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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2085%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 1088

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2085%3A4. Public record. Not legal advice.