Appeals court rejects borough hiring preference ordinance

Posted: Wednesday, July 09, 2003

ANCHORAGE (AP) A North Slope Borough law giving Native Americans preference for borough jobs has been rejected by the 9th U.S. Circuit Court of Appeals.

In a decision released Tuesday, a three-judge panel ruled that the law violates the Alaska Constitution's guarantee of equal protection.

The decision affirms a decision by U.S. District Court Judge John Sedwick, who heard the case in Fairbanks.

The North Slope Borough Assembly passed the hiring preference ordinance in 1997. Assembly members claimed it was needed because Inupiat Eskimos had a higher unemployment rate and earned less than non-Natives.

Inupiat Eskimos made up about three-quarters of the borough population. The borough and the North Slope School District accounted for more than 60 percent of the region's non-oil field jobs.

Robert Malabed sued in U.S. District Court in 1998, claiming he was passed over for a $16.80-per-hour job as a Barrow security guard.

Malabed, of Filipino descent, worked for three years as a temporary guard. He claimed the permanent job was given to a less-qualified Native American. In the lawsuit, he asked for the job plus back wages.

''We are very pleased with the decision,'' said Ken Covell, Malabed's attorney. His client plans to seek damages, he said.

Two Caucasians also filed suit. Morris David Welch had worked as a water plant operator for the borough since 1989. In 1998, he applied for a promotion, but was rejected in favor of a Native American.

Charles Michael Emerson worked in various positions for the borough since 1991. In 1998, he applied for a job with the borough's housing department but was rejected in favor of a Native American.

The borough contended that under federal law, a Native-hire preference was allowed for business or other enterprises on or near Indian reservations. Attorney David Crosby of Juneau said borough land qualified as a reservation for the purpose because village governments on the North Slope have federally recognized tribe status.

District Court Judge Sedwick disagreed. He said the U.S. Supreme Court made it clear in the 1998 Venetie case that Indian country does not exist in Alaska.

Sedwick also ruled that the Native-hire ordinance violated the equal protection clause of the U.S. Constitution because the borough presented no evidence that Natives suffered local hiring discrimination based on their race.

The 9th Circuit determined that the ordinance's legality might be determined by Alaska law and posed a question to the Alaska Supreme Court: Was the ordinance impermissible under local law, state statutory law, or the Alaska Constitution?

Alaska Supreme Court justices in May unanimously said the ordinance violated the Alaska Constitution. Justices said Native Americans have no unique legal status under borough law as they might under federal law, and that neither state nor borough government has guardianship powers to treat Native Americans as wards.

Justices also determined that the ordinance favored one class of Alaskans over another, therefore violating the Equal Protection Clause, which states ''all persons are equal and entitled to equal rights, opportunities, and protection under the law.''

In its appeal, the borough contended that the federal Civil Rights Act of 1964 pre-empts laws that prohibit discrimination in employment preferences favoring Native Americans.

But 9th Circuit judges said the borough interpretation went beyond what Congress intended.

Congress did not authorize a Native hiring preference in the act as it has in other laws, such as the Indian Self-Determination and Education Assistance Act. Judges said federal law does not pre-empt state law that otherwise would prohibit reverse discrimination in employment.

The judges ruled that the ordinance was invalid under Alaska's Equal Protection Clause and affirmed Sedwick's decision.

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