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THURSDAY, SEPTEMBER 6, 2001

The federal government can prevent employees who have a criminal past from working with American Indian children, an appeals court ruled on Wednesday.

Upholding a decision made by a government review board, a three-judge panel of the Federal Circuit Court of Appeals said the Department of Health and Human Services was right to dismiss a New Mexico woman from her job. Lois Delong had been hired to work at an Indian Health Service clinic in the Albuquerque area.

But since Delong had pleaded guilty to assault and battery charges more than 20 years ago, she was fired from her job at the Acoma-Canoncito Laguna Service Unit. In college, Delong had been involved in a fight between Indians and non-Indians, according to court documents.

Delong's case stems from the application of the Indian Child Protection and Family Violence Prevention Act of 1990. The law sets a number of standards for employees who work on a regular basis with Indian children.

Under the act, anyone who has has been found guilty of or pleaded guilty to a crime involving violence, sexual assault and related offenses does not meet the "minimum standards of character" for employment.

As a result, Delong was terminated in June 1999. She had been a drug counselor at the clinic and had worked regularly with adolescents, according to court records.

Delong then appealed her dismissal within the Department of Health and Human Services. An administrative judge initially found in her favor, saying the law didn't require employees found in violation to be removed.

The judge pointed out that Delong's crime had occurred so long ago and that she had rehabilitated herself. Also, she had been employed for ten years with no threat posed to children.

But the government challenged the ruling and it was eventually overturned by a review board in August 2000. Two other IHS employees in a similar situation to Delong were also found to have been terminated legally.

Delong subsequently appealed the case, saying her constitutional rights were violated. She also raised a number of other challenges, all of which were rejected yesterday.

"In creating the minimum standards of character," wrote the court, "Congress created a bright line rule that anyone who has been convicted of an enumerated crime may not serve in a covered position." Therefore, the rules must be followed, even if it has the "unfortunate result" of termination in Delong's case.

The Acoma-Canoncito-Laguna Service Unit services the Pueblos of Acoma and Laguna and the Navajo Nation community of Canoncito.

Get the Case:
DELONG v DEPT. OF HEALTH & HUMAN SERVS. No 00-3449 (Fed Cir. September 05, 2001)

Related Case:
JOHNSON ET. AL. V. DEPT. OF HEALTH & HUMAN SERVS. (Merit Systems Protection Board August 23, 2000)

Relevant Links:
Acoma-Canoncito-Laguna Service Unit - http://www.ihs.gov/FacilitiesServices/AreaOffices/Albuquerque/aclsu.asp