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decided*fn*: June 17, 1974.



Blackmun, J., delivered the opinion for a unanimous Court.

Author: Blackmun

[ 417 U.S. Page 537]

 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 BIA 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 A three-judge Federal District Court concluded that the Indian preference under the 1934 Act was impliedly repealed by the 1972 Act. 359 F.Supp. 585 (NM 1973).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 (1974); 415 U.S. 946 (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,

[ 417 U.S. Page 538]

     to the various positions maintained, now or hereafter, by the Indian Office, [*fn1 ] 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."*fn2

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.*fn3 The record indicates that this policy was implemented immediately.

[ 417 U.S. Page 539]

     Shortly thereafter, appellees, who are non-Indian employees of the BIA at Albuquerque,*fn4 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.*fn5 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.

[ 417 U.S. Page 540]

     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.*fn6 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

[ 417 U.S. Page 541]

     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.*fn7 Since that time, Congress repeatedly has enacted various preferences of the general type here at issue.*fn8 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;*fn9 to further the Government's trust obligation

[ 417 U.S. Page 542]

     toward the Indian tribes;*fn10 and to reduce the negative effect of having non-Indians administer matters that affect Indian tribal life.*fn11

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.*fn12 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 ...

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