Despite promises to include more Native Americans in the federal government, the new administration of President Barack Obama plans to fight a significant Indian preference case.

On February 6, the Department of Justice filed a notice of appeal of a decision that backed a broad Indian preference policy at the Interior Department. A week later, Secretary Ken Salazar was telling Congress of his efforts to make American Indians and Alaska Natives a key part of his team.

"I'm committed to having a face of the Department of the Interior, from top to bottom, that is reflective of the face of America," Salazar told the Senate Indian Affairs Committee, citing three high-level positions being offered to Native Americans.

But the appeal sends a different message, according to the union that won the preference case during the Bush administration. "I'm very shocked," said Michael Jennings of the Federation of Indian Service Employees. "I worked on his campaign and Indian Country supported Obama big time."

"I find it completely incredible that a new Interior secretary would kick this down the line without considering the implications or even talking to Indian Country," Jennings added.

Jennings and Richard Hirn, the attorney for the union, said they have made repeated requests to meet with Salazar and discuss the issue. But they have been told the new Cabinet member is "too busy," said Jennings and Hirn.

"I think it sends a bad message that the new administration does not trust Indian to manage their own affairs because that's really what is at the heart of Indian preference," said Hirn, a Washington, D.C,. attorney.

At issue are several hundred positions at Interior that the Reagan administration, and later the Bush administration, said were not covered by Indian preference. The restrictive policy meant that qualified American Indians and Alaska Natives weren't given first shot at jobs under the Assistant Secretary for Indian Affairs at the Bureau of Indian Affairs or within the Office of the Special Trustee for American Indians.

Last March, Chief Judge Thomas F. Hogan rejected the limited view and determined that Indian preference applies to "all" posts that "directly and primarily" relate to Indian programs. He issued a final judgment in December that the new administration said it will appeal.

Indian preference became law when Congress passed the Indian Reorganization Act in 1934. Section 12 states that qualified Indian employees will be given preference for positions at the "Indian Office, in the administration of functions or services affecting any Indian tribe."

Since "Indian Office" wasn't defined by Congress, Hogan said judicial principles require him to construe Section 12 as favorable as possible to American Indians and Alaska Natives. "Simply put ... 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," he wrote in the March 31 decision.

Since the Obama administration only filed a notice of appeal, it's not clear what parts of the decision they will be challenging. A BIA spokesperson was awaiting comment from higher-level officials when asked about the case.

The BIA remains without an assistant secretary, a job that usually goes to an enrolled tribal member. During the Bush administration, several of the top positions within the office were held by non-Indians.

At OST, the top two positions were held by tribal members during the Bush administration. In court papers, the union said only 17 out of 550 positions at the agency were covered by Indian preference under the restrictive policy.

Indian Educators Federation v. Kempthorne:
Decision (March 31, 2008) | Amended Decision (December 12, 2008) | Notice of Appeal (February 6, 2009)

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Indian employees to lose preference under Bush plan (11/04)
Swimmer weighs consolidation of appraisals (8/15)
Indian employees challenging DOI reorganization (06/03)