Judge dismisses challenge to OST's Indian preference policy

Monday, October 7, 2013  

A federal judge has dismissed a lawsuit that claimed the Office of the Special Trustee for American Indians can't adopt an Indian preference policy.

Donald Hester claimed he wasn't considered for several positions at OST because he is non-Indian. But a report adopted by a federal judge said the agency is entitled to apply Indian preference in its hiring decisions.

"Applying Indian preference to these positions in the OST to which Mr. Hester applied is a permissible construction" of the Indian Preference Act, the report, which was adopted in full by Judge Dale A. Kimball, stated.

"Because the Supreme Court has ruled in Mancari that Indian preference 'does not constitute racial discrimination,' Mr. Hester’s claims that he was subjected to racial discrimination and that his civil rights have been violated are not valid," the report continued, referring to Morton v. Mancari, a U.S. Supreme Court case that upheld the constitutionality of the Indian Preference Act.

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."

The term "Indian Office" wasn't defined in the IRA but it has historically been interpreted to mean the Bureau of Indian Affairs and the Indian Health Service. However, a lawsuit filed by Indian employees during the Bush administration opened the door for positions at OST to fall under Indian preference.

In postings on USAJobs, the federal government's employment web site, the Obama administration stated that positions at OST are indeed covered by Indian preference.

Turtle Talk has posted documents from the case, Hester v. Salazar.

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