Tribal preference in employment is not the same as Indian preference, the top attorney for the Equal Employment Opportunity Commission said on Tuesday.

Many tribes give preference to their members when it comes to filling positions at their enterprises. Many also recognize Indian preference.

But tribal preference is not protected by federal law, EEOC general counsel David Lopez told the National Congress of American Indians. So the agency views it in the same category as discrimination against someone based on national origin.

"There is longstanding policy at the commission that interprets Indian preference to mean Indian preference, that you can grant preference to any other Indian, regardless of the tribe," Lopez said at NCAI's 2013 executive council winter session in Washington, D.C.

On the other hand, the commission "takes the position that tribal preference constitutes national origin discrimination," Lopez added.

Lopez, however, noted that the issue remains under litigation. In a particularly messy dispute, the 9th Circuit Court of Appeals allowed EEOC to sue the Navajo Nation and Peabody Energy for a tribal preference policy at mines on the reservation.

There's been no ruling on the merits in the lower courts. But the decision could lead EEOC to assert authority over a broad range of employment issues at tribal enterprises, an attorney for the Council for Tribal Employment Rights warned.

"The danger is another San Manuel," said Dan Press, the group's legal counsel, referring to the infamous case in which the National Labor Relations Board asserted jurisdiction over labor issues at tribal businesses that employ non-Indians.

With over 1 million people working at tribal enterprises, a figure that includes many non-Indians, litigation of that nature poses a threat to sovereignty. So Press urged tribes to consider entering into agreements with EEOC to address employment discrimination matters.

"What EEOC is saying is -- tribes, you do it with you own sovereignty and that way we won't have to do it," Press told tribal leaders.

Tribes must adopt an anti-discrimination law in order to enter into an agreement with EEOC, Press said. A sample memorandum of understanding is on the EEOC web site.

9th Circuit Decision:
EEOC v. Peabody (June 23, 2010)

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Supreme Court declines Navajo employment preference case (10/3)