Facebook Twitter Email
MONDAY, JUNE 24, 2002

The federal government should be allowed to fire workers with a criminal past in order to protect Indian children from abuse, the Bush administration argues in court papers.

Solicitor Ted Olson and Department of Justice attorneys have asked the Supreme Court to uphold employee standards implemented during the Clinton administration. A May 28 brief argues that the protections are needed to prevent exploitation of Native youth.

"Congress was not constitutionally disabled from taking an arguably somewhat overprotective prophylactic approach in order to ensure that the problem of abuse of Indian children would not recur," Olson wrote.

For Lois Delong, the "minimum standards of character" meant the loss of her job at an Indian Health Service (IHS) clinic in New Mexico serving Pueblo and Navajo communities. Her position as a drug counselor put her in regular contact with Native children.

As such, she came under the Indian Child Protection and Family Violence Prevention Act of 1990. Under the law, employees who were convicted of or pleaded guilty to a crime involving violence, sexual assault and related offenses can't work with Indian children.

In Delong's case, it was a decades-old incident that occurred during her college years. She pleaded guilty in 1974 to assault and battery charges stemming from an on-campus fight between Indians and non-Indians.

Delong was informed in April 1999 of her removal from her position. A suitable replacement job couldn't be found, according to the IHS, and she was terminated in June 1999.

Delong challenged the firing to a Department of Health and Human Services (HHS) review board. An administrative judge noted the age of the crime and that Delong had worked for 10 years without proving a threat to Indian children.

An appeal of the decision led to its reversal within the department. Delong then took the case to the Federal Circuit Court of Appeals, which upheld her dismissal.

"In creating the minimum standards of character," a three-judge panel of the court wrote in September 2001, "Congress created a bright line rule that anyone who has been convicted of an enumerated crime may not serve in a covered position."

Delong has raised a number of constitutional issues in her appeal to the Supreme Court. She says the law violates her right to a fair hearing and singles out employees.

Three fired workers were challenging the law along with Delong but didn't pursue their cases after the HHS ruled against them in August 2000.

The Supreme Court meets Thursday to consider taking the case.

Relevant Documents:
Supreme Court Docket Sheet: No. 01-1410 | Department of Justice Brief

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

Related Stories:
Dismissal of Indian social worker upheld (9/6)