company to give employment preferences to navajo indians we filed this lawsuit against peabody alleging that the company is discriminated against not navajo native americans by refusing to hire them for positions that they are qualified for  discrimination on the basis of national origin under title seven now in response peabody neither admits nor denies that it has in fact discriminated in the manner that the allege and nor at this stage of the proceedings does it argue that this discrimination is in between the e e o c and the attorney general with respect to enforcement of title south and against state and governmental employers and the second one just quickly is the fact which is in fact very similar is the related  f they fired somebody let's say we're trying to get the plaintiffs reinstated and we want to make sure that they're going to get their full seniority rights when they're reinstated and so we may need to join a union that's done absolutely nothing wrong just to ensure that seniority rights are preserved  and we're not suggesting that you did anything wrong we can see unions when they discriminate but in some of those cases it's not but you're not asserting in those cases a cause of action against the union and you don't even contend that you could and that's and that's exactly what we have here your honor we're not saying that police you're not taking damages from them but i think you're saying he did something wrong because you're saying the disc was illegal well which may or may not mean but if that's what you're saying well that's i mean i'm not sure that was that there's anything wrong with not going to be doing it the wrong is in peabody committed to the unreviewable discretion of the political branches of government there's no reason to think that the question in this case about the validity of peabody's leases is one that the constitution commits exclusively to the department of the interviewer rather again it's imperative magic example as it's been pointed out repeatedly is the doctrine about political questions not about political cases and i think that suggests that the fact that the plaintiff here happens to be another branch of the federal government is essentially irrelevant to the analysis of the political question doctrine the question is whether with regard to discrimination at first because they directly no i believe not with the one caveat i should say that it might be a different question if it was in a corporate corporation that happen to be wholly owned by the tribe that's an issue that i don't think question of what the reason for the exception of the exemption of indian employer indian tribes from the definition of employer it why congress put that in there in the first place and the reason might be because congress thought it was so that there were certain seven that doesn't necessarily carry over i mean i would point out that there are lots of times but i think i understand that just seems to me that if you're interested in not having the employ i point out the fact that there are contractors both whether tribes or her state or federal government all the time they don't lose their their their identity as private corporations merely because they're doing work for a government and they don't necessarily step into the government streams there and again and again in this respect i think it's important to note that the definition of employer under title seven has a few exceptions one of them is the federal government the next one is a corporation wholly owned by the federal government which i assume would be something like the  asking and i asked some of those questions will come before the court if we hold that or will nineteen join or is allowed exactly but those questions are not in front of us today that's not possess my contention your honor those those would be questions that go to the ultimate merits of whether this lease permitting is in fact invalid and whether or not he has some defend as a lower court we'll get to those questions if we say that the tribe can be joined under rule nineteen a if we if joined or under rule nineteen anyway when the defendant says you know what you can't bring suit against me because there is no feasible and indispensable parting out there you can join the party and therefore you can go is not required that they have an independent cause of action how are they having any cause of action however i heard the qualifier yeah i do think that in this particular case because it is outside the definition of employer so the distinction in that particular sixth circuit is a very statutory intervene i think probably the tribe could intervene then why are you wanting to apply different standards the reason i say that is that rule nineteen has almost identical wording to rule twenty nation yes in fact this is the earliest i'm not in the same i'm sorry so direct relief against the nation i don't think any direct really to start as a practical matter the relief will affect the nation but i don't think they're seeking any order that would run another distinction made in this to entitle seven statutory scheme between which part of the federal government has authority to proceed in cases involving governmental entity title seven says it's the attorney general's office that has the authority to proceed against federal government agencies other forms of government and political subdivisions so our argument is at this point we think that they're trying to accomplish basically indirectly what they otherwise could not accomplish directly and it does no service to the courts to basically stand behind this idea that the can flip this and say well we know that the tribe if we did this on its own building its own conference center doing its own mining could have preferential treatment for the crime but it's not set up and in the going to corporations so we've got a variation of the problem on both sides of the case you know i think if you look at these leases in their historical context what you would see is that there was a recognition on the part of interior basically going down the policy path of encouraging that by way of putting in a provision regarding preference because of that i will then do a one and two cases we see the court recognizing that in essence what's happening is that the basically came out in one thousand nine hundred eight saying you can't discriminate on the basis of tribal affiliation we think that's a form of national origins commission or a much older and longer standing policy by the department of interior and carried out by the secretary of and doesn't want to be litigating this without the presence of the i have a whole tribe which makes perfect sense to me which is why of course they're on their unnecessary party and both of you both sides are in agreement on that point  that i mean we basically leave that is the case because of presidents this is federal policy question not the federal policy as to whether or not the department of interior can somehow invalidate economic independence for these tribes and all of the things that are attendant to that which in this particular case are the actual inclusion of the tribes specific employment preference in the term order to which would be basically supplying the call to the navajo generating station and you see that that particular statement is replete with well statements regarding the aca nomic the economic independence that the tribe could achieve the economic effect for the tribe could achieve by allowing this through employment on the reservation and as a result we believe that this case in fact  simple question because we have a very distinct mission taken by the department of interior about federal indian policy and south bend was both decisions left open the door for the discussion e were bringing the state in as the employer and that of course goes pretty much closer to the question of the division of authority between the e e o c and the attorney general and in light of those cases we don't bring those kinds of cases anymore the puerto rico case is the only other one that i'm aware of like that but if we're talking about where the state is not acting as the employer it's just a lease holder or you know has some think there is any reason why the not only is unnecessary party to the record keeping clean and i mean i just i can't conceive of any reason why they would have an interest in what right what applications the company does or does not keep on file  when very snotty unrelated amendments were passed i think it's important to keep in mind what the role of the department of interior is in the statutory scheme the supreme court explained it i think very well in the recent navajo nation versus united states case authority for some and i struggled already but you don't have to confine yourself to that you may want to discuss these other cases and ten pages each side are you may not need that marched off you were obliged to write