Here. The amendment appears minor:
At Slip Op. 22, 768 F.3d at 974, the sentence beginning with <The Indian preference exemption> and ending with <does not extend to Indians.> is deleted and replaced with:
The Indian preference exemption contained in Section 703(i) is therefore necessary to clarify that Title VII’s prohibition against racial or national origin discrimination does not extend to preferential hiring of Indians living on or near reservations.
Panel materials here.
Here is the opinion in EEOC v. Peabody Western Coal Co.:
The syllabus:
The panel affirmed the district court’s summary judgment against the Equal Employment Opportunity Commission with respect to its claim that Title VII of the Civil Rights Act of 1964 prohibited the tribal hiring preference contained in Peabody Western Coal Co. leases with the Navajo Nation.
The panel held that the Navajo hiring preference in the leases was a political classification, rather than a classification based on national origin, and therefore did not violate Title VII. The panel concluded that the district court correctly granted summary judgment to defendants Peabody Western Coal Company and Navajo Nation, and third-party defendant Secretary of the Interior. The panel also held that the EEOC waived on appeal its record-keeping claim. Finally, the panel held that the district court acted within its discretion in denying the EEOC’s eleventh-hour motion to supplement the record with a declaration and documents about Peabody’s hiring practices in 1999.
The court has dismissed Peabody Coal’s third-party claims against the federal government:
DCT Order Dismissing Peabody Coal Claims
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.
Turtle Talk 