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 Companya
company that mines coal on the Navajo reservation under leases with the Navajo
Nationviolated 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 Peabodyand 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 hereentered into with the Navajo Nation in 1964
and 1966 and known, respectively, as the 8580 and 9910 Leaseswere 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 Peabodyand only against
Peabodythat 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
premisethat the Nation cannot be joined because EEOC seeks affirmative relief
against itdismissal 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 conclusiona position never advanced by the Nationis
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 Courtunchanged by the Amended
Complaintthat 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
premisethat the Nation cannot be joined because EEOC seeks affirmative relief
against itconflicts 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 perioda little over half what the Commission sought
initiallydid 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,
adequateindeed completerelief can be rendered without the Secretary.  See supra
at 37-38.  In sum, consideration in "equity and good conscience" can lead to only one
conclusionthe 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

***********************************************************************
<<FOOTNOTES>>

<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 VIIs 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. Dept 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 tribes 
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 SOIs 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 complaints 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 courts 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 VIIs 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 VIIs 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 Nations explicit concession contradicts the district courts 
finding, discussed supra, that EEOCs Amended Complaint seeks affirmative relief against 
the Nation.  The Nations motion to dismiss for failure to state a claim did not mention 
the Rehabilitation Act.

<16> Peabody admitted in answers to EEOCs 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 Nations attempt to recover monetary damages for the SOIs alleged failure to 
protect the Nations 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 Nations 
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 partys 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 Secretarys 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 EEOCs 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 
tribes 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 Peabodys 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.