11/29/22
Indian Preference Under Title V II
• Indian preference is permitted for employers meeting the applicability criteria on or near reservations
• Exceptions: • No preference for members of a particular tribe over other tribes if employer is not tribally owned • Dawavendewa v. Salt River Project Agricultural Improvement Power Dist., 154 Fed.3d 117 (9 th Cir., 1998) See also Dawavendewa v. Salt River Project, 276 F.3d 1150 (9 th Cir., 2001)
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Tribal Specific Hiring Preference • EEOC v. Peabody (No. 12-17780 (9 th Cir, 2014) • Peabody entered lease agreements with Navajo Nation that included Navajo hiring preference. Leases approved by DOI • EEOC sued – tribal specific preference is violation of Title VII • Rounds of litigation – procedural issues • Sovereign Immunity – tribes cannot raise sovereign immunity as a defense against a lawsuit filed by the federal government • DOI cannot be joined without consent and only DOJ can bring an EEOC suit against a government agency • USSC – denied review in 2011 – allowed claim against Peabody to proceed on remand • Held: Tribal hiring preferences in Peabody leases are based upon tribal affiliation – a political classification - allowable • Despite Dawavendewa v. SRP , there are times when differential treatment serves to fulfill a trust obligation to tribes • Indian Mineral Leasing Act of 1938 purposes – advance tribal independence
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