Dawavendewa v. Salt River Project Agr. Imp. and Power Dist.

• Decision Date: 14 September 1998
• Docket Number: No. 97-15803,97-15803
• Citation: 154 F.3d 1117
• Parties: 77 Fair Empl.Prac.Cas. (BNA) 1312, 74 Empl. Prac. Dec. P 45,500, 98 Daily Journal D.A.R. 9905 Harold DAWAVENDEWA, a single man, Plaintiff-Appellant, v. SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT, an Arizona corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1117

154 F.3d 1117

77 Fair Empl.Prac.Cas. (BNA) 1312,

74 Empl. Prac. Dec. P 45,500,

98 Daily Journal D.A.R. 9905

Harold DAWAVENDEWA, a single man, Plaintiff-Appellant, v. SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT, an Arizona corporation, Defendant-Appellee.

No. 97-15803.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 11, 1998.

Decided Sept. 14, 1998.

Bradley H. Schleier, Schleier Law Offices, Phoenix, Arizona, for plaintiff-appellant.

John J. Egbert, Jennings, Strouss & Salmon, Phoenix, Arizona, for defendant-appellee.

Robert J. Gregory, Equal Employment Opportunity Commission, Washington, D.C., for amicus curiae.

Appeal from the United States District Court for the District of Arizona; Stephen M. McNamee, District Judge, Presiding. D.C. No. CV-96-01165-SMM.

Before: CHOY and REINHARDT, Circuit Judges, and RESTANI, International Court of Trade Judge. ^*

REINHARDT, Circuit Judge:

Harold Dawavendewa, a Native American, alleges that because he is a Hopi and not a Navajo, he was not considered for a position with a private employer operating a facility on the Navajo reservation. He contends that the employer's conduct constitutes unlawful employment discrimination under Title VII of the Civil Rights Act of 1964. To determine whether Dawavendewa's Title VII complaint may proceed, we address, first, whether discrimination based on tribal affiliation constitutes "national origin" discrimination, and, second, whether such discrimination is permitted under a Title VII provision that allows preferential treatment of Indians in certain specified circumstances. ¹

Salt River Project Agricultural Improvement and Power District ("Salt River"), an Arizona corporation, entered into a lease agreement with the Navajo Nation in 1969. The agreement allows Salt River to operate a generating station on Navajo land provided that it, among other things, grants employment preferences to members of the Navajo tribe living on the reservation, or, if none are available, to other members of the Navajo tribe. ² This preference policy is consistent with Navajo tribal law. See 15 Navajo Nation Code § 604 (1995).

Dawavendewa, a member of the Hopi tribe, lives in Arizona less than three miles from the Navajo Reservation. ³ In 1991 he unsuccessfully applied for one of seven Operator Trainee positions at the Salt River generating station. He then filed a complaint alleging that Salt River was engaging in national origin discrimination in violation of Title VII. The complaint alleges that he took and passed a test for the position, ranking ninth out of the top twenty applicants, but was neither interviewed nor considered further for it because he was not a member of, or married to a member of, the Navajo Nation.

Salt River moved to dismiss the complaint on the grounds that discrimination on the basis of tribal membership (as opposed to discrimination on the basis of status as a Native American) does not constitute "national origin" discrimination and that Title VII expressly exempts tribal preferences under § 703(i), 42 U.S.C. § 2000e-2 (i) (the "Indian Preferences exemption"). The district court granted the motion to dismiss. It held that Title VII exempts tribal preference policies, and therefore found it unnecessary to decide whether discrimination on the basis of tribal membership constitutes national origin discrimination under Title VII. Dawavendewa appeals.

I.

We first address the issue whether discrimination on the basis of tribal membership constitutes "national origin" discrimination for purposes of Title VII. Title VII prohibits employers from discriminating on the basis of "race, color, religion, sex, or national origin." Civil Rights Act of 1964, § 703(a), 42 U.S.C. § 2000e-2 (a). ⁴ Although Title VII fails to define "national origin," we have observed that "the legislative history and the Supreme Court both recognize that 'national origin' includes the country of one's ancestors." Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 673 (9th Cir.1988); see Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973) (noting that "[t]he term 'national origin' on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came"). Further, the regulations implementing Title VII provide that discrimination on the basis of one's ancestor's "place of origin"--not nation of origin--is sufficient to come within the scope of the statute. See 29 C.F.R. § 1606.1. ⁵ Accordingly, a claim arises when discriminatory practices are based on the place in which one's ancestors lived.

Consistent with the regulations, we have held that the current political status of the nation or "place" at issue makes no difference for Title VII purposes. In Pejic v. Hughes Helicopters, Inc., we considered the issue whether discrimination against Serbians constituted "national origin" discrimination. 840 F.2d 667, 673 (9th Cir.1988). The employer in Pejic contended that a Serbian employee could not bring a discrimination claim because Serbia as a nation had long been extinct. We rejected this argument and held that Serbians were a protected class:

Unless historical reality is ignored, the term "national origin" must include countries no longer in existence.... Given world history, Title VII cannot be read to limit "countries" to those with modern boundaries, or to require their existence for a certain time length before it will prohibit discrimination. Animus based on national origin can persist long after new political structures and boundaries are established.

Id. (citation omitted); see Roach v. Dresser Indus. Valve & Instr. Div., 494 F.Supp. 215, 218 (W.D.La.1980) (recognizing discrimination against "Cajuns" as national origin discrimination under Title VII although colony of Acadia no longer exists).

Under the principles set forth in Pejic and the Code of Federal Regulations, we have no trouble concluding that discrimination against Hopis constitutes national origin discrimination under Title VII. The status of Indian tribes among the international community and in relation to the United States has, of course, a complicated history that cannot be summarized briefly, and we will not attempt to do so. It is elementary, however, that the different tribes were at one time considered to be nations by the both the colonizing countries and later the United States. See William C. Canby, Jr., American Indian Law 68 (1998). In 1832 Chief Justice Marshall wrote:

The Indian nations had always been considered as distinct, independent, political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial....

The Cherokee nation, then is a distinct community, occupying its own territory, with boundaries accurately described....

Worcester v. State of Georgia, 1832, 31 U.S. (6 Pet.) 515, 559-61, 8 L.Ed. 483. The Court has in more recent times recognized the erosion of the Indian tribes' "nation" status. See Organized Village of Kake v. Egan, 369 U.S. 60, 72, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962) (Frankfurter, J.) (noting that "[b]y 1880 the Court no longer viewed reservations as distinct nations"). Currently, the different Indian tribes are generally treated as domestic dependent nations that retain limited powers of sovereignty. See William C. Canby, American Indian Law 72-87 (1998).

Because the different Indian tribes were at one time considered nations, and indeed still are to a certain extent, discrimination on the basis of tribal affiliation can give rise to a "national origin" claim under Title VII. The fact that "new political structures and boundaries" now exist has no significance. Further, even if the various tribes never enjoyed formal "nation" status, Section 1606.1 of the regulations makes clear that discrimination based on one's ancestor's "place of origin" is sufficient to state a cause of action. Accordingly, under the case law and the regulations interpreting Title VII, tribal affiliation easily falls within the definition of "national origin."

Salt River does not contend that the different Indian tribes are not "nations" for Title VII purposes. Rather, it relies on Morton v. Mancari, 417 U.S. 535, 552-554, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974) for the proposition that employment preferences based on tribal affiliation are based on political affiliation rather than national origin and are thus outside the realm of Title VII. Morton involved a Due Process challenge to the Bureau of Indian Affair's policy hiring Indian applicants over non-Indian applicants. The Court found that the policy did not constitute an impermissible racial classification because it was "reasonably designed to further the cause of Indian self-government and to make the BIA more responsive to the needs of its constituent groups." Id. at 554, 94 S.Ct. 2474. However, Morton did not involve a claim of discrimination on the basis of membership in a particular tribe. In fact, in Morton no claim was made of any violation of Title VII. Morton simply held that the employment preference at issue, though based on a racial classification, did not violate the Due Process clause because there was a legitimate non-racial purpose underlying the preference: the unique interest the Bureau of Indian Affairs had in employing Native Americans, or more generally, Native Americans' interests in self-governance--interests not present in this case. For these reasons, Morton does not affect our conclusion that discrimination in employment on the basis of membership in a particular tribe constitutes national origin discrimination. ⁶ We therefore conclude that differential employment treatment based on tribal affiliation is actionable as "national origin" discrimination under Title VII.

II.

We now consider whether Salt River's policy of favoring members of the Navajo tribe falls within the exception provided by 42...