Metropolitan News-Enterprise


Thursday, January 3, 2002


Page 4


Ninth Circuit Rejects Hopi’s Suit Challenging Hiring Preference for Navajos


By a MetNews Staff Writer


An Arizona agency’s hiring preference for members of the Navajo Nation cannot be challenged in court, the Ninth U.S. Circuit Court of Appeals ruled yesterday, because the Navajo would be an indispensable party to any litigation and are immune.

The court affirmed an order by Chief U.S. District Judge Stephen McNamee of the District of Arizona dismissing Harold Dawavendewa’s Title VII suit against the Salt River Project Agricultural Improvement and Power District.

Dawavendewa, a member of the Hopi tribe who lives about three miles from the Navajo reservation, claimed that the district discriminated against him on the basis of national origin by not hiring him as an operator trainee at the Navajo Generating Station. The station is operated by the district on reservation lands pursuant to a lease.

The lease requires the district to grant preference in hiring to qualified Navajos who live on the reservation, and then to other qualified Navajos, before non-Navajos may be hired. The provision mirrors the Navajo Preference in Employment Act, which requires employers doing business on or near the reservation to adopt “specific Navajo affirmative action plans and timetables for all phases of employment.”

Dawavendewa’s suit—filed in 1996—was originally dismissed under a provision of Title VII allowing “any business or enterprise on or near an Indian reservation” to grant “preferential treatment” in employment to “an Indian living on or near a reservation.” But the Ninth Circuit reversed four years ago, saying the provision didn’t apply, and sent the case back to the district judge.

On remand, the judge granted the district’s motion to dismiss based on the indispensable-party defense.

Judge Stephen Trott, writing for the appellate court, said McNamee was correct.

The jurist explained that under Rule 19 of the Federal Rules of Civil Procedure, the trial judge must make a “practical, fact-specific” determination as to whether the presence of a party is necessary to the granting of the relief sought by the plaintiff.  If a party is determined to be necessary but cannot be joined, the judge must determine whether the party is indispensable, necessitating dismissal of the action.

In determining whether a party is indispensable, Trott explained, the court must balance the potential loss of the plaintiff’s claim—considering any viable alternative remedies—against the prejudice to the interests of the necessary party.

The Navajo Nation is a necessary party to Dawavendewa’s suit, Trott said, because an injunction against Navajo preference would be unenforceable if only the district were bound by it. Such an injunction, the appellate jurist said, would put the district “between the proverbial rock and a hard place — comply with the injunction prohibiting the hiring preference policy or comply with the lease requiring it.”

Because sovereign immunity precludes joining the tribe, Trott went on to say, Dawavendewa can only maintain the suit if the tribe is not an indispensable party. A party is indispensable, the judge explained, if in “equity and good conscience,” the suit should not be allowed to proceed in its absence.

The Navajo Nation is indispensable to the suit, Trott said, because an adjudication in favor of the plaintiff would cause irremediable prejudicie to its interests—the tribe would be forced to either give up the preference or cancel the lease. The judge added that Dawavendewa has an alternative remedy—he can seek intervention by the Equal Employment Opportunity Commission, which is not subject to tribal sovereign immunity.

In a footnote, Trott suggested another possible alternative. The plaintiff, he said, could sue in tribal court and, if he were to lose, might be able to sue tribal officials who would not be protected by sovereign immunity.

The case is Dawavendewa v. Salt River Project Agricultural Improvement and Power District, 00-16787.


Copyright 2002, Metropolitan News Company