Dawavendewa v. Salt River Project Agricultural Improvement & Power District
154 F.3d 1117, 98 Daily Journal DAR 9905, 98 Cal. Daily Op. Serv. 7158 (1998)
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Rule of Law:
Discrimination based on specific Native American tribal affiliation constitutes national origin discrimination under Title VII of the Civil Rights Act of 1964 and is not exempted by the Title VII Indian Preferences exemption, which only permits preferences for Indians generally over non-Indians.
Facts:
- 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 lease agreement required Salt River to grant employment preferences to members of the Navajo tribe living on the reservation, or to other Navajo members if none were available.
- This employment preference policy was also consistent with Navajo tribal law, 15 Navajo Nation Code § 604.
- Harold Dawavendewa, a member of the Hopi tribe, lived in Arizona less than three miles from the Navajo Reservation.
- In 1991, Dawavendewa applied for one of seven Operator Trainee positions at the Salt River generating station.
- Dawavendewa took and passed a test for the position, ranking ninth out of the top twenty applicants.
- Salt River neither interviewed nor considered Dawavendewa further for the position because he was not a member of, or married to a member of, the Navajo Nation.
Procedural Posture:
- Harold Dawavendewa filed a complaint in district court alleging that Salt River Project Agricultural Improvement and Power District (Salt River) engaged in national origin discrimination in violation of Title VII.
- Salt River moved to dismiss the complaint, arguing that tribal membership discrimination is not national origin discrimination and that Title VII's Indian Preferences exemption permitted its policy.
- The district court granted Salt River's motion to dismiss, holding that Title VII exempts tribal preference policies and deeming it unnecessary to decide if tribal membership discrimination constitutes national origin discrimination.
- Dawavendewa appealed the district court's dismissal to the United States Court of Appeals for the Ninth Circuit.
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Issue:
Does discrimination based on tribal affiliation constitute 'national origin' discrimination under Title VII of the Civil Rights Act of 1964, and if so, is such discrimination permitted under Title VII's Indian Preferences exemption (42 U.S.C. § 2000e-2(i))?
Opinions:
Majority - Reinhardt
Yes, discrimination based on tribal affiliation constitutes national origin discrimination under Title VII, and no, such discrimination is not permitted under Title VII's Indian Preferences exemption. The court concluded that discrimination on the basis of tribal membership falls within the definition of 'national origin' discrimination because different Indian tribes were historically, and still are to a certain extent, considered nations, and the term 'national origin' includes the country or place of one's ancestors, regardless of current political status. The court cited Pejic v. Hughes Helicopters, Inc., which held that discrimination against Serbians was national origin discrimination even though Serbia as a nation had long been extinct. The court further clarified that the Indian Preferences exemption (42 U.S.C. § 2000e-2(i)), which allows preferential treatment for 'any individual because he is an Indian living on or near a reservation,' is intended to permit the favoring of Indians over non-Indians, not to authorize discrimination among different Indian tribes. The court agreed with the EEOC's 1988 Policy Statement that tribal affiliation preferences conflict with the exemption's purpose, which is to encourage employment opportunities for Indians generally. The court distinguished Morton v. Mancari, noting it involved a due process challenge to general Indian preference in BIA hiring, not tribal discrimination or a Title VII claim. Finally, the court found that the 1994 amendments to the Indian Self-Determination and Education Assistance Act (ISDA), which allow tribal preferences only for specific 'self-determination contracts,' actually bolster the conclusion that Congress must explicitly legislate when it intends to permit tribal preferences, an action it has not taken for Title VII.
Analysis:
This case significantly broadens the scope of 'national origin' discrimination under Title VII to include discrimination based on tribal affiliation, ensuring that members of distinct Native American tribes are protected from inter-tribal employment bias. It precisely limits the application of the Indian Preferences exemption, clarifying that it serves to promote general Native American employment opportunities over non-Native Americans, rather than permitting employers to favor one tribe over another. The ruling emphasizes a strict interpretation of statutory language and congressional intent, particularly by distinguishing Title VII from the ISDA and requiring explicit legislative action for tribal-specific preferences. This prevents employers from using broad 'Indian preference' policies as a shield for discriminatory practices that disadvantage specific tribal members, reinforcing Title VII's comprehensive anti-discrimination mandate.
