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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.
