Morton v. Mancari

Appellant
Rogers Clark Morton, U.S. Secretary of Interior
Appellee
Mancari, et al.
Appellant's Claim
That the federal government's use of Native American preferences in personneldecisions did not violate equal protection under the Due Process Clause of the Fifth Amendment.
Chief Lawyer for Appellant
Harry R. Sachse
Chief Lawyer for Appellee
Gene E. Franchini
Justices for the Court
Harry A. Blackmun (writing for the Court), William J. Brennan, Jr., Warren E.Burger, William O. Douglas, Thurgood Marshall, Lewis F. Powell, Jr., WilliamH. Rehnquist, Potter Stewart, Byron R. White
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
17 June 1974
Decision
Upheld the United States' claim and overturned a lower court's decision prohibiting use of Native American preferences in governmental personnel hiring and job promotion practices.
Significance
The ruling established that Native American Indians can be treated differently from other U.S. citizens by the federal government despite antidiscrimination laws. Members of tribes may be considered political rather than racial groups on occasions when the U.S. government bases its actions on long-standinglegal responsibilities to protect Native American interests and promote tribal self-government. The Court ruled equal protection under the Fifth Amendment's Due Process Clause does not apply in such cases. The unique status of Native Americans as a separate people became increasingly unpopular with many Americans raised with the beliefs that all citizens should be treated equally under the law.
Since passage of the 1834 Indian Intercourse and Trade Act, Congress promotedNative American hiring preferences in certain governmental Native American services through a number of additional laws. However, until the 1930s the predominantly non-Indian staff of the U.S. Bureau of Indian Affairs (BIA) stillheld substantial control over the lives and destinies of the many tribes it serviced. Congress finally sought to change that situation. To increase NativeAmerican participation in BIA operations, Congress recognized that some forms of preferences and exemptions from normal civil service requirements were needed. In sponsoring a bill, one congressman eloquently expressed the need for an Native American preference by stating,

The Indians have notonly been thus deprived of civil rights and powers, but they have been largely deprived of the opportunity to enter the more important positions in the service of the very bureau which manages their affairs . . . It should be possible for Indians with the requisite vocational and professional training to enter the service of their own people without the necessity of competing with white applicants for these positions.

In response, Congress passed the Indian Reorganization Act (IRA) of 1934, a century after the Indian Trade Act. The IRA strengthened tribal governments while continuing the active role of the BIA in a way more responsive to tribalinterests. Among other things, the law extended employment preference to qualified Native Americans for BIA jobs. The purpose of the preference, as outlined by Congress was: (1) to give Native Americans a greater participation in their own government; (2) to further the U.S. government's obligation in protecting tribal interests; and (3) to minimize the conflicts of having non-Native Americans administer matters affecting Native American tribal life. Congress was well aware the preference would result in employment disadvantages fornon-Native Americans within the bureau. However, this unavoidable effect wasconsidered necessary to allow the gradual replacement of non-Native Americanswith Native Americans to further the goal of Native American self-government.
Soon questions of the government's role in protecting Native Americans interests arose. The Court reaffirmed the federal government's responsibility in assisting tribes toward self-government in Board of County Commissioners v.Seber (1943).
In 1964 Congress passed the Civil Rights Act, the first major federal law prohibiting discrimination in private employment on the basis of "race, color, religion, sex, or national origin." Since the act primarily targeted private employment discrimination and not the federal government, Congress passed the1972 Equal Employment Opportunity (EEO) Act to prohibit discrimination in most areas of federal employment.
Meanwhile, following passage of the IRA, the BIA had implemented the preference with some success. By 1972, the percentage of Native Americans employed inthe bureau rose from 34 percent in 1934 to 57 percent. However, success wasmostly felt at lower paying positions. To correct this imbalance, the BIA extended the preference in 1972 to promotions within the agency designed to bring more Native Americans into positions of responsibility. This policy was considered a logical extension of the congressional intent of IRA.
Preferences and the Fifth Amendment
Shortly after introduction of the new BIA promotion policy and passage of theEEO Act, several non-Native American employees of the BIA office in Albuquerque, New Mexico, including Mancari, filed a class action suit in the U.S. District Court for the District of New Mexico on behalf of themselves and othernon-Native employees. The suit named as defendants the secretary of the interior, the commissioner of Indian affairs, and the BIA directors for the Albuquerque and Navajo area offices. Mancari and the others raised two issues. First, they argued, the 1972 EEO Act repealed the various Native American preference laws passed since 1834. Secondly, they claimed the preference policies under the 1934 IRA directly violated equal protection under the Fifth Amendmentby depriving them of their right to opportunities for job promotions and should, therefore, be declared unconstitutional. Mancari argued that implementation and enforcement of the 1972 BIA preference policy affecting job promotions "placed and will continue to place [non-Native employees] at a distinct disadvantage in competing for promotion and training programs with Indian employees, all of which has and will continue to subject the [non-Native employees]to discrimination and deny them equal employment opportunity."
In assessing how the BIA implemented the preference policy, the district court concluded that the repeal of Native American preference laws could indeed be implied from the 1972 EEO Act. However, if Congress repealed the preferencelaws, then their constitutionality need not be determined. In its decision,the district court prohibited "any policy in the [BIA] which would hire, promote, or reassign any person in preference to another solely for the reason that such a person is an Indian." Secretary of Interior Rogers Clark Morton immediately appealed to the Supreme Court which was out of session. In August of1973, Justice Marshall temporarily blocked the district court's decision from taking effect until the full Court could hear the case in its next regularsession combined with a similar case.
Native Americans Not Ethnic
Justice Blackmun, writing for a unanimous Court, found the lower court erredon both issues regarding the implications of the EEO Act and Fifth Amendmentapplication. First, the Court determined that Congress did not intend to repeal Native American preference with the 1972 EEO Act. Blackmun highlighted twospecific sections of Title VII of the 1964 Civil Rights Act explicitly exempting from its coverage the preferential employment of "Indians by Indian tribes or by industries located on or near Indian reservations." As a senator stated on the floor of Congress during the passage of the Civil Rights Act, "this exemption is consistent with the Federal Government's policy of encouragingIndian employment and with the special legal position of Indians." In contrast, nowhere did the 1972 EEO Act mention Native American preference. Therefore, Blackmun wrote that merely by extending general racial discrimination prohibitions to federal employment in 1972 without explicitly repealing the Native American preferences, one could not conclude that the protections of NativeAmerican preferences in the Civil Rights Act were changed in any way. Therefore, the Court would be mistaken to conclude that Congress intended to consider the long-standing Native American preferences in BIA employment as racially discriminatory without a direct mention. Moreover, Blackmun added that in 1972 shortly after passage of the EEO Act, Congress passed new Native Americanpreferences. These preferences were part of an education bill establishing government programs for training teachers of Native American children. In light of this obvious continued support of Native American preference, it seemedimprobable that the same Congress, shortly before, would have condemned BIA preferences as racially discriminatory.
Secondly, the Court found that Native American preference for BIA promotionswas reasonable. Morton had argued the preference policy had a rational basisdesigned to further Native American self-government. Native American preference was a long-standing, important part of the U.S. government's Native American program and traditionally considered an exception to government antidiscrimination policies. Therefore, Blackmun concluded that such preference was notracial discrimination in violation of the Due Process Clause of the Fifth Amendment. The Supreme Court unanimously reversed the district court's judgement and returned both cases to that court for further consideration.
Impact
Mancari was the first time the Supreme Court considered the question of how Native Americans, who commonly are treated as ethnic groups in many circumstances in U.S. society, could receive special treatment by the governmentwithout that treatment being considered racial discrimination. In applying anewly created "rational basis" test to Native American preference, the Courtunanimously found that Native American preference in hiring and promotion was not racial discrimination. In order to withstand this test, a law being challenged must be rationally related to a legitimate government interest. In this case, the fostering of Native American self-government and making the BIAmore responsive to the needs of Native Americans were found to be legitimategovernment interests. The preferences also were not violations of the Due Process Clause. As long as the special treatment of Native Americans could be rationally tied to the fulfillment of Congress' unique legal obligations towardNative Americans, the Court gave Congress the benefit of any doubt and did not rule against such laws. If the Native American preference laws were only designed to help Native Americans as individuals, then they could be determined to be racial discrimination.
The primary distinction drawn by the Court in preference policies between Native Americans and non-Natives was political, not racial, since only members of tribes recognized by the U.S. government would benefit. However, the promise Mancari held to advance the rights of Indians was not fully realized. Ironically, Mancari's creation of political distinctions exempted persons from equal protection violations which made Native Americans quite vulnerable to adverse treatment. In United States v. Antelope (1977) the Court held that in some cases tribal members could be subjected to harsher penalties under the law than non-Native Americans since constitutional equal protection did not apply.
Americans are taught from childhood that "all Americans are equal." Many viewed the unique right of tribes to govern their reservations and enjoy certaingovernment preferences as clear evidence that Native Americans have "more rights" than regular U.S. citizens. The special status of Native Americans continued to raise outcries of "reverse discrimination" even though the Court heldsuch preference was not racial at all, but a federal-tribal relationship, "governmental" in nature. Despite this distinction, opposition grew in the 1990s to eliminate the special status of Native American tribes. In defense, Native Americans viewed their ability to make and enforce laws of a certain territory as essential to preserving a geographic and cultural identity. Having Native Americans in positions of authority in the BIA was a necessary part of enhancing self-government. The Supreme Court showed its willingness to continue supporting this right in County of Oneida v. Oneida Indian Nation (1985). The Court further emphasized Congress' unique legal obligations towardIndians. By the 1990s about 80 percent of BIA employees were tribal members and most high level Native American policymaking positions within both the Department of Interior and the BIA were held by Native Americans.
Aside from Native American issues, another very important result of the Mancari case was that the Court expressed its unwillingness to support arguments that laws had been repealed merely by implication of later laws being passed. As emphasized in Traynor v. Turnage (1988), the Court again asserted that Congress must clearly express such an intent for repeal to exist.
Related Cases

• Board of County Commissioners v. Seber, 318 U.S. 705 (1943).
  
• United States v. Antelope, 430 U.S. 641 (1977).
  
• County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985).
  
• Traynor v. Turnage, 485 U.S. 535 (1988).