Judge backs broad Indian preference at DOI

Friday, April 4, 2008  

The Interior Department is breaking the law by restricting its Indian preference policy to the Bureau of Indian Affairs, a federal judge ruled on Monday.

In a significant decision, Chief Judge Thomas F. Hogan in Washington, D.C., opened up Indian preference to "all" positions at Interior that "directly and primarily" relate to Indian programs. Currently, the policy is limited to the BIA and other posts that were transferred out of the BIA to other agencies.

However, Hogan determined that the Indian Reorganization Act favors a much broader policy. Since the law doesn't define the meaning of the term "Indian Office," judicial principles require him to construe the preference as favorable as possible to American Indians and Alaska Natives, he said.

Simply put," he wrote, "American Indians legitimately expected that the Indian preference would be applied to all positions in the Interior Department that directly and primarily relate to providing services to Indians and an interpretation of the term 'Indian Office' that reaffirms that expectation comports with the canon that statutes are to be construed 'liberally' in favor of the Indians, with ambiguous provisions interpreted to their benefit."

The 17-page decision is a major victory to the estimated 9,000 Indian employees at Interior. Hogan said it was "uncontested" that the plaintiffs, who were represented by Indian Educators Federation union, were qualified for jobs within the Office of the Assistant Secretary for Indian Affairs and the Office of Special Trustee for American Indians but were passed over for non-Indian applicants.

When asked about the case yesterday, Assistant Secretary Carl Artman, who is a member of the Oneida Nation of Wisconsin, said he was aware of the decision. But he declined to comment in detail because he said he was still determining its impact.

Several of the top, non-political positions within the Office of the Assistant Secretary for Indian Affairs, though, have been held by non-Indians in the past few years. The positions include the Chief Information Officer, the Chief Financial Officer and the head of the Office of Indian Energy Resource Development.

Special Trustee Ross Swimmer was unavailable for comment because he had to travel out of Washington following yesterday's House appropriations hearing. In the past he has told Indianz.Com that he strives to hire and promote American Indians and Alaska Natives even though OST, in the eyes of Interior, does not have a preference policy.

Swimmer's top deputy, Donna Erwin, and her senior-most aides are tribal members. But the Indian Educators Federation noted in court filings that only 170 out of 550 positions at OST are being covered by Indian preference because they were previously part of programs at the BIA.

Indian preference has survived a slew of legal challenges since the IRA became law in 1934. The U.S. Supreme Court, in Morton v. Mancari, ruled that the the policy does not violate the U.S. Constitution because it fulfills the federal government's policy of self-determination.

Court Decision:
Indian Educators Federation v. Kempthorne (March 31, 2008)

Court Documents:
Amended Complaint | IEN Motion for Summary Judgment | US Motion Summary Judgment/Motion to Dismiss | IEN Response | US Reply