Equal Employment Opportunity Commission v. Karuk Tribe Housing Authority 00-16181 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _____________________ No. 00-16181 _____________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Applicant-Appellee, v. KARUK TRIBE HOUSING AUTHORITY, Respondent-Appellant. _______________________________________________ On Appeal from the United States District Court for the Northern District of California _______________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE _______________________________________________ C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4721 TABLE OF CONTENTS Pages TABLE OF AUTHORITIES iii STATEMENT OF JURISDICTION 1 STATEMENT OF THE ISSUE 2 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings 2 2. Statement of Facts 2 3. District Court's Decision 5 STANDARD OF REVIEW 10 SUMMARY OF ARGUMENT 10 ARGUMENT I. THE DISTRICT COURT PROPERLY ENFORCED THE COMMISSION'S ADMINISTRATIVE SUBPOENA. A. The Material Sought in the Subpoena Is Relevant to an Investigation Which Is Within the Commission's Statutory Authority 17 B. There is More Than a "Plausible" Basis For Believing That the Housing Authority is Covered By the ADEA. 24 II. TRIBAL SOVEREIGN IMMUNITY DOES NOT APPLY TO THIS EEOC SUBPOENA ENFORCEMENT ACTION UNDER THE ADEA. 47 CONCLUSION 51 STATEMENT OF RELATED CASES CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM TABLE OF AUTHORITIES CASES Page(s) Andrus v. Glover Construction Co., 446 U.S. 608 (1980) 33 Binder v. Long Island Lighting Co., 933 F.2d 187 (2d Cir. 1991) 28 Bugenig v. Hoopa Valley Tribe, 229 F.3d 1210 (9th Cir. 2000) 40 Confederated Tribes of Warm Springs Reserv. of Oregon v. Kurtz, 691 F.2d 878 (9th Cir. 1982) 25 Dawavendewa v. Salt River Project Agric. Improvement & Power Dist., 154 F.3d 1117 (9th Cir. 1998), cert. denied, 120 S. Ct. 843 (2000) 45 Department of Labor v. Occupational Safety & Health Rev. Comm'n, 935 F.2d 182 (9th Cir. 1991) 36 Dewakuku v. Cuomo, 107 F. Supp. 2d 1117 (D. Ariz. 2000) 46 Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985)1 passim Duro v. Reina, 495 U.S. 676 (1990) 38 EEOC v. American & Efird Mills, 964 F.2d 300 (4th Cir. 1992) 50 EEOC v. Cherokee Nation, 871 F.2d 937 (10th Cir. 1989) 31-32, 36, 37, 42 EEOC v. Children's Hospital Medical Center, 719 F.2d 1426 (9th Cir. 1983) (en banc) 10, 19-23 EEOC v. Fond du Lac Heavy Equipment & Construction Co., 986 F.2d 246 (8th Cir. 1993) 14, 31, 36, 39, 42-43 EEOC v. Kloster Cruise Ltd., 939 F.2d 920 (11th Cir. 1991) 21 EEOC v. Pan American World Airways, 897 F.2d 1499 (9th Cir. 1990) 19, 48, 50 EEOC v. Peat, Marwick, Mitchell & Co., 775 F.2d 928 (8th Cir. 1985) 21 EEOC v. St. Regis Paper Co., 717 F.2d 1302 (9th Cir.1983) 21 EEOC v. Tempel Steel Co., 814 F.2d 482 (7th Cir. 1987) 21 EEOC v. Tire Kingdom, 80 F.3d 449 (11th Cir. 1996) 20-21, 50 EEOC v. Wyoming, 460 U.S. 226 (1983) 31, 39, 50 Endicott Johnson Corp. v. Perkins, 317 U.S. 501 (1943) 21-24 Federal Power Comm'n v. Tuscarora Indian Nation, 362 U.S. 99 (1960) 12, 25-29, 33-34, 41 Florida Paraplegic Ass'n v. Miccosukee Tribe of Indians of Fla., 166 F.3d 1126 (11th Cir. 1999) 34, 35-36, 47, 49-50 Gregory v. Ashcroft, 501 U.S. 452 (1991) 43 Johnson v. Mayor & City of Baltimore, 472 U.S. 353 (1985) 18 Kimel v. Florida Board of Regents, 120 S. Ct. 631 (2000) 50 Lorillard v. Pons, 434 U.S. 575 (1978) 18, 30, 31, 32-33 Lubiewski v. Lehman, 891 F.2d 216 (9th Cir. 1989) 28 Lumber Indus. Pension Fund v. Warm Springs Forest Prods. Indus., 939 F.2d 683 (9th Cir. 1991) 36, 39 McLaughlin v. Local 280, 880 F.2d 170 (9th Cir. 1989) 1 Morton v. Mancari, 417 U.S. 535 (1974) 32 Naton v. Bank of California, 649 F.2d 691 (9th Cir. 1981) 19 Neal v. Board of Trustees, 198 F.3d 763 (9th Cir. 1999) 29-30 NLRB v. North Bay Plumbing, Inc., 102 F.3d 1005 (9th Cir. 1996) 10 Oklahoma Press Public Co. v. Walling, 327 U.S. 186 (1946) 20 Penobscot Nation v. Fellencer, 164 F.3d 706 (1st Cir.), cert. denied, 527 U.S. 1022 (1999) 41-42 Phillips, Inc. v. Walling, 324 U.S. 490 (1945) 35 Quileute Indian Tribe v. Babbitt, 18 F.3d 1456 (9th Cir. 1994) 47-48 Reich v. Great Lakes Indian Fish & Wildlife Comm'n, 4 F.3d 490 (7th Cir. 1993) 23, 33 Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2d Cir. 1996) 35, 36-41, 49 Russello v. United States, 464 U.S. 16 (1983) 32-33 Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) 47, 48 Smart v. State Farm Insurance Co., 868 F.2d 929 (7th Cir. 1989) 24-25, 35-37, 41, 43, 44 Thurber v. Jack Reilly's, 717 F.2d 633 (1st Cir. 1983) 30 United States v. Farris, 624 F.2d 890 (9th Cir. 1980) 25-27, 35 United States v. Funmaker, 10 F.3d 1327 (7th Cir. 1993) 36 United States v. James, 980 F.2d 1314 (9th Cir 1992) 50 United States v. Morton Salt Co., 338 U.S. 632 (1950) 20 United States v. Motomedi, 767 F.2d 1403 (9th Cir. 1985) 28 United States v. Red Lake Band of Chippewa Indians, 827 F.2d 380 (8th Cir. 1987) 48 Walters v. Metropolitan Education Enterprises, 519 U.S. 202 (1997) 30 Wardle v. Ute Indian Tribe, 623 F.2d 670 (10th Cir. 1980) 41-42 West Virginia University Hospital v. Casey, 499 U.S. 83 (1991) 33 STATUTES Native American Housing Assistance and Self-Determination Act, 25 U.S.C. §§ 4101 et seq. 3, 15-16, 44-46 25 U.S.C. § 4101(7) 44-46 25 U.S.C. § 4111(a) 46 25 U.S.C. § 4131(b)(5) 45 Federal Unemployment Tax Act, 26 U.S.C. §§ 3301 et seq. 30 28 U.S.C. § 1291 1 Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. passim 29 U.S.C. § 621(b) 18 29 U.S.C. § 623 18 29 U.S.C. § 626 1, 5, 19, 20 29 U.S.C. § 630(b) 11, 18, 24, 27-28 Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq. 44-45 Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. 11-12, 27-34 42 U.S.C. § 2000e(b) 27-34 42 U.S.C. § 2000e-2 27 Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §§ 3601 et seq. 44-45 Pub. L. No. 98-532, 98 Stat. 2705 (1984) 48 OTHER AUTHORITY 100 Cong. Rec. 13702 (June 13, 1964) 29, 32 F. Cohen, HANDBOOK OF FEDERAL INDIAN LAW (1982) 30, 39 J. Kalet, AGE DISCRIMINATION IN EMPLOYMENT LAW (1986) 31IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _____________________ No. 00-16181 _____________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Applicant-Appellee, v. KARUK TRIBE HOUSING AUTHORITY, Respondent-Appellant. ____________________________________________________ On Appeal from the United States District Court for the Northern District of California ____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE ____________________________________________________ STATEMENT OF JURISDICTION This case concerns the Equal Employment Opportunity Commission's application for an order enforcing an administrative subpoena under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA"). The district court had jurisdiction under 29 U.S.C. § 626(a). The court ordered enforcement, and judgment was entered on May 24, 2000. District court docket number ("R.") 25. Respondent Karuk Tribe Housing Authority ("Housing Authority") filed a notice of appeal on June 27, 2000. This Court has jurisdiction under 28 U.S.C. § 1291. See, e.g., McLaughlin v. Local 280, 880 F.2d 170, 173 (9th Cir. 1989) (order enforcing administrative subpoena is final and appealable). STATEMENT OF THE ISSUE Whether the district court properly ordered the Housing Authority to comply with the Commission's administrative subpoena. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from an order enforcing an administrative subpoena seeking documents relevant to the Commission's investigation of alleged age discrimination at the Housing Authority. When the Housing Authority refused to cooperate with the investigation and to comply with the Commission's administrative subpoena, the Commission initiated this action by filing an application for enforcement on November 22, 1999. R.1. Following briefing, the district court held a hearing on January 7, 2000, and allowed the parties to submit supplemental briefing thereafter. R.16. On May 24, 2000, the court entered an order enforcing the subpoena. R.25 (Order). 2. Statement of Facts<1> The Karuk Tribe Housing Authority owns, operates, develops and leases housing and makes lease-to-purchase agreements with low-income tenants. Excerpts of Record ("ER") 44. In recent years, its activities have been funded in whole or in part under the Native American Housing Assistance and Self-Determination Act, 25 U.S.C. §§ 4101 et seq. Id. The Housing Authority currently owns 100 housing units on tribal-trust land, id. -- the tribe does not have its own reservation. Supplemental Excerpts of Record ("SER") 10 (1st Grant Decl. ¶ 3). Tribal membership is not a prerequisite for occupancy of these units. Units are occupied by members of the tribe, other Indians, and non-Indians who meet the eligibility criteria. ER44. Tribal membership is also not a requirement for employment with the Housing Authority, even in executive positions. See, e.g., R.12 (Super Decl., Ex.A) (governing board commissioners need not belong to tribe). The Housing Authority employs approximately twenty-four people -- tribe members, other Indians and non-Indians. ER44. Charging Party Robert Grant, a tribe member, worked as a maintenance supervisor for the Housing Authority from May 1991 to May 1992, and again from July 1992 until he was terminated, at the age of 53, on November 14, 1997. Id. According to Grant, the Housing Authority did not terminate comparably performing younger employees, SER8 (EEOC charge), and, before his termination, his supervisor made remarks such as "Robert is too old and crippled and he should retire." SER15 (2d Grant Decl. ¶ 10). Grant stated that he initially attempted to appeal his discharge through internal channels, but, contrary to a written policy regarding such appeals, he was never given relevant documents or an opportunity to question any Housing Authority witnesses. SER14-15. A February 1995 policy announced that the tribe would "provide equal employment opportunity . . . [in] all areas of employment . . . in accordance with applicable Tribal and federal laws" (including Indian preferences).<2> SER17. The policy also provided that, "as required by law," EEO notices would be posted on appropriate employee bulletin boards summarizing "the right of employees to equal opportunity in employment, and list[ing] the names and addresses of the various government agencies that may be contacted in the event that any person believes he or she has been discriminated against." Id. Grant and other witnesses observed EEO posters on the walls at the Housing Authority's Yreka, California, offices; these posters indicated that employees complaining of discrimination should contact the Commission. SER13 (2d Grant Decl. ¶ 8); R.17 (Kerr Decl.). See also SER13 (2d Grant Decl. ¶ 8 (during in-house sexual harassment training program, employees were told to contact EEOC or state fair employment agency if they had discrimination complaints)); R.13 (2d Grant Decl., Ex.D.) (copy of training materials). Accordingly, in February 1998, Grant filed a charge with the Commission alleging that he had been discharged because of his age. SER8. Upon receiving the charge, the Commission began an investigation pursuant to its authority under 29 U.S.C. § 626(a). On February 13, 1998, the Commission served a copy of the charge on the Housing Authority and asked for a written position statement and answers to an attached Request for Information. R.2 (McDuffie Decl., Ex.B). The Housing Authority replied that because, in its view, the ADEA does not cover Indian tribes, the Housing Authority would not provide any of the requested information. Id. (McDuffie Decl., Ex.C). Cf. SER15-16 (2d Grant Decl. ¶ 10) (tribe also responded by telling Grant that he could appeal his discharge to the Tribal Council only if he first dismissed his charge). In response, the Commission asserted that it has jurisdiction under the ADEA to investigate allegations of age discrimination against Indian tribes. R.2 (McDuffie Decl., Ex.D). However, the Housing Authority continued to refuse to cooperate with the investigation. See id. (McDuffie Decl., Ex.E). On March 29, 1999, the Commission served on Judy Madden, the Housing Authority's custodian of records, an administrative subpoena seeking copies of documents including the Housing Authority's employee termination policies, policies and procedures relating to the duties and conduct of employees working in Grant's job category, and personnel actions taken against employees disciplined or discharged during a one-year period surrounding Grant's termination. SER1 (subpoena). See also SER4-7 (McDuffie Decl., detailing attempted investigation). By letter, the Housing Authority informed the Commission that it would not comply with the subpoena or otherwise cooperate with the investigation. R.2 (McDuffie Decl., Ex.G). The Commission then commenced proceedings in the district court to obtain judicial enforcement of its subpoena. R.1. 3. District Court's Decision The district court granted the application for enforcement and ordered the Housing Authority to produce the requested documents. Without addressing the standard for subpoena enforcement, the court went directly to the question of statutory coverage, noting that, because the Housing Authority is organized under tribal ordinance of the Karuk Tribe, the issue presented was "whether Congress exercised its authority to abrogate tribal immunity in enacting the ADEA." ER46. According to the court, the "general rule" is that "a general statute in terms applying to all persons includes Indians and their property interests." Id. The court noted, however, that such a statute, if "silent on the issue of applicability to Indian tribes," will not apply to a tribe if (1) it "touches upon 'exclusive rights of self-governance in purely intramural matters'"; or (2) "there is proof 'by legislative history' or some other means that Congress intended [the law] not to apply to Indians on their reservations." Id. (quoting Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir. 1985)).<3> Applying that rule, the court concluded that the ADEA is a "statute of general applicability" which "prohibits virtually all employers from discriminating on the basis of age." Id. at 5. The court added that, as a "remedial statute of broad scope and applicability, intended to reduce both the individual and social costs of age discrimination," the ADEA should be "liberally interpreted." Id. The court then concluded that none of the exceptions to the general rule was applicable. Addressing first the question of intent, the court concluded that, "to the extent evidence of legislative intent exists, [it] indicates an intent to include rather than exclude Indian tribes." ER46. Specifically, the court noted that Congress did not include Indian tribes among the two explicit exemptions -- for the United States and its wholly owned corporations -- to the definition of "employer." Id. (adding that "canons of statutory construction dictate that where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied"). The court also found evidence of intent by comparing the language of the ADEA to Title VII, which was passed three years before the ADEA. Id. The court noted that Indian tribes are explicitly exempted from the definition of employer in Title VII but not in the ADEA. ER48 (adding that "Congress is presumed to legislate with knowledge of existing law" and "to act 'intentionally . . . in the disparate inclusion or exclusion' of language related to statutory provisions"). As for the tribal self-governance exception, the court asserted that two appellate courts have concluded that application of the ADEA to a tribe falls within the exception. ER48-50. The court concluded, however, that the Ninth Circuit has disagreed with these courts' broad reading of the exception, reasoning that it would "'bring within the embrace of "tribal self-government" all tribal business and commercial activity.'" ER48-49 (quoting Coeur d'Alene, 751 F.2d at 1116). Instead, the court stated, the exception has been limited to "purely intramural matters such as conditions of tribal membership, inheritance rules and domestic relationship," none of which is implicated by the ADEA. See ER49. The court rejected the Housing Authority's argument that its activities and employment decisions are "closely related" to tribal self-governance and its suggestion that, at most, only truly commercial activities should be considered unrelated to self-governance. ER49; see also id. at 48. The court noted that courts which have followed Coeur d'Alene have applied its reasoning to "enterprises other than those of a strictly commercial nature." ER49-50. The court added that "the fact that the Housing Authority employs and houses non-Karuks and non-Indians weighs heavily against its claim that its activities affect rights of self-government in purely intramural matters." ER50. The court also rejected the Housing Authority's argument that there has been no waiver of its sovereign immunity, and that Coeur d'Alene does not address that issue but is limited only to the question of statutory coverage. In the court's view, the Housing Authority's "attempt to separate the issues of applicability and sovereign immunity reflects a misreading of the Coeur d'Alene opinion." ER50. According to the court, Coeur d'Alene holds that, under Tuscarora, "where Congress, in enacting a statute, intends that such statute be applied to Indian tribes, Congress is deemed to have exercised its authority to divest the tribes of their sovereign immunity." Id. The court also noted that the Ninth Circuit "has held that a tribe's sovereign immunity does not extend to suits brought by the federal government." ER50 n.1 (adding that it need not decide whether a suit by EEOC qualifies as a suit by the United States). STANDARD OF REVIEW This Court reviews de novo an order of the district court enforcing an administrative subpoena. NLRB v. North Bay Plumbing, Inc., 102 F.3d 1005, 1007 (9th Cir. 1996). SUMMARY OF ARGUMENT The district court properly enforced the Commission's administrative subpoena seeking information from the Respondent Housing Authority about a charge of age discrimination filed by a former employee. The scope of the judicial inquiry in an EEOC administrative subpoena enforcement proceeding is narrow. As long as the Commission is authorized to investigate, the procedural requirements have been met, and the evidence sought is "relevant and material" to the investigation, the court should enforce the subpoena unless the party being investigated proves the inquiry is overbroad or unduly burdensome. See EEOC v. Children's Hospital Medical Center, 719 F.2d 1426, 1428 (9th Cir. 1983) (en banc). Under that standard, it is clear that enforcement of the Commission's administrative subpoena in this case was appropriate. The ADEA gives the Commission broad authority to investigate both whether the particular employer is covered by the statute and whether a substantive violation has occurred. There is no dispute that the procedural requirements have been met, the information sought in the subpoena is "relevant and material" to determining whether Respondent has engaged in age discrimination against the charging party or other employees, and the inquiry is neither overbroad nor unduly burdensome. This Court should therefore uphold the district court's enforcement order. In its brief to this Court, Respondent ignores the requirements for subpoena enforcement and argues directly that it need not cooperate with the investigation because, as a tribal entity, it is not covered by the ADEA. It is well settled, however, that subpoena enforcement proceedings are not the proper forum in which to litigate the question of statutory coverage. On the contrary, the initial determination of coverage is left to the Commission, and the subpoena should be enforced if there is any "plausible" basis for believing that the employer is covered. The employer may challenge coverage in defending any subsequent action on the merits if, upon completing its investigation, the Commission finds cause and files suit. If, instead, the Commission determines that no violation has occurred, however, the question of coverage would be academic and need never be finally determined by the Court. Thus, to uphold the enforcement order here, this Court need find only that the Commission has a plausible basis for believing that Respondent's employment relationship with the charging party and other employees is covered by the ADEA. This case easily meets that test. First, as a "person engaged in commerce who has twenty or more employees," the Housing Authority falls within the literal definition of the word "employer" under the statute. See 29 U.S.C. § 630(b). In addition, a comparison of the coverage provisions in the ADEA and Title VII (which prohibits employment discrimination inter alia based on race or national origin) further confirms that Congress intended that tribes and tribal entities like the Housing Authority be covered by the ADEA. Significantly, Congress explicitly exempted Indian tribes from coverage under Title VII, thus allowing tribes to discriminate in favor of Native Americans. When the ADEA was enacted three years later, however, Congress copied Title VII's definition of employer but omitted the exemption for tribes, there being no comparable reason to exclude them. It is therefore fair to assume that Congress intended to exempt tribal employers from Title VII but to include them under the ADEA. The ADEA does not, however, affirmatively state that it applies to tribes. In Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960), the Supreme Court set out the general rule for determining whether statutes of general applicability like the ADEA apply to Indian tribes -- such acts "apply to Indians as well as to all others in the absence of a clear expression to the contrary." In accordance with this rule, this Court has consistently held that, absent some exception, "federal laws generally applicable throughout the United States apply with equal force" to Indian tribes, whether or not the coverage provision specifies that it applies to tribes. See Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir. 1985) (adding that "not one [of this Court's cases] has held that an otherwise applicable statute should be interpreted to exclude Indians"). There is a narrow exception to the Tuscarora rule for matters involving tribal self-governance -- a statute of general applicability does not apply to tribes if it "touches exclusive rights of self-governance" in "purely intramural matters such as conditions of tribal membership, inheritance rules, and domestic relations." Coeur d'Alene, 751 F.2d at 1116. A key issue in determining whether a tribal entity falls within the self-governance exception is the extramural impact of its activities. Courts consider, for example, whether the entity employs non-members of the tribe or is engaged in a commercial operation involving non-members of the tribe. Also relevant is the degree to which the particular federal statute at issue would intrude upon the tribe's decisionmaking ability. Considering these factors, courts have held that OSHA applies to a tribe-owned farm on reservation land employing some non-tribe members and selling produce off the reservation, and that ERISA applies to a tribal health center on the reservation. Respondent argues that it falls within the self-governance exception. On the contrary, Respondent's activities have a distinctly extramural flavor. Specifically, Respondent does not reserve its housing units exclusively for tribe members -- some units are occupied by other Indians and non-Indians. In addition, tribal membership is not a requirement for employment, even in executive positions; Respondent employs not only tribe members but also other Indians and non-Indians. Furthermore, at least with respect to persons like the charging party -- a maintenance supervisor -- the ADEA is comparatively unintrusive. Unlike OSHA, for example, there are no periodic inspections or reports. Thus, consistent with its case law, this Court should conclude that the ADEA applies to Respondent under the circumstances of this case. In advocating a contrary result, Respondent focuses on EEOC v. Fond du Lac Heavy Equipment & Construction Co., 986 F.2d 246 (8th Cir. 1993), where the Eighth Circuit held that the ADEA does not apply to a tribe-owned construction company. According to Respondent, Fond du Lac accords with this Court's decision in Coeur d'Alene and, so, should govern the result in this case. As the Court in Fond du Lac expressly recognized, however, that decision cannot be reconciled with Coeur d'Alene. Unlike this Court, the Fond du Lac Court adopted an expansive view of self-governance which is not limited to "intramural matters" but rather encompasses any employment relationship between a tribe member and tribal employer, regardless of other factors. Respondent argues, however, that unfettered control over employer-employee relations is critical to self-governance because "people who operate the tribal agencies determine how the tribe will conduct its affairs." While that might be true in the case of a high-ranking tribal official, for example, it overstates the case to say that employees like the charging party, a maintenance supervisor, "determine how the tribe will conduct its affairs. " Significantly, the ADEA does not affect Respondent's ability to hire or fire because of ability, or Indian preference, or a myriad of other reasons. It merely prohibits employment decisions based on age. Respondent also argues that it should be exempt in light of its obligation to provide housing to tribe members. As noted above, however, tribal membership is not a requirement either for employment with Respondent or for occupancy of Respondent's housing units. Moreover, Respondent offers no reasoned distinction between providing housing, an activity it claims is exempt from federal law, and providing health services or allocating use of reservation land, activities to which federal law has been held to apply. Alternatively, Respondent contends that Congress manifested its intent that the ADEA not apply in the congressional "findings" provision in the Native American Housing Assistance & Self Determination Act, or NAHASDA, which Respondent identifies as a source of its funding. Respondent quotes the statute's "findings" provision for the proposition that federal assistance in providing affordable housing in Indian communities should be provided "in a manner that recognizes the right of Indian self-determination and tribal self-governance." That the Housing Authority receives funding through the NAHASDA has little bearing on this appeal. Congress passed the ADEA thirty years before the NAHASDA went into effect. The statute therefore sheds no light on whether Congress intended the ADEA to apply to tribes. Moreover, in the remainder of the sentence Respondent quotes, Congress explained what it meant by providing housing "in a manner that recognizes the right of Indian self-determination and tribal self-governance" -- such assistance would be made directly to the Indian tribes through block grants, rather than through a federal agency. There is no inherent conflict between that means of distribution and a requirement that Respondent, like any other employer, refrain from discriminating against its employees on the basis of age. Respondent further argues that the "federal policy of promoting Indian self-governance" exemplified by NAHASDA supports its expansive interpretation of the self-governance exception. If that were so, however, the exception would swallow the rule -- no statute of general applicability would apply to tribes. That clearly is not the law. Finally, the Housing Authority argues that even if it is covered by the ADEA, it is not subject to suits, including subpoena enforcement actions, by the Commission because there has been no waiver of its tribal sovereign immunity. This argument should be rejected out of hand. Like any other tribal entity, Respondent is not immune from suit by the Commission or any other agency of the federal government. Because Congress delegated enforcement authority under the ADEA to the Commission, the Commission is the arm of the federal government charged with enforcing the ADEA against all employers including Respondent. Thus, whether or not Respondent is immune from suit by private parties -- an issue this Court need not address, Respondent has no comparable immunity to this subpoena enforcement action or any other suit brought by the Commission. Accordingly, this Court should decline Respondent's invitation to hold that, unlike ERISA or OSHA, the ADEA does not apply to tribes, at least under the circumstances presented here. Rather, since there is, at a minimum, a plausible basis for believing that Respondent is covered by the ADEA, we urge this Court to uphold the district court's decision requiring Respondent to cooperate with the Commission's investigation into alleged age discrimination at the Housing Authority. ARGUMENT I. THE DISTRICT COURT PROPERLY ENFORCED THE COMMISSION'S ADMINISTRATIVE SUBPOENA. A. The Material Sought in the Subpoena Is Relevant to an Investigation Which is Within the Commission's Statutory Authority The district court properly enforced the Commission's administrative subpoena seeking information from the Housing Authority about a charge of age discrimination filed by a former employee. Under the ADEA, the Commission has comprehensive investigative authority to determine both whether a particular employer is covered by the statute and whether age discrimination has occurred. The information the Commission is seeking in its subpoena here is both 'competent and relevant to a lawful purpose' -- that is, a determination of whether the Housing Authority has engaged in unlawful age discrimination. Any argument that the Housing Authority is not covered by the ADEA, even if a proper defense to a suit on the merits, is not an appropriate basis for the Respondent to refuse to comply with the Commission's subpoena. The ADEA was designed to promote the employment of older persons based on their ability and to prohibit arbitrary age discrimination in employment. See 29 U.S.C. § 621(b); see also Lorillard v. Pons, 434 U.S. 575, 577 (1978). Consistent with these purposes, the statute prohibits any "employer" from discharging or otherwise discriminating against individuals over the age of 40 on the basis of age. 29 U.S.C. § 623. The word "employer" is broadly defined to include any "person engaged in an industry affecting commerce who has twenty or more employees" excepting only the federal government, which is covered by a separate statutory provision.<4> 29 U.S.C. § 630(b) (definition of employer); § 633a (coverage for federal government); see also Johnson v. Mayor & City of Baltimore, 472 U.S. 353, 355 (1985) (ADEA "prohibits virtually all employers from discriminating on the basis of age"). As "remedial and humanitarian" legislation, the ADEA should be "liberally interpreted." Naton v. Bank of Cal., 649 F.2d 691, 695 (9th Cir. 1981). To effectuate the purposes of the statute, Congress charged the Commission with enforcing the ADEA by investigating and conciliating allegations of age discrimination in the workplace and, if necessary, enforcing the statute by civil litigation. See, e.g., EEOC v. Pan Am. World Airways, 897 F.2d 1499, 1505 (9th Cir. 1990) (Commission has "dominant role" in enforcing ADEA). The Commission's statutory authority to investigate is broad. Congress authorized the Commission to conduct whatever investigation it deems "necessary or appropriate" -- informally, by subpoena, and through the courts -- to aid in its enforcement of the statute and/or in determining whether any violation has occurred. See 29 U.S.C. § 626(a). Exercising that authority here, the Commission, upon receiving Mr. Grant's charge of age discrimination, initially asked the Housing Authority for information concerning Grant's employment and the reasons for his discharge. When it became clear that the Housing Authority would not voluntarily cooperate with the investigation, the Commission issued a subpoena and then sought enforcement through the courts. "The scope of the judicial inquiry in an EEOC or any other agency subpoena enforcement proceeding is quite narrow." EEOC v. Children's Hosp. Med. Center, 719 F.2d 1426, 1428 (9th Cir. 1983) (en banc). The district court should determine whether (1) "Congress has granted the [agency the] authority to investigate;" (2) the "procedural requirements have been followed;" and (3) the evidence sought is "relevant and material to the investigation." Id. Once the agency has demonstrated these three factors, the court should enforce the subpoena "unless the party being investigated proves the inquiry is unreasonable because it is overbroad or unduly burdensome." Id. See also United States v. Morton Salt Co., 338 U.S. 632, 652 (1950) (enforcement proper where "inquiry is within the authority of the agency, the demand is not too indefinite and the information is reasonably relevant"); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 208-09 (1946) (enforcement proper where agency is authorized to make demand, demand is not too indefinite or broad, and materials sought are relevant). Applying that standard, it is clear that the district court properly ordered the Housing Authority to comply with the Commission's administrative subpoena. There is no dispute that the materials requested in the subpoena -- information regarding specific employment policies and procedures as well as personnel actions taken against other employees during a one-year period surrounding Mr. Grant's discharge -- are "relevant and material to the investigation." In addition, the method used to gather the information is authorized by 29 U.S.C. § 626(a), which gives the Commission the same investigative powers as the Secretary of Labor under the Fair Labor Standards Act ("FLSA"). See, e.g., EEOC v. Tire Kingdom, 80 F.3d 449, 451 (11th Cir. 1996) (discussing statutory framework for EEOC's § 7(a) investigative authority). The Housing Authority has not argued that the "inquiry is unreasonable" in the sense of "overbroad or unduly burdensome." See Children's Hospital, 719 F.2d at 1428. In its brief to this Court, the Housing Authority ignores the subpoena enforcement framework established by this Court. Instead, it argues that it need not cooperate with the investigation because, as a tribal entity, it is not covered by the ADEA. However, subpoena enforcement proceedings are "not the proper forum in which to litigate the question of coverage under a particular statute." EEOC v. Peat, Marwick, Mitchell & Co., 775 F.2d 928, 930 (8th Cir. 1985); accord EEOC v. Kloster Cruise Ltd., 939 F.2d 920, 922 (11th Cir. 1991); see also Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509 (1943) (district court should not decide coverage in subpoena enforcement proceeding). Rather, such proceedings are designed to be "summary in nature." See EEOC v. Tempel Steel Co., 814 F.2d 482, 485 (7th Cir. 1987); see also EEOC v. St. Regis Paper Co., 717 F.2d 1302, 1304 (9th Cir.1983) ("summary procedure" due to "need for speedy investigation of EEOC charges"). The "initial determination" of coverage is "left to the administrative agency seeking enforcement of the subpoena." See Peat, Marwick, 775 F.2d at 930; accord Endicott Johnson, 317 U.S. at 509; Children's Hospital, 719 F.2d at 1429. Even where an agency subpoena is attacked on jurisdictional grounds, the district court's role is "strictly limited." Children's Hospital, 719 F.2d at 1430. "As long as the evidence sought is relevant, material and there is some 'plausible' ground for jurisdiction, . . . or, to phrase it another way, unless jurisdiction is 'plainly lacking,'" the court should enforce the subpoena. Id. The Supreme Court was faced with an argument similar to the Housing Authority's argument in Endicott Johnson, 317 U.S. 501, a subpoena enforcement action under the FLSA. Like the Housing Authority, the defendant in Endicott Johnson argued that it need not comply with the Secretary of Labor's subpoena seeking payroll information because the operations in question were not covered by the statute. Id. at 506-07. The Supreme Court rejected this argument, noting that to "perform her full statutory duty" of administering the FLSA, the Secretary was entitled to investigate both whether the defendant was covered and whether it had violated the substantive provisions of the statute by underpaying its employees. While acknowledging that the Secretary might choose to determine coverage first, the Court reasoned that she might alternatively "find it advisable to begin by examining the payroll, for if there were no underpayments found, the issue of coverage would be academic." Id. at 508-09. The Court then added that the district court was not empowered to determine coverage at this juncture -- because the evidence sought by the subpoena was "not plainly incompetent or irrelevant to any lawful purpose of the Secretary in the discharge of her duties under the Act," it was the "duty of the district court to order its production for the Secretary's consideration." Id. at 509. See also Children's Hospital, 719 F.2d at 1429 (refusing to resolve jurisdictional challenge in subpoena enforcement proceeding, reasoning that "party may not defeat agency authority to investigate with a claim that could be a defense if the agency subsequently decides to bring an action against it"); cf. Reich v. Great Lakes Indian Fish & Wildlife Comm'n, 4 F.3d 490, 491-92 (7th Cir. 1993) (court could resolve coverage question where subpoena did not request coverage-related materials and tribe admitted that it did not pay overtime wages). This Court must, therefore, reject the Housing Authority's objection to enforcement of the subpoena as long as there is at least a "plausible" argument for coverage. As we set out in detail below, there is more than a "plausible" argument that the Housing Authority is covered by the ADEA. Moreover, since the Commission, like the Secretary of Labor, is empowered to investigate both substantive violations and coverage, the materials sought by the subpoena are not "plainly incompetent or irrelevant to any lawful purpose," see Endicott Johnson, 317 U.S. at 509. In light of Mr. Grant's charge, the Commission is entitled to obtain information relevant to a determination as to whether the Housing Authority discriminated against Mr. Grant or other employees because of age. Significantly, this does not mean that the Housing Authority is precluded from ever challenging its coverage under the ADEA. On the contrary, if the Commission finds cause and files suit, Respondent will have ample opportunity to contest its coverage under the ADEA in defending an action on the merits. On the other hand, it may well be that, once the investigation is complete, the Commission will determine that no discrimination occurred. In that case, the issue of coverage would be "academic." See Endicott Johnson, 317 U.S. at 509 (if no violation is discovered, "issue of coverage would be academic"). B. There is More Than a "Plausible" Basis For Believing That the Housing Authority is Covered By the ADEA. This Court need determine only whether there is a "plausible" basis for believing that the Housing Authority's employment relationship with Robert Grant is covered by the ADEA. As we detail below, the language of the statute, its history, applicable canons of statutory construction as well as case law from this and other circuits all indicate that the ADEA applies to the Housing Authority under the circumstances of this case. The Housing Authority falls within the literal definition of the word "employer" under the ADEA. See 29 U.S.C. § 630(b) ("person engaged in an industry affecting commerce who has twenty or more employees"). The statute does not, however, expressly state that it applies to Indian tribes and tribe-owned entities like the Housing Authority. Under these circumstances, there are special rules for ascertaining whether Congress intended that a federal statute should apply to Indian tribes. See Smart v. State Farm Ins. Co., 868 F.2d 929, 932 (7th Cir. 1989) (congressional intent is "paramount"). In Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99 (1960), the Supreme Court set out the general rule for coverage for statutes of general applicability, i.e., statutes whose concerns are widely inclusive and do not affect traditional Indian or tribal rights. The Tuscarora rule is that "general Acts of Congress apply to Indians as well as to all others in the absence of a clear expression to the contrary." Id. at 116; see also id. at 120 (stating that "a general statute in terms applying to all persons includes Indians and their property interests"). In accordance with this rule, this Court has consistently held that, absent some exception, "federal laws generally applicable throughout the United States apply with equal force" to Indian tribes, whether or not the coverage provision specifies that it applies to tribes. See, e.g., United States v. Farris, 624 F.2d 890, 892-93 (9th Cir. 1980) (adding that "Indians and non-Indians alike are members of one Nation"). Applying this principle, the Court has held, for example, that federal excise tax laws apply to tribes (Confederated Tribes of Warm Springs Reservation of Oregon v. Kurtz, 691 F.2d 878, 878 (9th Cir. 1982)), and that tribe members are normally subject to federal criminal statutes. See Farris, 624 F.2d at 892-93 (upholding conviction under Organized Crime Control Act of 1970 for tribe members engaged in gambling operation). Indeed, this Court has noted that "not one [of its cases] has held that an otherwise applicable statute should be interpreted to exclude Indians." See Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir. 1985) (adding that silence does not normally signal congressional intent to exclude tribes). The Housing Authority does not dispute that the ADEA is a statute of general applicability. Instead, much of the Housing Authority's argument is premised on the erroneous proposition that even statutes of general applicability do not extend to tribes absent clear evidence of congressional intent to cover them. See, e.g., Brief at 24-27, 31-35; see generally id. (relying on cases that do not apply the Tuscarora rule). The Housing Authority also implies that this proposition is consistent with this Court's case law. To the extent that Coeur d'Alene is to the contrary, however, the Housing Authority suggests that the Coeur d'Alene Court misread earlier cases such as Farris, which, according to Respondent, rest on the proposition that federal law would not apply to tribes unless Congress clearly states otherwise. See Brief at 31-34; see also id. at 35 (criticizing district court for failing to apply clear intent standard). This Court has, however, consistently and clearly rejected the Housing Authority's argument. As noted above, since Tuscarora, this Court has repeatedly held that a statute of general applicability presumptively applies to tribes and tribal entities even if the statute is silent with respect to coverage. See, e.g., Coeur d'Alene, 751 F.2d at 1116 ("we have not adopted the proposition that Indian tribes are subject only to those laws of the United States expressly made applicable to them"). Furthermore, contrary to Respondent's suggestion, Farris is consistent with Coeur d'Alene -- indeed, Coeur d'Alene quotes Farris for its legal underpinnings. See 751 F.2d at 1115. Although it does not cite to Tuscarora, Farris, like Coeur d'Alene, proceeds from the presumption that "federal laws generally applicable throughout the United States apply with equal force to Indians." See 624 F.2d at 892. Thus, the Housing Authority's view that a clear intent standard is appropriate has no basis in this Court's case law. In any event, there is evidence that Congress clearly intended that Indian tribes would be covered by the ADEA. A comparison of the employer provisions in the ADEA and Title VII (which prohibits discrimination on the basis of race, sex, color, national origin and religion, 42 U.S.C. § 2000e-2) leads to the unescapable conclusion that Congress intended the ADEA to cover Indian tribes. As noted above, the ADEA defines employer to mean "a person engaged in an industry affecting commerce who has twenty or more employees . . . but such term does not include the United States . . . ." 29 U.S.C. § 630(b). Congress utilized a similar definition in Title VII, passed three years earlier, except that Title VII's definition expressly exempts "an Indian tribe." See 42 U.S.C. § 2000e(b) ("a person engaged in an industry affecting commerce who has fifteen or more employees . . . but such term does not include the United States . . . , an Indian tribe . . . ."). When Congress passed the ADEA, it copied the language from Title VII but omitted this exemption. When interpreting a statute, Congress' intent as expressed in that statute is determinative. In discerning intent, "we must presume that Congress acts with deliberation, rather than by inadvertence, when it drafts a statute." United States v. Motomedi, 767 F.2d 1403, 1406 (9th Cir. 1985). Thus, because Congress passed the ADEA in the wake of Title VII, it must be assumed that the omission of the term "Indian tribe" reflects a deliberate decision on Congress' part. Cf. Binder v. Long Island Lighting Co., 933 F.2d 187, 193 (2d Cir. 1991) (holding that Title VII's explicit limitation on conciliation materials did not apply to the ADEA, noting that "omission in the text of the ADEA of a provision in Title VII is likely to reflect a deliberate decision on Congress' part"); Lubiewski v. Lehman, 891 F.2d 216, 221 (9th Cir. 1989) (noting that it would not be "proper" to ignore ADEA's deletion of filing deadline contained in "virtually identical" provision under Title VII). The historical context of the two statutes strongly supports the inference that Congress intended tribes to be exempt from Title VII but not the ADEA. Significantly, both Title VII and the ADEA were passed soon after the decision in Tuscarora, 362 U.S. at 116, where, as noted above, the Supreme Court reiterated the "well settled" principle that a statute of general applicability applies to Indian tribes. In light of Tuscarora, Congress would have been aware that, absent an explicit exemption, Indian tribes would be covered by the broad definition of employer in Title VII and the ADEA. Indeed, the legislative history of Title VII demonstrates that Congress viewed an explicit exemption as necessary to place Indian tribes outside the scope of that statute. Title VII's exemption for Indian tribes was added as a floor amendment to the Senate version of the Civil Rights Act of 1964. See 100 Cong. Rec. 13702 (June 13, 1964). In introducing the amendment, Senator Mundt expressed the view that the exemption was "necessary" in order to allow Indian tribes to "conduct their own affairs and economic activities without consideration of the provisions of the bill." Id. The amendment was worked out "in cooperation with" the Bureau of Indian Affairs, and several tribes conditioned their support of the bill on the inclusion of the exemption. Id. In light of this history, Congress' decision just three years later to omit the Indian exception when incorporating Title VII's definition of employer into the ADEA must have been made with the understanding that the exception was necessary to exempt Indian tribes from the ADEA.<5> In addition, the definition of employer under Title VII was itself borrowed from the Federal Unemployment Tax Act, 26 U.S.C. §§ 3301 et seq. ("FUTA"), which imposes taxes on employers to fund the unemployment compensation system. See, e.g., Thurber v. Jack Reilly's, 717 F.2d 633, 634 (1st Cir. 1983) (discussing Title VII's legislative history). The FUTA contained no explicit provision regarding Indian tribes but, beginning as early as the 1950's, the Internal Revenue Service had taken the position that tribes were employers within the meaning of the FUTA and, so, subject to unemployment taxes. See F. Cohen, HANDBOOK OF FEDERAL INDIAN LAW 399 & n.75 (1982) (noting that tribal employers are also subject to Social Security and federal income tax withholding). In practice, most Indian employers within reservations have paid the taxes in order to "assure coverage of their employees." Id. at 401. Where it has enacted a new law incorporating sections of a prior law, "Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute." See Lorillard, 434 U.S. at 581 (discussing ADEA and Title VII). Congress is therefore presumed to know that, in enacting the ADEA and Title VII, its incorporation of the FUTA definition, with no explicit exemption, would effect coverage of tribal employers. Further, it is clear that Congress, in drafting the ADEA, had a working knowledge of the provisions of Title VII. See J. Kalet, AGE DISCRIMINATION IN EMPLOYMENT LAW 2 (1986) ("Because Title VII had already established a framework within which the ban on employment discrimination could be enforced, the Title VII enforcement scheme and proof considerations were followed extensively in the drafting of the ADEA."). Congress rejected bills that would have added age as a protected category under Title VII, as well as the FLSA, in favor of a separate statute which reflected careful consideration and selective incorporation of provisions from both laws. See EEOC v. Wyoming, 460 U.S. 226, 229-32 (1983) (describing legislative efforts); Lorillard, 434 U.S. at 577-78 (bill was "something of a hybrid, reflecting, on the one hand, Congress' desire to use an existing statutory scheme and a bureaucracy with which employers and employees would be familiar, and, on the other hand, its dissatisfaction with some elements of each of the pre-existing schemes"). This legislative history further indicates that, in omitting the Indian tribe exemption from the definition of employer, Congress intended to include Indian tribes within the scope of the ADEA. See generally EEOC v. Fond du Lac Heavy Equip. & Constr. Co., 986 F.2d 246, 246 (8th Cir. 1993) (Wollman, J., dissenting) (endorsing view that Congress' intent to include tribes under the ADEA can be ascertained from comparison of Title VII and ADEA provisions); EEOC v. Cherokee Nation, 871 F.2d 937, 941-42 (10th Cir. 1989) (Tacha, J., dissenting) (same, discussing history). Finally, it makes sense for Congress to have exempted tribes from Title VII but not the ADEA. Congress was concerned that Title VII's prohibition against national origin and race discrimination would require tribal employers to hire non-Indians, thereby exacerbating the high unemployment on reservations and undermining tribes' ability to maintain control over their internal affairs. See 110 Cong. Rec. 13702 (June 13, 1964) (remarks of Sen. Mundt); see also Morton v. Mancari, 417 U.S. 535, 545-49 (1974). In contrast, "there is no comparable reason for Congress to carve out an exception for Indian tribes under [the] ADEA." Cherokee Nation, 871 F.2d at 942 (Tacha, J., dissenting). Rather, Congress could reasonably have concluded that the importance of its national scheme for eliminating age discrimination in the workplace outweighed competing concerns of tribal sovereignty. In its brief, Respondent suggests another interpretation for the differing coverage provisions in the ADEA and Title VII. According to Respondent, the omission of an exemption for Indian tribes in the ADEA reflects a drafting error by Congress. See generally Brief at 23-27. Thus, Respondent invites the Court to read in an exemption to match the one in Title VII. This invitation should be rejected. Congress is presumed to act "intentionally and purposely in the disparate inclusion or exclusion" of language in related statutes. See Russello v. United States, 464 U.S. 16, 23 (1983). Where, as here, there is a difference between the language adopted in such provisions, courts should not "presume to ascribe this difference to a simple mistake of draftsmanship." See id.; see also Lorillard, 434 U.S. at 584-85 & n.14 (differences between remedial and procedural provisions in Title VII and ADEA "suggest that Congress had a very different intent in mind in drafting the later law"). This is particularly true since Congress expressly exempted some governmental entities from the ADEA's definition of employer. When Congress explicitly enumerates certain exceptions to a statutory scheme, additional exceptions should not be implied, absent evidence of a contrary legislative intent. See Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17 (1980); see also West Virginia Univ. Hosp. v. Casey, 499 U.S. 83, 100-01 (1991) (where different Congresses have chosen to treat a related subject differently, court should respect "the inconsistency of policy" manifested by statutes' language regardless of court's subjective view of wise public policy).<6> Respondent argues, however, that its proposed revision of the statute is consistent with what it characterizes as "the rationale behind the Coeur d'Alene rule, i.e., that a court will craft an exception to rectify an oversight where it appears that Congress has overlooked how the law might affect tribal matters." Brief at 27.<7> This is wishful thinking. The Housing Authority points to nothing -- and there is nothing -- in Coeur d'Alene which remotely supports such a suggestion. Accordingly, rather than rewrite the ADEA, this Court should simply apply it as it was drafted, to extend coverage to tribes and tribal entities like the Housing Authority in the absence of a clear intent to the contrary. Cf. Florida Paraplegic Ass'n v. Miccosukee Tribe of Indians of Fla., 166 F.3d 1126, 1134-35 (11th Cir. 1999)(recognizing that, since Title III of the ADA contains no explicit tribal exemption, even though there is one in Title I of the same statute, Title III covers Indian tribes). This Court and others have recognized three exceptions to the Tuscarora rule. A law will not apply to tribes if (1) it "touches exclusive rights of self-governance" in "purely intramural matters" such as "conditions of tribal membership, inheritance rules and domestic relations"; (2) its application to the tribe would "abrogate rights guaranteed by Indian treaties"; or (3) the legislative history or other such evidence demonstrates that Congress intended the law not to apply to Indians. See Coeur d'Alene, 751 F.2d at 1116-17; accord, e.g., Farris, 624 F.2d at 892. None of the exceptions is applicable here. Since there is no applicable treaty or adverse legislative history, only the self-governance exception is even arguably relevant in this case. Consistent with the rule that exceptions to a remedial statute should be narrowly construed (see Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945)), courts have generally interpreted this exception narrowly. See, e.g., Coeur d'Alene, 751 F.2d at 1116 (only "purely intramural matters such as conditions of tribal membership, inheritance rules and domestic relations"); Reich v. Mashantucket Sand & Gravel, 95 F.3d 174, 181 (2d Cir. 1996) (issue is "not whether the statute affects tribal self-governance in general, but rather whether it affects tribal self-governance in purely intramural matters"); Smart, 868 F.2d at 934-35 (exception applies only where statute "threatens the Tribe's ability to govern its intramural affairs," not "whenever the law merely affects self-governance as broadly conceived"). Thus, courts have held that a tribe's commercial activities, even if situated on tribal land, do not fall within the exception. See Florida Paraplegic, 166 F.3d at 1129-30 (exception does not apply to on-reservation tribe-owned restaurant and gaming facility open to non-Indians); Coeur d'Alene, 751 F.2d at 1115-16.<8> The fact that the tribal entity employs non-tribe members is also highly relevant. See, e.g., Mashantucket, 95 F.3d at 181 (employment of non-Indians "weighs heavily" against application of exception since tribal relations with non-tribe members generally fall outside normal ambit of tribal self-government); Coeur d'Alene, 751 F.2d at 1116 (noting tribe's employment of non-tribe members). Even where an activity is largely tribal-focused, however, courts have rejected arguments that the self-governance exception applies if the particular government regulation is minimally intrusive or other circumstances suggest that coverage is appropriate. See Smart, 868 F.2d at 934-35 (self-governance exception would not preclude application of ERISA to tribal health center located on reservation since regulation of employee pensions would not threaten tribe's ability to govern intramural affairs).<9> The Smart court reasoned that federal employment tax laws including Social Security and unemployment compensation have routinely been applied to tribes, and they have the "same arguable effect of interfering with the Tribe's ability of self-governance" as does ERISA. Id. at 935. This Court's decision in Coeur d'Alene illustrates the proper application of the self-governance exception. There, the tribe challenged application of the Occupation Safety and Health Act ("OSHA") to grain elevators on its tribal farm. The farm was located on the reservation, employed both members and non-members of the tribe, and produced grain and lentils for sale on the open market. This Court concluded that OSHA -- which defines "employer" in terms similar to the ADEA -- was a statute of general applicability and broad remedial purpose which, under Tuscarora, presumptively would cover tribes. 751 F.2d at 1115-16. The Court rejected the tribe's argument that the self-governance exception applied because the tribe's right to exclude non-Indians, including OSHA inspectors, was a "fundamental aspect of tribal sovereignty" that OSHA would infringe. The Court reasoned that it had never accepted this broad "fundamental aspect of tribal sovereignty" formulation of the self-governance exception. Id. Rather, the Court stressed that the exception was limited to "purely intramural matters such as conditions of tribal membership, inheritance rules and domestic relations." 751 F.2d at 1116. The Court pointed out the strongly extramural aspects of the Farm's activities, noting that the Farm employed some non-tribe members and sold its produce off the reservation. Id. Thus, even though the Farm's revenues were critical to the tribe's well-being, the Court held that its "operation free of federal health and safety regulations was 'neither profoundly intramural nor essential to self-government.'" Id. Under that standard, it is clear that the self-governance exception does not apply in this case. The Housing Authority's activities have a distinctly extramural flavor to them. See Mashantucket, 95 F.3d at 181 ("intramural matters generally consist of conduct the immediate ramifications of which are felt primarily within the reservation by members of the tribe"). Although the charging party, coincidently, belongs to the tribe, a number of other employees do not, and even the Housing Authority's Board of Commissioners is not composed entirely of tribe members. R.12 (Super Decl., Ex.A).<10> Similarly, the Housing Authority leases housing units to both tribe members and non-tribe members, including some non-Indians, and funding for its activities purportedly comes from the federal government, rather than from revenues of the tribe itself. In addition, as a statute, the ADEA is comparatively unintrusive. See Wyoming, 460 U.S. at 239 (holding that ADEA does not "directly impair State's ability to structure integral operations in areas of traditional governmental functions"). Although it would preclude the Housing Authority from basing employment decisions on age, there are no periodic reports or inspections as under statutes such as OSHA. While this regulation might affect tribal sovereignty if the claimant were a high-ranking tribal official, here the charging party is simply a maintenance supervisor with no policy-making authority. Moreover, Respondent presumably is already covered by other federal employment laws including ERISA, Social Security withholding, and unemployment compensation, see, e.g., Lumber Indus. Pension Fund v. Warm Springs Forest Prods. Indus., 939 F.2d 683, 685 (9th Cir. 1991) (ERISA); F. Cohen, HANDBOOK OF FEDERAL INDIAN LAW 399 (1982 ed.) (employment tax laws), which are no less intrusive than the ADEA. See Fond du Lac, 986 F.2d at 250 (Wollman, J., dissenting). Under these facts, therefore, the Housing Authority's interest in operating free of federal age discrimination law is "neither profoundly intramural nor essential to self-government." See Coeur d'Alene, 751 F.2d at 1116. The Housing Authority argues that application of the ADEA to its activities would improperly infringe on its right of tribal self-governance because the ADEA regulates employment and, in its view, the employer-employee relationship is fundamentally an "internal matter." See generally Brief at 10-22, 27-38. In addition, the Housing Authority argues, it is a tribal agency focusing on housing and this, too, is a traditional governmental function. Brief at 12-15. The flaw in the Housing Authority's argument is that it is inconsistent with this Court's formulation of the self-governance exception as set forth in Coeur d'Alene. Perhaps recognizing this problem, the Housing Authority attempts to limit Coeur d'Alene and related cases to their facts, arguing that only wholly commercial activities of a tribe fall outside the scope of the exception. See, e.g., Brief at 28-31. On the contrary, the exception is limited to "purely intramural matters" such as "conditions of tribal membership, inheritance rules and domestic relations." See 751 F.2d at 1116.<11> See also Mashantucket, 95 F.3d at 181 ("intramural matters generally consist of conduct the immediate ramifications of which are felt primarily within the reservation by members of the tribe"). The commercial nature of a tribe's activity is significant only because, when a tribe produces goods for sale on the open market, the activity is inherently extramural. See, e.g., Mashantucket, 95 F.3d at 181 ("When a tribal operation affects open markets, it is unlikely that the operation is purely intramural."). Particularly because tribal membership is not a requirement for occupancy in Respondent's housing units, its activities cannot be considered "purely intramural." Moreover, as noted above, the nature of the activity is only one of several factors used in determining whether Congress intended a statute of general applicability to apply to tribes. Other relevant factors include whether the particular entity employs non-tribe members, see, e.g., id. at 181 ("tribal relations with non-Indians fall outside the normal ambit of tribal self-government"); Coeur d'Alene, 751 F.2d at 1116 (noting that Farm employed some non-Indians), and the degree to which requiring the tribe to comply with a specific statute would threaten the tribe's ability to govern its intramural affairs. See Smart, 868 F.2d at 935-36 (noting that "ERISA does not broadly and completely define the employment relationship - even less so than the federal withholding tax"). Here, these factors militate in favor of a finding that the Housing Authority's activities are not "purely intramural." In arguing for a more expansive definition of self-governance, Respondent relies on only one case where the court purported to apply the Tuscarora rule.<12> See Brief at 11-12, citing EEOC v. Fond du Lac Heavy Equipment & Construction Co., 986 F.2d 246 (8th Cir. 1993). In Fond du Lac, the Commission challenged a tribal-owned construction company's alleged refusal to hire the claimant, a tribe member, because of his age. Despite evidence that the successful applicant was non-Indian, the panel majority held that the ADEA did not apply, reasoning that "[s]ubjecting such an employment relationship . . . to federal control dilutes the sovereignty of the tribe [and] interferes with an intramural matter that has traditionally been left to the tribe's self-government." 986 F.2d at 249 & n.3. The Housing Authority urges this Court to follow Fond du Lac because, in its view, "there is nothing in this reasoning which contradicts the reasoning or holding of cases in this Circuit." Brief at 12, 27. On the contrary, this Court's decision in Coeur d'Alene forecloses the expansive view of the self-government exception taken by the court in Fond du Lac. Indeed, since the defendant in Fond du Lac was a commercial operation, it should not have fallen into this Court's interpretation of the self-governance exception even as Respondent characterizes it. Moreover, the Fond du Lac majority explicitly recognized that its decision conflicts with both Coeur d'Alene and Smart. See Fond du Lac, 986 F.2d at 249 & n.3 (citing Coeur d'Alene, 751 F.2d at 1116, and Smart, 868 F.2d at 935, as contrary authority). The dissent, in contrast, relied on both cases to reach the opposite conclusion -- that "the impact of the ADEA upon tribal independence and sovereignty [is analogous] to that flowing from ERISA and OSHA, which . . . have been held applicable to Indian tribes in the face of arguments that those statutes would impermissibly infringe upon the right of tribal self-government." 986 F.2d at 251 (Wollman, J., dissenting). The Housing Authority advocates a blanket exception for any employment relationship, reasoning that the "people who operate the tribal agencies determine how the tribe will conduct its affairs." Brief at 14. It is arguable that application of the ADEA might be inappropriate in the case, for example, of a high ranking tribal official. Cf. Gregory v. Ashcroft, 501 U.S. 452 (1991) (holding that state judges are not protected by the ADEA despite lack of explicit exemption). It overstates the case, however, to say that employees such as Mr. Grant, a maintenance supervisor, "determine how the tribe will conduct its affairs." Significantly, the ADEA does not affect Respondent's ability to hire or fire because of ability, or tribal preference, or a myriad of other reasons. It merely prohibits employment decisions based on age. Alternatively, the Housing Authority asserts that its activities should be exempt because "tribal housing is a fundamental aspect of tribal self-governance, which is only equaled by . . . health as an essential government function." Brief at 12-15. In Smart, however, the Seventh Circuit had no difficulty holding that a tribal health center was covered by ERISA, notwithstanding an argument that such application would interfere with the tribe's right of self-governance. 868 F.2d at 933. The Housing Authority offers no principled distinction between "tribal housing" and activities such as a tribe's use of its reservation land, to which federal law has been applied, particularly where, as here, it does not reserve its housing for tribe members. The Housing Authority's other main support for its expansive definition of self-governance is the Native American Housing Assistance & Self Determination Act, or NAHASDA, which the Housing Authority identifies as a source of its funding. See Brief at 12-15. According to the Housing Authority, the congressional "findings" provision in the NAHASDA "mandates application of the self-governance exception under the Coeur d'Alene rule." That provision states, inter alia, that federal assistance in providing affordable housing in Indian communities "should be provided in a manner that recognizes the right of Indian self-determination and tribal self-governance." Id. at 12 (quoting 25 U.S.C. § 4101 (1997)). That the Housing Authority receives funding through the NAHASDA has little bearing on this appeal for several reasons. First, Congress passed the ADEA thirty years before the NAHASDA went into effect. The statute therefore sheds no light on whether Congress intended the ADEA to apply to tribes. See Dawavendewa v. Salt River Project Agric. Improvement & Power Dist., 154 F.3d 1117, 1123 (9th Cir. 1998) ("whatever Congress decided to do with respect to amending the [Indian Self-Determination & Education Assistance Act] in 1994 has little if anything to do with what it intended when it drafted Title VII thirty years earlier"), cert. denied, 120 S. Ct. 843 (2000). We note, however, that the NAHASDA specifies that Title VI of the 1964 Civil Rights Act (prohibiting race, color and national origin discrimination in federally assisted programs) and Title VIII of the 1968 Civil Rights Act (prohibiting housing discrimination based on race, color, religion, sex, familial status or national origin) do not "apply to actions by federally recognized tribes and tribally designated housing entitled of those tribes under [NAHASDA]." 25 U.S.C. § 4131(b)(5). Had Congress intended that the NAHASDA limit coverage under the ADEA, it could easily have said so there or elsewhere in the Act. In any event, Congress explained what it meant by providing assistance "in a manner that recognizes the right of Indian self-determination and tribal self-governance" in the remainder of the sentence Respondent quotes -- "such assistance [would be made] directly to the Indian tribes." See 25 U.S.C. § 4101(7). That is, NAHASDA funds are provided to tribes through block grants, rather than through a federal agency. See 25 U.S.C. § 4111(a). Cf. Dewakuku v. Cuomo, 107 F. Supp. 2d 1117, 1128 nn. 32, 33 (D. Ariz. 2000) (discussing older funding program and contrasting with NAHASDA). There is no inherent conflict between that means of distribution and a requirement that Respondent, like any other employer, refrain from discriminating against its employees on the basis of age. Respondent argues that the "federal policy of promoting Indian self-governance" exemplified by NAHASDA supports its expansive interpretation of the self-governance exception. Brief at 15. If that were so, however, the exception would swallow the rule -- no statute of general applicability would apply to tribes. That clearly is not the law. As noted above, the ADEA was designed to remediate the social and fiscal costs of pervasive unemployment among older Americans. The Act now applies to virtually every American employer, public and private. Indian tribes have historically suffered high rates of unemployment, and tribe members benefit from federal unemployment programs. Covering tribal employers fosters the full employment policy which, in part, motivated enactment of the ADEA. The text of the ADEA, particularly read together with Title VII, evinces a clear intent to cover Indian tribes. This Court should therefore decline the Housing Authority's invitation to hold that, unlike ERISA or OSHA, the ADEA does not apply to tribes, at least under the circumstances presented here. Rather, should it choose to reach the question, this Court should hold, consistent with the history and purpose of the statute, that the Housing Authority is covered by the ADEA. II. TRIBAL SOVEREIGN IMMUNITY DOES NOT APPLY TO THIS EEOC SUBPOENA ENFORCEMENT ACTION UNDER THE ADEA. Finally, the Housing Authority argues that even if it is covered by the ADEA, it is not subject to suits, including subpoena enforcement actions, by the Commission because there has been no waiver of its tribal sovereign immunity. Brief at 38-45. This argument should be rejected out of hand. Like any other tribal entity, Respondent is not immune from suit by agencies of the federal government. As support for its immunity argument, Respondent relies on cases stating, as a general proposition, that tribal entities are immune from private suits absent some clear indication that tribal immunity has been waived. See, e.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) (no implied federal cause of action against tribe or waiver of tribal immunity for equal protection challenge under Indian Civil Rights Act); Florida Paraplegic, 166 F.3d at 1134-35 (despite coverage of tribes, no private cause of action under Title III of ADA due to tribal immunity). These authorities are not relevant here. This action was brought by a federal agency -- the EEOC. Whether or not it is subject to suit by private parties, no tribe is immune from suit by the federal government. See, e.g., Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1459-60 (9th Cir. 1994) ("tribal sovereignty does not extend to prevent the federal government from exercising its superior sovereign powers"); United States v. Red Lake Band of Chippewa Indians, 827 F.2d 380, 383 (8th Cir. 1987) (sovereign immunity did not apply to suit by federal government to obtain records from tribe under Federal Records Act). The Housing Authority asserts, however, that, while it is not immune from suits by the United States, "this principle only applies when it is the sovereign itself that has instituted the suit," and "EEOC is not the United States." Brief at 45 n.25. Respondent cites no authority -- and there is none -- that supports this purported distinction. Although tribes have long been recognized as possessing common-law immunity from suit, this "aspect of tribal sovereignty, like all others, is subject to the superior and plenary control of Congress." Santa Clara Pueblo, 436 U.S. at 58. In passing the ADEA, Congress initially delegated enforcement authority for the ADEA to the Department of Labor. There can be no doubt that Indian tribes are not immune from suit by that agency, the plaintiff in suits including Coeur d'Alene and Department of Labor. Congress subsequently moved ADEA enforcement authority to the Commission. See Pub. L. No. 98-532, 98 Stat. 2705 (1984) (ratifying 1978 transfer of ADEA enforcement authority from Department of Labor to EEOC); see also Pan Am., 897 F.2d at 1505 n.3 (discussing transfer of authority). Thus, the Commission is the arm of the federal government charged with enforcing the ADEA against all employers including the Housing Authority. The Housing Authority asserts that it "is unaware of any principle which would find that Congress had explicitly waived immunity for an action brought by a federal agency but did not waive immunity for the same action brought by an individual." Brief at 45. The premise underlying this assertion is flawed. As noted above, Congress need not "explicitly waive[] immunity for an action brought by a federal agency." See, e.g., Mashantucket, 95 F.3d at 182 (rejecting argument that DOL enforcement action is barred absent "clear and unequivocal" waiver of tribal sovereign immunity).<13> Moreover, even if the Housing Authority is immune from private actions -- an issue this Court need not decide -- it would not be anomalous that it may be sued by the Commission. As the Housing Authority notes (Brief at 40-41), the Eleventh Circuit recently held that, whereas the federal government could sue the defendant tribe for violations of Title III of the ADA, Congress had not waived the tribe's immunity for private suits under that Act. See Florida Paraplegic, 166 F.3d at 1134-35. The Court reasoned that, in subjecting tribes to enforcement actions only by the federal government, Congress harmonized "the competing interests of allowing Indian tribes, sovereign yet subordinate dependent nations, to maintain their independence while, at the same time, requiring tribes to comply with the same rules that bind all other political subdivisions of the United States." Id. at 1135. In addition, only the Commission may sue a state for damages under the ADEA. See EEOC v. Wyoming, 460 U.S. 226 (1983) (state has no 10th Amendment immunity from EEOC enforcement action under the ADEA); Kimel v. Florida Bd. of Regents, 120 S. Ct. 631 (2000) (Congress has not waived states' 11th Amendment immunity from private ADEA suit for damages). United States v. James, 980 F.2d 1314, 1319 (9th Cir 1992), which Respondent also cites (Brief at 42-43) is not to the contrary. There, this Court held that the tribe was immune from a subpoena duces tecum issued on behalf of a private party. However, the tribe had already produced requested documents to the federal government.<14> There is thus no basis for Respondent's claim that it is immune from suit by the Commission. This Court should hold that the Housing Authority, like any other employer, is subject to the Commission's enforcement authority under the ADEA and, so, must comply with the Commission's administrative subpoena. CONCLUSION For the foregoing reasons, the Commission respectfully asks this Court to affirm the order of the district court enforcing the Commission's administrative subpoena. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4721 STATEMENT OF RELATED CASES The Commission is not aware of any related cases other than Sepulveda v. Phoenix Cement Co., No. 00-16358 (9th Cir.), cited by Respondent in its October 30, 2000, supplemental letter. As we understand it, both this case and Sepulveda potentially raise issues of coverage under the ADEA, although this Court need not reach the coverage question in this appeal from an order enforcing the Commission's administrative subpoena. Moreover, because Sepulveda is a private suit for damages, it may involve questions of tribal sovereign immunity which are not relevant here in light of the Commission's status as the federal agency designated by Congress to enforce the ADEA. _______________________________ Barbara L. Sloan CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule 32, I certify that the foregoing answering brief was prepared using Courier New (monospaced) font, 12 point, and contains 12,232 words, from the Statement of Jurisdiction through the Conclusion, as determined by the Corel Word Perfect 8 word counting program. ________________________ Barbara L. Sloan CERTIFICATE OF SERVICE I certify that two copies of the Commission's Brief as Appellee were sent this 29th day of November, 2000, by first class mail, postage prepaid, to the following counsel of record: Robert M. Liechty David Heisterkamp II WAGENLANDER & HEISTERKAMP, LLC 1700 Broadway, Suite 1202 Denver, CO 80290 ______________________________ Barbara L. Sloan ADDENDUM 1 For purposes of this appeal, we accept as true the facts cited by the district court. We have not independently assessed their accuracy, however, since there has been no investigation. 2 Similarly, advertisements for jobs with the Tribe have asserted that "EEOC" as well as "TERO" (a "Tribal Employment Rights Ordinance," or Indian preference) "would apply." See, e.g., R.13 (2d Grant Decl., Ex.A). 3 The court also mentioned a third exception - where "the application of the law to the tribe would abrogate rights guaranteed by Indian treaties." Order at 4. However, it is undisputed that no treaty is at issue in this case. 4 Although States and State agencies were initially exempted from the definition of employer, Congress amended the provision in 1974 to specify that they are covered. See 29 U.S.C. § 630(b) ("term also means . . . a State or political subdivision of a State and any agency or instrumentality of a State . . . ." 5 By contrast, if the Housing Authority were correct that statutes apply to tribes only where Congress so states, the exemption in Title VII would be "mere surplusage." It is well settled, however, that "[s]tatutes must be interpreted, if possible, to give each word some operative effect." See Neal v. Board of Trustees, 198 F.3d 763, 771 (9th Cir. 1999); see also Walters v. Metropolitan Educ. Enterp., 519 U.S. 202, 208 (1997) (same, discussing Title VII definition of "employer"). 6 Respondent suggests that the Seventh Circuit read in an exemption for tribes in holding that tribal law enforcement officers are exempt under the FLSA. See Brief at 20-22 (citing Great Lakes, 4 F.3d 490). On the contrary, the Court acknowledged that the FLSA generally applies to tribes, but it extended the explicit exemption for state law enforcement officers to their tribal counterparts, based on their comparable "governmental character." 4 F.3d at 495. By extension to this case, since state maintenance employees are not exempt under the ADEA, their tribal counterparts should not be either. 7 The Housing Authority also states that, due to this "rationale," Coeur d'Alene is "in line with all the other circuits." Brief at 27. This reflects the Housing Authority's contradictory positions regarding this Court's precedents vis a vis those of the Eighth and Tenth Circuits. On the one hand, the Housing Authority asserts that they all agree. On the other hand, the Housing Authority recommends, as here, for example, that this Court "clarify" its case law to align it with precedent in other circuits, which the Housing Authority describes as the "majority" view. Brief at 37. We acknowledge that decisions from the Eighth and Tenth Circuits reject the Tuscarora rule, and thus conflict with this Court's approach. See, e.g., Brief at 26 (suggesting that Tenth Circuit applies clear intent standard for tribes). This is not the "majority" view, however, since the Second, Seventh and Eleventh Circuits agree with this Court. 8 Accord Department of Labor v. Occupational Safety & Health Rev. Comm'n, 935 F.2d 182, 184 (9th Cir. 1991) (tribe-owned sawmill which processed timber from reservation land into products sold on open market); Lumber Indus. Pension Fund v. Warm Springs Forest Prods. Indus., 939 F.2d 683, 685 (9th Cir. 1991) (same); cf. United States v. Funmaker,10 F.3d 1327, 1331 (7th Cir. 1993) (suggesting that exception does not apply when activity involves interstate commerce). But see Fond du Lac, 868 F.2d at 249 (tribe-owned construction company falls into self-governance exception). 9 See also Mashantucket, 95 F.3d at 181 (exception does not apply to on-reservation construction company constructing not only roads and tribal housing but also casino open to non-tribe members and employing some non-tribe members); but cf. Cherokee Nation, 871 F.2d at 939-42 (ADEA does not apply to director of tribal health center where treaty permitted tribe to exclude non-tribe members). 10 The Housing Authority blends tribe members and other Native Americans into one category called "Indians." See, e.g., Brief at 3 (Authority employs twenty "Indians"), 5 (most of the housing units were occupied by "Indians"). In the self-governance context, however, the relevant distinction is between tribe and non-tribe members. See Duro v. Reina, 495 U.S. 676, 686-87, 695 (1990) (noting that for "most practical purposes," Native Americans who are not tribe members "stand on the same footing as non-Indians;" adding that "tribes are not mere fungible groups of homogenous persons among whom any Indian would feel at home"). 11 Respondent questions whether the list of intramural activities in Coeur d'Alene -- "conditions of tribal membership, inheritance, and domestic relations" -- should be considered exclusive. Brief at 31-43. We agree that they are illustrative. Compare Bugenig v. Hoopa Valley Tribe, 229 F.3d 1210, 1220 (9th Cir. 2000) (noting, in context of tribe's attempted assertion of jurisdiction over non-tribe member, that self-governance exception "authorizes a tribe to do such things as punish tribe members, regulate their domestic relations and promulgate rules regarding tribal members or inheritance within the tribe"). However, the employment relationship between Respondent and a maintenance supervisor is not analogous to these matters. 12 For example, Respondent cites Penobscot Nation v. Fellencer, 164 F.3d 706, 712-13 (1st Cir.), cert. denied, 527 U.S. 1022 (1999); and Wardle v. Ute Indian Tribe, 623 F.2d 670 (10th Cir. 1980). Brief at 18-20, 22-23. Fellencer, a race discrimination claim brought by a non-tribe member, involved a state law claim to which neither the Tuscarora nor the Coeur d'Alene analysis applies; in addition, the job at issue was funded by a federal statute that specifically encouraged the hiring of tribe members. As for Wardle, it also involved a race claim, albeit under § 1981, and a tribe's decision to prefer a tribe member. Without explanation, the Tenth Circuit did not apply Tuscarora; that Court later "questioned the continuing vitality" of the rule. See Cherokee Nation, 871 F.2d at 938 n.3. 13 On the other hand, we agree with Respondent that the district court's analysis -- which seems to mix tribal sovereignty, as addressed in the self-governance exception, with tribal sovereign immunity -- is confusing. See Brief at 35, 39-40; Order at 8-9. As noted above, "tribal sovereign immunity" is simply not an issue where, as here and in Coeur d'Alene, the suit was brought by a federal agency acting pursuant to an explicit congressional delegation of authority. There was thus no need for the Coeur d'Alene Court to consider "tribal sovereign immunity." 14 The Housing Authority asserts that "age-discrimination suits are almost always brought as private actions, and not as actions pursued by the EEOC," adding that the "Act itself contemplates that private persons, not the EEOC, will initiate the proceedings." Brief at 45 & n.24. On the contrary, although the statute also provides a private remedy under § 626(c)(1), Congress intended that the Commission play the "dominant role" in enforcing the ADEA and, so, gave the Commission broad independent investigative and enforcement authority in §§ 626(a) & (b). See Pan Am., 897 F.2d at 1505 (noting, for example, that private party's right to sue terminates "upon commencement of an [EEOC] action"). Cf. Tire Kingdom, 80 F.3d at 451 (noting that EEOC has independent investigation and litigation authority under ADEA and does not even need a valid charge); EEOC v. American & Efird Mills, 964 F.2d 300, 303 (4th Cir. 1992) (same).