359 F.Supp. 585 (D.N.M. 1973), Civ. 9626, Mancari v. Morton

Docket Nº:Civ. 9626
Citation:359 F.Supp. 585
Party Name:Mancari v. Morton
Case Date:June 01, 1973
Court:United States District Courts, 10th Circuit, District of New Mexico

Page 585

359 F.Supp. 585 (D.N.M. 1973)

C. R. MANCARI et al., Plaintiffs,


Rogers C. B. MORTON, as Secretary of the Interior, et al., Defendants.

Civ. No. 9626.

United States District Court, D. New Mexico.

June 1, 1973.

Page 586

Cotter, Atkinson, Campbell & Kelsey, John M. Kulikowski, Albuquerque, N. M., for plaintiffs.

Victor R. Ortega, U. S. Atty., Albuquerque, N. M., for the Government.

James Wechsler, Crownpoint, N. M., Alan R. Taradash, Paul L. Biderman, Crownpoint, N. M., Richard B. Collins, Window Rock, Ariz., Harris D. Sherman, Sherman & Sherman, Denver, Colo., Arnold & Porter, Patrick J. Macrory, Washington, D. C., for Amerind.

Before SETH, Circuit Judge, and BRATTON and MECHEM, District Judges.



This is a class action brought by the named plaintiffs on behalf of themselves and all other employees of the Bureau of

Page 587

Indian Affairs who are of less than twenty-five per cent Indian blood. Plaintiffs seek to enjoin the defendants from implementing and enforcing a policy of the Bureau of Indian Affairs to give preference to persons of one-quarter or more Indian blood in initial hiring, training, promotion, and reinstatement.

Plaintiffs allege that Title 25, United States Code, §§ 44-46 and 472 (hereinafter the Indian Preference Statutes), are being improperly construed by the Secretary and the Commissioner in that these sections were meant to extend a preference to Indians in initial hiring only. Plaintiffs further allege that this expanded policy violates their rights under the Civil Rights Acts of 1964 and 1972, which rights are guaranteed them in Title 42, United States Code, § 2000e et seq., and Public Law 92-261, § 717. Finally plaintiffs allege that the Indian Preference Statutes are unconstitutional because they deprive plaintiffs of their rights to property without due process of law in violation of the Fifth Amendment to the United States Constitution.

The non-Indian plaintiffs are longtime employees of the BIA. They are teachers at the Albuquerque Polytechnic Institute, or programmers, or in computer work, or teachers in other areas. They testified as to particular training or advancements for which they had applied, and which in their opinion were denied by reason of the application of the preference policy. We find that the plaintiffs demonstrated sufficient connection with the application of the policy to bring this action for themselves and others similarly situated.

The defendants are persons occupying official positions relating to the BIA and are responsible for the application of the Acts herein concerned.

We find that there are asserted substantial constitutional questions requiring consideration by a three-judge court.

The United States Attorney, who appears for the defendants, challenges the court's jurisdiction over the subject matter. The Court of Appeals in Mescalero Apache Tribe v. Hickel, 432 F.2d 956 (10th Cir.), held that there was jurisdiction under 5 U.S.C. § 704 in that action. Here the plaintiffs assert jurisdiction under 42 U.S.C. § 2000e and 28 U.S.C. § 1346(a)(2). This could be considered under the latter statute since the action was against "Rogers C. B. Morton, as Secretary of the Interior," and against other named persons in their official capacities. As indicated, the United States Attorney has appeared as counsel for the defendants. However, we hold that there is jurisdiction under 42 U.S.C. § 2000e, and any further challenge before the Department concerned would be an idle gesture in the face of the issuance of the policy statement and its implementation by regulations and orders. The issue is not an interpretation of policy statements or their application, but is a direct challenge to the validity of the statute on which the departmental policy is based. There is thus no purpose shown why any further administrative action would serve any useful purpose. Mescalero Apache Tribe v. Hickel, 432 F.2d 956 (10th Cir.), we believe, is significant on this point although it dealt with 5 U.S.C. § 704 where no administrative machinery was expressly provided.

Defendants contend that they are directed by 25 U.S.C. § 472 to implement the policy of Indian preference. Section 472 provides as follows:

"The Secretary of the Interior is directed to establish standards of health, age, character, experience, knowledge, and ability for Indians who may be appointed, without regard to civil-service laws, to the various positions maintained, now or hereafter, by the Indian Office, in the administration of functions or services affecting any Indian tribe. Such qualified Indians shall hereafter have the preference to appointment to vacancies in any such positions."

Other statutory provisions relating to preference, although less explicit, appear at 25 U.S.C. §§ 44 and 46.

Page 588

The gist of the preference policy which precipitated the challenge was embodied in Personnel Management Letter No. 72-12, issued by the Albuquerque Area Office of the BIA, which provided in part as follows:

"The Secretary of the Interior announced today he has approved the Bureau's policy to extend Indian preference to training and filling vacancies by original appointment, reinstatement and promotions. ...

"The new policy provides as follows: Where two or more candidates who meet the established requirements are available for filling a vacancy, if one of them is an Indian, he shall be given preference in filling the vacancy. This policy is effective immediately, and is incorporated into all existing programs such as the Promotion Program. ..."

The policy was officially announced and, as we find from the evidence that it is being carried out, applies the preference in hiring and promotions. Instances of promotional preferences were testified to by the witnesses. The policy is thus a reality, and far beyond the formative stage.

A preliminary issue relates to the validity of 25 U.S.C. § 472, quoted above, in view of its inclusion in the heterogeneous Indian Reorganization Act of 1934. This provision was included in the Reorganization Act together with other sections which relate to a variety of subjects. In one of the sections, now 25 U.S.C. § 478, provision is made for submission of "the Act" for acceptance or rejection by the various Indian tribes. This voting section (478) on its face would appear to make the application of section 472, with which we are here concerned, optional with individual tribes by requiring a special election of the adult members of the tribe to vote on the application of the entire Act.

The Reorganization Act was submitted and voted on and was rejected by a considerable number of tribes. This rejection and acceptance tribe by tribe creates some uncertainty, but a careful reading of the other sections, as well as a review of the Congressional history of the Act, convinces us that the elections were to be only for the purpose of accepting or rejecting sections 476 and 477 of Title 25, 48 Stat. 987-88. For example, we cannot believe that Congress intended all the Indian tribes to vote on the extension of boundaries of the Papago Reservation (section 463a, 50 Stat. 536), on the Secretary making...

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