hopi Indians (Colorado River Indian Reservation), $5,750,000. (7) Roads and trails, $40,000,000; of which not less than $20,000,000 shall be (A) available for contract authority for such construction and improvement of the roads designated as route 1 and route 3 on the Navajo and Hopi Indian Reservations as may be necessary to bring the portion of such roads located in any State up to at least the secondary road standards in effect in such State, and (B) in addition to any amounts expended on such roads under the $20,000,000 authorization provided under this clause prior to amendment. (8) Telephone and radio communication systems, $250,000. (9) Agency, institutional, and domestic water supply, $2,500,000. (10) Establishment of a revolving loan fund, $5,000,000. (11) Hospital buildings and equipment, and other health conservation measures, $4,750,000. (12) School buildings and equipment, and other educational measures, $25,000,000. (13) Housing and necessary facilities and equipment, $820,000. (14) Common service facilities, $500,000. Funds so appropriated shall be available for administration, investigations, plans, construction, and all other objects necessary for or appropriate to the carrying out of the provisions of this subchapter. Such further sums as may be necessary for or appropriate to the annual operation and maintenance of the projects herein enumerated are also authorized to be appropriated. Funds appropriated under these authorizations shall be in addition to funds made available for use on the Navajo and Hopi Reservations, or with respect to Indians of the Navajo Tribes, out of appropriations heretofore or hereafter granted for the benefit, care, or assistance of Indians in general, or made pursuant to other authorizations now in effect. 25 U.S.C.A. § 632: The foregoing program shall be administered in accordance with the provisions of this subchapter and existing laws relating to Indian affairs, shall include such facilities and services as are requisite for or incidental to the effectuation of the projects herein enumerated, shall apply sustained-yield principles to the administration of all renewable resources, and shall be prosecuted in a manner which will provide for completion of the program, so far as practicable, within ten years from April 19, 1950. An account of the progress being had in the rehabilitation of the Navajo and Hopi Indians, and of the use made of the funds appropriated to that end under this subchapter, shall be included in each annual report of the work of the Department of the Interior submitted to the Congress during the period covered by the foregoing program. 25 U.S.C.A. § 633: Navajo and Hopi Indians shall be given, whenever practicable, preference in employment on all projects undertaken pursuant to this subchapter, and, in furtherance of this policy may be given employment on such projects without regard to the provisions of the civil-service and classification laws. To the fullest extent possible, Indian workers on such projects shall receive on-the-job training in order to enable them to become qualified for more skilled employment. CERTIFICATE OF SERVICE I hereby certify that on this 25th day of July, 2007, I caused an original and 15 copies of Appellant EEOC's opening brief to be filed with the Clerk of the Court by Federal Express, next-day delivery, and two copies of the brief served on each of the parties' counsel by the same means on the same day at the addresses shown below identified below: Mary E. Bruno, Esq. GREENBERG TRAURIG, LLP 2375 East Camelback Road, Suite 700 Phoenix, Arizona 85016 Counsel for Defendant Peabody Western Coal Company Paul E. Frye and Lisa M. Enfield, Esqs. FRYE LAW FIRM, PC 10400 Academy N.E., Suite 310 Albuquerque, New Mexico 87111 Counsel for Rule 19 Defendant Navajo Nation Tod F. Schleier and Bradley H. Schleier, Esqs. SCHLEIER JELLISON & SCHLEIER, PC 3101 N. Central Avenue, Suite 800 Phoenix, Arizona 85012 Counsel for Proposed Intervenors Mariano and Sahu _________________________________________ Susan R. Oxford, Attorney for EEOC DATED: July 25, 2007 *********************************************************************** <> <1> “RE” refers to the appropriate page in the Excerpts of Record. Other record cites are by district court document number (R.#) and page. <2> This Court has held that Title VII’s ban on discrimination based on national origin, 42 U.S.C. §2000e-2(a)(1), includes discrimination on the basis of tribal affiliation. Dawavendewa v. Salt River Project Agric. Improvement & Power Dist. (Dawavendewa I), 154 F.3d 1117, 1119 (9th Cir. 1998) (“[D]iscrimination against Hopis constitutes national origin discrimination under Title VII.”). <3> The IMLA provides, in relevant part: “[L]ands owned by any tribe, group, or band of Indians under Federal jurisdiction . . . 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 . . . .” 25 U.S.C. §396a (emphasis added). <4> See Wilson v. U.S. Dep’t of Interior, 799 F.2d 591, 592 (9th Cir. 1986) (only Tribe has authority to lease its lands; SOI has authority only to approve or disapprove leases entered into by Tribe). The SOI, acting through the Bureau of Indian Affairs (BIA), can disapprove a lease or contract that is not in a tribe’s best interest. “As a practical matter, however, the BIA simply approves transactions that tribal governments support.” Wood, Mary Christina, “Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited,” 1994 Utah L. Rev. 1471, 1480 (1994). <5> For two decades prior to 1938, leasing for mineral mining “was at the discretion of the [SOI],” albeit to be exercised where possible in “the interests of the Indians.” Royster, Judith V., “Mineral Development in Indian Country: The Evolution of Tribal Control over Mineral Resources,” 29 Tulsa L.J. 541, 554-55 (Spring/Summer 1994). One of the purposes of the IMLA was to promote tribal self-government by placing leasing authority “with the tribal council, subject to the approval of the [SOI].” Id. at 560-61. Although leases were based on a standard form developed by the Department of the Interior, tribes were free to incorporate other provisions, subject to the SOI’s approval. Id. at 561. <6> The district court concluded that the risk to Peabody of inconsistent obligations is essentially the same as that identified by this Court in ruling that the Navajo Nation should be joined. See 9/30/06 Order at 21 (RE21) (“Now, even though the Navajo Nation is joined to this lawsuit the same problem is created by the absence of the SOI should EEOC prevail: ‘comply with the injunction prohibiting the hiring preference policy or comply with the lease requiring it.’”) (citing Peabody I, 400 F.3d at 780). <7> Construing a complaint’s relief section is a question of law subject to de novo review by this Court. Cf. Kwai Fun Wong v. United States, 373 F.3d 952, 961 (9th Cir. 2004) (whether complaint states a cause of action on which relief could be granted is question of law). EEOC addressed this issue in R.120 at 3-9, 18-20. <8> This Court has incorporated this same language into mandamus orders, see, e.g., Fed. Home Loan Bank of S.F. v. Hall, 225 F.2d 349, 394 (9th Cir. 1955), and has affirmed district court orders that include this language. See, e.g., LaRaza Unida of So. Alameda County v. Volpe, 488 F.2d 559, 561 (9th Cir. 1973). <9> Although there are exceptions to the “law of the case” doctrine, none apply here. See Delta Savings Bank v. United States, 265 F.3d 1017, 1027 (9th Cir. 2001) (prior decision should be followed unless: clearly erroneous and its enforcement would work a manifest injustice; intervening controlling authority makes reconsideration appropriate; or substantially different evidence was adduced at subsequent trial). <10> Where, as here, the district court’s joinder ruling is based on an erroneous legal conclusion, it is reviewed de novo by this Court, and is not entitled to any deference. Peabody I, 400 F.3d at 778 (citation omitted). <11> EEOC addressed this issue below in R.120 at 8-9. <12> Only the Attorney General is authorized under Title VII to file suit against a government respondent. 42 U.S.C. §2000e-5(f)(1)). That limitation is irrelevant here, however, as neither EEOC nor the Attorney General can sue an Indian tribe. Indian tribes are expressly exempt from Title VII’s definition of “employer,” 42 U.S.C. §2000e(b)(1), and the definition of “respondent” incorporates the same definition of employer. See 42 U.S.C. §2000e(n). EEOC addressed this below in R.120 at 6-8. <13> EEOC moved twice for discovery, in R.95 and R.109. <14> The Amended Complaint sets forth proper subject matter jurisdiction under Title VII. Peabody is an “employer” under 42 U.S.C. § 2000e(b), and the Amended Complaint alleges that EEOC met Title VII’s statutory prerequisites for a lawsuit against Peabody. See RE47-49 (Amended Complaint). <15> The Nation did, in fact, move to dismiss for failure to state a claim, but asserted only that the Amended Complaint stated no claim, and sought no relief, against the Nation. See R.89 at 29-30. The Nation’s explicit concession contradicts the district court’s finding, discussed supra, that EEOC’s Amended Complaint seeks affirmative relief against the Nation. The Nation’s motion to dismiss for failure to state a claim did not mention the Rehabilitation Act. <16> Peabody admitted in answers to EEOC’s interrogatories that the 1964 lease was entered into pursuant to the IMLA, RE111, but there is no such admission regarding the 1966 lease. The Nation asserts that both leases were entered into pursuant to the Rehabilitation Act, R.89 at 7-8, 28, and Peabody then adopted that view. See, e.g., R.119 at 2. <17> EEOC addressed this below in R.120 at 9-14. <18> The 8580 Lease, signed in 1964, contained a clause requiring the SOI to adjust the royalty rate after 20 years. Navajo Nation v. United States, No. 93-763 (Ct. Fed. Cl.), is the Nation’s attempt to recover monetary damages for the SOI’s alleged failure to protect the Nation’s interests in connection with this clause. The 9910 Lease, signed in 1966, did not have an adjustment provision, although it is the same in all other respects relevant to this appeal. Thus, the 9910 Lease was not at issue in the Navajo Nation’s claim for monetary damages for alleged breach of trust by the SOI. See Navajo Nation, 537 U.S. at 495. <19> Section 2000e-2(i) specifically exempts “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.” <20> EEOC addressed this below in R.120 at 20-32 and R.134 at 1-4. <21> As this Court explained, “necessary” is actually “too strong a word,” because it is possible to proceed without a “necessary” party where the party’s joinder is not feasible and the party is not “indispensable” within the meaning of Rule 19(b). See Peabody I, 400 F.3d at 779 (Rule 19 in fact “defines the persons whose joinder in the action is desirable”) (citation omitted). <22> The Federal Tort Claims Act provides generally: “The United States shall be liable [for] . . . tort claims, in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. §2674. In non-tort cases, the Tucker Act grants the Court of Claims jurisdiction over claims against the United States based on the Constitution, a federal statute or regulation, or any express or implied contract with the United States. 28 U.S.C. §1491(a)(1). Section 10(a) of the APA entitles a person who suffers a legal wrong because of agency action to judicial review thereof and to seek nonmonetary relief. 5 U.S.C. §702. <23> In Disabled Rights Action Committee this Court held that suit could proceed without one of the contracting parties because if the plaintiff was successful, “the contract would not be invalidated or ‘set aside,’ but would remain legally binding.” 375 F.3d at 881. Here, on the other hand, if EEOC is successful, Peabody would actually be enjoined from performing one provision of the mining leases. This is what makes the Nation, as one of the contracting parties, “necessary” to the litigation. The Secretary is not a party to either lease, however, so the same reasoning does not apply to the Secretary’s status under Rule 19. <24> The Navajo Nation also conceded in this case below that the SOI is not a party to these leases. See RE182 (Hearing Transcript (Sept. 18, 2006) at 10). <25> The district court argues that a ruling in EEOC’s favor might influence the SOI to discontinue approval of tribal preferences in future leases. RE20-21. That kind of discretionary governmental policy judgment is not the type of legal “interest” that Rule 19(a) addresses, however. Cf. N. Alaska Envtl. Ctr. v. Hodel, 803 F.2d 466, 468 (9th Cir. 1986) (“interest” under Rule 19 must be legally protected interest, not merely financial interest or interest of convenience). <26> In Wilbur, this Court reasoned that the State could not adequately represent the tribe’s unique legal interests as a party to the contract. See 423 F.3d 1101. Here, on the other hand, the Secretary is not a party to the leases and has no cognizable legal interest at stake. <27> Since the Nation and Peabody assert the possibility of lease termination as a reason why suit cannot proceed without joinder of the Secretary, they should bear the burden of demonstrating that this presents a “substantial risk.” Neither has met that burden here. <28> In a similar context, the Supreme Court stated: [T]here is no justification for concluding that the severe sanction of cancellation of the lease is the only relief for all breaches of the lease term or for any failure to pay royalties. Both the lessor and the lessee may wish to resolve their disagreement by the payment of damages and not by the cancellation of a basically satisfactory lease. Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 374 (1968). <29> EEOC moved to strike Peabody’s documents in R.123. EEOC opposed the motion to strike its document in R.133 at 1-3, R.134 at 4-6, and R.138 at 1-3. <30> The chart lists funds authorized and spent in each project category annually from 1951 through 1962. EEOC included this chart to demonstrate that by 1958, DOI had completed spending under the Act for both “business development” and “surveys of coal and other natural resources.” EEOC argued that this raised doubts as to whether the Peabody leases, signed in 1964 and 1966, were undertaken pursuant to the Rehabilitation Act. See R.120 at 14.