District of Arizona – Page 18

It’s weird (or is it in the case of the EEOC?) to see two federal agencies in opposition to each other. Regardless, the court here buys the Department of Interior’s argument that the tribal preference in employment rules applicable to Peabody Coal are okay under Title VII because Interior approved the leases from which the preference originated under the Indian Mineral Leasing Act, which predated Title VII. The court was not so persuaded that all tribal preference in employment rules are acceptable but was persuaded that Interior’s approval muted any invalid discrimination. Here is what I consider to be the crux of the opinion:

While it is likely that Congress intended to only exempt Indian employment preferences in general and not tribe-specific preferences from Title VII in situations where an employer discriminates against members of a particular tribe without oversight or approval by the federal government, that is not the situation presented in this case.

EEOC argued that Congress, in enacting the Indian preference statute, here (look for section 703(i)), implicitly intended to make tribe-based discrimination invalid. The court rejected that claim, relying in part on Morton v. Mancari‘s other less-famous holding:

Implied repeals are disfavored . [Mancari] The DOI’s practice of including tribe-specific employment preferences in mining leases dates back to before the passage of Title VII, and, as discussed above, such preferences are a part of the federal government’s attempt to meet its various obligations towards the Nation and to foster tribal self-sufficiency, self-governance, and economic development. In addition, the Nation has located and identified at least 326 DOI-approved business leases on tribal lands within the last decade that include a tribespecific employment preference. Elimination of this longstanding and ubiquitous DOI practice would require a far more explicit showing of Congress’s intention to do so than is reflected in § 703(I).

I guess we’ll see what the Ninth Circuit says next in this long-running case.

Federal Court Grants Habeas Petition in Consecutive Sentences Case

October 1, 2012September 30, 2012Matthew L.M. Fletcher

Interesting case involving whether the Tribal Law and Order Act can be retroactively applied to a Gila River Indian Community conviction. Here are the materials in Johnson v. Tracy (D. Ariz.):

Johnson Habeas Petition

GRIC Response to Petition

R&R Recommending Denial of Writ

Federal Defenders Amicus Brief

GRIC Response to Amicus Brief

DCT Order Rejecting R&R

Split Ninth Circuit Panel Affirms Gila River Indian Community v. United States

September 11, 2012Matthew L.M. Fletcher2 Comments

Here is today’s opinion.

An excerpt:

This case illustrates the nuances of our federalist system of government, pitting Indian tribe against Indian tribe, and State and local governments against the federal government and an Indian tribe. The City of Glendale and various other parties (“Glendale”) seek to set aside the Department of the Interior’s decision to accept in trust, for the benefit of the Tohono O’odham Nation (“the Nation”), a 54-acre parcel of land known as Parcel 2. The Nation hopes to build a destination resort and casino on Parcel 2, which is unincorporated county land, entirely surrounded by the City of Glendale. To say this plan has been controversial is an understatement. But the strong feelings and emotional drama of the casino fight do not dictate the outcome here. This appeal relates only to the status of the land as trust land and does not involve the particulars of Indian gaming, which are the subject of separate proceedings and pending legislation. The district court granted summary judgment for the government after concluding that the Secretary of the Interior reasonably applied the Gila Bend Indian Reservation Lands Replacement Act (“Gila Bend Act”), and that the Act did not violate the Indian Commerce Clause or the Tenth Amendment. We affirm.

Briefs here.

Lower court materials here.