A Political Classification

By Tanner Bowen

Tanner Bowen is a freshman at the University of Pennsylvania.

The United States Court of Appeals for the Ninth Circuit recently ruled that Native Americans were not protected under Title VII of the Civil Rights Act of 1964 from hiring discrimination by employers of different Native American lineages; whether a Native American is Navajo or Hopi is considered a political classification rather than a claim of national origin discrimination. 


The case EEOC v. Peabody Western Coal Co. arose after two members of the Hopi tribe and one member of the Otoe tribe of Arizona sought employment with Peabody Western Coal Company, a Navajo owned coal mine. The mine refused to hire them and opted to hire more fellow Navajo tribe members instead.  The Equal Employment Opportunity Commission (EEOC) had sued Peabody over a series of four lawsuits pertaining to these discriminatory practices.  This last round of lawsuits commenced after the district court had granted summary judgment on behalf of Peabody Coal. In response to this action, the EEOC appealed the decision to the Ninth Circuit.

The central question of this case is whether the hiring preferences of Native Americans who operate natural resource mines on their own land is a discrimination under Title VII of the Civil Rights Act, which prohibits discrimination in employment on the grounds of “race, color, religion, sex, or national origin.” [1] But, according to the Ninth Circuit, other laws passed by Congress, including the Indian Mineral Leasing Act.

(IMLA) and the Indian Reorganization Act (IRA), allow Native American tribes to discriminate through hiring practices because these acts were “designed to increase tribal independence.” [2] Following this logic would mean that any of these practices could be validated so long as they improve the independence of a particular tribe. Though the IMLA does not mention any hiring practices in its text, the Department of the Interior has routinely approved mineral leases that require the tribe’s lessees to give preference in hiring to members of that tribe since 1940. It is because of this historical tradition that the Ninth Circuit has been hesitant to provide the same equal protection to Native Americans as to other citizens of the United States.

The only other time a court has ruled in a case against potential discrimination in Native American hiring practices was when the Ninth Circuit held in Dawavendewa v. Salt River Project Agricultural Improvement & Power District that a Title VII claim against a local power plant where a Hopi woman had been denied employment could survive a motion to dismiss

In this case, the Ninth Circuit adopted the EEOC’s broad definition of national origin discrimination to encompass tribal affiliation. A few years later, in an appeal of the same case, the Ninth Circuit ruled that Salt River Project did not violate Title VII of the Civil Rights Act.  The Ninth Circuit has opined that the historical-political relationships with the United States government and different Native American tribes would exclude Native American tribal affiliation as being something protected under Title VII.  This is also due to the fact that the US’s interactions with these tribes essentially turned these ethnic groups into political structures and constituencies.  This preference in hiring also does not violate an individual's Fifth Amendment right to due process. 

 That is why the court system only looks at cases dealing with potential national origin discrimination for Native Americans through the lens of rational-basis review.  As stated by the Ninth Circuit Judge William A. Fletcher in his opinion: “As long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians, such legislative judgments will not be disturbed.” 

By this statement, as long as potential discrimination of employee applicants from a different ethnic background is rationally related toward expanding the goals of the IMLA and the IRA, then these practices are justified.  This was a recent step up from the Supreme Court’s decision in Morton v. Mancari, where the Court only addressed general hiring practices of Native Americans.  The Ninth Circuit took it to the next level and applied the logic of Mancari in concluding that tribe-specific discriminatory hiring practices were constitutional. 

Given that these hiring practices are grounded in the development of historical policy initiatives between the United States and former Native American tribes, the concept seems particularly confusing.  This case highlights the complex relationship between the United States and Native American tribes where the US has tried to remain benevolent but has also only narrowly construed laws limiting Native American rights. [3] In cases pertaining to the affairs on Native American land, the US Government would usually opt to not intervene and to maintain the mysterious status quo of quasi independence for these people.

[1] H.R. 7152, 88th Congress. (1964).
[2] United States v. Navajo Nation, 537 U.S. 494 (2003).
[3] 7 Pub. Land L. Rev. 135 (1986)
Photo credit: Flickr user Grand Canyon National Park