Morton v. Mancari Amerind v. Mancari 8212 362, 73 8212 364

Citation94 S.Ct. 2474,417 U.S. 535,41 L.Ed.2d 290
Decision Date17 June 1974
Docket NumberNos. 73,s. 73
PartiesRogers C. B. MORTON, Secretary of the Interior, et al., Appellants, v. C. R. MANCARI et al. AMERIND, Appellant, v. C. R. MANCARI et al. —362, 73—364
CourtUnited States Supreme Court

Appellees, non-Indian employees of the Bureau of Indian Affairs (BIA), brought this class action claiming that the employment preference for qualified Indians in the BIA provided by the Indian Reorganization Act of 1934 contravened the anti-discrimination provisions of the Equal Employment Opportunities Act of 1972, and deprived them of property rights without due process of law in violation of the Fifth Amendment. A three-judge District Court held that the Indian preference was implicitly repealed by § 11 of the 1972 Act proscribing racial discrimination in most federal employment, and enjoined appellant federal officials from implementing any Indian employment preference policy in the BIA. Held:

1. Congress did not intend to repeal the Indian preference, and the District Court erred in holding that it was repealed by the 1972 Act. Pp. 545—551.

(a) Since in extending general anti-discrimination machinery to federal employment in 1972, Congress in no way modified and thus reaffirmed the preferences accorded Indians by §§ 701(b) and 703(i) of Title VII of the Civil Rights Act of 1964 for employment by Indian tribes or by private industries located on or near Indian reservations, it would be anomalous to conclude that Congress intended to eliminate the longstanding Indian preferences in BIA employment, as being racially discriminatory. Pp. 547—548.

(b) In view of the fact that shortly after it passed the 1972 Act Congress enacted new Indian preference laws as part of the Education Amendments of 1972, giving Indians preference in Government programs for training teachers of Indian children, it is improbable that the same Congress condemned the BIA preference as racially discriminatory. Pp. 548—548.

(c) The 1972 extension of the Civil Rights Act to Government employment being largely just a codification of prior anti-discrimination Executive Orders, with respect to which Indian preferences had long been treated as exceptions, there is no reason to presume that Congress affirmatively intended to erase such preferences. P. 549.

(d) This is a prototypical case where an adjudication of repeal by implication is not appropriate, since the Indian preference is a longstanding, important component of the Government's Indian program, whereas the 1972 anti- discrimination provisions, being aimed at alleviating minority discrimination in employment, are designed to deal with an entirely different problem. The two statutes, thus not being irreconcilable, are capable of co-existence, since the Indian preference, as a specific statute applying to a specific situation, is not controlled or nullified by the general provisions of the 1972 Act. Pp. 549—551.

2. The Indian preference does not constitute invidious racial discrimination in violation of the Due Process Clause of the Fifth Amendment but is reasonable and rationally designed to further Indian self-government. Pp. 551—555.

(a) If Indian preference laws, which were derived from historical relationships and are explicitly designed to help only Indians, were deemed invidious racial discrimination, 25 U.S.C. in its entirety would be effectively erased and the Government's commitment to Indians would be jeopardized. Pp. 553—554.

(b) The Indian preference does not constitute 'racial discrimination' or even 'racial' preference, but is rather an employment criterion designed to further the cause of Indian self-government and to make the BIA more responsive to the needs of its constituent groups. Pp. 553—554.

(c) As long as the special treatment of Indians can be tied rationally to the fulfillment of Congress' unique obligation toward Indians, such legislative judgments will not be disturbed. Pp. 554—555.

359 F.Supp. 585, reversed and remanded.

Harry R. Sachse, New Orleans, La., for appellants in No. 73 362.

Harris D. Sherman, Denver, Colo., for appellant in No. 73 364.

Gene E. Franchini, Albuquerque, N.M., for appellees.

Mr. Justice BLACKMUN delivered the opinion of the Court.

The Indian Reorganization Act of 1934, also known as the Wheeler-Howard Act, 48 Stat. 984, 25 U.S.C. § 461 et seq., accords an employment preference for qualified Indians in the Bureau of Indian Affairs (BIA or Bureau). Appellees, non-Indian BAI employees, challenged this preference as contrary to the anti-discrimination provisions of the Equal Employment Opportunity Act of 1972, 86 Stat. 103, 42 U.S.C. § 2000e et seq. (1970 ed., Supp. II), and as violative of the Due Process Clause of the Fifth Amendment. A three-judge Federal District Court concluded that the Indian preference under the 1934 Act was impliedly repealed by the 1972 Act. 359 F.Supp. 585 (NM 1973). We noted probable jurisdiction in order to examine the statutory and constitutional validity of this longstanding Indian preference. 414 U.S. 1142, 94 S.Ct. 893, 39 L.Ed.2d 99 (1974); 415 U.S. 946, 94 S.Ct. 1467, 39 L.Ed.2d 562 (1974).


Section 12 of the Indian Reorganization Act, 48 Stat. 986, 25 U.S.C. § 472, provides:

'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,1 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.'2

In June 1972, pursuant to this provision, the Commissioner of Indian Affairs, with the approval of the Secretary of the Interior, issued a directive (Personnel Management Letter No. 72 12) (App. 52) stating that the BIA's policy would be to grant a preference to qualified Indians not only, as before, in the initial hiring stage, but also in the situation where an Indian and a non-Indian, both already employed by the BIA, were competing for a promotion within the Bureau.3 The record indicates that this policy was implemented immediately.

Shortly thereafter, appellees, who are non-Indian employees of the BIA at Albuquerque,4 instituted this class action, on behalf of themselves and other non-Indian employees similarly situated, in the United States District Court for the District of New Mexico, claiming that the 'so-called 'Indian Preference Statutes," App. 15, were repealed by the 1972 Equal Employment Opportunity Act and deprived them of rights to property without due process of law, in violation of the Fifth Amendment.5 Named as defendants were the Secretary of the Interior, the Commissioner of Indian Affairs, and the BIA Directors for the Albuquerque and Navajo Area Offices. Appellees claimed that implementation and enforcement of the new preference policy 'placed and will continue to place (appellees) at a distinct disadvantage in competing for promotion and training programs with Indian employees, all of which has and will continue to subject the (appellees) to discrimination and deny them equal employment opportunity.' App. 16.

A three-judge court was convened pursuant to 28 U.S.C. § 2282 because the complaint sought to enjoin, as unconstitutional, the enforcement of a federal statute. Appellant Amerind, a nonprofit organization representing Indian employees of the BIA, moved to intervene in support of the preference; this motion was granted by the District Court and Amerind thereafter participated at all stages of the litigation.

After a short trial focusing primarily on how the new policy, in fact, has been implemented, the District Court concluded that the Indian preference was implicitly repealed by § 11 of the Equal Employment Opportunity Act of 1972, Pub.L. 92—261, 86 Stat. 111, 42 U.S.C. § 2000e—16(a) (1970 ed., Supp. II), proscribing discrimination in most federal employment on the basis of race. 6 Having found that Congress repealed the preference, it was unnecessary for the District Court to pass on its constitutionality. The court permanently enjoined appellants 'from implementing any policy in the Bureau of Indian Affairs which would hire, promote, or reassign any person in preference to another solely for the reason that such person is an Indian.' The execution and enforcement of the judgment of the District Court was stayed by Mr. Justice Marshall on August 16, 1973, pending the disposition of this appeal.


The federal policy of according some hiring preference to Indians in the Indian service dates at least as far back as 1834.7 Since that time, Congress repeatedly has enacted various preferences of the general type here at issue.8 The purpose of these preferences, as variously expressed in the legislative history, has been to give Indians a greater participation in their own self-government;9 to further the Government's trust obliga- tion toward the Indian tribes;10 and to reduce the negative effect of having non-Indians administer matters that affect Indian tribal life.11

The preference directly at issue here was enacted as an important part of the sweeping Indian Reorganization Act of 1934. The overriding purpose of that particular Act was to establish machinery whereby Indian tribes would be able to assume a greater degree of self-government, both politically and economically.12 Congress was seeking to modify the then-existing situation whereby the primarily non-Indian-staffed BIA had plenary control, for all practical purposes, over the lives and destinies of the federally recognized Indian tribes. Initial congressional proposals would have diminished substantially the role of the BIA by turning over to federally chartered self-governing Indian communities many of the func- tions normally performed by the Bureau.13 Committee sentiment, however, ran against such a...

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