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OCTOBER 25, 2000

Claiming that Indian preference laws are unconstitutional, Representative Curt Weldon (R-Pennsylvania) has introduced a bill that would end hiring, contracting, and other preferences for Native Americans.

But as many in Indian Country and in the federal government know, Indian preferences are perfectly legal. In 1974, the Supreme Court concluded that Indian hiring preferences, which date back as early as the 1830s, aren't incompatible with the Fifth Amendment of the Constitution, as Weldon claims in his proposed bill.

"The Indian preference does not constitute 'racial discrimination' or even 'racial' preference," said the court in Morton v. Mancari.

Nevertheless, Weldon is pushing for the repeal of what he calls "racial preference laws." He introduced the Native Americans Equal Rights Act last week and it has been referred to both the House Committee on Resources and the House Committee on Education and the Workforce.

The bill would repeal hiring preference laws established for the Bureau of Indian Affairs (BIA) and the Indian Health Service (IHS). Hiring preferences for the BIA were enacted in 1934 and in 1979 for the IHS.

It would also repeal portions of the Indian Self-Determination Act of 1975, the law which has enabled tribes to gain more control of their internal matters. It would strike out Indian preference in the awarding of contracts and grants.

Finally, the bill would modify the Civil Rights Act of 1964, which prohibits discrimination in private employment based on race. The law exempts tribes or companies located on or near reservations.

But in 1974, the Supreme Court upheld this exemption as well as an amendment passed in 1972 which prohibits discrimination in government employment. The Court said the amendment doesn't apply to Indian preference.

By design, or perhaps inadvertently, Weldon's bill doesn't repeal two Indian preference laws passed as part of the Education Amendments of 1972. Weldon couldn't be reached for comment yesterday.

Indian preference laws have enabled the federal government to increase the presence of Native Americans in high-level positions. For example, the percentage of Indians in the BIA has increased from 34 percent in 1934 to almost 90 percent currently.

Indian preference has also been used by tribes, through self-determination contracts, to increase employment of tribal members and other Native Americans. The state of New Mexico and the city of Santa Fe have also employed Indian preference to ensure that only Indian artists sell their goods in an area of the city's historic downtown plaza.

A lawsuit filed against the state in the late 1970s by non-Indians failed because a court said the law wasn't considered racial preference.

Get the Bill:
To repeal the Indian racial preference laws of the United States. (H.R.5523)

Get the Supreme Court Decision on Indian preference:
Morton v. Mancari 417 US 535 (1974)

Relevant Links:
Rep. Curt Weldon - www.house.gov/curtweldon/
House Committee on Resources - resourcescommittee.house.gov/
House Committee on Education and the Workforce - edworkforce.house.gov/

Laws Affected:
Standards for Indians appointed to Indian Office (25 USC 472)
Indian preference laws applicable to Bureau of Indian Affairs and Indian Health Service positions (25 USC 472)
Portions of The Indian Self-Determination and Education Assistance Act (25 USC 450e)
Portions of The Civil Rights Act of 1964 (42 USC 2000e)