Indian preference claim dismissed

MONDAY, DECEMBER 23, 2002

An Alaska Native man who lost his bid for employment to a non-Native cannot sue for damages, a divided federal appeals court ruled on Friday.

Vernon Solomon applied to work for the Interior Regional Housing Authority, which provides housing to low-income Alaska Natives. The housing authority is chartered under federal law so it is subject to the Indian preference policy, which is encoded in various government statutes and regulations.

But in a 2-1 decision, the 9th Circuit Court of Appeals said Congress did not intend to create a "private right of action" for alleged failures to abide by the policy. The court said allowing such lawsuits would go against tribal sovereignty.

"[S]ubjecting an Indian orga-nization to an individual action for damages for every decision to hire a non-Indian for a particular position would undermine the Indian organization�s autonomy, not enhance it," wrote Circuit Judge Susan P. Graber for the majority.

Circuit Judge Betty B. Fletcher dissented. She said the majority failed to apply precedents to determine whether Solomon has a right to sue.

Fletcher also disputed the majority's claims of upholding tribal self-determination. "Allowing aggrieved individuals to sue to enforce that preference cer-tainly does not undermine tribal self-government any more than conferring the preference in the first place," she wrote.

Get the Decision:
SOLOMON v. INTERIOR REG'L HOUSING AUTH., No. 01-35766 (9th Cir. December 20, 2002)