Michael L. McCoy v.  Salt River Pima-Maricopa Indian Community/Phoenix Cement
Company
 00-16389

 IN THE UNITED STATES COURT OF APPEALS
 FOR THE NINTH CIRCUIT

 No. 00-16389

 MICHAEL L. McCOY, et al.,

  Plaintiffs-Appellees,

 v.

 SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY/PHOENIX CEMENT COMPANY DIVISION,
 et al.,

  Defendants-Appellants.

 On Appeal from the United States District Court
 for the District of Arizona

 BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS
 AMICUS CURIAE IN SUPPORT OF THE PLAINTIFFS-APPELLEES

         GWENDOLYN YOUNG REAMS
         Associate General Counsel

         PHILIP B. SKLOVER
         Associate General Counsel

         LORRAINE C. DAVIS
         Assistant General Counsel

         ROBERT J. GREGORY
         Senior Attorney

         EQUAL EMPLOYMENT OPPORTUNITY
            COMMISSION
         1801 L Street, N.W.
         Washington, D.C. 20507
         (202) 663-4059

 STATEMENT OF INTEREST

  The Equal Employment Opportunity Commission ("Commission") is  the
  agency entrusted with the enforcement of Title VII of the Civil Rights
  Act of 1964, 42 U.S.C.  2000e et seq. ("Title VII"), and other federal
  anti-discrimination statutes.  In this case, the Defendants moved for
  summary judgment, invoking the doctrine of tribal sovereign immunity to
  bar the Plaintiffs' claims of employment discrimination brought under,
  inter alia, Title VII.  The district court denied summary judgment with
  respect to Phoenix Cement Company Division ("PCC"), holding that PCC
  was not immune from suit under Title VII.  The Defendants have appealed
  the district court's immunity ruling to this Court.
  This case raises important issues concerning the tribal sovereign
  immunity doctrine, which the Defendants have invoked to bar suit
  under Title VII.  The case, at least indirectly, also raises issues
  of statutory coverage under Title VII.  The Commission, moreover, has
  a direct interest in this case because, in rejecting the Defendants'
  sovereign immunity argument, the district court relied heavily upon a
  1996 Commission Decision, which involved a Title VII charge brought
  against PCC.  To assist this Court in resolving the important legal
  issues raised by this appeal, the Commission, pursuant to F.R.A.P. 29(a),
  offers its views to the Court.

 STATEMENT OF THE ISSUES

  1.  Whether tribal sovereign immunity extends to separate business
  enterprises established or owned by an Indian tribe and, if so,
  whether such immunity extends only to those enterprises that qualify
  as subordinate economic organizations of the tribe.
  2.  Whether the district court properly denied summary judgment on the
  immunity issue, based on the limited factual record before the court.
  3.  Whether the 1996 Commission Decision addresses the issue of tribal
  sovereign immunity and, if not, whether the Decision nonetheless supports
  a finding of statutory coverage under Title VII.

 STATEMENT OF THE CASE

  The Salt River Pima-Maricopa Indian Community ("Community") is a
  federally-recognized Indian tribe.  Defendants' Statement of Facts
  ("DSOF") 1.  In 1987, the Community purchased PCC, an off-reservation
  company.  Id. 2.  At the time, the Community's Tribal Council stated
  that PCC was purchased to "preserve and promote the economy of the
  Tribe . . . and permit the development of additional employment and
  industrial opportunities on the reservation."  Plaintiffs' Separate
  Statement of Facts ("PSSOF") Exh. 2.  PCC primarily manufactures and
  sells cement and building products.  Id.  PCC operates some 100 miles
  off-reservation; only 5% of its employees are Native Americans.  Id.
  Although the Community is the sole owner of PCC and its assets and
  approves all financial transactions for the company, Defendants'
  Supplemental Statement of Facts ("DSSOF") 13,15, management of the
  company is entrusted to a Board of Directors, whose members are chosen by
  (and serve at the pleasure of) the Community.  DSOF 3.
  The parties dispute several key facts bearing on the immunity question.
  The Plaintiffs' facts show that PCC is an Arizona corporation with a
  registered office located outside the reservation.  PSSOF Exh. 2.<1>
  According to the Plaintiffs' evidence, there is no requirement that
  members of the Board of Directors be members of the Community.  Id.
  Indeed, there is evidence that, at times, a majority of Board members
  have not been members of the Community.  Id.  There is also evidence that
  PCC is managed, as to its daily operations, by a non-Native American.
  Id.
  The Defendants claim that PCC "is not a separate entity" and that the
  "Community is the sole employer of all [PCC] employees."  DSSOF 13-14.
  As support for this assertion, the Defendants cite the fact that
  "[t]here is one federal tax I.D. number for all Community departments
  and divisions."  DSSOF 15.  The Defendants' evidence shows that PCC's
  Board of Directors is comprised of seven individuals, that the current
  Board chairman is the President of the Community, that one other Board
  member is a member of the Tribal Council, and that three other Board
  members are members of the Community.  DSSOF 16.  The Defendants also
  point to evidence that the President of PCC is Roger Smith, a member
  of the Community.  Roger Smith Aff. 1.
  In denying the Defendants' motion for summary judgment, the district
  court relied on a 1996 Commission Decision, which was issued on a charge
  of discrimination filed against PCC.  In that Decision, the Commission
  concluded that PCC did not constitute "an Indian tribe" as that term
  is used in Title VII, which exempts "an Indian tribe" from the Act's
  definition of "employer."  42 U.S.C.  2000e(b)(1).  The district
  court read the Decision as concluding that PCC "was not immune from
  suit."  Order (July 6, 2000) at 5-6.  The court disagreed with the
  Plaintiffs' argument that the Commission's Decision was "binding on
  [the] Court under the doctrine of res judicata" but agreed that the
  Commission had "correctly interpreted [Title VII's] exemption for
  Indian tribes."  Id. at 6.  The court saw "no reason to distinguish
  between the meaning of 'Indian tribe' for purposes of [Title VII]
  . . . [and] the judicially-created doctrine of sovereign immunity."
  Id. at 7.  The court took note of the Defendants' contention that PCC
  "is both integrated with and controlled by an Indian tribe" but found
  that the Defendants "have not persuaded the Court (or even argued)"
  that "the purpose of the Company is to perform a governmental, as
  compared to a purely business or commercial, function."  Id. at 7-8.
  The court concluded that, "[i]n the absence of evidence that [PCC]
  has a governmental purpose, this Court finds that the purposes of the
  doctrine of sovereign immunity . . . would not be served by extending
  immunity to [PCC]."  Id. at 8.

 ARGUMENT

  This case raises important issues concerning the applicability of federal
  anti-discrimination statutes, such as Title VII, to tribal business
  enterprises.  At the outset, we express our disagreement with the way in
  which the Defendants frame the issues on appeal.  In their brief, the
  Defendants argue that summary judgment was proper in this case because
  "Congress has exempted Indian tribes from coverage under Title VII."
  Appellants' Br. at 8.  The district court, however, did not rule on the
  issue of statutory coverage.<2>  The district court ruled on the issue
  of sovereign immunity, holding that PCC was not immune from suit under
  Title VII.  As explained more thoroughly below (see infra pp. 21-30),
  the immunity and coverage standards are not the same.  A tribal business
  may be immune from private suit under Title VII.  That same business,
  however, may fall within the reach of Title VII.  In keeping with the
  way in which this case was actually decided by the district court,
  our brief focuses principally on the issue of sovereign immunity.
  We address the coverage issue, near the end of our brief, because it
  is the subject of the 1996 Commission Decision on which the district
  court relied in denying the Defendants' motion for summary judgment.<3>
  We also disagree with what appears to be the central premise of the
  Defendants' appellate brief -- that the facts pertinent to the immunity
  issue are "uncontroverted."  Appellants' Br. at 5.  The Defendants have
  set forth one version of the facts.  The Defendants' version suggests
  that PCC is not a separate entity and that the Community exercises
  complete and total control over the operations of PCC.  The Plaintiffs
  dispute this version of the facts.  Specifically, they rely upon a
  1996 Commission Decision, which portrays the interrelationship between
  the Community and PCC in an entirely different light.  The Commission
  Decision was made a part of the district court record and is incorporated
  into several paragraphs of the Plaintiffs' Separate Statement of Facts.
  The Defendants' assertion that the Commission Decision is "based upon
  mistakes of fact" (Appellants' Br. at 14) begs the issue. Whether the
  facts are as claimed by the Defendants or as documented in the 1996
  Commission Decision is an unresolved issue in this case.

 I. TRIBAL SOVEREIGN IMMUNITY EXTENDS TO AN INDIAN TRIBE, ITS
  GOVERNMENTAL AUTHORITIES AND AGENCIES, AND THOSE TRIBAL  BUSINESSES
  THAT QUALIFY AS SUBORDINATE ECONOMIC   ORGANIZATIONS OF THE TRIBE.

  "Indian tribes have long been recognized as possessing the common-law
  immunity from suit traditionally enjoyed by sovereign powers."  Santa
  Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978).  "As a matter of
  federal law," an Indian tribe "possesses immunity from suit unless
  Congress has abrogated that immunity or the tribe has waived it."
  Big Horn County Elec. Cooperative, Inc. v. Adams, 219 F.3d 944,
  954 (9th Cir. 2000); see, e.g., Three Affiliated Tribes of the
  Fort Berthold Reservation v. Wold Eng'g, 476 U.S. 877, 890 (1986);
  Santa Clara Pueblo, 436 U.S. at 58; United States v. United States
  Fidelity & Guaranty Co., 309 U.S. 506, 512 (1940).  "It is settled that
  [an abrogation] of sovereign immunity 'cannot be implied but must be
  unequivocally expressed.'" Santa Clara Pueblo, 436 U.S. at 58.  In the
  absence of abrogation or waiver, an Indian tribe is immune from suit
  under federal, as well as state, law.  See, e.g., id. at 58-59 (immune
  from suit under the Indian Civil Rights Act); Bassett v. Mashantucket
  Pequot Tribe, 204 F.3d 343, 356-58 (2d Cir. 2000) (immune from suit
  under the Copyright Act); Florida v. Seminole Tribe of Florida, 181
  F.3d 1237, 1241-45 (11th Cir. 1999) (immune from suit under the Indian
  Gaming Regulatory Act); Florida Paraplegic Ass'n, Inc. v. Miccosukee
  Tribe of Indians of Florida, 166 F.3d 1126, 1130-34 (11th Cir. 1999)
  (immune from suit under Title III of the Americans with Disabilities
  Act); Ute Distrib. Corp. v. Ute Indian Tribe, 149 F.3d 1260, 1263-69
  (10th Cir. 1998) (immune from suit under the Ute Partition Act);
  Dillon v. Yankton Sioux Tribe Housing Auth., 144 F.3d 581, 582-84
  (8th Cir. 1998) (immune from suit under various federal civil rights
  statutes); In re Greene, 980 F.2d 590, 593-98 (9th Cir. 1992) (immune
  from suit under the Bankruptcy Code); E.F.W. & A.T.B. v. St. Stephen's
  Mission Indian High School, 51 F. Supp. 2d 1217, 1227-28 (D. Wyoming
  1999) (immune from suit under federal civil rights statutes); James
  Joseph Morrison Consultants, Inc. v. The Sault Ste. Marie Tribe of
  Chippewa Indians, 1998 WL 1031492, **2-4 (W.D. Mich. Aug. 6, 1998)
  (immune from suit under RICO).
      The Supreme Court recently addressed the tribal sovereign immunity
      doctrine in Kiowa Tribe of Oklahoma v. Manufacturing Techs., Inc.,
      523 U.S. 751 (1998).  Kiowa Tribe involved a state law claim
      brought against an Indian tribe for defaulting on a promissory
      note, which had been executed and delivered to an off-reservation
      non-tribal corporation.  Id. at 753-54.  The tribe's industrial
      development commission had negotiated the note, but the tribe itself
      had defaulted on the note; thus, the tribe itself was the named
      defendant in the suit.  Id.  The Supreme Court clarified that tribal
      sovereign immunity is a doctrine of federal common law.  Id. at
      754-59.  Although asked to confine the doctrine to "reservations
      or to noncommercial activities," the Court refused to do so.
      Id. at 758.  The Court ruled that "[t]ribes enjoy immunity from
      suits on contracts, whether those contracts involve governmental
      or commercial activities and whether they were made on or off a
      reservation."  Id. at 760.
  Kiowa Tribe reaffirms the principle that an Indian tribe qua tribe enjoys
  broad immunity from suit.  Although not addressed in Kiowa Tribe, it is
  also clear that the immunity doctrine has implications for other tribal
  entities.  Many Indian tribes establish authorities or agencies to carry
  out the tribes' governmental functions.   These tribal instrumentalities
  are immune from suit to the same extent as the tribe itself.  See, e.g.,
  Ninigret Development Corp. v. Narrangansett Indian Wetuomuck Housing
  Auth., 207 F.3d 21, 29 (1st Cir. 2000) (tribal housing authority, "as
  an arm of the Tribe"); Hagen v. Sisseton-Wahpeton Community College,
  205 F.3d 1040, 1043 (8th Cir. 2000) (community college "chartered,
  funded, and controlled by the Tribe to provide education to tribal
  members on Indian land"); Pink v. Modoc Indian Health Project, Inc.,
  157 F.3d 1185, 1188-89 (9th Cir. 1998) (nonprofit health corporation
  created and controlled by Indian tribes, serving "as an arm of the
  sovereign tribes"), cert. denied, 528 U.S. 877 (1999); Pit River Home &
  Agric. Coop. Ass'n v. United States, 30 F.3d 1088, 1100 (9th Cir. 1994)
  ("federally recognized governing body" of the tribe); Weeks Constr.,
  Inc. v. Oglala Sioux Housing Auth., 797 F.2d 668, 670 (8th Cir. 1986)
  ("a housing authority, established by a tribal council pursuant to its
  powers of self-government").
  Sovereign immunity also extends, in some cases, to business enterprises
  established by an Indian tribe.  Tribal businesses "have no inherent
  immunity of their own."  Trudgeon v. Fantasy Springs Casino,
  84 Cal. Rptr. 2d 65, 69 (Cal. Ct. App. 1999).  They do, however,
  enjoy immunity "to the extent the immunity of the tribe, which does
  have inherent immunity, is extended to them."  Id.  In appropriate
  circumstances, sovereign immunity can be extended to businesses
  established for the benefit of the tribe.  See, e.g., In re Greene,
  980 F.2d at 592-98; World Touch Gaming, Inc. v. Massena Mgmt., LLC,
  117 F. Supp. 2d 271, 275 (N.D.N.Y. 2000); James Joseph Morrison
  Consultants, Inc., 1998 WL 1031492, at *2; Trudgeon, 84 Cal. Rptr. at
  67-72; Burnham v. Pequot Pharmaceutical Network, 1998 WL 345463, **3-4
  (Conn. Super. Ct. June 19, 1998); Gavle v. Little Six, Inc., 555 N.W.2d
  284, 292-96 (Minn. 1996); S. Unique, Ltd. v. Gila River Pima-Maricopa
  Indian Cmty., 674 P.2d 1376, 1382 (Ariz. Ct. App. 1983).
  Courts have formulated standards for determining when a tribal business
  can legitimately claim the protection of tribal sovereign immunity.
  The most common formulation is the "subordinate economic organization"
  test.  Under that test, a tribal business or enterprise is entitled to
  immunity if it qualifies as a "subordinate economic organization" of
  the tribe.  This Court has cited with favor to this test.  See In re
  Greene, 980 F.2d at 593.  A number of state courts have also applied
  variations of this test in ruling on the immunity question.  See, e.g.,
  Trudgeon, 84 Cal. Rptr. at 68-72; Gavle, 555 N.W.2d at 292-96; Wippert
  v. Blackfeet Tribe of the Blackfeet Indian Reservation, 859 P.2d 420,
  426-28 (Mont. 1993); Seminole Police Dep't v. Casadella, 478 So. 2d 470,
  471 (Fla. Dist. Ct. App. 1985); S. Unique, Ltd., 674 P.2d at 1379;
  White Mountain Apache Indian Tribe v. Shelley, 480 P.2d 654, 655-57
  (Ariz. 1971).
  A lead authority in this area of the law is Dixon v. Picopa Constr. Co.,
  772 P.2d 1104 (Ariz. 1989).  Dixon involved a tort action against
  the Picopa Construction Co., "a corporation formed under the laws of
  the Salt River Pima-Maricopa Indian Community" (the same Indian tribe
  involved in this case).  Id. at 1105.  The construction company invoked
  sovereign immunity.  The Arizona Supreme Court held that the company did
  not qualify as a "subordinate economic organization" of the tribe and,
  thus, was not immune from suit.  Id. at 1116.
  In reaching this conclusion, the court cited three factors.  First,
  the court stressed that the construction company had a separate
  governing structure and an independent legal identity.  The court
  noted that the company had "a board of directors, separate from the
  tribal government, which exercise[d] full managerial control over the
  corporation."  Id. at 1109.  The tribe was the sole shareholder of the
  company and, in that capacity, selected the board members.  Id. at 1107.
  The company's charter, however, did "not require that either board
  members or corporate officers be selected from among [tribal] officers
  or even members."  Id. at 1108.  The company was separately incorporated
  and held "title to any acquired property in its own name."  Id. at 1108,
  1111 (stressing that the tribe had created "an artificial individual,
  a corporation, and charged it with all the power to act 'to the same
  extent as natural persons'").
  The second factor cited by the court was that the construction company
  "was not formed to aid the [tribe] in carrying out tribal governmental
  functions."  Id. at 1110.  The company's charter defined the company
  "as an organization established for general business purposes."
  Id. at 1107.  So far as the evidence showed, the company "was simply a
  for-profit corporation involved in construction projects."  Id. at 1110.
  There was no evidence that the company "had limited itself to tribal
  projects."  Id.  There was no evidence that the company "was intended to
  act or did act as an extension of tribal government."  Id. at 1111.
  Finally, the court concluded that extending immunity to the construction
  company would not further "the federal policies behind the immunity
  doctrine."  Id.  The court found that "extending immunity to [the
  construction company] would not further the federal policy seeking to
  protect tribal assets" because the tribe had taken out an insurance
  policy to protect the company's "corporate liability" and the company's
  charter "exonerate[d] the [tribe] from corporate liability."  Id.  Nor,
  in the court's view, was the tribe's "self-determination imperiled by
  [the court's] assertion of jurisdiction."  Id.  The incident giving rise
  to the tort action occurred off-reservation, without involvement by the
  tribe or one of its governing authorities.  Id. at 1112.  Holding the
  company accountable for its conduct did not "in any fashion limit the
  [tribe's] powers nor the manner in which it exercise[d] those powers."
  Id.
  We believe that the "subordinate economic organization" test, as applied
  in Dixon (and like cases), provides a workable framework for resolving
  claims of tribal sovereign immunity advanced by business entities
  established or owned by an Indian tribe.  Some tribal businesses are
  sufficiently linked to the tribe itself to merit the protection of the
  immunity doctrine.  Such enterprises may be established for the very
  purpose of carrying out projects on the reservation for the benefit of
  the tribe.  See, e.g., White Mountain Apache Indian Tribe, 480 P.2d at
  655-57 (tribal timber company organized for the purpose of cultivating
  the tribe's on-reservation timber resources).  Or, they may have a
  broader economic mission but one that is closely integrated with the
  tribe's ability to "'raise revenues and provide employment for [its]
  members.'" Trudgeon, 84 Cal. Rptr. at 69-70 (on-reservation gaming
  casino "created for the specific purpose of improving the financial
  and general welfare of the tribe" and "owned wholly by the tribe as
  a governmental unit, rather than being organized under the laws of the
  state").  In other cases, the connection between the tribe and the tribal
  business may be more attenuated.  The "subordinate economic organization
  doctrine allows Indian tribes to conduct their economic affairs through
  subordinate governmental agencies without fear of an unintended waiver
  of immunity."  Dixon, 772 P.2d at 1109.  The doctrine also ensures,
  however, that a business, not closely integrated with the tribe in
  purpose or structure, cannot unfairly immunize itself from suit.
  It might be argued that at least one of the factors applied under
  the "subordinate economic organization" test -- whether the purpose
  of the tribal business entity is commercial or governmental -- has
  been superseded by the Supreme Court's decision in Kiowa Tribe, which
  makes clear that "[t]ribes enjoy immunity from suits" regardless of
  whether the underlying activities are "governmental or commercial."
  523 U.S. at 760.  We agree with the district court, however, that the
  governmental/commercial distinction retains at least some significance
  in cases involving tribal business entities.  Order (July 6, 2000) at
  7 n.2.  Kiowa Tribe involved a law suit against an Indian tribe, not an
  entity established by the tribe.  The tribe itself had defaulted on the
  promissory note giving rise to the law suit.  "Because Kiowa involved
  liability of a tribe and not a tribal business entity, the court did
  not consider the possible relevance of the governmental/commercial
  distinction in determining the liability of tribal entities."  Trudgeon,
  84 Cal. Rptr. at 69.  Tribes enjoy inherent immunity; tribal businesses
  are immune only if a tribe's immunity is extended to them.  "In view
  of that fact, it is possible to imagine situations in which a tribal
  entity may engage in activities which are so far removed from tribal
  interests that it no longer can legitimately be seen as an extension
  of the tribe itself" and, thus, cannot claim immunity, "notwithstanding
  the fact it is organized and owned by the tribe."  Id.
  Prior to Kiowa Tribe, it was well-established that the sovereign immunity
  of the tribe itself extended to disputes arising from commercial
  "enterprises and transactions."  E.g., Maryland Cas. Co. v. Citizens
  Nat'l Bank of West Hollywood, 361 F.2d 517,  521 (5th Cir. 1966)
  (describing as "not material" the fact that the tribe "was engaged
  in an enterprise private or commercial in character, rather than
  governmental").  Kiowa Tribe merely reaffirmed this longstanding
  principle in the face of arguments that the Court should restrict
  the doctrine to the tribe's on-reservation, governmental activities.
  The decision did not undermine the established framework for determining
  when the immunity of a tribe can be properly extended to those business
  entities established by the tribe.
  Significantly, this view is consistent with the position taken by the
  United States, as amicus curiae, in Kiowa Tribe.  The United States
  filed a brief in support of the tribe's petition for certiorari.
  In that brief, the United States noted that a then pending petition for
  certiorari in Gavle v. Little Six, Inc., No. 96-1215 (filed Jan. 29,
  1997) "presents similar questions concerning the immunity of a business
  corporation owned by a Tribe and organized under tribal law."  Brief for
  the United States (June 1997) at 19 n.8.  The United States suggested
  that because the "interposition of a corporate entity in No. 96-1215
  somewhat complicates the immunity issue in that case," Kiowa Tribe
  "appears to be the better vehicle for resolution of the conflict among
  the state and federal courts on the immunity question."  Id.
  After the Supreme Court granted certiorari in Kiowa Tribe, the United
  States filed an amicus brief on the merits.  In that brief, the United
  States argued for a broad immunity doctrine with respect to an Indian
  tribe's commercial dealings.  The United States, however, stressed
  that the "promissory note on which respondent sued was signed in the
  name of the Tribe itself, and it specifically reserved the Tribe's
  'sovereign rights.'"  Brief for the United States (Aug. 25, 1997) at 18
  (1997 WL 523859).  The United States acknowledged that "certain tribal
  entities specially chartered to engage in commercial activities may be
  subject to suit in some cases."  Id.

 II.  THERE ARE GENUINE ISSUES OF MATERIAL FACT PRECLUDING SUMMARY JUDGMENT
 ON THE IMMUNITY QUESTION.

  For the foregoing reasons, we believe that, in cases of this nature,
  the immunity analysis turns on an intensely fact-specific inquiry --
  whether the entity claiming the protection of the immunity doctrine,
  in this case PCC, is a "subordinate economic organization" of an Indian
  tribe.  In ruling on this issue at the summary judgment stage, a court
  must construe the evidence in a light most favorable to the non-moving
  party.  See McDade v. West, 223 F.3d 1135, 1139 (9th Cir. 2000) (in
  reviewing summary judgment disposition, the "appellate court must view
  the evidence in the light most favorable to the plaintiff and determine
  whether there are any disputed issues of material fact").
  In several key respects, the facts, as put forth by the Plaintiffs,
  closely parallel the facts in the Dixon case, discussed above.  First,
  there is evidence that PCC has a separate governing structure and an
  independent legal identity.  PCC is not a mere functionary of the tribe;
  it is not even a corporation established by the tribe itself.  It is
  an Arizona corporation that the tribe purchased in 1987.  As with the
  construction company in Dixon, PCC is overseen by a Board of Directors,
  with no apparent requirement that the members of the Board be members
  of the Community.  In practice, PCC is managed, on a day-to-day basis,
  by a non-Native American.
  The Plaintiffs' evidence also suggests that PCC was not "formed to aid
  the Community in carrying out tribal governmental functions."  Dixon,
  772 P.2d at 1110.  PCC is a for-profit corporation that performs work
  100 miles outside the reservation.  Unlike some tribal businesses,
  which provide a much-needed source of jobs for tribal members, only 5%
  of PCC's workforce consists of members of the Community.
  Finally, "the federal policies behind the immunity doctrine" do
  not appear to be implicated in this case, accepting the Plaintiffs'
  evidence as true.  Id. at 1111.  PCC is an Arizona corporation and
  presumably exposed to liability only to the extent of its own assets
  (as opposed to the Community's).  The incidents giving rise to this suit
  arose off-reservation; the Plaintiffs are not members of the Community.
  Holding PCC accountable for its actions does not "limit the Community's
  powers nor the manner in which it exercises those powers."  Id. at 1112.
  The Defendants are not without their factual rejoinders.  The Defendants
  claim that PCC is not a separate entity and that its employees are
  employees of the Community.  The Defendants point out that the Community
  is the sole owner of PCC, that the Community approves all financial
  transactions for PCC, and that members of PCC's Board of Directors are
  chosen by (and serve at the pleasure of) the Community.  The Defendants
  claim that the majority of current Board members are members of the
  Community, that the Board Chairman is President of the Community, and
  that the President of PCC is a Community member.  There is also evidence
  that, in purchasing PCC, the Community's Tribal Council stated that PCC
  was purchased to "preserve and promote the economy of the Tribe."<4>
  On balance, we believe that the evidence mitigates against the grant
  of summary judgment at this stage of the case.  The evidence does
  not compel a finding, as a matter of law, that PCC is the type of
  tribal enterprise so closely integrated with the tribe itself that it
  qualifies as a "subordinate economic organization" of the Community.
  Instead, construed in the light most favorable to the Plaintiffs, it
  supports a finding that PCC, in its organization, purpose, and conduct,
  is attenuated from the Community itself.  Further factual development
  might reveal that PCC is not a separate legal entity.  It might
  reveal that the revenues generated by PCC are vital to the Community's
  "'[s]elf-determination and economic development,'" making PCC's purpose
  more governmental than commercial.  Trudgeon, 84 Cal. Rptr. 2d at 70.
  On the current record, however, we believe that the district court
  properly denied the Defendants' motion for summary judgment.

 III. THE 1996 COMMISSION DECISION DOES NOT ADDRESS THE ISSUE OF  SOVEREIGN
 IMMUNITY BUT DOES PROVIDE SUPPORT FOR STATUTORY  COVERAGE IN THIS CASE,
 AS DO THE DECISIONS OF THIS COURT.

  Although we agree that the district court properly denied summary
  judgment in this case, we feel compelled to respond to the issues raised
  by the 1996 Commission Decision.  In denying the Defendants' motion
  for summary judgment, the district court relied heavily on the fact
  that in a 1996 Decision on a charge filed against PCC, the Commission
  concluded that PCC was a covered employer under Title VII because it
  did not fall within the statutory exemption for "an Indian tribe."  The
  district court construed this Decision as concluding that PCC "was not
  immune from suit."  Order (July 6, 2000) at 5.  The district court found
  no reason to distinguish between what it described as "the meaning of
  'Indian tribe' for purposes of establishing immunity under Title VII" and
  "the judicially-created doctrine of sovereign immunity."  Id. at 7.
  The district court has misread the Commission Decision.  The Commission
  Decision was not addressing the issue of sovereign immunity.
  The Decision was addressing the issue of statutory coverage under
  Title VII.  In its Decision, the Commission cited  a number of
  cases applying federal statutes of general applicability to tribally
  owned businesses.  Commission Decision (April 10, 1996) at 4 n.6.
  These cases all involved the issue of statutory coverage, not immunity.
  The Commission determined that the term "Indian tribe," as used in the
  exemption provision of Title VII's definition of "employer," means "an
  entity that possesses the traits of sovereignty and territoriality."
  Id. at 3. The Commission relied, in part, on a textual analysis, noting
  that, while Title VII's definition of employer exempts the "United
  States" and "a corporation wholly owned by the Government of the United
  States," the definition does not exempt a "corporation" owned by an
  Indian tribe; only the "Indian tribe" itself is exempt.  Id. at 2 n.2;
  see 42 U.S.C.  2000e(b).  The Commission also drew support from the
  evidence of Congress' purpose in including the Indian tribe exemption
  in Title VII.  Clearly, the Commission's focus was on the interpretive
  issues raised by the Indian tribe exemption in Title VII, not on the
  discrete question of sovereign immunity.
  At first glance, it may appear that the immunity and coverage
  determinations must go hand-in-hand.  This, however, is not the
  case.  Tribal sovereign immunity is a federal common law doctrine.
  Immunity applies regardless of whether a statute covers an Indian
  tribe, unless, in covering tribes, Congress has "'unequivocally
  expressed'" an intent to abrogate immunity.  Santa Clara Pueblo,
  436 U.S. at 58.  Statutory coverage is determined on the basis of
  principles of statutory interpretation.  The coverage determination is
  made without regard to the standards for tribal sovereign immunity.
  See id. at 58-59 (sovereign immunity barred suit against an Indian
  tribe even though the federal Act in question concededly "modifie[d]
  the substantive law applicable to the tribe").     This distinction is
  not simply academic.  Tribal sovereign immunity, when it applies, bars
  a suit by a private individual, private company, or state government.
  It does not, however, bar an action by the federal government.  That is
  so because "tribal sovereignty does not extend to prevent the federal
  government from exercising its superior sovereign powers."  Quileute
  Indian Tribe v. Babbit, 18 F.3d 1456, 1459-60 (9th Cir. 1994); see also
  United States v. Red Lake Band of Chippewa Indians, 827 F.2d 380, 382
  (8th Cir. 1987) ("it is an inherent implication of the superior power
  exercised by the United States over the Indian tribes that a tribe may
  not interpose its sovereign immunity against the United States"); United
  States v. White Mountain Apache Tribe, 784 F.2d 917, 920 (9th Cir. 1986)
  (the "Tribe's own sovereignty does not extend to preventing the federal
  government from exercising its superior sovereign powers").  It follows
  that an Indian tribe or tribal entity might be immune from private or
  state suit.  That same tribe or entity, however, might nonetheless be
  covered under a federal statute, thus giving rise to an enforcement
  action by an agency of the federal government.
  A recent decision of the Eleventh Circuit, Florida Paraplegic Ass'n,
  Inc. v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126 (11th
  Cir. 1999), illustrates the point.  In that case, the Eleventh Circuit
  held that "a restaurant and entertainment facility owned and operated by
  the Tribe" was covered under Title III of the Americans with Disabilities
  Act ("ADA").  Id. at 1127.  The court cited the statutory canon that a
  "general statute presumptively governs Indian tribes and will apply to
  them absent some superseding indication that Congress did not intend
  tribes to be subject to that legislation."  Id. at 1129.  The court
  agreed with "the majority of [its] sister courts that have applied
  this test that tribe-run business enterprises acting in interstate
  commerce do not fall under the 'self-governance' exception to the
  [presumptive] rule that general statutes apply to Indian tribes."  Id.
  Although ruling that the tribal business was covered under Title III of
  the ADA, the court held that the tribe was entitled to claim immunity
  from suit for its restaurant and entertainment enterprise.  The court
  stressed that, even where a federal statute applies to an Indian tribe
  because the statute is a "'general statute[] in terms applying to all
  persons' that [does] not explicitly exclude Indians," tribal sovereign
  immunity may still apply.  Id. at 1130.
  In holding that immunity applied, the Eleventh Circuit acknowledged that
  "Congress's failure to abrogate Indian tribes' sovereign immunity under
  Title III of the ADA limit[ed] the means available to enforce its public
  accommodation requirements in tribe-owned and -operated enterprises."
  Id. at 1134.  The court stressed, however, that this omission on
  Congress's part did not render the statue "toothless" because the
  federal government had enforcement authority under Title III and was
  not constrained by sovereign immunity.  Id.  Thus, although the tribe
  was immune from private suit, the federal government could "pursue
  an action against Indian tribes failing to comply with Title III just
  as it may enforce the act against any other entity that violates the
  statute."<5>  Id. at 1135.
  This Court's precedent reflects the immunity/coverage distinction.
  In the immunity area, this Court has spoken broadly.  This Court has
  stated that tribal sovereign immunity "involves a right which courts have
  no choice, in the absence of waiver, but to recognize."  California
  v. Quechan Tribe of Indians, 595 F.2d 1153, 1155 (9th Cir. 1979).
  This Court has extended immunity to a tribal-owned furniture business.
  In re Greene, 980 F.2d at 593-97.  This Court has applied immunity to
  a tribal organization with respect to "misconduct occurr[ing] outside
  of the reservation land."  Pink, 157 F.3d at 1189.
  This Court has sounded a different note when the federal government is
  the party-plaintiff and the issue is one of statutory coverage only.
  In that context, this Court has invoked a presumption that "'a general
  statute in terms applying to all persons includes Indians and their
  property interests.'" Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d
  1113, 1115 (9th Cir. 1985).  This Court has cited three exceptions
  to this presumptive rule: "(1) the law touches 'exclusive rights of
  self-governance in purely intramural matters'; (2) the application
  of the law to the tribe would 'abrogate rights guaranteed by Indian
  treaties;' or (3) there is proof 'by legislative history or some other
  means that Congress intended [the law] not to apply to Indians on their
  reservations.'"  Id. at 1116.  This Court has narrowly construed these
  exceptions, holding, in particular, that the self-government exception
  is designed to except only those "purely intramural matters such
  as conditions of tribal membership, inheritance rules, and domestic
  relations."  Id. (holding that it would be error to "bring within the
  embrace of 'tribal self-government' all tribal business and commercial
  activity").  In a variety of contexts, this Court has extended federal
  statutes of general applicability to tribal commercial activity, whether
  conducted by the tribe itself, a member of the tribe, or a business
  or enterprise established by the tribe.  See, e.g., Lumber Industry
  Pension Fund v. Warm Springs Forest Products Indus., 939 F.2d 683, 684-87
  (9th Cir. 1991) (ERISA); United States Dep't of Labor v. Occupational
  Safety & Health Review Comm'n, 935 F.2d 182, 183-87 (9th Cir. 1991)
  (OSHA); Donovan, 751 F.2d at 1115-18 (OSHA); Confederated Tribes of
  Warm Springs v. Kurtz, 691 F.2d 878, 882 (9th Cir. 1982) (federal tax
  laws); United States v. Farris, 624 F.2d 890, 893-94 (9th Cir. 1980)
  (Organized Crime Control Act of 1970); see also Smart v. State Farm
  Ins. Co., 868 F.2d 929, 932-36 (7th Cir. 1989) (citing this Court's
  precedent in holding that ERISA applies to "an employment benefit plan
  which is established and maintained by an Indian tribe employer").
  This Court has also taken a narrow view of the term "Indian tribe," as
  used in federal statutes, in those cases in which immunity principles
  are not implicated.  In Navajo Tribal Utility Auth. v. Arizona Dep't of
  Revenue, 608 F.2d 1228, 1230-33 (9th Cir. 1979), this Court held that the
  Navajo Tribal Utility Authority, a "subordinate economic enterprise" of
  the Navajo Indian Tribe, did not constitute an "Indian tribe or band" for
  purposes of a federal jurisdictional statute.  This Court stressed that
  the jurisdictional statute made "no provision for wholly controlled or
  owned subordinate economic tribal entities."  Id. at 1231.  Similarly,
  in Inecon Agricorporation v. Tribal Farms, Inc., 656 F.2d 498, 500-01
  (9th Cir. 1981), this Court held that a tribal business did not merit
  the protection of a statute regulating the agreements of "any tribe of
  Indians."
  The 1996 Commission Decision is consistent with these views of statutory
  coverage.  The Decision notes that "courts and administrative agencies"
  have frequently applied federal statutes to "tribally owned businesses."
  Commission Decision (April 10, 1996) at 4 n.6.  The Decision opines
  that Title VII's Indian tribe exemption applies only to the Indian
  tribe itself or "an arm or instrumentality of the tribe," defined as an
  entity that "performs essentially governmental functions on the tribe's
  behalf" and is "integrated with and controlled by the tribe."  Id. at 4.
  The Decision stresses that the tribal exemption does not explicitly
  reference tribal corporations, although, in the same provision, the
  statute exempts the "United States" and "a corporation wholly owned by
  the Government of the United States."  See 42 U.S.C.  2000e(b).
  In this case, the relevant factors strongly support coverage under Title
  VII.  Title VII is a statute of general applicability that presumptively
  applies to Indian tribes.  There is no treaty at issue in this case.
  Nor is this a case in which subjecting PCC to suit will intrude upon
  "'exclusive rights of self-governance in purely intramural matters.'"
  Donovan, 751 F.2d at 1116.  PCC is a cement company that performs work
  some 100 miles outside the Community's reservation, employing only a
  handful of Community members.  The dispute in this case does not involve
  "purely intramural matters such as conditions of tribal membership,
  inheritance rules, and domestic relations" (id.) and, thus, does not
  fall within this Court's self-government exception to coverage.
  Title VII's exemption for Indian tribes does indicate that Congress
  intended to place Indian tribes outside the reach of the statute.  PCC,
  however, is not an Indian tribe.  Nor is PCC an "arm or instrumentality
  of the tribe" performing "governmental functions on the tribe's behalf."
  Commission Decision (April 10, 1996) at 4.  Just as the tribal enterprise
  in Navajo Tribal Utility Auth., 608 F.2d at 1230-33, was not an "Indian
  tribe" within the meaning of the federal jurisdictional statute at issue
  in that case, PCC is not an "Indian tribe" within the meaning of Title
  VII's Indian tribe exemption.<6>

 CONCLUSION

  Tribal sovereign immunity does extend, in some cases, to business
  enterprises established or owned by an Indian tribe.  The district court
  properly denied summary judgment with respect to whether the Community's
  tribal immunity extends to PCC.  The 1996 Commission Decision does
  not address the immunity issue as such but does support a finding of
  statutory coverage in cases of this nature.
         Respectfully Submitted,

         GWENDOLYN YOUNG REAMS
         Associate General Counsel

         PHILIP B. SKLOVER
         Associate General Counsel

         LORRAINE C. DAVIS
         Assistant General Counsel

         ROBERT J. GREGORY
         Senior Attorney

         EQUAL EMPLOYMENT OPPORTUNITY
            COMMISSION
         1801 L Street, N.W.
         Washington, D.C. 20507
 January 26, 2001          (202) 663-4059

 CERTIFICATE OF COMPLIANCE

 I, Robert J. Gregory, hereby certify that this brief complies
 with the type-volume limitations imposed under F.R.A.P. 32(a)(7)(B)(i)
 and F.R.A.P. 29(d).  The brief contains 6985 words.

         Robert J. GregoryCERTIFICATE OF SERVICE

  I, Robert J. Gregory, hereby certify that on this 26th day of  January,
  2001, two copies of the attached brief were sent by first-class mail,
  postage prepaid, to each of the following counsel of record:

       Philip J. Shea
       SNELL & WILMER, L.L.P.
       One Arizona Center
       Phoenix, AZ 85004-2202

       Robert L. Earle
       FOSTER & EARLE
       P.O. Box 3870
       Sedona, AZ 86340

       Robert J. Gregory

 1  The referenced exhibit is a 1996 Commission
 Decision, which made certain factual findings with respect to PCC
 and its interrelationship with the Community.  The Plaintiffs
 incorporated these factual findings into their statement of
 facts in this case.  The Commission Decision is discussed in
 more detail at infra pp. 21-30.

 2  Admittedly, the district court's opinion appears to conflate the
 immunity and coverage issues.  The court decided the case, however,
 on immunity grounds.

 3  This case is closely related to another case pending in this Court,
 Sepulveda v. Salt River Pima-Maricopa Indian Community/Phoenix Cememt
 Company Division, No. 00-16358, for which briefs have already been
 filed.  In Sepulveda, the Defendants do not frame the issues on appeal
 in coverage terms; instead, they argue the appeal on immunity grounds.
 The Defendants advance a coverage argument in this appeal despite the
 fact that the district court opinion in this case is virtually identical
 to the district court opinion in Sepulveda.  The explanation for the
 differing arguments may be the fact that the claim before this Court in
 Sepulveda arises under the Age Discrimination in Employment Act of 1967,
 29 U.S.C.  621 et seq. ("ADEA"), while the claim in this case arises
 under Title VII.  Apparently, the Defendants believe that they have a
 stronger coverage argument under Title VII, which, in contrast to the
 ADEA, exempts "an Indian tribe" from the Act's definition of employer.
 Compare 42 U.S.C.  2000e(b) (Title VII) with 29 U.S.C.  630(b) (ADEA).
 In our view, the principal issue in these two appeals is identical:
 Does the Community's sovereign immunity extend to PCC, such that the
 Plaintiffs' federal claims against PCC are barred?

 4  The Tribal Council also stated that PCC would "permit the development
 of additional employment and industrial opportunities on the Reservation."
 Plainly, PCC, an off-reservation company that employs only a handful
 of Community members, has not furthered that objective.  Nor is there
 any clear indication in this record that PCC has in fact "preserve[d]
 and promote[d] the economy of the Tribe."

 5  Florida Paraplegic presents a scenario not unlike current law, under
 the ADEA, with respect to state governments.  In Kimel v. Florida Bd. of
 Regents, 120 S. Ct. 631 (2000), the Supreme Court held that the ADEA did
 not abrogate states' Eleventh Amendment immunity.  The Court's decision
 means that states are immune from ADEA suits "by private individuals."
 Id. at 650.   It does not mean, however, that states are immune from
 suit by the federal government, which is not constrained by the Eleventh
 Amendment immunity bar.  See Alden v. Maine, 527 U.S. 706, 755-56 (1999).
 Since states are otherwise covered under the ADEA, they are subject to
 suit by the federal government.

 6  The Defendants argue that the "courts have never permitted a Title
 VII action against an Indian tribe or against an entity wholly owned by
 tribes."  Appellants' Br. at 11.  In virtually every case cited by the
 Defendants, however, the employer-defendant was either the Indian tribe
 itself or a governing agency or authority of the tribe.  Id. at 11-13.
 As discussed above, in many cases, tribal businesses will be immune from
 suit under Title VII based on the common law immunity standards applicable
 to Title VII and other federal and state statutes.  For coverage purposes,
 however, Title VII must be interpreted as written; the statute exempts "an
 Indian tribe," not a corporation "wholly owned" by a tribe.  Appellants'
 Br. at 11.