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WEDNESDAY, JULY 9, 2003

A federal appeals court on Tuesday struck down an Alaska municipality's ordinance that gave hiring preferences to members of federally recognized tribes.

In a unanimous decision, the 9th Circuit Court of Appeals sided with a group of non-Indians who challenged the ordinance. A three-judge panel said it violates the Alaska Constitution's equal protection clause, rejecting arguments that federal law allows for preferential treatment of Native Americans.

"[W]hen Congress wants to authorize or require Native hiring preferences, it knows how to do so," wrote Judge Ronald M. Gould.

The ruling follows conclusions reached by the Alaska Supreme Court in May. Believing the dispute to be one of state law, the 9th Circuit certified a question the state's justices, who decided unanimously against the North Slope Borough's Native preference ordinance.

"We hold that the borough lacks a legitimate governmental interest to enact a hiring preference favoring one class of citizens at the expense of others," the May 16 decision stated.

In 1997, the Borough passed the preference law in order to increase hiring, training and retention of Alaska Natives. Inupiat Eskimos make up about 75 percent of the population but have higher unemployment rates than other racial and ethnic groups, supporters said.

The Equal Employment Opportunity Commission, an independent federal agency, sided with the Borough and said the ordinance did not violate the Civil Rights Act of 1964.

But Robert Malabed, an Asian-American, and two Caucasians, Morris David Welch and Charles Michael Emerson, said their constitutional rights were being violated. They filed suit in federal court, claiming jobs and promotions were given to less-qualified Alaska Natives.

U.S. District Judge John Sedwick agreed, relying in part on the Supreme Court's Venetie decision of 1988. The Borough argued that Native hiring preferences in and around Indian Country were legal but Sedwick said the Venetie decision precluded treatment of borough lands as reservations.

The 9th Circuit and the Alaska court avoided this analysis altogether, instead focusing on the state law issue. The Alaska Constitution prohibits special treatment of its citizens, a provision that has led to conflicts because federal Indian law treats Alaska Natives and American Indians as a political group.

Borough lawyers raised this issue to the 9th Circuit, noting that the Supreme Court in the Morton v. Mancari decision upheld the Bureau of Indian Affairs' preference policy. But the three-judge panel said there was no specific federal law that "pre-empted" Alaska law.

The North Slope Borough encompasses nearly 90,000 square of Arctic territory, including eight major Inupiat villages. The largest village is Barrow, with more than 4,600 residents. Major employers include the school district and the oil industry, with a large number practicing subsistence hunting and fishing.

Get the Decision:
Malabed v. North Slope Borough (July 8, 2003)

Related Decision:
Alaska Supreme Court: Malabed v. North Slope Borough (May 16, 2003)

Relevant Links:
North Slope Borough - http://www.north-slope.org

Related Stories:
Alaska court strikes down Native preference law (05/19)