Amicus Curiae Brief — American Federation of Government Employees v. United States

Supreme Court, U.S.

FILED

@ OCT 1 4 2003

OFFICE OF THE CLERK

No. 03-359

In the

Supreme Court of the United States

4

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO, et al.,

Petitioners,

V.

UNITED STATES, et al.

Respondents.

4

On Petition for Writ of Certiorari to the

United States Supreme Court for the

District of Columbia Court of Appeals

+

BRIEF AMICUS CURIAE OF PACIFIC

LEGAL FOUNDATION IN SUPPORT

OF PETITION FOR WRIT OF CERTIORARI

+

GREGORY T. BRODERICK JOHN H. FINDLEY

SHARON M. MATHEW Counsel of Record

Of C ounsel Pacific Legal Foundation

Pacific Legal Foundation 10360 Old Placerville Road,

10360 Old Placerville Road, Suite 100

Suite 100 Sacramento, California 95827

Sacramento, California 95827 Telephone: (916) 362-2833

Telephone: (916) 362-2833 Facsimile: (916) 362-2932

Facsimile: (916) 362-2932

Counsel for Amicus Curiae Pacific Legal Foundation

i

QUESTION PRESENTED

Is the preference for Native Americans in section 8014 of

the Department of Defense Appropriations Act, which is neither

restricted to Indian tribes, nor related to uniquely Indian

interests, subject to rational basis review under Morton v.

Mancari, 417 U.S. 535 (1974), or strict scrutiny under Adarand

Constructors, Inc. v. Pena, 515 U.S. 200 (1995)?

ii

TABLE OF CONTENTS

Page

QUESTION PREGGSCEE? 6665 ck vine wesccnrceenenseeuens 1

TABLE GP AUD THRIEMe 66 vic ba cer becdavsteneseusens iil

INTEREST OF AMICUS CURIAE .nncccccncccccecevenss 1

STATEMENT OF "FERG GAGS os ccs essnswddssecoonsonves ]

SUMMARY OF AIRGIUINEEING os iccecsetcceeresvsusdsses 3

pt 8 2: re re rr re sees &

I. THE PROPER STANDARD OF REVIEW

FOR NATIVE AMERICAN PREFERENCES

IS AN IMPORTANT FEDERAL QUESTION ......... 4

II. THE DISTRICT OF COLUMBIA CIRCUIT’S

APPLICATION OF MANCARI CONFLICTS

WITH DECISIONS OF THE NINTH CIRCUIT ...... 10

CONCLUSION... ..<:icuiesceuaege eee 15

ORT oS OF

ili

TABLE OF AUTHORITIES

Page

Cases

Adarand Constructors, Inc. v. Pena,

ee ENUF feo bse dn ens veces 1, 3, 6-12, 14

American Federation of Government

Employees v. United States,

195 F. Supp. 2d 4 (D.C. Cir, 2002)... ese cess 2-3

American Federation of Government

Employees v. United States,

ee SE es BOD vase recsecesecsen 3,14

Associated General Contractors of California,

Inc. v. City and County of San Francisco,

of ee. Le ey) rae l

Buckley v. Valeo, 424 U.S. 1 (1976) ......--++- eee ee. 8

City of Richmond v. Croson, 488 U.S. 469 (1989) ..... 8-9

Dawavandewa v. Salt River Project Agric.

Improvement & Power District,

oe Bee, rr 4,12

Gratz v. Bollinger, 123 S. Ct. 2411 (2003) ............. 8

Grutter v. Bollinger, 123 S. Ct. 2325 (2003) ............ 8

Hi-Voltage Wire Works, Inc. v. City of

Gan Jose, 12 P.36 1066 (Cal. 2000) ... nei ccccnss ]

Malabed v. North Slope Borough,

42 F. Supp. 2d. 927 (D. Alaska 1999) .............. 13

Malabed v. North Slope Borough,

Be te I NG BED neve cw ns ececenscesecs 14

McLaughlin v. Florida, 379 U.S. 184 (1964) ........... 8

Morton v. Mancari, 417 U.S. 535 (1974) .... 2-3, 5, 7, 9-14

iV

TABLE OF AUTHORITIES—Continued

Page

Rice v. Cayetano, 528 U.S. 495 (2000) ....-....... 1, 6-10

Tafoya v. City of Albuquerque,

751 F. Supp. 1527 (D.N.M. 1990) ............. 12-13

U.S. Air Tour Association v. F.A.A.,

298 F.3d 997 (D.C. Cir. 2002), ;

cert. denied, 123 S. Ct. 1783.(2003) .........ceccees l

United States v. Antelope, 430 U.S. 641 (1977) ........ 11

University of California v. Bakke, 438 U.S. 265 (1978) ... 1

Williams v. Babbitt, 115 F.3d 657 (9th Cir. 1997) .. 4, 11-13

Court Rules

SNS COME FINO STE 6 oe vac er veesestecesoeenes 1

Statutes

Defense Appropriations Act

for FY 2000, Pub. L. No. 106-79,

§ S014, 113 Stat. 1212 (1999)... ces cn wcecece 1-2

Native Hawaiian Recognition Act of 2003,

S. 344, 108th Cong. (1st Sess. 2003) ............. 4-5

Miscellaneous

Benjamin, Stuart Minor, Equal Protection and the

Special Relationship: The Case of Native

Hawaiians, 106 Yale. L.J. 537 (1996) .............. 8

Bradford, William, “With a Very Great Blame

in Our Hearts”: Reparations, Reconciliation,

and an American Indian Plea for Peace with Justice,

2? Aah. OG. L. ROU. TCISD oc ce vccccseccewsens 8

os pO Oe rt

Vv

TABLE OF AUTHORITIES—Continued

Page

Center for Responsive Politics, Background:

Indian Gaming, available at

http://www. opensecrets.org/industries/

background.asp?Ind=G6550 ............eeceeeeeee 5

Farnsworth, Wayne R., Bureau of Indian Affairs

Hiring Preferences After Adarand Constructors,

Inc. v. Pena, 1996 B.Y.U. L. Rev. 503 (1996) ...... 8-9

Frickey, Philip P., Adjudication and Its Discontents:

Coherence and Conciliation in Federal Indian

Law, 110 Harv. L. Rev. 1754 (1997) ............... 7

Goldberg-Ambrose, Carole, Not “Strictly” Racial:

A Response to “Indians as Peoples,”

FP ULLAL. Re. EOE) hao oes ane rssevesus 9

Goldberg, Carole, American Indians and Preferential

Treatment, 49 UCLA L. Rev. 943 (2002) ......... 9-10

Gould, L. Scott, Mixing Bodies and

Beliefs: The Predicament of Tribes,

101 Colum. L. Rev. 702 (2001) .......ccccecces 7, 10

Hilgendorf, Don, Tribes Have Become Players in

Sacramento, L.A. Times (Sept. 27, 2003) ............ 5

Longwitz, Tobi Edward, Indian Gaming: Making a New

Bet on the Legislative and Executive Branches After

IGRA’s Judicial Bust, 7 Gaming L. Rev. 197 (2003) ... 5

National Indian Gaming Association,

Library and Resource Center,

www. indiangaming.org/library/index.html ........... 5

Smith, Clay R., “Indian” Status: Let a Thousand

Flowers Bloom, 46 Mar. Advocate 18 (2003)....... 4,6

~ ae

1

INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37.2, Pacific Legal

Foundation (PLF) submits this brief amicus curiae in support of

Petitioners. Consent to file this brief was obtained from all

parties and has been lodged with the Clerk of this Court.’

PLF is a nonprofit, tax-exempt corporation organized

under the laws of the State of California, for the purpose of

engaging in matters affecting the public interest. PLF has

participated in numerous cases involving discrimination on the

basis of race including Rice v. Cayetano, 528 U.S. 495 (2000),

Adarand Constructors Inc. v. Pena, 515 U.S. 200 (1995),

University of California v. Bakke, 438 U.S. 265 (1978), U.S. Air

Tour Association v. F.A.A., 298 F.3d 997 (D.C. Cir. 2002),

cert. denied, 123 S. Ct. 1783 (2003); Associated General

Contractors of California, Inc. v. City and County of San

Francisco, 813 F.2d 922 (9th Cir. 1987), and Hi-Voltage Wire

Works, Inc. v. City of San Jose, 12 P.3d 1068 (Cal. 2000). PLF

considers this case to be of special significance in that it

impacts every state and federal preference for Native

Americans.

STATEMENT OF THE CASE

In January, 1999, Congress passed the Defense

Appropriations Act for Fiscal Year 2000. Buried among its

various provisions for pay, retirement, training, and

maintenance of our armed forces, section 8014 of the act grants

a preference for civil contracting firms owned by Native

Americans. Defense Appropriations Act for FY 2000, Pub. L.

No. 106-79, § 8014, 113 Stat 1212 (1999), provided that none

of the appropriation funds could be used to “out source” jobs

! Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel for

any party authored this brief in whole or in part and that no person

or entity made a monetary contribution specifically for the

preparation or submission of this brief.

2

unless the Department conducted a long and complicated cost-

benefit analysis. But the Department could forego the analysis

if it granted the contracts to firms with at least 51% Native

American ownership.

Pursuant to this section, Kirtland Air Force Base in

Albuquerque, New Mexico, notified Congress that it would be

engaging in a cost-benefit analysis to determine if it was

advisable to out source various base maintenance operations.

Shortly after the required notifications were published, Chugach

Management Services (CMS), Joint Venture, notified the base

of its interest in the contract. CMS is a joint venture of

Chugach Management Services, Inc., and Alutiiq Management

Services, both of which are owned by federally recognized

tribes. Because the majority of CMS is owned by Native

Americans, the firm qualified for the section 8014 preference.

Invoking that preference, the Air Force skipped the cost-benefit

analysis and awarded the 523 million dollar contract to CMS.

The contract is for one year, with nine one-year options to

renew. As a result of the conversion, over 240 civil engineers

lost their jobs.

The former employees and their unions filed an action

against the Department of Defense, the Secretary of the Air

Force, and CMS in the United States District Court for the

District of Columbia. This facial challenge to section 8014

claimed that it violated the equal protection component of the

Fifth Amendment. On cross-motions for summary judgment,

the trial court applied the rational basis review standard of

Morton v. Mancari, 417 U.S. 535 (1974), and found no equal

protection violation. The district court determined that

classifications involving Native Americans are always political

rather than racial and applied the lower standard of review set

out in Mancari. American Federation of Government

Employees v. United States, 195 F. Supp. 2d 4, 20 (D.C. Cir.

2002).

ee en

3

Petitioners’ facial challenge fared no better in the United

States Court of Appeals for the District of Columbia. Finding

that the corporation receiving the contract was owned by a

federally recognized tribe, the court refused to analyze the

constitutionality of the language permitting the preference for

corporations with 51% Native American ownership. American

Federation of Government Employees v. United States, 330

F.3d 513, 518 (D.C. Cir. 2003). The court then found “tribal

economic development” to be a sufficient justification for the

preference and upheld the decision of the lower court.

Petitioners now seek review of the decision of the District

of Columbia Circuit Court’s ruling that a preference for Native

Americans, neither dependent on tribal status nor related to

uniquely Indian interests, need only satisfy the rational basis”

standard of review under the Equal Protection Clause.

SUMMARY OF ARGUMENT

At present, there is considerable confusion as to the

correct standard of review for constitutional challenges to

government preferences for Native Americans under the Equal

Protection Clause. Though Mancari analyzed certain

preferences aimed at tribes and relating to “uniquely Indian

interests” under rational basis, more recent case law suggests

that preferences based on racial classifications should be

analyzed under strict scrutiny.

The confusion over the standard of review has led to a

direct conflict among the federal courts of appeals. The District

of Columbia Circuit Court has determined that Congress need

not limit a preference to tribes or tribal members to qualify for

Mancari’s lower rational basis standard. Conversely, the Ninth

Circuit Court determined that strict scrutiny is the correct

standard unless the preference is related to uniquely Indian

interests and limited to tribes or tribal members. See Williams

v. Babbitt, 115 F.3d 657 (9th Cir. 1997); Dawavandewa v. Salt

River Project Agric. Improvement & Power District, 154 F.3d

4

1117 (9th Cir. 1998). Moreover, the circuit courts conflict over

whether economic assistance to tribes is a sufficient

constitutional justification for a preference that is not limited to

tribal members. Thus, it is altogether unclear how a federal

court should analyze a preference for Native Americans.

Identical sets of facts will result in contradictory outcomes

depending on the circuit in which the case is filed. This Court

should therefore grant the Petition for Writ of Certiorari and

announce the proper standard of review for cases involving

government preferences for Native Americans.

ARGUMENT

I

THE PROPER STANDARD OF REVIEW FOR

NATIVE AMERICAN PREFERENCES IS AN

IMPORTANT FEDERAL QUESTION

This case presents the Court with an important issue in

need of immediate judicial resolution. The number of

government preferences for individuals and groups claiming

“Native American” or “Indian” status is increasing. See

Clay R. Smith, “Jndian” Status: Let a Thousand Flowers

Bloom, 46 Mar. Advocate 18 (2003) (noting that at least 160

federal programs offer race-based preferences and, particularly

in the area of public contracting, Congress has expressed a

desire to extend preferences to all “Native Americans”

including American Indians, Eskimos, Aleuts, or Native

Hawiians). Additionally, Congress is now considering

legislation that would grant Native Hawaiians federal

recognition, giving them the same status as federally recognized

Indian tribes. See Native Hawaiian Recognition Act of 2003,

S. 344, 108th Cong. (1st Sess. 2003). Thus, as government

preferences continue to increase for Indian tribes and individual

Indians, and with the number of federally recognized tribes on

the rise, it is imperative that this Court determine whether and

to what extent Mancari exempts these preferences from the

5

heightened scrutiny that otherwise applies to racial

classifications.

Furthermore, as Indian tribes enter the mainstream of

economic and political life, competing with Americans of every

background and ethnicity for employment, contracting

opportunities, and other government benefits, it is ever more

crucial that the constitutional standard for challenges to tribal

preferences be certain. In fiscal year 2001, tribal gaming

revenue nationwide was $12.7 billion dollars. National Indian

Gaming Association, Library and Resource Center,

www.indiangaming.org/library/ index.html. With this

newfound wealth, Indian tribes are now able to influence policy

through political campaign contributions and are able to lobby

directly for more government preferences. See Don Hilgendorf,

Tribes Have Become Players in Sacramento, L.A. Times (Sept.

27, 2003) (noting that tribes spent 6.6 million dollars in the

recent California recall election, making them the largest donors

in the race). In many states, tribes and their associated

interest groups have spent considerable resources promoting

referenda on tribal gaming. See Center for Responsive

Politics, Background: Indian Gaming, available at

http://www.opensecrets.org/industries/background.asp?Ind=

G6550. Tribes have also directed lobbying efforts at attaining

preferential treatment in other areas such as education, health

care, and public contracting. See Hilgendorf, supra. As one

commentator noted, “Indian gaming participants are learning

the savvy techniques involved in the game of politics and

power.” Tobi Edward Longwitz, Indian Gaming: Making a

New Bet on the Legislative and Executive Branches After

IGRA’s Judicial Bust, 7 Gaming L. Rev. 197, 201 (2003).

Tribes now enjoy government preferences that are aimed

solely at granting economic benefits, rather than promoting any

unique Indian interest, as was the case in Mancari. Now that

Indian tribes wield significant political power, it is likely that

legislation granting preferences to Indian tribes will increase.

6

See Smith, supra (noting Congress’ willingness to grant more

government preferences for “Indians and “Native Americans”).

Therefore it is crucial that the federal courts have a uniform

standard of review for evaluating the constitutionality of such

preferences.

The decisions of this Court in both Adarand and Rice have

created great uncertainty as to the constitutional limitations on

government preferences for both tribes and unaffiliated Native

Americans. It is unclear whether preferences for Native

Americans that do not require tribal membership are subject

only to rational basis review under Mancari or heightened

scrutiny under Adarand. It is also unclear whether preferences

to Indian tribes that are aimed solely at benefitting tribes

economically must only withstand rational basis review. Thus,

parties litigating equal protection challenges to these

preferences are likely to face different standards of review and

suffer the uncertainty of inconsistent verdicts depending on the

forum.

Although the government contract in this case was

awarded to a tribe, the section 8014 preference did not require

tribal membership. Instead, the provision only required that a

firm be owned, in part, by Native Americans. Therefore, this

case provides the perfect vehicle for addressing the limitations

on Mancari both as it relates to preferences for individuals who

are not members of federally recognized tribes, and as it relates

to government preferences that do not serve any uniquely Indian

interest.

In Mancari, this Court upheld employment preferences at

the Bureau of Indian Affairs (BIA) for members of federally

recognized tribes. Noting that Congress has constitutional

authority to regulate commerce with tribes, the Court held that

the preference was granted “not to a discrete racial group,” but

to “members of quasi-sovereign tribal entities whose lives and

activities are governed by the BIA in a unique fashion.” 417

7

U.S. at 554. The Court was also careful to note that the case

was limited to the authority of the BIA, an agency described as

“sui generis.” Jd. In fact, the Court explicitly refused to

address “the more difficult question” of blanket exemptions or

preferences unrelated to Indian self-government. Jd. Although

the preference at issue in Mancari did require that applicants

possess a certain quantum of Indian blood, the Mancari Court

did not focus on this fact. Instead, the Court characterized the

preference as political rather than racial because individuals

were also required to be members of federally recognized tribes.

Id. & n.24. Based on this distinction, the Court applied rational

basis review and upheld the preference as “reasonably and

directly related to a legitimate, nonracially based goal.” Jd.

The characterization of the Mancari preference as political

rather than racial has undergone increasing criticism from

academic scholars and members of this Court. See Philip P.

Frickey, Adjudication and Its Discontents: Coherence and

Conciliation in Federal Indian Law, 110 Harv. L. Rev. 1754,

1761-62 (1997) (noting that the Mancari Court refused to

consider the fact that “race, as measured by blood quantum, was

a but-for requirement of eligibility for the preference”);

L. Scott Gould, Mixing Bodies and Beliefs: The Predicament

of Tribes, 101 Colum. L. Rev. 702, 713 (2001). There is a

substantial question as to whether preferences for Native

Americans are subject only to rational basis review under

Mancari even if the preferences lack a “political” component

limiting the reach to members of federally recognized tribes.

For instance, in one dissenting opinion; Justices Stevens and

Ginsberg have suggested that the Mancari rational basis

analysis should apply regardless of whether a tribal affiliation

exists. See Rice v. Cayetano, 528 U.S. at 535 (Stevens, J.,

dissenting).

It is also unclear what portion of the Mancari analysis,

if any, survives after this Court’s ruling in Adarand. In

Adarand, this Court made three points clear. First, “racial

8

classifications [are] constitutionally suspect.’” 515 U.S. at 223

(citing McLaughlin v. Florida, 379 U.S. 184, 192 (1964)).

Second, “the standard of review under the Equal Protection

Clause is not dependent on the race of those burdened or

benefitted by a particular classification.” Adarand, 515 U.S. at

224 (citing City of Richmond v. Croson, 488 U.S. 469, 494

(1989) (plurality opinion)). Third, “[e]qual protection analysis

in the Fifth Amendment area is the same as that under the

Fourteenth Amendment.” Buckley v. Valeo, 424 U.S. 1, 93

(1976). The Court concluded that “all racial classifications,

imposed by whatever federal, state, or local governmental actor,

must be analyzed by a reviewing court under strict scrutiny. In

other words, such classifications are constitutional only if they

are narrowly tailored measures that further compelling

government interests.” Adarand, 515 U.S. at 227 (emphasis

added). The Court recently reaffirmed this standard of review

for racial classifications in Grutter v. Bollinger, 123 S. Ct.

2325, 2337 (2003), and Gratz v. Bollinger, 123 S. Ct. 2411,

2427 (2003). |

Since this Court’s decision in Adarand, there has been

much debate over its effect on Native American, tribal, and

nontribal government preferences. Some scholars contend that

Adarand does apply to preferences for Native Americans. See

Wayne R. Farnsworth, Bureau of Indian Affairs Hiring

Preferences After Adarand Constructors, Inc. v. Pena, 1996

B.Y.U. L. Rev. 503, 522-25 (1996) (noting that government

preferences without a tribal membership component would fail

_ under Adarand); William Bradford, “With a Very Great Blame

in Our Hearts”: Reparations, Reconciliation, and an American

Indian Plea for Peace with Justice, 27 Am. Ind. L. Rev. 1, 131

(2002-03) (noting that “Adarand and Rice are harbingers of

judicial retreat to a stricter standard of scrutiny of remedial

legislation benefitting Indians”); Stuart Minor Benjamin, Equal

Protection and the Special Relationship: The Case of Native

Hawaiians, 106 Yale. L.J. 537, 567 (1996) (arguing that

9

Adarand and Croson have “changed the constitutional

landscape” for Native American preferences). While they

acknowledge that some preferences may be sufficiently

narrowly tailored to survive strict scrutiny, they conclude that

preferences not dependent upon tribal status would fail under

Adarand. See Farnsworth, supra, at 522-25. Another scholar

contends that Congress’ constitutional power to regulate

commerce with Indian tribes permits all racial classifications

benefitting Native Americans, regardless of tribal affiliation,

and therefore Adarand’s strict scrutiny standard of review

would not apply to such preferences. See Carole Goldberg,

American Indians and Preferential Treatment, 49 UCLA L.

Rev. 943, 970 (2002); Carole Goldberg-Ambrose, Not

“Strictly” Racial: A Response to “Indians as Peoples,” 39

UCLA L. Rev. 169, 174-175 (1991).

This Court’s most recent decision discussing Mancari

implies that there are constitutional limitations on government’s

power to create racial preferences favoring Native Americans.

In Rice v. Cayetano, this Court analyzed the constitutionality of

a Hawaiian statute allowing only descendants of indigenous

Hawaiians to vote for certain offices. While the case was

ultimately decided on Fifteenth Amendment grounds, this Court

addressed Mancari, confining it to matters of quasi-sovereign

authority relating to self-governance. 528 U.S. at 520.

Although the Court distinguished Native Hawaiians from

American Indians, it implied that there are constitutional

limitations on Congress’ power over Indian tribes.

Hawaii would extend the limited exception of

Mancari to a new and larger dimension. The State

contends that “one of the very purposes of

OHA—and the challenged voting provision is—to

afford Hawaiians a measure of self-governance,” and

so it fits the model of Mancari. It does not follow

from Mancari, however, that Congress may

authorize a State to establish a voting scheme that

10

limits the electorate for its public officials to a class

of tribal Indians, to the exclusion of all non-Indian

citizens.

Rice, 528 U.S. at 520.

Thus, even if the Court had analyzed the provision as a

tribal preference, it would still have failed as a violation of the

Fifteenth Amendment. If the Fifteenth Amendment may limit

Congress’ constitutional power to regulate commerce with

tribes, then other constitutional provisions probably also apply,

including the equal protection component of the Fifth

Amendment. See Gould, supra, at 740. But see Goldberg,

~ American Indians and Preferential Treatment, 49 UCLA L.

Rev. at 967-68 (arguing that preferences for Native Americans

may be prohibited under the Fifteenth Amendment, but such

preferences are permitted under the equal protection component

of the Fifth Amendment because the latter is less specific about

racial classifications than the former).

It is unclear whether Mancari is limited to preferences for

tribes or tribal members. If Mancari permits “racial”

preferences, then its viability is certainly in jeopardy after this

Court’s decision in Adarand. Now that Congress is considering

increasing the number of federally recognized tribes, as well as

the preferences benefitting these tribes, it is likely that the

number of equal protection challenges to these preferences will

increase. In order to avoid more conflicting decisions in the

federal courts, it is imperative that this Court announce the

correct standard of review for these constitutional challenges.

Il

THE DISTRICT OF COLUMBIA CIRCUIT’S

APPLICATION OF MANCARI CONFLICTS

WITH DECISIONS OF THE NINTH CIRCUIT

The District of Columbia Circuit and the Ninth Circuit

directly conflict in their application of Mancari when the racial

11

classification at issue is aimed at assisting Indians

economically, rather than furthering some uniquely Indian

interest such as self-government. While the District of

Columbia Circuit Court has applied Mancari to economic

preferences unrelated to unique Indian interests, the Ninth

Circuit has held that Mancari does not apply to such

preferences.

In Williams v. Babbitt, 115 F.3d 657, the Ninth Circuit

refused to uphold an interpretation of the Reindeer Industry Act

which limited the sale of Alaskan reindeer to nonnatives.

Characterizing the limitation as a “naked preference for Indians

unrelated to unique Indian concerns,” the court held that

Mancari did not apply. The court held that preferences for

Native Americans should not be analyzed under Mancari unless

the “[l]egislaiion that relates to Indian land, tribal status, self-

government or culture . . . [and is therefore] ‘rooted in the

unique status of Indians as “a separate people” with their own

political institutions.’” 115 F.3d at 664 (quoting United States

v. Antelope, 430 U.S. 641 (1977)). The court was quick to note

that while Mancari cited several cases as examples of

permissible “special treatment” for Indians, each of the cases

dealt with regulating activities in the immediate vicinity of

Indian land. Jd. at 664-65 (citing Morton v. Mancari, 417 U.S.

535, 555 (1974)).

Finding that the preference was not designed to promote

any unique Indian interest because its only effect was to benefit

Native Americans economically, the court refused to apply

Mancari’s rational basis test. Rather, the court determined that

strict scrutiny should apply, noting that after Adarand,

“Mancari’s days-are numbered.” Williams, 113 F.3d at 665.

The Ninth Circuit expressly stated that the classification

would fail under Adarand for lack of narrow tailoring.

Assuming that Congress has a compelling interest in

assisting natives economically, the [Interior Board of

PUN aR i i nla

12

Indian Appeals’ ] interpretation precludes any chance

of defending the Reindeer Act as narrowly tailored to

serve that interest. A complete race-based ban is the

broadest possible remedy. Unlike a subsidy, set-

aside or even a quota, an absolute ban deprives the

disfavored racial group of all opportunity to

participate thus placing a tremendous burden on

innocent third parties. This makes the remedy

almost by definition not narrowly tailored.

Id. at 665-66.

Even though the court ultimately avoided the “difficult

constitutional questions,” posed by the case and adopted

instead a “less constitutionally troubling construction” of the

Act, Williams shows the court’s intent to apply strict scrutiny to

classifications unrelated to unique Indian interests. Jd. at 666.

‘In Dawavandewa, the Ninth Circuit refused to extend

Mancari to another preference that was not linked to unique

tribal interests. The court analyzed whether the Navajo tribe

could require employers located on their land to give

employment preferences to members of the Navajo tribe over

members of other tribes. The appellate court confined the

Mancari rational basis test to issues of tribal self-governance

and noted that “[p]referential employment of Navajo Indians on

a privately owned facility, while certainly helpful to the tribe’s

employment problems, has little to do with increasing the

tribe’s capacity for self-governance.” Dawavandewa, 154 F.3d

at 1123.

District court opinions from courts within the Ninth

Circuit also demonstrate a judicial trend towards limiting

Mancari to preferences involving tribal self government.

These courts have applied Adarand’ s strict scrutiny analysis in

evaluating equal protection challenges to government

preferences, where the preference is unrelated to a unique

Indian interest. For example, in Tafoya v. City of Albuquerque,

13

731 F. Supp. 1527 (D.N.M. 1990), a district court in the Ninth

Circuit found that a licensing ordinance limiting the sale of

goods to New Mexico residents who were members of the

Navajo Nation or of a federally recognized Indian tribe, was

unconstitutional on state and federal equal protection grounds.

The ordinance was designed to “preserve, protect and promote

the educational, cultural and artistic interest” and the city

contended that the preference was constitutionally permissible

under Mancari. The court disagreed, holding that the city had

“no particularized interest in furthering Indian interests [which

were] comparable to that of the Bureau of Indian Affairs, an

agency created by the United States Congress to advance its

constitutional rights with respect to Indians.” 751 F. Supp at

1530. Applying strict scrutiny to the racial classification, the

court found the ordinance unconstitutional.

In another district court case, the court refused to extend

Mancari to permit borough preferences in hiring for members

of federally recognized tribes. Malabed v. North Slope

Borough, 42 F. Supp. 2d. 927, 937 (D. Alaska 1999). Citing to

Williams, the district court noted that

[t]he Ninth Circuit interprets Mancari “as shielding

only those statutes that affect uniquely Indian

interests.” This interpretation is consistent with

long-recognized principles. [The Borough]

employment preference is in no way related to

Native land or tribal or cultural affairs. Public

employment with [the Borough] is not part of some

uniquely Indian interest, or time-honored, tribal

tradition. Mancari’s rationale would seem

inapplicable here.

Id. at 937-38. Citing to Williams, the district court held that

Mancari does not apply to preferences unrelated to unique

Indian interests, regardless of whether the preference is

characterized as political rather than racial. Jd. at 938. The

district court evaluated the hiring preference under Adarand’ s

14

strict scrutiny test and found that the preference was not

narrowly tailored to further any compelling state interest. Jd.

On appeal, the Ninth Circuit found that the Malabed

hiring preference violated the Equal Protection Clause of the

Alaska Constitution and, therefore, the court did not reach the

federal constitutional claims. Malabed v. North Slope Borough,

335 F.3d 864, 867 n.2 (9th Cir. 2003). The appellate court did

note, however, that Mancari’s reach is limited.

Relying on Morton v. Mancari, the Borough argues

' that statutes enacted for the benefit of tribal members

do not violate any federal or state antidiscrimination

law .... This argument puts more weight on

Mancari than it can bear. Mancari heid only that

when Congress acts to fulfill its unique trust

responsibilities towards Indian tribe, such legislation

is not based on a suspect classification.

335 F.3d at 868 n.5 (citation omitted).

Decisions of district courts within the Ninth Circuit and

the opinions of the appellate court itself illustrate a reluctance

to extend Mancari to government preferences aimed solely at

benefitting tribes economically. This interpretation of Mancari

directly conflicts with the lower court’s decision in this case.

The District of Columbia Circuit Court upheld the section 8014

racial classification because it served the “important federal

interest” of “tribal economic development.” American

Federation of Government Employees, 330 F.3d at 522. But the

Ninth Circuit decisions holdthat economic development is not

a unique Indian interest and, therefore, classifications based on

this premise are not exempted from heightened scrutiny.

Given this conflict, the appropriate constitutional standard

of review is unclear. In order to avoid further conflict in the

federal courts, it is crucial that this Court announce the correct

standard of review for constitutional challenges to government

preferences benefitting Native Americans.

15

CONCLUSION

For all the foregoing reasons, the Petition for Writ of

Certiorari should be granted.

DATED: October, 2003.

Respectfully submitted,

GREGORY T. BRODERICK JOHN H. FINDLEY

SHARON M. MATHEW Counsel of Record

Of Counsel Pacific Legal Foundation

Pacific Legal Foundation 10360 Old Placerville Road,

10360 Old Placerville Road, Suite 100

Suite 100 Sacramento, California 95827

Sacramento, California 95827 Telephone: (916) 362-2833

Telephone: (916) 362-2833 Facsimile: (916) 362-2932

Facsimile: (916) 362-2932

Counsel for Amicus Curiae Pacific Legal Foundation