Appellees, non-Indian employees of the Bureau of Indian Affairs
(BIA), brought this class action claiming that the employment
preference for qualified Indians in the BIA provided by the Indian
Reorganization Act of 1934 contravened the anti-discrimination
provisions of the Equal Employment Opportunities Act of 1972, and
deprived them of property rights without due process of law in
violation of the Fifth Amendment. A three-judge District Court held
that the Indian preference was implicitly repealed by § 11 of the
1972 Act proscribing racial discrimination in most federal
employment, and enjoined appellant federal officials from
implementing any Indian employment preference policy in the
BIA.
Held:
1. Congress did not intend to repeal the Indian preference, and
the District Court erred in holding that it was repealed by the
1972 Act. Pp.
417 U. S.
545-551.
(a) Since in extending general anti-discrimination machinery to
federal employment in 1972, Congress in no way modified, and thus
reaffirmed, the preferences accorded Indians by §§ 701(b) and
703(i) of Title VII of the Civil Rights Act of 1964 for employment
by Indian tribes or by private industries located on or near Indian
reservations, it would be anomalous to conclude that Congress
intended to eliminate the longstanding Indian preferences in BIA
employment, as being racially discriminatory. Pp.
417 U. S.
547-548.
(b) In view of the fact that, shortly after it passed the 1972
Act, Congress enacted new Indian preference laws as part of the
Education Amendments of 1972, giving Indians preference in
Government programs for training teachers of Indian children, it is
improbable that the same Congress condemned the BIA preference as
racially discriminatory. Pp.
417 U. S.
548-549.
Page 417 U. S. 536
(c) The 1972 extension of the Civil Rights Act to Government
employment being largely just a codification of prior
anti-discrimination Executive Orders, with respect to which Indian
preferences had long been treated as exceptions, there is no reason
to presume that Congress affirmatively intended to erase such
preferences. P.
417 U. S.
549
(d) This is a prototypical case where an adjudication of repeal
by implication is not appropriate, since the Indian preference is a
longstanding, important component of the Government's Indian
program, whereas the 1972 anti-discrimination provisions, being
aimed at alleviating minority discrimination in employment, are
designed to deal with an entirely different problem. The two
statutes, thus not being irreconcilable, are capable of
coexistence, since the Indian preference, as a specific statute
applying to a specific situation, is not controlled or nullified by
the general provisions of the 1972 Act. Pp.
417 U. S.
549-551.
2. The Indian preference does not constitute invidious racial
discrimination in violation of the Due Process Clause of the Fifth
Amendment, but is reasonable and rationally designed to further
Indian self-government. Pp.
417 U. S.
551-555.
(a) If Indian preference laws, which were derived from
historical relationships and are explicitly designed to help only
Indians, were deemed invidious racial discrimination, 25 U.S.C. in
its entirety would be effectively erased and the Government's
commitment to Indians would be jeopardized. Pp.
417 U. S.
551-553.
(b) The Indian preference does not constitute "racial
discrimination" or even "racial" preference, but is rather an
employment criterion designed to further the cause of Indian
self-government and to make the BIA more responsive to the needs of
its constituent groups. Pp.
417 U. S.
553-554.
(c) As long as the special treatment of Indians can be tied
rationally to the fulfillment of Congress' unique obligation toward
Indians, such legislative judgments will not be disturbed. Pp.
417 U. S.
554-555.
359 F.
Supp. 585, reversed and remanded.
BLACKMUN, J., delivered the opinion for a unanimous Court.
Page 417 U. S. 537
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
The Indian Reorganization Act of 1934, also known as the
Wheeler-Howard Act, 48 Stat. 984, 25 U.S.C. § 461
et seq.,
accords an employment preference for qualified Indians in the
Bureau of Indian Affairs (BIA or Bureau). Appellees, non-Indian BIA
employees, challenged this preference as contrary to the
anti-discrimination provisions of the Equal Employment Opportunity
Act of 1972, 86 Stat. 103, 42 U.S.C. § 2000e
et seq. (1970
ed., Supp. II), and as violative of the Due Process Clause of the
Fifth Amendment. A three-judge Federal District Court concluded
that the Indian preference under the 1934 Act was impliedly
repealed by the 1972 Act.
359 F.
Supp. 585 (NM 1973). We noted probable jurisdiction in order to
examine the statutory and constitutional validity of this
longstanding Indian preference. 414 U.S. 1142 (1974); 415 U.S. 946
(1974).
I
Section 12 of the Indian Reorganization Act, 48 Stat. 986, 25
U.S.C. § 472, provides:
"The Secretary of the Interior is directed to establish
standards of health, age, character, experience, knowledge, and
ability for Indians who may be appointed, without regard to civil
service laws,
Page 417 U. S. 538
to the various positions maintained, now or hereafter, by the
Indian Office, [
Footnote 1] in
the administration of functions or services affecting any Indian
tribe. Such qualified Indians shall hereafter have the preference
to appointment to vacancies in any such position. [
Footnote 2]"
In June, 1972, pursuant to this provision, the Commissioner of
Indian Affairs, with the approval of the Secretary of the Interior,
issued a directive (Personnel Management Letter No. 72-12) (App.
52) stating that the BIA's policy would be to grant a preference to
qualified Indians not only, as before, in the initial hiring stage,
but also in the situation where an Indian and a non-Indian, both
already employed by the BIA, were competing for a promotion within
the Bureau. [
Footnote 3] The
record indicates that this policy was implemented immediately.
Page 417 U. S. 539
Shortly thereafter, appellees, who are non-Indian employees of
the BIA at Albuquerque, [
Footnote
4] instituted this class action, on behalf of themselves and
other non-Indian employees similarly situated, in the United States
District Court for the District of New Mexico, claiming that the
"so-called
I
ndian Preference Statutes,'"App. 15, were repealed by the 1972
Equal Employment Opportunity Act, and deprived them of rights to
property without due process of law, in violation of the Fifth
Amendment. [
Footnote 5] Named
as defendants were the Secretary of the Interior, the Commissioner
of Indian Affairs, and the BIA Directors for the Albuquerque and
Navajo Area Offices. Appellees claimed that implementation and
enforcement of the new preference policy
"placed and will continue to place [appellees] at a distinct
disadvantage in competing for promotion and training programs with
Indian employees, all of which has and will continue to subject the
[appellees] to discrimination and deny them equal employment
opportunity."
App. 16.
Page 417 U. S. 540
A three-judge court was convened pursuant to 28 U.S.C. § 2282
because the complaint sought to enjoin, as unconstitutional, the
enforcement of a federal statute. Appellant Amerind, a nonprofit
organization representing Indian employees of the BIA, moved to
intervene in support of the preference; this motion was granted by
the District Court and Amerind thereafter participated at all
stages of the litigation.
After a short trial focusing primarily on how the new policy, in
fact, has been implemented, the District Court concluded that the
Indian preference was implicitly repealed by § 11 of the Equal
Employment Opportunity Act of 1972, Pub.L. 92-261, 86 Stat. 111, 42
U.S.C. § 2000e-16(a) (1970 ed., Supp. II), proscribing
discrimination in most federal employment on the basis of race.
[
Footnote 6] Having found that
Congress repealed the preference, it was unnecessary for the
District Court to pass on its constitutionality. The court
permanently enjoined appellants
"from implementing any policy in the Bureau of Indian Affairs
which would hire, promote, or reassign any person in preference to
another solely for the reason that such person is an Indian."
The execution and enforcement of the judgment of the District
Court was
Page 417 U. S. 541
stayed by MR. JUSTICE MARSHALL on August 16, 1973, pending the
disposition of this appeal.
II
The federal policy of according some hiring preference to
Indians in the Indian service dates at least as far back as 1834.
[
Footnote 7] Since that time,
Congress repeatedly has enacted various preferences of the general
type here at issue. [
Footnote
8] The purpose of these preferences, as variously expressed in
the legislative history, has been to give Indians a greater
participation in their own self-government; [
Footnote 9] to further the Government's trust
obligation
Page 417 U. S. 542
toward the Indian tribes; [
Footnote 10] and to reduce the negative effect of having
non-Indians administer matters that affect Indian tribal life.
[
Footnote 11]
The preference directly at issue here was enacted as an
important part of the sweeping Indian Reorganization Act of 1934.
The overriding purpose of that particular Act was to establish
machinery whereby Indian tribes would be able to assume a greater
degree of self-government, both politically and economically.
[
Footnote 12] Congress was
seeking to modify the then-existing situation whereby the primarily
non-Indian-staffed BIA had plenary control, for all practical
purposes, over the lives and destinies of the federally recognized
Indian tribes. Initial congressional proposals would have
diminished substantially the role of the BIA by turning over to
federally chartered self-governing Indian communities many of the
functions
Page 417 U. S. 543
normally performed by the Bureau. [
Footnote 13] Committee sentiment, however, ran against
such a radical change in the role of the BIA. [
Footnote 14] The solution ultimately adopted was
to strengthen tribal government while continuing the active role of
the BIA, with the understanding that the Bureau would be more
responsive to the interests of the people it was created to
serve.
One of the primary means by which self-government would be
fostered and the Bureau made more responsive was to increase the
participation of tribal Indians in the BIA operations. [
Footnote 15] In order to achieve
this end, it was recognized that some kind of preference and
exemption from otherwise prevailing civil service requirements was
necessary. [
Footnote 16]
Congressman Howard, the House sponsor, expressed the need for the
preference:
"The Indians have not only been thus deprived of civic rights
and powers, but they have been largely
Page 417 U. S. 544
deprived of the opportunity to enter the more important
positions in the service of the very bureau which manages their
affairs. Theoretically, the Indians have the right to qualify for
the Federal civil service. In actual practice, there has been no
adequate program of training to qualify Indians to compete in these
examinations, especially for technical and higher positions; and
even if there were such training, the Indians would have to compete
under existing law, on equal terms with multitudes of white
applicants. . . . The various services on the Indian reservations
are actually local, rather than Federal, services and are
comparable to local municipal and county services, since they are
dealing with purely local Indian problems. It should be possible
for Indians with the requisite vocational and professional training
to enter the service of their own people without the necessity of
competing with white applicants for these positions. This bill
permits them to do so."
78 Cong.Rec. 11729 (1934).
Congress was well aware that the proposed preference would
result in employment disadvantages within the BIA for non-Indians.
[
Footnote 17] Not only was
this displacement unavoidable if room were to be made for Indians,
but it was explicitly determined that gradual replacement of
non-Indians with Indians within the Bureau was a desirable feature
of the entire program for self-government. [
Footnote 18]
Page 417 U. S. 545
Since 1934, the BIA has implemented the preference with a fair
degree of success. The percentage of Indians employed in the Bureau
rose from 34% in 1934 to 57% in 1972. This reversed the former
downward trend,
see n 16,
supra, and was due, clearly, to the
presence of the 1934 Act. The Commissioner's extension of the
preference in 1972 to promotions within the BIA was designed to
bring more Indians into positions of responsibility and, in that
regard, appears to be a logical extension of the congressional
intent.
See Freeman v. Morton, 162 U.S.App.D.C. 358, 499
F.2d 494 (1974), and
n 5,
supra.
III
It is against this background that we encounter the first issue
in the present case: whether the Indian preference was repealed by
the Equal Employment Opportunity Act of 1972. Title VII of the
Civil Rights Act of 1964, 78 Stat. 253, was the first major piece
of federal legislation prohibiting discrimination in private
employment on the basis of "race, color, religion, sex, or national
origin." 42 U.S.C. § 2000e-2(a). Significantly, §§ 701(b) and
703(i) of that Act explicitly exempted from its coverage the
preferential employment of Indians by Indian tribes or by
industries located on or near Indian reservations. 42 U.S.C. §§
2000e(b) and 2000 2(i). [
Footnote 19] This exemption reveals a clear
congressional
Page 417 U. S. 546
recognition, within the framework of Title VII, of the unique
legal status of tribal and reservation-based activities. The Senate
sponsor, Senator Humphrey, stated on the floor by way of
explanation:
"This exemption is consistent with the Federal Government's
policy of encouraging Indian employment and with the special legal
position of Indians."
110 Cong.Rec. 12723 (1964). [
Footnote 20]
The 1964 Act did not specifically outlaw employment
discrimination by the Federal Government. [
Footnote 21] Yet the mechanism for enforcing
longstanding Executive Orders forbidding Government discrimination
had proved ineffective for the most part. [
Footnote 22] In order to remedy this, Congress,
by the 1972 Act, amended the 1964 Act and
Page 417 U. S. 547
proscribed discrimination in most areas of federal employment.
See n 6,
supra. In general, it may be said that the substantive
anti-discrimination law embraced in Title VII was carried over and
applied to the Federal Government. As stated in the House
Report:
"To correct this entrenched discrimination in the Federal
service, it is necessary to insure the effective application of
uniform, fair and strongly enforced policies. The present law and
the proposed statute do not permit industry and labor organizations
to be the judges of their own conduct in the area of employment
discrimination. There is no reason why government agencies should
not be treated similarly. . . ."
H.R.Rep. No. 92-238, on H.R. 1746, pp. 24-25 (1971). Nowhere in
the legislative history of the 1972 Act, however, is there any
mention of Indian preference.
Appellees assert, and the District Court held, that, since the
1972 Act proscribed racial discrimination in Government employment,
the Act necessarily, albeit
sub silentio, repealed the
provision of the 1934 Act that called for the preference in the BIA
of one racial group, Indians, over non-Indians:
"When a conflict, such as in this case, is present, the most
recent law or Act should apply and the conflicting Preferences
passed some 39 years earlier should be impliedly repealed."
Brief for Appellees 7.
We disagree. For several reasons we conclude that Congress did
not intend to repeal the Indian preference and that the District
Court erred in holding that it was repealed.
First: There are the above-mentioned affirmative provisions in
the 1964 Act excluding coverage of tribal employment
Page 417 U. S. 548
and of preferential treatment by a business or enterprise on or
near a reservation. 42 U.S.C. §§ 2000e(b) and 2000e-2(i).
See n 9,
supra. These 1964 exemptions as to private employment
indicate Congress' recognition of the longstanding federal policy
of providing a unique legal status to Indians in matters concerning
tribal or "on or near" reservation employment. The exemptions
reveal a clear congressional sentiment that an Indian preference in
the narrow context of tribal or reservation-related employment did
not constitute racial discrimination of the type otherwise
proscribed. In extending the general anti-discrimination machinery
to federal employment in 1972, Congress in no way modified these
private employment preferences built into the 1964 Act, and they
are still in effect. It would be anomalous to conclude that
Congress intended to eliminate the longstanding statutory
preferences in BIA employment, as being racially discriminatory, at
the very same time it was reaffirming the right of tribal and
reservation-related private employers to provide Indian preference.
Appellees' assertion that Congress implicitly repealed the
preference as racially discriminatory, while retaining the 1964
preferences, attributes to Congress irrationality and
arbitrariness, an attribution we do not share.
Second: Three months after Congress passed the 1972 amendments,
it enacted two new Indian preference laws. These were part of the
Education Amendments of 1972, 86 Stat. 235, 20 U.S.C. §§ 887c(a)
and (d), and § l119a (1970 ed., Supp. II). The new laws explicitly
require that Indians be given preference in Government programs for
training teachers of Indian children. It is improbable, to say the
least, that the same Congress which affirmatively approved and
enacted these additional and similar Indian preferences was, at the
same time, condemning
Page 417 U. S. 549
the BIA preference as racially discriminatory. In the total
absence of any manifestation of supportive intent, we are loathe to
imply this improbable result.
Third: Indian preferences, for many years, have been treated as
exceptions to Executive Orders forbidding Government employment
discrimination. [
Footnote
23] The 1972 extension of the Civil Rights Act to Government
employment is in large part merely a codification of prior
anti-discrimination Executive Orders that had proved ineffective
because of inadequate enforcement machinery. There certainly was no
indication that the substantive proscription against discrimination
was intended to be any broader than that which previously existed.
By codifying the existing anti-discrimination provisions, and by
providing enforcement machinery for them, there is no reason to
presume that Congress affirmatively intended to erase the
preferences that previously had coexisted with broad
anti-discrimination provisions in Executive Orders.
Fourth: Appellees encounter head-on the "cardinal rule . . .
that repeals by implication are not favored."
Posadas v.
National City Bank, 296 U. S. 497,
296 U. S. 503
(1936);
Wood v. United States, 16 Pet.
41 U. S. 342-343,
41 U. S. 363
(1842);
Universal Interpretive
Shuttle Corp. v. Washington
Page 417 U. S. 550
Metropolitan Area Transit Comm'n, 393 U.
S. 186,
393 U. S. 193
(1968). They and the District Court read the congressional silence
as effectuating a repeal by implication. There is nothing in the
legislative history, however, that indicates affirmatively any
congressional intent to repeal the 1934 preference. Indeed, as
explained above, there is ample independent evidence that the
legislative intent was to the contrary.
This is a prototypical case where an adjudication of repeal by
implication is not appropriate. The preference is a longstanding,
important component of the Government's Indian program. The
anti-discrimination provision, aimed at alleviating minority
discrimination in employment, obviously is designed to deal with an
entirely different and, indeed, opposite problem. Any perceived
conflict is thus more apparent than real.
In the absence of some affirmative showing of an intention to
repeal, the only permissible justification for a repeal by
implication is when the earlier and later statutes are
irreconcilable.
Georgia v. Pennsylvania R. Co.,
324 U. S. 439,
324 U. S.
456-457 (1945). Clearly, this is not the case here. A
provision aimed at furthering Indian self-government by according
an employment preference within the BIA for qualified members of
the governed group can readily co-exist with a general rule
prohibiting employment discrimination on the basis of race. Any
other conclusion can be reached only by formalistic reasoning that
ignores both the history and purposes of the preference and the
unique legal relationship between the Federal Government and tribal
Indians.
Furthermore, the Indian preference statute is a specific
provision applying to a very specific situation. The 1972 Act, on
the other hand, is of general application. Where there is no clear
intention otherwise, a specific statute will not be controlled or
nullified by a general
Page 417 U. S. 551
one, regardless of the priority of enactment.
See, e.g.,
Bulova Watch Co. v. United States, 365 U.
S. 753,
365 U. S. 758
(1961);
Rodgers v. United States, 185 U. S.
83,
185 U. S. 87-89
(1902).
The courts are not at liberty to pick and choose among
congressional enactments, and when two statutes are capable of
coexistence, it is the duty of the courts, absent a clearly
expressed congressional intention to the contrary, to regard each
as effective.
"When there are two acts upon the same subject, the rule is to
give effect to both if possible. . . . The intention of the
legislature to repeal 'must be clear and manifest.'"
United States v. Borden Co., 308 U.
S. 188,
308 U. S. 198
(1939). In light of the factors indicating no repeal, we simply
cannot conclude that Congress consciously abandoned its policy of
furthering Indian self-government when it passed the 1972
amendments.
We therefore hold that the District Court erred in ruling that
the Indian preference was repealed by the 1972 Act.
IV
We still must decide whether, as the appellees contend, the
preference constitutes invidious racial discrimination in violation
of the Due Process Clause of the Fifth Amendment.
Bolling v
Sharpe, 347 U. S. 497
(1954). The District Court, while pretermitting this issue, said:
"[W]e could well hold that the statute must fail on constitutional
grounds." 359 F. Supp. at 591.
Resolution of the instant issue turns on the unique legal status
of Indian tribes under federal law and upon the plenary power of
Congress, based on a history of treaties and the assumption of a
"guardian-ward" status, to legislate on behalf of federally
recognized Indian tribes. The plenary power of Congress to deal
with the special problems of Indians is drawn both explicitly and
implicitly
Page 417 U. S. 552
from the Constitution itself. Article I, § 8, cl. 3, provides
Congress with the power to "regulate Commerce . . . with the Indian
Tribes," and thus, to this extent, singles Indians out as a proper
subject for separate legislation. Article II, § 2, cl. 2, gives the
President the power, by and with the advice and consent of the
Senate, to make treaties. This has often been the source of the
Government's power to deal with the Indian tribes. The Court has
described the origin and nature of the special relationship:
"In the exercise of the war and treaty powers, the United States
overcame the Indians and took possession of their lands, sometimes
by force, leaving them an uneducated, helpless and dependent
people, needing protection against the selfishness of others and
their own improvidence. Of necessity, the United States assumed the
duty of furnishing that protection, and with it the authority to do
all that was required to perform that obligation and to prepare the
Indians to take their place as independent, qualified members of
the modern body politic. . . ."
Board of County Comm'rs v. Seber, 318 U.
S. 705,
318 U. S. 715
(1943).
See also United States v. Kagama, 118 U.
S. 375,
118 U. S.
383-384 (1886).
Literally every piece of legislation dealing with Indian tribes
and reservations, and certainly all legislation dealing with the
BIA, single out for special treatment a constituency of tribal
Indians living on or near reservations. If these laws, derived from
historical relationships and explicitly designed to help only
Indians, were deemed invidious racial discrimination, an entire
Title of the United States Code (25 U.S.C.) would be effectively
erased and the solemn commitment of the Government toward the
Indians would be jeopardized.
See
Page 417 U. S. 553
Simmons v. Eagle Seelatsee, 244 F.
Supp. 808, 814 n. 13 (ED Wash.1965),
aff'd,
384 U. S. 209
(1966).
It is in this historical and legal context that the
constitutional validity of the Indian preference is to be
determined. As discussed above, Congress in 1934 determined that
proper fulfillment of it trust required turning over to the Indians
a greater control of their own destinies. The overly paternalistic
approach of prior years had proved both exploitative and
destructive of Indian interests. Congress was united in the belief
that institutional changes were required. An important part of the
Indian Reorganization Act was the preference provision here at
issue.
Contrary to the characterization made by appellees, this
preference does not constitute "racial discrimination." Indeed, it
is not even a "racial" preference. [
Footnote 24]
Page 417 U. S. 554
Rather, it is an employment criterion reasonably designed to
further the cause of Indian self-government and to make the BIA
more responsive to the needs of its constituent groups. It is
directed to participation by the governed in the governing agency.
The preference is similar in kind to the constitutional requirement
that a United States Senator, when elected, be "an Inhabitant of
that State for which he shall be chosen," Art. I, § 3, cl. 3, or
that a member of a city council reside within the city governed by
the council. Congress has sought only to enable the BIA to draw
more heavily from among the constituent group in staffing its
projects, all of which, either directly or indirectly, affect the
lives of tribal Indians. The preference, as applied, is granted to
Indians not as a discrete racial group, but, rather, as members of
quasi-sovereign tribal entities whose lives and activities
are governed by the BIA in a unique fashion.
See n 24,
supra. In the sense
that there is no other group of people favored in this manner, the
legal status of the BIA is truly
sui generis. [
Footnote 25] Furthermore, the
preference applies only to employment in the Indian service. The
preference does not cover any other Government agency or activity,
and we need not consider the obviously more difficult question that
would be presented by a blanket exemption for Indians from all
civil service examinations. Here, the preference is reasonably and
directly related to a legitimate, nonracially based goal. This is
the principal characteristic that generally is absent from
proscribed forms of racial discrimination.
On numerous occasions, this Court specifically has upheld
legislation that singles out Indians for particular
Page 417 U. S. 555
and special treatment.
See, e.g., Board of County Comm'rs v.
Seber, 318 U. S. 705
(1943) (federally granted tax immunity);
McClanahan v. Arizona
State Tax Comm'n, 411 U. S. 164
(1973) (same);
Simmons v. Eagle Seelatsee, 384 U.
S. 209 (1966),
aff'g 244 F.
Supp. 808 (ED Wash.1965) (statutory definition of tribal
membership, with resulting interest in trust estate);
Williams
v. Lee, 358 U. S. 217
(1959) (tribal courts and their jurisdiction over reservation
affairs).
Cf. Morton v. Ruiz, 415 U.
S. 199 (1974) (federal welfare benefits for Indians "on
or near" reservations). This unique legal status is of long
standing,
See Cherokee Nation v.
Georgia, 5 Pet. 1 (1831);
Worcester
v. Georgia, 6 Pet. 515 (1832), and its sources are
diverse.
See generally U.S. Dept. of Interior, Federal
Indian Law (1958); Comment, The Indian Battle for
Self-Determination, 58 Calif.L.Rev. 445 (1970). As long as the
special treatment can be tied rationally to the fulfillment of
Congress' unique obligation toward the Indians, such legislative
judgments will not be disturbed. Here, where the preference is
reasonable and rationally designed to further Indian
self-government, we cannot say that Congress' classification
violates due process.
The judgment of the District Court is reversed, and the cases
are remanded for further proceedings consistent with this
opinion.
It is so ordered.
[
Footnote 1]
The Indian Health Service was transferred in 1954 from the
Department of the Interior to the Department of Health, Education,
and Welfare. Act of Aug. 5, 1954, § 1, 68 Stat. 674, 42 U.S.C. §
2001. Presumably, despite this transfer, the reference in § 12 to
the "Indian Office" has continuing application to the Indian Health
Service.
See 5 CFR § 213.3116(b)(8).
[
Footnote 2]
There are earlier and more narrowly drawn Indian preference
statutes. 25 U.S.C. §§ 44, 45, 46, 47, and 274. For all practical
purposes, these were replaced by the broader preference of § 12.
Although not directly challenged in this litigation, these
statutes, under the District Court's decision, clearly would be
invalidated.
[
Footnote 3]
The directive stated:
"The Secretary of the Interior announced today [June 26, 1972]
he has approved the Bureau's policy to extend Indian Preference to
training and to filling vacancies by original appointment,
reinstatement and promotions. The new policy was discussed with the
National President of the National Federation of Federal Employees
under National Consultation Rights NFFE has with the Department.
Secretary Morton and I jointly stress that careful attention must
be given to protecting the Rights of non-Indian employees. The new
policy provides as follows: Where two or more candidates who meet
the established qualification requirements are available for
filling a vacancy. If one of them is an Indian, he shall be given
preference in filling the vacancy. This new policy is effective
immediately, and is incorporated into all existing programs such as
the Promotion Program. Revised Manual releases will be issued
promptly for review and comment. You should take immediate steps to
notify all employees and recognized unions of this policy."
App. 52-53. ___,
[
Footnote 4]
The appellees state that none of them is employed on or near an
Indian reservation. Brief for Appellees 8. The District Court
described the appellees as "teachers . . . or programmers, or in
computer work."
359 F.
Supp. 585, 587 (NM 1973).
[
Footnote 5]
The specific question whether § 12 of the 1934 Act authorizes a
preference in promotion as well as in initial hiring was not
decided by the District Court, and is not now before us. We express
no opinion on this issue.
See Freeman v. Morton, 162
U.S.App.D.C. 358, 499 F.2d 494 (1974).
See also Mescalero
Apache Tribe v. Hickel, 432 F.2d 956 (CA10 1970),
cert.
denied, 401 U.S. 981 (1971) (preference held inapplicable to
reduction in force).
[
Footnote 6]
Section 2000e-16(a) reads:
"All personnel actions affecting employees or applicants for
employment (except with regard to aliens employed outside the
limits of the United States) in military departments as defined in
section 102 of Title 5, in executive agencies (other than the
General Accounting Office) as defined in section 105 of Title 5
(including employees and applicants for employment who are paid
from nonappropriated funds), in the United States Postal Service
and the Postal Rate Commission, in those units of the Government of
the District of Columbia having positions in the competitive
service, and in those units of the legislative and judicial
branches of the Federal Government having positions in the
competitive service, and in the Library of Congress shall be made
free from any discrimination based on race, color, religion, sex,
or national origin."
[
Footnote 7]
Act of June 30, 1834, § 9, 4 Stat. 737, 25 U.S.C. § 45:
"[I]n all cases of the appointments of interpreters or other
persons employed for the benefit of the Indians, a preference shall
be given to persons of Indian descent, if such can be found, who
are properly qualified for the execution of the duties."
[
Footnote 8]
Act of May 17, 1882, § 6, 22 Stat. 88, and Act of July 4, 1884,
§ 6, 23 Stat. 97, 25 U.S.C. § 46 (employment of clerical,
mechanical, and other help on reservations and about agencies); Act
of Aug. 15, 1894, § 10, 28 Stat. 313, 25 U.S.C. § 44 (employment of
herders, teamsters, and laborers, "and where practicable in all
other employments" in the Indian service); Act of June 7, 1897, §
1, 30 Stat. 83, 25 U.S.C. § 274 (employment as matrons, farmers,
and industrial teachers in Indian schools); Act of June 25, 1910, §
23, 36 Stat. 861, 25 U.S.C. § 47 (general preference as to Indian
labor and products of Indian industry).
[
Footnote 9]
Senator Wheeler, cosponsor of the 1934 Act, explained the need
for a preference as follows:
"We are setting up in the United States a civil service rule
which prevents Indians from managing their own property. It is an
entirely different service from anything else in the United States,
because these Indians own this property. It belongs to them. What
the policy of this Government is and what it should be is to teach
these Indians to manage their own business and control their own
funds and to administer their own property, and the civil service
has worked very poorly so far as the Indian Service is concerned. .
. ."
Hearings on S. 2755 and S. 3645 before the Senate Committee on
Indian Affairs, 73d Cong., 2d Sess., pt. 2, p. 256 (1934).
[
Footnote 10]
A letter, contained in the House Report to the 1934 Act, from
President F. D. Roosevelt to Congressman Howard states:
"We can and should, without further delay, extend to the Indian
the fundamental rights of political liberty and local
self-government and the opportunities of education and economic
assistance that they require in order to attain a wholesome
American life. This is but the obligation of honor of a powerful
nation toward a people living among us and dependent upon our
protection."
H.R.Rep. No. 1804, 73d Cong., 2d Sess., 8 (1934).
[
Footnote 11]
"If the Indians are exposed to any danger, there is none greater
than the residence among them of unprincipled white men." H.R.Rep.
No. 474, 23d Cong., 1st Sess., 98 (1834) (letter dated Feb. 10,
1834, from Indian Commissioners to the Secretary of War).
[
Footnote 12]
As explained by John Collier, Commissioner of Indian
Affairs:
"[T]his bill is designed not to prevent the absorption of
Indians in white communities, but rather to provide for those
Indians unwilling or unable to compete in the white world some
measures of self-government in their own affairs."
Hearing on S. 2755 before the Senate Committee on Indian
Affairs, 73d Cong., 2d Sess., pt. 1, p. 26 (1934).
[
Footnote 13]
Hearings on H.R. 7902, Readjustment of Indian Affairs, before
the House Committee on Indian Affairs, 73d Cong., 2d Sess., 1-7
(1934) (hereafter House Hearings).
See also Mescalero Apache
Tribe v. Jones, 411 U. S. 145,
411 U. S.
152-153, n. 9 (1973).
[
Footnote 14]
House Hearings 491-497.
[
Footnote 15]
"[Section 12] was intended to integrate the Indian into the
government service connected with the administration of his
affairs. Congress was anxious to promote economic and political
self-determination for the Indian."
Mescalero Apache Tribe v. Hickel, 432 F.2d at 960
(footnote omitted).
[
Footnote 16]
"The bill admits qualified Indians to the position
[
sic] in their own service."
"Thirty-four years ago, in 1900, the number of Indians holding
regular positions in the Indian Service, in proportion to the total
of positions, was greater than it is today."
"The reason primarily is found in the application of the
generalized civil service to the Indian Service, and the consequent
exclusion of Indians from their own jobs."
House Hearings 19 (memorandum dated Feb.19, 1934, submitted by
Commissioner Collier to the Senate and House Committees on Indian
Affairs).
[
Footnote 17]
Congressman Carter, an opponent of the bill, placed in the
Congressional Record the following observation by Commissioner
Collier at the Committee hearings:
"[W]e must not blind ourselves to the fact that the effect of
this bill, if worked out, would unquestionably be to replace white
employees by Indian employees. I do not know how fast, but
ultimately it ought to go very far indeed."
78 Cong.Rec. 11737 (1934).
[
Footnote 18]
"It should be possible for Indians to enter the service of their
own people without running the gauntlet of competition with whites
for these positions. Indian progress and ambition will be
enormously strengthened as soon as we adopt the principle that the
Indian Service shall gradually become, in fact, as well as in name,
an Indian service predominantly in the hands of educated and
competent Indians."
Id. at 11731 (remarks of Cong. Howard).
[
Footnote 19]
Section 701(b) excludes "an Indian Tribe" from the Act's
definition of "employer." Section 703(i) states:
"Nothing contained in this subchapter shall apply to any
business or enterprise on or near an Indian reservation with
respect to any publicly announced employment practice of such
business or enterprise under which a preferential treatment is
given to any individual because he is an Indian living on or near a
reservation."
[
Footnote 20]
Senator Mundt supported these exemptions on the Senate floor by
claiming that they would allow Indians "to benefit from Indian
preference programs now in operation or later to be instituted."
110 Cong.Rec. 13702 (1964).
[
Footnote 21]
The 1964 Act, however, did contain a proviso, expressed in
somewhat precatory language:
"That it shall be the policy of the United States to insure
equal employment opportunities for Federal employees without
discrimination because of race, color, religion, sex or national
origin."
78 Stat. 254. This statement of policy was reenacted as 5 U.S.C.
§ 7151, 80 Stat. 523 (1966), and the 1964 Act's proviso was
repealed,
id. at 662.
[
Footnote 22]
"This disproportionatte [
sic] distribution of
minorities and women throughout the Federal bureaucracy and their
exclusion from higher level policymaking and supervisory positions
indicates the government's failure to pursue its policy of equal
opportunity."
"A critical defect of the Federal equal employment program has
been the failure of the complaint process. That process has
impeded, rather than advanced the goal of the elimination of
discrimination in Federal employment. . . ."
H.R.Rep. No. 92-238, on H.R. 1746, pp. 23-24 (1971).
[
Footnote 23]
See, e.g., Exec.Order No. 7423, July 26, 1936, 1
Fed.Reg. 885-886, 3 CFR 189 (1936-1938 Comp.). When President
Eisenhower issued an Order prohibiting discrimination on the basis
of race in the civil service, Exec.Order No. 10577, § 4.2, Nov. 22,
1954, 19 Fed.Reg. 7521, 3 CFR 218 (1954-1958 Comp.), he left
standing earlier Executive Orders containing exceptions for the
Indian service.
Id. § 301.
See also 5 CFR §
213.3112(a)(7), which provides a civil service exemption for:
"All positions in the Bureau of Indian Affairs and other
positions in the Department of the Interior directly and primarily
related to the providing of services to Indians when filled by the
appointment of Indians who are one-fourth or more Indian
blood."
See also 5 CFR § 213.3116(b)(8) (Indian Health
Services).
[
Footnote 24]
The preference is not directed towards a "racial" group
consisting of "Indians"; instead, it applies only to members of
"federally recognized" tribes. This operates to exclude many
individuals who are racially to be classified as "Indians." In this
sense, the preference is political, rather than racial in nature.
The eligibility criteria appear in 44 BIAM 335, 3.1:
".1 Policy -- An Indian has preference in appointment in the
Bureau. To be eligible for preference in appointment, promotion,
and training, an individual must be one-fourth or more degree
Indian blood and be a member of a Federally recognized tribe. It is
the policy for promotional consideration that, where two or more
candidates who meet the established qualification requirements are
available for filling a vacancy, if one of them is an Indian, he
shall be given preference in filling the vacancy. In accordance
with the policy statement approved by the Secretary, the
Commissioner may grant exceptions to this policy by approving the
election and appointment of non-Indians, when he considers it in
the best interest of the Bureau."
"This program does not restrict the right of management to fill
positions by methods other than through promotion. Positions may be
filled by transfers, reassignment, reinstatement, or initial
appointment."
App. 92.
[
Footnote 25]
Senator Wheeler described the BIA as "an entirely different
service from anything else in the United States." Hearings on S.
2755 and S. 3645 before the Senate Committee on Indian Affairs, 73d
Cong., 2d Sess., pt. 2, p. 256 (1934).