Wednesday, March 10, 2010
Hiring Preferences on Tribal Lands Are Legal, Brown Tells Caltrans
By KENNETH OFGANG, Staff Writer
The California Department of Transportation is not prohibited from granting preferences to members of Indian tribes when hiring for, or contracting out, road construction and maintenance work on roads located on American Indian land, Attorney General Jerry Brown said in an opinion made public yesterday.
In an opinion requested by Caltrans and prepared by Deputy Attorney General Daniel G. Stone, Brown said the preferences are authorized by federal law and do not violate Proposition 209’s ban on racial preferences in public contracting or employment or the Fourteenth Amendment Equal Protection Clause.
Such road work, Brown explained, is typically subject to tribal employment rights ordinances, or TEROs, that ensure opportunities for Native Americans to participate in the work, as well as require payment of a form of payroll tax that is used to fund economic development.
The attorney general cited Sec. 703(i) of the Civil Rights Act of 1964, which provides that the prohibition of race discrimination in employment shall not “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 living on or near a reservation.”
Brown also noted that the Federal-Aid Highway Act specifically permits states to “implement a preference for employment of Indians on projects carried out under this title near Indian reservations.”
Those laws do not violate the Equal Protection Clause, Brown explained, because a state-implemented preference for tribal members would be considered a “political,” rather than a “racial,” classification. He cited a Ninth U.S. Circuit Court of Appeals ruling upholding Proposition 1A, which created the Indian monopoly on casino gaming in California.
Similarly, the attorney general said, those preferences would be considered political, rather than racial, for state law purposes and thus not violative of Proposition 209.
“Within this context, we assume that the Department deals with the tribe on a government-to-government basis, and we believe that, in so doing, a practice of respecting a tribal ordinance by extending hiring preferences to Indian employees for work performed in Indian country is fundamentally different from a policy favoring an ethnic or racial group. In these very limited circumstances, we believe that a tribe’s prescription of Indian hiring preferences as an exercise of tribal governmental prerogative, and any cooperation therewith by a California governmental agency, may reasonably understood to be matters of political policy. Moreover, the hiring preference here...is predicated upon membership in a federally recognized tribe, not merely upon Indian ‘racial’ ancestry. Taking all of these factors into consideration, we believe that in the specific circumstances presented here, TERO preferences would properly be treated as ‘political’ classifications for purposes of evaluation under [Proposition 209], as they would be for purposes of evaluation under the Fourteenth Amendment.”
He also cited a law review article on Proposition 209 by UCLA professor Eugene Volokh, who noted that classifications based on tribal status “are generally not seen as being based on race or national origin,” but on the status of the tribes as sovereigns.
Brown cautioned, however, that both the Equal Protection Clause and Proposition 209 “would bar a California public agency from adopting or incorporating any general employment practices or policies giving advantages or preferences to Native American workers or applicants on the basis of Native American ancestry.”
The attorney general went on to conclude, however, that tribes may not impose TERO taxes on the state or its contractors, although the state may pay those taxes voluntarily as a matter of public interest.
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