Cap Stone Tribal Employment Preference Policy Challenges & Opportunities Sharon K. Curley May 31, 2006 1Cap Stone, Tribal Employment Preference Policy History & Context: Indian Preference for tribes began as early as 1910 with the Buy Indian Act. In 1934 the Indian Reorganization Act (IRA) also known as the Howard Wheeler Act, which contravened the anti-discrimination provisions of the Equal Employment Opportunities Act of 1972 that deprived Indian of property rights without due process. This proved to be in violation of the Fifth Amendment. The court case that set precedence and deemed Indian Preference as a political associate rather than a racial discrimination was the Morton v. Mancari that was argued April 24, 1974 and decided on June 17, 1974. Morton v. Mancari’s final decision on Indian Preference does not constitute “racial discrimination” or even “racial” preference, but is an employment criterion designed to further the cause of Indian Self-Government and to make the BIA more responsive to the needs of its constituent groups. The court case also reaffirmed that as long as special treatment of Indians can be tied rationally to the fulfillment of congress’s unique obligation toward Indians, such legislative judgments will not be disturbed. Shortly after the Morton v. Mancari was passed, Congress enacted new Indian preference laws as part of the Education Amendments of 1972, giving Indians preference in Government programs for training teachers of Indian children. 2Among the most difficult civil rights issues are those that are facing the nation’s 25 million American Indians. Federally recognized tribes are considered domestic dependent nations, with their rights to govern themselves, define their own membership, manage tribal property, and to regulate tribal business, and domestic relations; it further recognizes the existence of a government-to-government relationship between tribes and the federal government. The federal government has a special trust obligation to protect tribal lands and resources, protect tribal rights to self-government, and to provide services necessary for tribal survival and advancement. The fight to preserve tribal sovereignty and treaty rights has long been at the forefront of the Native American civil rights movement. More over, Native Americans suffer from many of the same social and economic problems as other victims of the long-term bias and discrimination-including, for example disproportionately high rates of poverty, infant mortality, unemployment, and low high school completion rates. The struggle for equal employment and education opportunities is the key to addressing these problems in tribal communities. Race in America is often painted as a Black and White issue. However American Indians are also a racial group who often face discrimination the same as African Americans. In fact, before the civil rights laws were enacted, in some states you could find three separate drinking fountains labeled “whites”, “Colored” and “Indian”. There were also three sections in movie theatres. All of the civil rights laws that protect people from discrimination because of race or color or national origin also protect American Indians. 3Indian Preference Laws over the years has proven to be an effective tool for promoting Indian economic development in employment, contracting and subcontracting. It ensures that the public and private funds spent on Indian Reservations stay on the reservation and promote Indian employment and business development. There are two sources of Indian preference requirements. Tribes, using their inherent sovereign powers, can impose Indian preference requirements on all entities subject to their jurisdiction. The federal government has also imposed Indian preference requirement by statutes. The two sources of preference differ in a number of ways. Preference requirements imposed by tribal law can apply to everyone subject to the tribe’s jurisdiction, whether or not the entity is doing business with the tribe. Tribes have put this authority to work by enacting tribal employment rights laws and establishing Tribal Employment Rights Offices (TEROs) to monitor and enforce those laws. The federal laws imposing Indian preference requirements apply only to entities doing business with the federal government as recipients of contract or grants for the benefit of Indians. Since a large portion of the funds spent on reservations come from the federal government most reservation activity is covered by federal Indian preference laws. Within the broad scope of federal and tribal laws, there is the necessary authority to ensure the optimal participation of Indian workers and firms on virtually all economic activities on a reservation. The Buy-Indian Act is the oldest of the Indian preference laws on the books, having been adopted in 1910. It applies only to the BIA and IHS. The act, when passed, applied only to the BIA. But, when IHS was split off from the BIA in 1954 and transferred to HEW, it was held that the Buy-Indian Act powers went over the IHS as part of the 4transfer. The Act applies to direct prime contracts let by these two agencies, the only Indian preference law applicable to direct federal prime contracts. Both HIS and BIA have interpreted the preference to mean that, while competition will be sought, the competition is to be limited solely to tribal and Indian contractors. The Buy-Indian Act of 1910 states: “So far as may be practicable, Indian labor shall be employed and purchases of the products of Indian industry may be made in open market in the discretion of the Secretary of the Interior.” The Indian Self-Determination and Education Assistance Act (P.L 93-638) states: “Any contract, subcontract, grant, or subgrant pursuant to this Act, the Act of April 16, 1934 (48 Stat. 596) as amended, (THE Johnson-O’Malley Act) or any other Act authorizing federal contracts with or grants to Indian organizations or for the benefit of Indians, shall require that to the greatest extent feasible: A. Preference and opportunities for training and employment in connection with the administration of such contracts or grants shall be given to Indians; and B. Preference in the award of subcontracts in connection with the administration of such contracts or grants shall be given to Indian organizations and to Indian-owned