Indian Preference Act

Federal Court Dismisses Challenge to Indian Preference in Employment at Office of Special Trustee

Matthew L.M. Fletcher1 Comment

Here are the materials in Hester v. Salazar (D. Utah):

3 Hester Complaint

7 MJ R&R

8 Hester Objection

9 DCT Order Adopting R&R

An excerpt from the R&R:

Because the Supreme Court has ruled in Mancari that Indian preference “does not constitute ‘racial discrimination,’ “ Mancari, 471 U.S. at 553, Mr. Hester’s claims that he was subjected to racial discrimination and that his civil rights have been violated are not valid. Therefore, because Mr. Hester has not stated a claim upon which relief can be granted, and it would be futile to amend his complaint, his complaint should be dismissed under the authority of 28 U.S.C. § 1915(e)(2)(B)(ii). Based on that conclusion, Mr. Hester’s motion to appoint counsel and motion for service of process should be deemed moot.

Lawrence v. US DOI Cert Petition — Indian Preference (Fire Fighter Benefits)

Matthew L.M. Fletcher

Here is the cert petition in Lawrence v. United States DOI. Here is the Ninth Circuit’s opinion.

And here are the questions presented, from the cert petition:

1. Can the Department of Interior ignore the imperative of the Indian Preference Act (25 USC § 47.2) by “blindly” applying civil service regulations [5 USC § 831.906(b)], which effectively deprives Indian firefighters on Indian Reservations of the enhanced retirement benefits [5 USC § 8336(c)(1)] to which they may otherwise be entitled.

2. Whether the Secretary of Interior can, by failing to adopt any standards by which the BIA could identify Indian employees as firefighters, thereby exclude the majority of Indian civil service firefighters on Indian Reservations from timely filing for previous years credits toward their enhanced retirement benefits. [ Preston v. Heckler, 734 F.2d 1359 (9th Cir. 1984)]

3. Whether the trial, court erred in ruling that evidence of few BIA Indian firefighter employees applying for enhanced retirement benefits, when, in fact, the BIA employs a majority of Indian firefighters, did not satisfy a prima facie showing of disparate impact.