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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Malabed v. North Slope Borough (5/16/2003) sp-5692

Malabed v. North Slope Borough (5/16/2003) sp-5692

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

ROBERT MALABED,               )    Supreme Court No. S-9808
                              )    O P I N I O N
          Plaintiff-Appellee,      )    [No. 5692 - May 16, 2003]
                              )
     v.                       )
                              )
NORTH SLOPE BOROUGH,          )
                              )    Ninth Circuit No. 99-35684
           Defendant-Appellant.     )    U.S. Dist. Court No. CV-
98-00004 (JWS)
________________________________)
MORRIS DAVID WELCH,      )
                              )
          Plaintiff-Appellee,      )
                              )
     v.                       )
                              )
NORTH SLOPE BOROUGH,          )
                              )    Ninth Circuit No. 99-35750
           Defendant-Appellant.     )    U.S. Dist. Court No. CV-
98-00398 (JWS)
________________________________)
CHARLES MICHAEL EMERSON, )
                              )
          Plaintiff-Appellee,      )
                              )
     v.                       )
                              )
NORTH SLOPE BOROUGH,          )
                              )    Ninth Circuit No. 99-35773
          Defendant-Appellant.     )    U.S. Dist. Court  No. CV-
98-00413(JWS)
________________________________)

          Certified  Question from  the  United  States
          Court of Appeals for the Ninth Circuit, James
          R. Browning, Circuit Judge.

          Appearances:  William B. Schendel, Schendel &
          Callahan,  Fairbanks, and Kenneth L.  Covell,
          Law  Offices of Kenneth L. Covell, Fairbanks,
          for  Plaintiffs-Appellees.  David C.  Crosby,
          David C. Crosby, P.C., Juneau, for Defendant-
          Appellant.    Robert  A.   Royce,   Assistant
          Attorney  General, Anchorage,  and  Bruce  M.
          Botelho, Attorney General, Juneau, for Amicus
          Curiae  Alaska  State  Commission  for  Human
          Rights.    David  S.  Case,  Landye   Bennett
          Blumstein, LLP, Anchorage, for Amicus  Curiae
          Alaska Federation of Natives.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          BRYNER, Justice.
          MATTHEWS, Justice, concurring.

I.   INTRODUCTION

           The  United  States  Court of Appeals  for  the  Ninth

Circuit  certified  a question to this court,  asking  whether  a

North  Slope  Borough ordinance enacting a hiring  preference  in

favor  of Native Americans violates state or local law.   Article

I,  section  1,  of  the Alaska Constitution provides  that  "all

persons  are  equal and entitled to equal rights,  opportunities,

and  protection under the law."  This provision binds local units

of  Alaska government, including boroughs, to govern equally  and

in  the interest of all Alaskans.  We hold that the borough lacks

a  legitimate governmental interest to enact a hiring  preference

favoring  one  class of citizens at the expense  of  others;  its

ordinance  therefore violates the Alaska Constitution's guarantee

of equal protection.

II.  FACTS AND PROCEEDINGS

           In  1997  the North Slope Borough enacted an ordinance

that  creates  a  mandatory  preference  for  hiring,  promoting,

transferring,  and  reinstating  Native  Americans   in   borough

government  employment.  The current version  of  the  preference

extends  to  all  Native American applicants  who  are  minimally

qualified or meet most minimum job requirements and can meet  the

remaining  requirements  during  their  probationary  period   of

employment;  for purposes of the preference, "Native American" is

defined to include any person belonging to an Indian tribe  under

federal law.  The ordinance provides:

          The  granting  of  employment  preference  to
          Native Americans.  The preference shall apply
          to   hirings,   promotions,  transfers,   and
          reinstatements.  A Native American  applicant
          who  meets the minimum qualifications  for  a
          position  shall be selected, and where  there
          is  more  than one Native American  applicant
          who  meets the minimum qualifications  for  a
          position,  the  best  qualified  among  these
          shall  be  selected.  In  instances  where  a
          Native  American applicant meets most of  the
          minimum  qualifications for the position  and
          can, during the probationary period, meet the
          minimum  qualifications, that person will  be
          given employment preference.  If, at the  end
          of  the  probationary period, all the minimum
          qualifications  have  not   been   met,   the
          individual   may  be  granted  a  three-month
          extension  of the probationary period,  on  a
          one  time basis, by the supervisor.   If  the
          person  given  employment preference  is  not
          able  to  meet the minimum qualifications  at
          the end of the probationary period, he or she
          will  be  dismissed from employment  and  the
          position   will  be  re-posted.    A   Native
          American  is a person belonging to an  Indian
          tribe   as  defined  in  25  U.S.C.   Section
          3703(10).[1]        The borough enacted  this
          preference   after   a  study   of   economic
          conditions  showed that the  Native  American
          population  within the borough,  specifically
          the   resident  Inupiat  Eskimos,  was   both
          underemployed and earning substantially  less
          money  per  capita than borough residents  of
          other  races.   As the area's  largest  local
          employer,  the  borough  consulted  with  the
          federal    Equal    Employment    Opportunity
          Commission  to determine whether the  borough
          might  qualify for an exemption from  federal
          equal     employment    opportunity     laws.
          Specifically,  the  borough  asked  about  an
          exemption  under section 703(i) of the  Civil
          Rights  Act  of 1964 (the 703(i) exception),2
          which  excludes  hiring preferences  favoring
          Native  Americans working on or  near  Indian
          reservations from the strictures of Title VII
          of  the  1964 Civil Rights Act.3  The  703(i)
          exception states:   Nothing contained in this
          subchapter [subchapter e of 42 U.S.C.   2000]
          shall 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 because he is an Indian living  on
          or near a reservation.[4]
          
           The commission responded that, in its view, the 703(i)

exception's reference to "any business or enterprise" extended to

the  borough, allowing it to adopt a  hiring preference in  favor

of   Native   Americans  without  violating  Title  VII's   equal

employment opportunity provisions, assuming that the borough  met

the   exception's  other  requirements.   After  receiving   this

response,  the borough assembly enacted the hiring preference  by

an ordinance passed in February 1997; the borough implemented the

preference later that year.

          Robert Malabed, Morris David Welch, and Charles Emerson

(collectively  Malabed)  individually  filed  suit  against   the

borough in federal district court, asserting that they were  non-

Native applicants for borough employment and had been passed over

for  jobs  in  favor of lower-ranked Native American  applicants.

The  suits  claimed  that  the borough's Native  American  hiring

preference  violates state and federal constitutional  guarantees

of  equal protection, the Alaska Human Rights Act, federal  civil

rights  laws,  and  the borough's charter.   The  district  court

granted   summary  judgment  to  Malabed,  declaring   that   the

preference  violated  the  borough's charter  and  federal  equal

protection.  The borough appealed to the Ninth Circuit, which has

certified the following question:5

          Is      North     Slope     Borough      Code
          2.20.150(A)(27),     granting      employment
          preferences  to Native Americans  in  borough
          hiring, impermissible under local law,  state
          statutory law, or the Alaska Constitution?
          
III. DISCUSSION

     A.   Overview of State Constitutional Issues

           As  already mentioned, Article I, section  1,  of  the

Alaska  Constitution guarantees equal protection, providing  that

"all   persons   are   equal  and  entitled  to   equal   rights,

opportunities,  and  protection under  the  law."   In  addition,

Article  I,  section 3, of the Alaska Constitution  categorically

prohibits  discrimination based on race or national  origin:  "No

person  is  to be denied the enjoyment of any civil or  political

right  because  of race, color, creed, sex, or national  origin."

The  legislature implemented these provisions in part by enacting

the   Alaska   Human  Rights  Act,6  which  prohibits  employment

discrimination  based  on  race  or  national  origin,7  and   AS

29.20.630, which specifically prohibits Alaska's municipalities -

including home rule municipalities like the North Slope Borough -

from  engaging  in  racial  and national origin  discrimination.8

    AS 29.20.630 provides in relevant part:

               (a)  A person may not be appointed to or
          removed  from municipal office or in any  way
          favored or discriminated against with respect
          to   a   municipal  position   or   municipal
          employment  because  of  the  person's  race,
          color, sex, creed, national origin or, unless
          otherwise  contrary to law,  because  of  the
          person's political opinions or affiliations.
          
               . . . .
          
                (c)   This section applies to home rule
          and    general   law   municipalities.     In
          recognition   of   these  requirements,   the
          borough's  charter  itself  prohibits   these
          forms  of discrimination: "No person  may  be
          discriminated   against   in   any    borough
          employment  because  of  race,  age,   color,
          political   or   religious  affiliation,   or
          [national] origin."9
          
                      Relying   on   these  provisions,
          Malabed  argues  that  the  borough's  hiring
          preference adopts a racial classification or,
          alternatively,  a  classification  based   on
          national  origin, in violation of the  Alaska
          Constitution.    The  borough   responds   by
          denying  that  its preference  uses  a  race-
          conscious   classification;   instead,    the
          borough insists, the preference adopts a well-
          accepted   and  constitutionally  permissible
          political  classification based on membership
          in federally recognized tribes.  In advancing
          this argument, the borough relies chiefly  on
          Morton v. Mancari.10
          
                    In Mancari the Supreme Court upheld
          a   Bureau   of  Indian  Affairs   employment
          preference  for  hiring and promoting  Native
          Americans  within  the BIA.11   Several  non-
          Native  American  employees  challenged   the
          preference,  arguing  that  the  1972   Equal
          Employment  Opportunity Act had repealed  the
          BIA's  statutory  authority to  grant  hiring
          preferences to Native Americans and that  the
          preference   amounted  to  invidious   racial
          discrimination  in violation of  their  Fifth
          Amendment due process rights.12  But the Court
          found  that  Congress had  not  repealed  the
          BIA's authority to prefer Native Americans in
          hiring.13   And  after analyzing  the  unique
          historical  relationship between the  federal
          government  and Native Americans,  the  Court
          concluded  that the preference was  not  only
          not  invidious racial discrimination but  was
          not based on race at all.14
          
                     The  Court  pointed out  that  the
          disputed  BIA  preference  applied  only   to
          members  of  federally recognized tribes  and
          thus   excluded  many  individuals  who  were
          racially   Native  American.15   Noting   the
          "unique  legal status of Indian tribes  under
          federal  law" and the BIA's special  interest
          in    furthering   Native   American    self-
          government,  the Court held that  the  hiring
          preference   was  "reasonably  and   directly
          related  to  a legitimate, nonracially  based
          goal."16
          
                     Assuming for present purposes that
          the borough's ordinance reflects this kind of
          political   classification   and   does   not
          discriminate  on  the  basis  of  race,   the
          ordinance  might  avoid  problems  with   the
          Alaska   Constitution's  bar  against  racial
          discrimination.  But the political nature  of
          the   classification  would  not  necessarily
          insulate  the ordinance from Malabed's  equal
          protection   challenge.   For  the   borough,
          unlike  the  BIA in Mancari, has  no  obvious
          governmental  interest,  as  a  borough,   in
          furthering  Native American  self-government;
          and   Native  Americans  have  no  explicitly
          established   "unique  legal  status"   under
          borough  law, as Mancari found them  to  have
          under  federal law.  Given these  disparities
          between federal and local law, the legitimacy
          of  the  borough's  hiring  preference  as  a
          political  classification  is  less  apparent
          than  the  legitimacy  of  the  BIA's  hiring
          preference  in  Mancari.  We  must  therefore
          consider  whether the ordinance's  ostensibly
          political  lines discriminate in a  way  that
          offends  the Alaska Constitution's  guarantee
          of equal protection.
          
                  B.      Alaska's   Three-Step   Equal
          Protection Standard
          
                     We  have long recognized that  the
          Alaska Constitution's equal protection clause
          affords   greater  protection  to  individual
          rights  than the United States Constitution's
          Fourteenth Amendment.17  To implement Alaska's
          more stringent equal protection standard,  we
          have adopted a three-step, sliding-scale test
          that places a progressively greater or lesser
          burden   on  the  state,  depending  on   the
          importance  of the individual right  affected
          by the disputed classification and the nature
          of   the  governmental  interests  at  stake:
          first,   we  determine  the  weight  of   the
          individual   interest   impaired    by    the
          classification;  second,   we   examine   the
          importance  of  the purposes  underlying  the
          government's action; and third,  we  evaluate
          the means employed to further those goals  to
          determine  the closeness of the  means-to-end
          fit.18
          
                     1.    Step 1: individual interests
          affected by the preference
          
                     To  determine  how  the  borough's
          hiring  preference fares under this standard,
          we begin by considering the importance of the
          individual   interests  implicated   by   the
          preference.    Here,  the  borough's   hiring
          preference  impairs Malabed's right  to  seek
          and  obtain  employment  in  his  profession.
          Under similar circumstances, we have declared
          the  right  to employment to be an  important
          right.     In    State,    Departments     of
          Transportation  &  Labor  v.  Enserch  Alaska
          Construction,  Inc.,  we  reviewed  an  equal
          protection  challenge to  an  Alaska  statute
          that provided hiring preferences to residents
          of    economically   distressed   zones   for
          employment  on   public works projects.19   A
          contractor  building a  road  for  the  state
          challenged  the preference as a violation  of
          Alaska  equal  protection.   Addressing   the
          first step of Alaska's three-step analysis,20
          we  held  that  the "right to  engage  in  an
          economic   endeavor   within   a   particular
          industry  is an `important' right  for  state
          equal protection purposes."21
          
                      Here,   because  the   individual
          interest affected is almost identical to  the
          one  we considered in Enserch - the right  to
          seek   and   obtain   employment   in   one's
          profession  -  the interest is important  for
          equal  protection  purposes;  its  impairment
          therefore requires us to give close  scrutiny
          to the borough's hiring preference:
          
          Close  scrutiny of enactments  impairing  the
          important   right  to  engage   in   economic
          endeavor  requires that the state's  interest
          underlying   the  enactment   be   not   only
          legitimate, but important, and that the nexus
          between   the  enactment  and  the  important
          interest  it serves be close.[22]          2.
          Step   2:   importance  and   legitimacy   of
          borough's interests in the preference
                               a.   The borough's interest in the

                    preference is not legitimate under Enserch.

           In the second part of the equal protection analysis we

consider the borough's interests, asking whether it had important

and  legitimate  reasons  to adopt the  hiring  preference.   The

borough offers several reasons supporting its ordinance: reducing

unemployment of the largest group of unemployed borough residents

-  Inupiat  Eskimos;  strengthening the  borough's  economy;  and

training  its  workforce.   But we found comparable  governmental

interests  insufficient in Enserch.  There  the  state  tried  to

establish  an important and legitimate governmental  interest  by

arguing   that   the   challenged   hiring   preference   reduced

unemployment,  remedied  social  harms  resulting  from   chronic

unemployment, and assisted economically disadvantaged residents.23

Though acknowledging these interests as important, we found  them

to  be  illegitimate because they favored one class  of  Alaskans

over another:

                While  these goals are important,  they
          conceal    the   underlying   objective    of
          economically   assisting   one   class   over
          another.  We have held that this objective is
          illegitimate.  In Lynden Transport,  Inc.  v.
          State,  532 P.2d 700, 710 (Alaska  1975),  we
          ruled  that "discrimination between residents
          and  nonresidents based solely on the  object
          of  assisting  the one class over  the  other
          economically cannot be upheld under . . . the
          .  .  .  equal protection clause[ ]."   While
          that  case  involved  discrimination  between
          state   residents   and   nonresidents,   the
          principle    is    equally   applicable    to
          discrimination  among  state  residents.   We
          conclude  that  the  disparate  treatment  of
          unemployed workers in one region in order  to
          confer     an     economic     benefit     on
          similarly_situated workers in another  region
          is not a legitimate legislative goal.[24]
          
           Here,  as  in  Enserch,  it might  seem  that  "[t]his

conclusion  essentially  ends our inquiry."25   But  the  borough

nevertheless  claims  a special interest in  preferring  to  hire

Native  Americans  (an  interest not  present  in  Enserch).   It

theorizes  that this interest flows from a specific congressional

mandate  -  the Civil Rights Act's 703(i) exception - or  from  a

more general duty to comply with federal policies adopted for the

benefit of Native Americans.  Alternatively, the borough asks  us

to  find  an  implied  grant of power in the Alaska  Constitution

giving it a trust-like interest in legislating for the benefit of

Alaska  Natives.  But as we explain below, these alleged  sources

do not give the borough the legitimate interest it claims.

                               b.    The Alaska Constitution does
                    not give the borough a legitimate interest in
                    adopting the preference.
                    
           We  reject  at the outset the notion that  the  Alaska

Constitution  radiates implied guardianship powers  allowing  the

state  or  its boroughs to treat Alaska Natives as if  they  were

wards.   To  be  sure,  the  United  States  Supreme  Court   has

recognized implied powers in the United States Constitution  that

allow  Congress broad latitude to legislate on behalf  of  Native

Americans.26   The  borough reasons that the Alaska  Constitution

must  implicitly  grant parallel powers to  state  and  municipal

governments.  But the federal government's implied powers  spring

directly  from  the  express powers granted to  Congress  in  the

United States Constitution's Indian Commerce and Treaty clauses:

          The  plenary power of Congress to  deal  with
          the special problems of Indians is drawn both
          explicitly    and   implicitly    from    the
          Constitution itself.  Article I,  8,  cl.  3,
          provides Congress with the power to "regulate
          Commerce  . . . with the Indian Tribes,"  and
          thus, to this extent, singles Indians out  as
          a  proper  subject for separate  legislation.
          Article  II,   2, cl. 2, gives the  President
          the power, by and with the advice and consent
          of  the  Senate, to make treaties.  This  has
          often  been  the  source of the  Government's
          power to deal with the Indian tribes.[27]
          
           In  contrast to the federal constitution's  provisions

dealing  with Indian tribes, the Alaska Constitution includes  no

provisions authorizing state action regarding Alaska Natives  and

so  grants  no  express  powers from which implied  powers  could

arise.   Indeed,  the  only provision of the Alaska  Constitution

that  addresses  the  state's relations with  Alaska  Natives  is

article  XII,  section 12, which effectively disavows  any  state

authority  comparable  to  the  federal  government's  protective

powers.   Thus, article XII, section 12, expressly disclaims  all

"right  or title in or to any property, including fishing rights,

the  right  or title to which may be held by or for  any  Indian,

Eskimo,  or  Aleut, or community thereof," and further  specifies

"that,  unless otherwise provided by Congress, the  property,  as

described  in this section, shall remain subject to the  absolute

disposition  of  the United States."28  To the  extent  that  the

Alaska  Constitution  implies  anything  concerning  the  state's

relations   with   Alaska   Natives,   then,   it   mirrors   the

constitutional drafters' well-recognized desire to  treat  Alaska

Natives      like      all      other     Alaska      citizens.29

     See  4 Proceedings of Alaska Constitutional Convention 2525,
2527-91 (Jan. 18, 1956).  As Delegate Davis said:

          [W]e  consider the Eskimo and  the  Indian  a
          citizen just the same as all the rest of  us.
          We  don't consider that he is any better than
          we  are, and we don't consider that he is any
          worse.  He is a man just like we are; and  he
          is  entitled to all the rights and privileges
          and all the duties of citizenship, just as we
          are;  and he is covered by the bill of rights
          that we are adopting here, just as we are.
          
Id.  at 2536-37.  See also Atkinson v. Haldane, 569 P.2d 151, 155
(Alaska  1977) (approvingly quoting Justice Frankfurter's opinion
in  Metlakatla Indian Cmty. v. Egan, 369 U.S. 45, 50-51  (1962)).
The  Alaska Constitution thus implies nothing that would give the
borough   a   legitimate  interest  in  enacting   the   disputed
preference.

                               c.   The 703(i) exception does not
                    give  the  borough a legitimate  interest  in
                    adopting the preference.
                    
           The  borough next contends that the Civil Rights Act's

703(i)  exception gives it a legitimate interest in enacting  the

challenged  preference.   We agree in theory  that  Congress  can

create specific mandates or interests empowering states or  units

of  local  government to legislate on behalf of Native  Americans

without  creating suspect classifications.  Yet such mandates  or

interests  have  been  found to arise in  two  relatively  narrow

situations:  in the first, the state acts under a particularized,

state-specific congressional delegation of jurisdiction;30 in the

second,  the state acts to accommodate federal supremacy  in  the

field  by  enforcing congressionally created federal  obligations

toward  Indian tribes that the federal government would otherwise

enforce on its own.31  The borough's reliance on the Civil Rights

Act's  703(i)  exception presents little  in  common  with  these

situations.

           Preliminarily,  we  note that the  disputed  ordinance

itself  raises  serious questions concerning its compliance  with

the   federal   exception's  purpose.    The   Equal   Employment

Opportunity   Commission  interprets  the  703(i)  exception   to

sanction preferences only to Native Americans generally,  not  to

Native  Americans  of  a particular tribe.32   The  body  of  the

borough's  ordinance nominally conforms to the 703(i)  exception,

extending the hiring preference to all "Native Americans," a term

that  the  ordinance defines to include all persons belonging  to

Indian tribes as defined under federal law.33  But the ordinance's

prefatory,   "Whereas,"  clauses  repeatedly  and   unequivocally

declare  that  its actual purpose is to benefit the  North  Slope

Borough's  "Inupiat Eskimos," who comprise the  majority  of  the

borough's citizens.

           Unlike  the  term "Native American," "Inupiat  Eskimo"

does  not  appear  to  be defined anywhere  as  requiring  tribal

membership  or  any other arguably political status;  indeed,  it

does  not  appear to describe any particular Indian  tribe.   And

because  the  class defined by the statement of purposes  extends

only to Inupiat Eskimos residing in the North Slope Borough,  the

class  that the ordinance intends to prefer is far narrower  than

the  one  defined  in  the  703(i) exception  -  members  of  all

federally   recognized  Indian  tribes.   Because  the  ordinance

expressly  professes  an intent to benefit  a  class  defined  by

borough residency and race, its nominally political preference in

favor  of all Native Americans could be construed as a proxy  for

an illegitimate race-conscious purpose.34

           However, we need not decide the case on this  basis.35

For even assuming that the ordinance was properly enacted for its

nominal purpose and thus satisfies the 703(i) exception's  letter

and  spirit,  we conclude that the borough fails to pinpoint  any

legitimate  governmental interest in enacting a hiring preference

in  reliance on that exception.  The borough's position that  the

703(i)  exception is its legitimate interest strains too hard  to

extract an affirmative mandate from a law that simply creates  an

exception.

           Title  VII  of  the  Civil Rights  Act  of  1964  bars

discrimination   in  employment  practices,  including   racially

discriminatory hiring practices.36  The 703(i) exception  appears

in  a  section  entitled "unlawful employment practices."37   The

exception's primary effect is to exclude employers located on  or

near a reservation from various equal employment requirements  of

the Civil Rights Act that govern "otherwise-unlawful preferential

treatment  given  to Native Americans in certain employment[.]"38

The  exception  does  not create a hiring program;  it  does  not

mandate that any preferences be granted; it does not require  any

particular  action  or  specify  negative  consequences  for  any

inaction; and it does not purport to endorse - nor does it  imply

endorsement  of  -  any particular preference by  any  particular

employer in any particular location.  Hence, although the  703(i)

exception  undoubtedly  reflects  Congress's  strong  desire   to

encourage    preferences   under   the   exception's    specified

circumstances, its mechanism is fundamentally passive: instead of

actively  creating employer interests, it presupposes that  those

interests already exist or will be offered elsewhere.39

          Though similar to the present case in certain respects,

the  Tenth  Circuit's decision in Livingston v.  Ewing  does  not

support the proposition that the 703(i) exception creates a broad

enough  interest  to  allow state and local government  action.40

There, the Tenth Circuit allowed the City of Sante Fe to restrict

vendors  of handcrafted jewelry within the grounds of the  Museum

of  New  Mexico  and the Palace of the Governors  to  members  of

Native American tribes,41 declaring that the 703(i) exception was

sufficiently broad to sustain the preference.42  In so doing, the

court  read  Morton  v.  Mancari as holding  that  an  employment

preference is "not to be considered racial discrimination of  the

type  generally proscribed" when it turns on  "the  unique  legal

status  of Indians under federal law . . . and the assumption  of

guardian-ward status to legislate specially on behalf  of  Indian

tribes."43  Applying this interpretation, the court found Mancari

to  be  a "very strong precedent for upholding the grant  of  the

exclusive right to the Indians in the present case based  on  the

employment  statute  in   2000e-2(i) [the  703(i)  exception]."44

The  Tenth Circuit's ruling is distinguishable from this case for

important  reasons.   The  plaintiffs  in  Livingston   did   not

challenge  the  city's  actions under  state  constitutional  law

- they based their challenge strictly on the Fourteenth Amendment

to the federal constitution.45  Unsurprisingly, then, the claim in

Livingston  gave the Tenth Circuit no reason to look  beyond  the

"unique  legal status of Indians under federal law"46 - a  status

that exists and creates strong federal interests independently of

the 703(i) exception.  Moreover, the state interest furthered  by

the  preference in Livingston was a strong and specific  interest

in  preserving  New Mexico's historical and cultural  traditions:

the  preference only extended to established Indian uses of Santa

Fe's  historic Palace of Governors, reportedly the oldest  public

building in the United States; Indian use of the site dated  back

to  the  1680s,  and  the particular activities  covered  by  the

preference had been performed almost exclusively by Indians since

the early 1900s.47  The court viewed these facts as establishing a

compelling   state   interest  in  "acquiring,   preserving   and

exhibiting  historical, archeological and ethnological  interests

in fine arts."48  Livingston thus stands in sharp contrast to the

borough's  case.   Nothing  in  the  Tenth  Circuit's  ruling  in

Livingston  indicates that the court viewed the 703(i)  exception

alone  as creating affirmative interests sufficient to sustain  a

municipal  hiring preference in favor of Native  Americans.   And

unlike  the  City  of Santa Fe in Livingston,  the  borough  here

advances  no  independently viable state interest in economically

preferring  one  group  of  workers  over  others;  the  economic

interests  it  asserts are indistinguishable from those  that  we

found            illegitimate            in            Enserch.49

     Krueth v. Indep. Sch. Dist. Number 38, 496 N.W.2d 829 (Minn.
App. 1993), is inapposite for similar reasons.  The case did  not
address  a  preference  arising under the  703(i)  exception  and
cannot  fairly  be read as supporting the proposition  that  this
exception  creates  state interests justifying Indian  employment
preferences.   Krueth  considered  a  provision  of   Minnesota's
American Indian Education Act allowing schools with ten  or  more
American Indian students to retain American Indian teachers  with
less seniority over non-Indian teachers with more seniority.  Id.
at  833.  The Minnesota legislature enacted the provision to meet
"the unique educational and culturally-related academic needs  of
American  Indian  people."  Id.  (quoting  Minn.  Stat.    126.46
(1990)).   As  in Livingston, the equal protection  challenge  in
Krueth was advanced only under the federal constitution.  Id.  at
835.   Characterizing the challenged preference  as  a  political
classification of the kind recognized in Mancari, the  court   in
Krueth decided to apply rational basis review in determining  its
constitutionality.   Id. at 836, 837.  Under this  standard,  the
court upheld the statute as applied to the school district action
at issue; noting that "[t]his school district is located entirely
on  the Red Lake Reservation and consists of a student population
almost  100%  American Indian," the court observed  that  if  the
challenged  statute  "has  meaning  anywhere  in  the  State   of
Minnesota, it has meaning in Independent School District No.  38,
Red  Lake,  Minnesota."  Id.  at 837.   Cf.  Tafoya  v.  City  of
Albuquerque,  751 F. Supp. 1527, 1530-31 (D.N.M. 1990)  (striking
down  ordinance  after  finding that city  did  not  have  powers
similar  to  the  federal government that would  enable  city  to
prefer members of federally recognized tribes).
           We by no means suggest that boroughs are categorically
barred from adopting hiring preferences.50  Nor do we suggest that
all  state  or local legislation pertaining to Alaska Natives  or
tribal   governments  should  be  assumed  to  establish  suspect
classifications  presumptively  barred  by  equal   protection.51
     To  the  contrary, we think that the state has  considerable
latitude  in  dealing with recognized tribes  as  to  matters  of
intersecting  governmental  concern  when  the  state's   actions
rationally  promote legitimate mutual governmental or proprietary
interests.  Illustrations of political classifications that  meet
these criteria are not confined to any particular branch of state
government.   For example, AS 47.14.100(g) allows the  Department
of  Health  and  Social Services to "enter into  agreements  with
Alaska  Native villages or Native organizations under  25  U.S.C.
1919  (Indian Child Welfare Act of 1978) respecting the care  and
custody  of  Native  children and jurisdiction  of  Native  child
custody  proceedings."   This legislative  provision  relates  to
inter-governmental interaction and is designed to further  Native
self-governance  by  involving  Native  governments  in   custody
determinations  of  their own members.  In the executive  branch,
Administrative  Order 186 exemplifies a political classification,
acknowledging "the legal and political existence of the federally
recognized Tribes within the boundaries of Alaska" and  declaring
the  state's  commitment  "to work on a  government-to-government
basis   with   Alaska's  sovereign  Tribes,  which  deserve   the
recognition and respect accorded to other governments[,]" and  to
"establish[  ]  a  comprehensive and mutually  respectful  State-
Tribal  relations  policy in an effort  to  promote  and  enhance
Tribal self-government, economic development, a clean and healthy
environment,   and  social,  cultural,  spiritual,   and   racial
diversity."   Administrative  Order  No.  186  (Sept.  29,  2000)
(superceding and revoking Administrative Order No. 125 (Aug.  16,
1991)).   And  in  the judicial arena, this  court  relied  on  a
political  classification in applying  principles  of  comity  to
acknowledge  that  federally recognized tribes in  Alaska  retain
concurrent  jurisdiction  to adjudicate disputes  between  tribal
members  and  that their judgments should be accorded  comity  in
appropriate  cases.  John v. Baker, 982 P.2d 738, 749-50,  762-63
(Alaska  1999).    Our focus is considerably narrower: we  simply
hold, in keeping with Enserch, that the borough has no legitimate
basis to claim a general governmental interest in enacting hiring
preferences favoring one class of citizens over others;52 and  we
find  that  the borough has failed to identify any  source  of  a
legitimate, case-specific governmental interest in the preference
it  actually  adopted  -  a  hiring  preference  favoring  Native
Americans.53
     We  emphasize that the borough has not attempted  to  defend
its  ordinance  as  an  affirmative action measure  necessary  to
remedy  a  historical  imbalance attributable  to  discriminatory
hiring.   Since  the  issue is not presented here,  we  need  not
determine  the circumstances under which a borough might  make  a
viable  showing  of  affirmative action.  Based  on  the  current
briefing  and  the limited record on certification,  however,  it
seems  unlikely  that  the borough could  have  prevailed  on  an
affirmative  action claim under prevailing federal constitutional
standards.   See, e.g., Messer v. Meno, 130 F.3d  130,  133,  136
(5th Cir. 1997) (describing diversity-focused "affirmative action
plans"  and emphasizing that governmental racial preferences  are
constitutionally  permissible only when necessary  to  counteract
past  provable discrimination by the governmental unit  involved)
(quoting  Wygant  v.  Jackson Bd. of Educ.,  476  U.S.  267,  274
(1986));  see also Adarand Constructors, Inc. v. Pena,  515  U.S.
200, 205, 227 (1995) (government contractor preference using race
to  identify  social  and economic disadvantage  was  subject  to
strict  scrutiny); see also Adarand Constructors, Inc.  v.  Pena,
515  U.S.  200, 205, 227 (1995) (government contractor preference
using  race  to  identify  social and economic  disadvantage  was
subject to strict scrutiny); City of Richmond v. J.A. Croson Co.,
488   U.S.  469,  477-78  (1989)  (describing  system   of   city
contracting,   held  unconstitutional,  that   required   general
contractors to award 30% of contract's value to minority business
subcontractors); Williams v. Babbitt, 115 F.3d 657, 666 (9th Cir.
1997) (circumstances may no longer support remedial justification
for  Bureau of Indian Affairs policy precluding non-Natives  from
owning  reindeer  in  Alaska); cf.  Russell  v.  Municipality  of
Anchorage,   743  P.2d  372,  372-73  (Alaska  1987)  (describing
affirmative   action   program  that  passed   over   plaintiff's
application  to police academy as "minority bump," but  declining
to  review  program,  because claim  was  barred  by  statute  of
limitations).   Because the borough is a political subdivision of
Alaska,  its  legitimate  sphere of municipal  interest  lies  in
governing  for  all  of  its  people;  preferring  the   economic
interests  of one class of its citizens at the expense of  others
is  not a legitimate municipal interest, regardless of whether we
view  its  ordinance as drawing distinctions founded on political
status or race.
          3.   Step 3: means-to-end fit
           The  last step of equal protection analysis under  the
Alaska  Constitution  examines  the  nexus  between  the  state's
asserted  interests  and the means selected  to  implement  those
interests.  As previously mentioned, even when the state acts for
important  and legitimate reasons, its action must bear  a  close
connection  to those interests to justify impairing an  important
individual  right.54  Here, of course, because we have  found  no
legitimate borough interest supporting the challenged preference,
we  need not dwell on the closeness of its means-to-end fit.  But
a  brief  comment  on  the  issue is  nevertheless  important  to
establish an alternative basis for our equal protection ruling.
           For even assuming that the borough had legitimate  and
important  interests  in  enacting a hiring  preference  favoring
Native  Americans,  its  preference is  not  closely  related  to
attaining  those  interests.  Addressing a similar  situation  in
Enserch,  we  found a hiring preference in favor of residents  of
economically  distressed  areas unconstitutional  under  Alaska's
equal  protection guarantee in part because the fit  between  the
preference  and its objective was not sufficiently  close.55   We
noted  that the preference failed to "prioritize relief for those
areas most affected by nonresident employment"56 and that it  set
no  meaningful limits on the state's power to declare any part of
Alaska economically distressed at any time.57
           Here,  the nexus between the borough's preference  and
its  stated goals is insufficiently close for comparable reasons.
The  primary  interest asserted by the borough lies  in  reducing
Native American unemployment.58  But when viewed in light of this
purpose, the borough's hiring preference is stunningly broad:  it
extends borough-wide and to all aspects of borough employment; is
potentially  limitless in duration; covers not  only  hiring  but
also  promotions,  transfers,  and  reinstatements;  and  applies
absolutely  -  even  to the extent of requiring  Native  American
applicants  without  minimum  qualifications  to  be  hired  over
qualified non-Native applicants.  Because the borough advances no
particular reasons to justify these sweeping provisions, it fails
to establish a close fit between its goals and its actions.
IV.  CONCLUSION
           We  conclude  that  the  borough's  hiring  preference
violates  the Alaska Constitution's guarantee of equal protection
because  the borough lacks a legitimate governmental interest  to
enact  a hiring preference favoring one class of citizens at  the
expense  of others and because the preference it enacted  is  not
closely tailored to meet its goals.
MATTHEWS, Justice, concurring.
           I agree with the opinion of the court that the borough
hiring  preference violates the equal rights clause of the Alaska
Constitution  and  with  much of the court's  reasoning.   But  I
prefer  to  address directly the question whether  the  ordinance
discriminates       on      the      basis       of       race.59
_______________________________
1     North  Slope  Borough Code (NSBC)  2.20.150(A)(27)  (1998).
The  original version of the hiring preference, NSB Ord. 80-26-12
(1997), did not include the extension of the preference to Native
American  applicants  who  failed to meet  some  of  the  minimum
qualifications.  NSB Ordinance 80-26-13 (March 3, 1998) (amending
NSBC  2.20.150(A)(27)).
2     Section 703(i) of the Civil Rights Act of 1964 is  codified
as 42 U.S.C.  2000e-2(i) (1994).
3     Title  VII  of the Civil Rights Act of 1964 is codified  as
subchapter  e  of 42 U.S.C.  2000 (1994).  Subchapter  e  broadly
proscribes various forms of discriminatory employment practices.
4    42 U.S.C.  2000e-2(i) (1994).
5     Alaska  Appellate Rule 407 authorizes the supreme court  to
answer  questions of state law certified to it by certain federal
courts, including courts of appeals.
6     The Alaska Human Rights Act, AS 18.80.010 - 18.80.300,  was
originally  enacted in 1963.  Ch. 15, SLA 1963.  The  legislature
extended  the  protections of the Act to bar unlawful  employment
discrimination  by  the  state or its political  subdivisions  in
1966.   Ch.  79,   1,  SLA  1966  (enacting  AS  18.80.255).   AS
18.80.255  provides in relevant part:  "It is  unlawful  for  the
state  or  any  of its political subdivisions . .  .  to  refuse,
withhold  from, or deny to a person any local, state, or  federal
funds,  services,  goods, facilities, advantages,  or  privileges
because of race, religion, sex, color, or national origin[.]"
7    AS 18.80.220(a)(1).
9    NSB Charter  16.020.
10    417 U.S. 535 (1974).
11    See id. at 538, 551, 554.
12    See id. at 539, 551.
13    See id. at 545-51.
14    See id. at 553 & n.24.
15    See id. at 553 n.24.
16    Id. at 554.
17     See,  e.g.,  State, Dep'ts of Transp. & Labor  v.  Enserch
Alaska Constr., Inc., 787 P.2d 624, 631 & n.11 (Alaska 1989).
18     Alaska  Pac. Assurance Co. v. Brown, 687 P.2d 264,  269-70
(Alaska 1984).
19    787 P.2d at 625.
20    See id. at 631-32 (applying test from Brown, 687 P.2d at 269-
70).
21     Id.  at  632 (citing Commercial Fisheries Entry Comm'n  v.
Apokedak, 606 P.2d 1255, 1266 (Alaska 1980)).
22    Id. at 633 (citing Apokedak).
23    See id. at 634.
24    Id. (alterations in original) (footnote omitted).
25    Id.
26    Morton v. Mancari, 417 U.S. 535, 551-52 (1974).
27    Id.
28    Alaska Const. art. XII,  12.
30      See,  e.g., Washington v. Confederated Bands & Tribes  of
Yakima  Indian  Nation, 439 U.S. 463, 501  (1979)  (a  state  law
relating  to  Native Americans does not create a "suspect"  class
for  purposes of equal protection when enacted in direct response
to congressional authorization specifically aimed at the state).
31     See, e.g., Puget Sound Gillnetters Ass'n v. Moos, 603 P.2d
819,  824 (Wash. 1979) (holding that the special status of Native
Americans  under  federal law created a "permissible  class"  for
purposes of state equal protection allowing Washington to protect
treaty-guaranteed  Native  American  access   to   fisheries   in
Washington  after  Supreme  Court  indicated  in  Washington   v.
Washington  State Commercial Passenger Fishing Vessel Ass'n,  443
U.S.  658,  695-96  (1979),  that Supremacy  Clause  would  grant
federal courts power to enforce those rights directly).
32    See Policy Statement on Indian Preference Under Title VII, N-
915.027, 8 Lab. Rel. Rep. (BNA) (Fair Emp. Prac. Manual) 405:6647
(May  16, 1988).  This interpretation accords with Mancari's view
of  the  exception as a provision enacted in recognition "of  the
unique  legal status of tribal and reservation-based activities."
Morton v. Mancari, 417 U.S. 535, 545-46 (1974) (discussing 703(i)
exception);  see  also Dawavendewa v. Salt River  Project  Agric.
Improvement  & Power Dist., 154 F.3d 1117, 1118, 1124  (9th  Cir.
1998)  (holding that hiring preference for Navajos  discriminates
against  Hopis  and other Native Americans on basis  of  national
origin).
33     See NSBC  2.20.150(A)(27) (1998) ("A Native American is  a
person  belonging  to  an Indian tribe as defined  in  25  U.S.C.
Section  3703(10).").  We note that in 1988  the  EEOC  issued  a
formal  interpretation and policy statement regarding the  703(i)
exception.   The  statement "delineate[d] [the  EEOC's]  position
with  respect to the exception provided in Section 703(i) of  the
[1964  Civil  Rights]  Act."   See  Policy  Statement  on  Indian
Preference  Under Title VII, N-915.027, 8 Lab.  Rel.  Rep.  (BNA)
(Fair  Emp. Prac. Manual) 405:6647 (May 16, 1988).  The statement
took  the  position  that  "the terms  `Indian  reservation'  and
`reservation' in Section 703(i) of Title VII include . .  .  land
held  by  incorporated Native groups, regional corporations,  and
village corporations in Alaska under the provisions of the Alaska
Native Claims Settlement Act."  Id. at 6650.  In 1996, relying in
part  on  the  1988 policy statement, an EEOC attorney  sent  the
borough  an  opinion letter expressing the view that  "Title  VII
permits a state or local government employer to invoke the Indian
preference  provision in section 703(i)";  yet  the  letter  also
noted  that the borough would have to meet the exception's  other
criteria,   "including   the   `on   or   near   a   reservation'
requirements."   For purposes of deciding this  case,  we  assume
arguendo  that  the  borough meets the  "on  or  near  an  Indian
reservation" requirements under the 703(i) exception,  expressing
no opinion on that issue.
34    Cf. Rice v. Cayetano, 528 U.S. 495, 514 (2000) (warning that
"[a]ncestry can be a proxy for race"); Dawavendewa, 154  F.3d  at
1120 (hiring preference favoring specific tribe discriminates  on
basis  of  national  origin).  We are aware  that  the  EEOC  has
recognized that "as a practical matter," 703(i) preferences  "may
operate,  in effect, to favor only members of [a] specific  tribe
without  disadvantaging Indians of other tribes;" in  the  EEOC's
view,   these   circumstances  do  not  impair  the  preference's
validity.  See Policy Statement on Indian Preference Under  Title
VII,  N-915.027, 8 Lab. Rel. Rep. (BNA) (Fair Emp. Prac.  Manual)
405:6654 (May 16, 1988).  But while the EEOC's position tolerates
these  unavoidable  incidental effects, it stops  well  short  of
condoning  a  preference  enacted  for  the  express  purpose  of
favoring  a  narrow  class of local residents  defined  by  their
racial or cultural heritage.
35    In briefing this case, neither party specifically discusses
the  significance  of  the  disparity between  the  body  of  the
ordinance   and  its  statement  of  purposes  or   whether   the
ordinance's  stated purposes jeopardize its compliance  with  the
703(i)  exception.   Moreover, the issue is  complicated  by  the
discussion  of  the exception set out in the EEOC's  1988  policy
statement,  which  lends  itself to varying  interpretations  and
could  generate  misunderstanding.  See note  33,  above.   Given
these  circumstances, we choose not to rest our decision  on  the
ordinance's apparently race-conscious statement of purposes.
36    42 U.S.C.  2000e-2(a) (1994).
37    42 U.S.C.  2000e-2(i) (1994), quoted at note 4, above.
38      1   Barbara   Lindemann  &  Paul   Grossman,   Employment
Discrimination Law 387 (Paul W. Cane, Jr., ed., 3d ed. 1996).
39     Given our conclusion that the 703(i) exception creates  no
general   state   or   borough  interests  in   enacting   hiring
preferences,  we  find no merit to the borough's contention  that
the  exception preempts any state law prohibiting a borough  from
enacting  a  preference.  For a similar  reason,  we  reject  the
borough's  related  contention that its interest  in  enacting  a
Native hiring preference flows from a general duty implied  under
federal  law  to "implement federal Indian policy."  The  borough
cites  Morton  v.  Mancari as confirming this interest.   But  by
tying  the  federal  government's "unique obligation  toward  the
Indians"  to  the  powers  that arise  under  the  United  States
Constitution's  Indian  Commerce and Treaty  clauses,  which  are
plenary  and extend exclusively to Congress, 417 U.S. at  551-52,
Mancari  cements  the point that federal law implies  no  general
role  for  states to play in carrying out federal Indian  policy,
leaving it to Congress to enlist state aid or direct state action
by  positive  law.   Our  conclusion that no  legitimate  borough
interest in a preference arises under the 703(i) exception -  the
only positive federal law that the borough contends is applicable
- thus disposes of the point.
40    601 F.2d 1110 (10th Cir. 1979).
41     Id.  at 1111, 1115.  The Museum and Palace were not  on  a
reservation and were state properties.  See id.  But  see  Tafoya
v.  City of Albuquerque, 751 F. Supp. 1527, 1530-31 (D.N.M. 1990)
(declaring  unconstitutional under a strict scrutiny  analysis  a
similar city ordinance in Albuquerque limiting vending within Old
Town to Indians).
42    Livingston, 601 F.2d at 1114-15.
43    Id. at 1113.
44    Id. at 1114.
45    See id. at 1112.
46    Id. at 1113 (emphasis added).
47     Id. at 1112; Livingston v. Ewing, 455 F. Supp. 825, 827-28
(D.N.M. 1978).
48    Livingston, 601 F.2d at 1115.
50     Cf.  Laborers Local 942 v. Lampkin, 956 P.2d  422,  431-32
(Alaska   1998)   (upholding  Fairbanks  North   Star   Borough's
requirement  that successful construction contract  bidder  enter
into  project  labor  agreement with  local  labor  unions  given
established  use  of  such agreements in  construction  industry,
Congress's endorsement of the agreements, and close nexus between
agreement and borough's important economic interests);  see  also
Krueth, 496 N.W.2d at 836.
52     See  State,  Dep'ts of Transp. & Labor v.  Enserch  Alaska
Constr.,  Inc., 787 P.2d 624, 634 (Alaska 1989); see also  Lynden
Transport, Inc. v. State, 532 P.2d 700, 708-10 (Alaska 1975).
54    See Enserch, 787 P.2d at 633.
55    See id. at 634-35.
56    See id.
57    See id.
58      See  NSBC   2.20.150(A)(27)  (1998);  NSB  Ord.  80-26-13
(March 3, 1998).
     To  put  a human face on what might otherwise appear  to  be
merely  an  abstract discussion of legal theory,  I  include  the
following from Judge Sedwick's opinion in this case:

                 Malabed  is  an  [Asian-American]   of
          Filipino   descent;  he  is  not   a   Native
          American.   Malabed  worked  for  NSB  as   a
          temporary  security guard from  1994  through
          1998.   He  applied for a permanent  security
          guard  position  in July 1997.   North  Slope
          Transit  [an arm of the North Slope  Borough]
          hired  Malabed as a permanent security  guard
          in  August  1997, but immediately  thereafter
          canceled   the  appointment.    North   Slope
          Transit re-noticed the position and solicited
          new    job   applications.    The   re-notice
          announced  that  NSB's employment  preference
          for  Native  Americans  previously  described
          would  apply for the position Malabed sought.
          Malabed  was not hired.  North Slope  Transit
          terminated Malabed's temporary assignment  on
          January  14, 1998, because NSB law  prohibits
          temporary  employees from holding a  position
          longer than 120 days.
          
Malabed  v.  North Slope Borough, 42 F. Supp.  2d  927,  929  (D.
Alaska  1999).   I  believe that it does, for  the  reasons  that
follow.

           Inupiat  Eskimos  are a racial rather  than  a  tribal
group.   The ordinance frankly acknowledges that its goal  is  to
benefit  them.  In a prefatory clause the ordinance states  "that
its  purpose in establishing an employment preference for  Native
Americans is to employ and train its Inupiat Eskimo residents  in
permanent,  full-time positions . . . ."  Another  clause  sounds
the  same theme:  "Whereas, to increase the employment of Inupiat
Eskimos, the North Slope Borough would like to give an employment
preference  to  Native  Americans  .  .  .  ."   Similarly,   the
implementation plan for the ordinance expressly states  that  its
purpose is to employ Inupiat Eskimo residents.  Further, at  oral
argument  counsel for the borough explained that one  reason  the
term  "Native American" was defined in terms of tribal membership
was  that it served to distinguish eligible Native Americans from
others  who  are  not eligible for benefits under the  preference
ordinance  even  though  they  may  have  some  Native   American
ancestors.   Tribal  membership was thus  used  as  a  convenient
mechanism to describe bona fide Native Americans.

           Based on the above we can say with confidence that the
purpose  of  the ordinance was to discriminate on  the  basis  of
race.  Because by the express terms of the civil rights clause of
the Alaska Constitution race is a suspect category, the ordinance
must  be  subjected  to  strict scrutiny in  order  to  determine
whether it is permissible under the equal rights and civil rights
clauses.   But  even  if  there were no clear  indicators  of  an
intent  to  discriminate on the basis of  race,  I  believe  that
strict scrutiny would still be required because tribal membership
is not only a political category but a racial one.

           I  reach  the conclusion that state or municipal  laws
that  grant  individual benefits differentially based  on  tribal
membership should be subject to strict scrutiny for a  number  of
reasons.    As  noted,  this  is  how  we  treat  all  race-based
classifications.   Further, strict scrutiny is well  designed  to
ensure  that  laws  remain race-neutral, as contemplated  by  the
framers  of the Alaska Constitution.  This case illustrates  that
tribal  membership readily lends itself to use as a proxy  for  a
racial classification and as a pretext for racial discrimination.
An  effective  tool  is necessary to prevent  these  abuses.   In
addition,  strict scrutiny is the approach taken by some  federal
courts  in tribal classification cases when construing the  equal
protection  clause  of the Fourteenth Amendment  to  the  federal
constitution.    Since   the   federal   constitution    contains
provisions authorizing legislation on behalf of Native Americans,
while  the  Alaska  Constitution  presumptively  prohibits   such
legislation,  it  follows that stronger reasons exist  for  using
the  strict  scrutiny  method for state constitutional  questions
than for those arising under the federal constitution.

            Although  strict  scrutiny  review  presents  a  high
barrier, it is a barrier that may be overcome in deserving cases.
It is impossible to categorize the kinds of cases that might pass
strict  scrutiny review.  But a federal law calling on the  state
to  give  preferential treatment to tribal members  would  almost
certainly   present   a   compelling  justification   for   state
legislation.  On balance, I believe that strict scrutiny properly
accommodates   the   state's  strong   interest   in   preventing
discrimination on the basis of race and its relatively  rare  and
limited  need to act adjunctively with the federal government  in
programs that favor tribal members over other state citizens.

           The present ordinance does not survive strict scrutiny
review.  As the opinion of the court establishes, the borough had
no  legitimate interest, much less a compelling one, in  adopting
the  preference.   I  believe therefore  that  the  ordinance  is
prohibited  by  article  I,  sections  1  and  3  of  the  Alaska
Constitution.