The record, read closely · issue articles

The Gray Zone

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C · Secondary explanation   The legal picture below is drawn from published EEOC guidance, federal court opinions, and commentary by practicing attorneys. The statutory text and the cited cases have not all been read directly. Every candidate quote is verbatim. How we verify →

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Start with a simple question a worker might ask: if my employer treats me unfairly, who do I call? For most people in the United States, the answer is the Equal Employment Opportunity Commission. For someone working for a business the Navajo Nation owns, the honest answer is: it depends on things you probably cannot see.

The employer nobody can quite place

Federal discrimination law — Title VII of the Civil Rights Act — excludes Indian tribes from its definition of “employer.” That part is clear, and this site has written about it before: a person working for the Navajo Nation itself generally cannot take a discrimination claim to the EEOC, because the Nation answers for how the Nation treats its workers, through its own Office of Navajo Labor Relations and Labor Commission.

But a business the Nation owns is not automatically the Nation. The EEOC’s own guidance says it may have jurisdiction over a business that is owned by a Tribe but is not integrated with and controlled by the Tribe, and that is not performing essentially governmental functions on the Tribe’s behalf. Read that sentence twice. Whether a Nation-owned enterprise is covered by federal discrimination law turns on a test — how integrated, how governmental — that is decided one entity at a time, in court, after the fact. There is no list. There is no clean yes or no. A worker cannot know in advance which side of the line their employer sits on.

The same gap, on every axis

Once you see the gray zone in discrimination law, you start seeing it everywhere. It is not one ambiguity. It is the same entity falling into the gap on question after question.

On being sued at all. Even where a federal law applies to a tribal enterprise, the right to sue under it may be barred by sovereign immunity. Courts have drawn a fine distinction between being subject to a law’s requirements and having the right to go to court to demand compliance with it. An enterprise can be covered by a statute and still immune from a lawsuit under that same statute. And it cuts differently law by law: for some employee-benefit claims, courts have found immunity waived; for Title VII and age-discrimination claims, usually not.

On who is protected. The exclusion that protects a tribal business from a discrimination suit may not protect it equally from every worker. Some courts have held that the tribal exception does not reach claims brought by non-Native employees, and one federal appeals court expressly limited its exclusion to the narrow context of hiring decisions based on Native preference. So the same enterprise may be shielded as to one employee and exposed as to another — a line most workers, and many employers, do not know is there.

On reaching non-members at all. When the question runs the other way — whether the Nation’s own laws reach a non-member doing business on the reservation — federal courts apply the Montana test, under which the effect on the Nation generally must be severe, even “catastrophic,” before tribal authority attaches. Another standard, another case-by-case inquiry, another place where the answer is “it depends.”

On simply seeing inside. And the gray zone is not only legal. The EEOC itself acknowledges that workers often cannot tell whether their employer is covered — it advises them to file anyway and let the agency sort out coverage. On the Nation’s side, the enterprises that would be easiest to place if their structure were public often do not publish the financials, board qualifications, or audit results that would let anyone locate accountability. The entity is hard to place under the law and hard to see into. Both at once.

Where the record lands on it

This is not a theoretical problem. Nineteen candidates raised enterprise accountability in their interviews with Cal Nez — the recurring questions were always some version of are they making money, are their boards qualified, can the public tell? One presidential candidate, asked directly, could not confirm whether they had profited personally from an enterprise. The enterprises issue page gathers what candidates said, one by one.

And the Nation’s two most-discussed accountability cases both sit squarely on the gap. The ZenniHome housing contracts — named unprompted by 22 of 42 candidates — involved a Nation-connected housing entity and modular homes bought at prices several candidates called excessive. The Modern Vascular case involved clinics that billed a federal health program for care given to Navajo patients. Different domains, same structural feature: an entity in the space between two sovereigns’ rules, where it is genuinely hard to say who was supposed to be watching.

Why it belongs on your ballot

A voter cannot close the gap between two sovereigns. But a voter can ask a candidate whether they understand it — and what, within the Nation’s own power, they would publish to make its enterprises legible. The Nation cannot make Title VII apply to itself, and would not want to; sovereignty is the point. What it can do is decide, on its own authority, to publish enterprise financials, board qualifications, and audit results — so that the informational gray zone, at least, closes.

That is a question with a plain answer, and you are entitled to hear a candidate give it: Will you direct the enterprises the Nation owns to publish what they earn, who governs them, and what their audits found?

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