Vicki J. Limas

Excerpted from:  Vicki J. Limas, Sovereignty As A Bar To Enforcement Of Executive Order No. 11,246 In Federal Contracts With Native American Tribes, 257 New Mexico Law Review 257, 279-292 (Spring 1996) (footnotes omitted)

I. INTRODUCTION

Native American tribes, as employers, are exempt from coverage by federal statutes prohibiting discrimination in employment. However, tribes' contracts with the federal government and their subcontracts with prime federal contractors contain antidiscrimination-in-employment clauses authorized by Executive Order No. 11,246 and others. These executive orders apply to contractors and their first-tier subcontractors holding aggregate contracts of $10,000 or more and prohibit discrimination on the same bases covered by the antidiscrimination statutes from which tribes are exempt. In addition, Executive Order No. 11,246 requires federal contractors to take affirmative action to hire and promote racial and ethnic minorities and women. The Order mandates that contractors who have fifty or more employees and hold aggregate federal contracts valued at $50,000 or more maintain written affirmative action plans for each of their facilities documenting their workforce composition, the available labor market, their efforts at hiring and promoting individuals within these categories, and their goals for correcting those areas within facilities that "underutilize" individuals within the categories. Failure to comply with the terms of Executive Order No. 11,246 may result in debarment and administrative proceedings or suit by the federal government against the contractor to enforce the antidiscrimination clause on behalf of the aggrieved individual(s) or the agency.

The issue of whether Executive Order No. 11,246 applies to tribes poses real and severe dilemmas for tribal governments. Under the purported authority of the Order, the Department of Labor (DOL) is currently considering whether to formally investigate a number of discrimination claims against Native American tribes under their contracts with the federal government or subcontracts with prime government contractors. In addition, the Office of Federal Contract Compliance Programs (OFCCP), a subagency of the DOL, recently audited Cherokee Nation Industries, a business wholly owned by the Cherokee Nation, for affirmative action compliance under a contract the Nation holds with a prime defense contractor. Potential administrative and defense costs, both in terms of money and staffing, can easily overwhelm the majority of tribal governments. On the other hand, tribes see no choice but to accede to these federal requirements as a condition of receiving federal funding or business income vital to the tribes' existence.

It has been simply assumed that tribes can be liable for employment discrimination under the executive order programs even if they cannot be liable for employment discrimination under federal statutes. For the reasons explained below, this assumption is incorrect; government action against tribal employers under the anti-discrimination executive order programs constitutes an unlawful intrusion into tribal sovereignty.

Part II presents the history and requirements of Executive Order No. 11,246. Part III discusses the unique status of tribes as sovereigns contracting with the federal government, the law governing the federal/tribal relationship, and the incidents of tribal sovereignty. Part IV then explains why that law does not permit enforcement of Executive Order No. 11,246 against sovereign tribes. Part V proposes an alternative means of assuring nondiscrimination in employment under federal contracts, consistent with federal law, that accommodates the federal government's interest in both nondiscrimination and tribal sovereignty. . .

IV. INCOMPATIBILITY OF TRIBAL SOVEREIGN STATUS WITH THE REQUIREMENTS OF EXECUTIVE ORDER NO. 11,246

As discussed previously, the antidiscrimination executive orders resulted from the exclusion of certain minority groups, primarily African Americans, from the workforce. The same motivation, of course, existed behind the passage of Title VII and other civil rights laws, which were more broadly based. 1 Such laws protecting minority group rights were enacted for the purpose of integrating those groups into the entire political, economic, and social realms of American society. Federal laws governing Native American rights, on the other hand, protect the "cultural separateness and political autonomy" of Native Americans, "a special protection of a separate minority population."

This distinction--between the federal goal of broad inclusion of minority groups into mainstream American society and the federal goal of preservationof one "minority" group's political and cultural separateness from mainstream American society--lies at the heart of this discussion of Executive Order No. 11,246. Congress recognized this distinction in drafting the federal antidiscrimination statutes, as do the courts in applying them; the executive branch does not when it attempts to apply Executive Order No. 11,246 to tribes.

A. The Antidiscrimination Statutes

Title VII and other antidiscrimination statutes reflect Congress' intent that tribal employers occupy a "unique legal status" free from governmental interference. Those statutes recognize the need for "special protection" of Native American groups. In particular, Native American tribes are expressly excluded from coverage by Title VII. By this exclusion, Congress recognized tribes' status as self-governing sovereigns like the federal government, which it also originally excluded from coverage by Title VII.

The exclusion of tribes from Title VII's coverage was proposed by Senator Mundt of South Dakota as an amendment to the Senate bill's definition of "employer":

To a large extent many tribes control and operate their own affairs, even to the extent of having their own elected officials, courts and police forces. This amendment would provide to American Indian tribes in their capacity as a political entity [sic], the same privileges accorded to the U.S. Government and its political subdivisions, to conduct their own affairs and economic activities without consideration of the provisions of the bill. 1

In his remarks, Mundt compared this amendment to the other amendment concerning Native Americans he had already successfully introduced, which allowed employers operating on or near reservations to preferentially hire Native Americans living on or near the reservation. Both of these amendments, he asserted, would "assure our American Indians of the continued right to protect and promote their own interests and to benefit from Indian preference programs now in operation or later to be instituted," adding that NativeAmericans comprise "the one minority group in the United States which has suffered the longest and the most from the callous indifference and the poor judgment of Americans generally." 1

The intent reflected in Senator Mundt's statements--that tribes are sovereigns in their own right and are entitled to exercise control over their own interests without congressional interference--was reiterated by the Supreme Court when it interpreted the 1972 amendments to Title VII. These amendments extended Title VII's coverage to employment by state, local, and federal governments. 1

In Morton v. Mancari, the Court held that these amendments to Title VII did not repeal the Indian hiring preference provision of the Indian Reorganization Act of 1934 for Bureau of Indian Affairs employment. 1 The Court observed that tribes were not mentioned at all in the legislative history of the 1972 amendments, 1 and that both provisions of Title VII concerning tribes--the exclusion of tribes from the definition of "employer" and the hiring preference for Native Americans living on or near a reservation- -remained intact after the 1972 amendments. Both provisions, the Court found, reflected the "longstanding federal policy" of congressional deference to tribal sovereignty by "providing a unique legal status to Indians in matters concerning tribal or 'on or near' reservation employment." 1

Congress continued to express its intent not to interfere with tribal sovereignty in employment matters when it expressly excluded Native American tribes from the definition of "employer" in the Americans with Disabilities Act of 1990 (ADA). 1 Title I of the ADA prohibits discrimination against disabled individuals who are otherwise qualified to hold the job in question and imposes a duty upon the employer to "reasonably accommodate" the individual's disability. 1 The legislative history of the ADA does not explain why tribes are excluded from the definition of "employer," except to say that Congress borrowed the procedural framework of the ADA from that of Title VII and that Title VII's definition of "employer" was part of that procedural framework. 1

Although Congress did not mention tribes in its definition of "employer" in the Age Discrimination in Employment Act of 1967 (ADEA), 1 the two circuits that have addressed the question have interpreted the ADEA to exclude tribes from its coverage because of tribal sovereignty.

In EEOC v. Cherokee Nation, 1 the Tenth Circuit held that the ADEA did not authorize the Equal Employment Opportunity Commission (EEOC) to investigate a charge of age discrimination against the Cherokee Nation's Director of Health and Human Services because tribes are exempt from the statute's coverage. The ADEA's definition of "employer" is virtually identical to that of Title VII except for mentioning tribes. 1 The court reasoned that, because the application of the ADEA would involve sovereign tribal rights, the difference between the two statutes' language created an ambiguity that, under federal law, must be resolved in favor of the tribe by excluding it from coverage by the ADEA.

The Eighth Circuit used similar reasoning in EEOC v. Fond du Lac Heavy Equipment and Construction Co., in which it affirmed the dismissal of an age discrimination case against a tribally owned business by a member of the tribe. It found the suit to involve a matter of tribal sovereignty:

Subjecting such an employment relationship between the tribal member and his tribe to federal control and supervision dilutes the sovereignty of the tribe. The consideration of a tribe member's age by a tribal employer should be allowed to be restricted (or not restricted) by the tribe in accordance with its culture and traditions.

Because application of the ADEA would impinge on tribal sovereignty, the court resolved the ambiguity res-ulting from the ADEA's silence in favor of the tribe and held that the tribe was not a covered employer under the ADEA.

The "unique legal status" Congress affords tribal employment in the antidiscrimination statutes must be respected in the interpretation and application of Executive Order No. 11,246. A tribe's culture and the way employment is treated in that culture is part of that "unique legal status," as the Eighth Circuit acknowledged. A commentator explains this point:

[C]onceptions of equality specific to one culture are not useful tools to assess the justice of practices and beliefs of another culture. For example, one conception of equality declares that political rights and responsibilities ought to be distributed among citizens without regard to racial or cultural difference. This stands in stark contrast to the distributive principle adhered to in a society that distributes political rights and responsibilities by reference to, say, lineage. That society's distributive principle might conform to a particular conception of equality, namely, that all who are of a certain lineage be treated equally. A distribution based on lineage, however, is a far cry from the conception of equality that prohibits consideration of race or cultural difference.

Congress's recognition of the "unique legal status" of tribal employment by legislatively excluding it from governmental oversight accommodates cultural differences and advances the congressional policy promoting tribal sovereignty. Judicial interpretation and application of these statutes likewise reflect the policy of tribal sovereignty. In attempting to apply the Order to Native American tribes in direct contravention of Congress's exemption of tribes from Title VII and other antidiscrimination laws, the OFCCP acts without statutory authority and against federal policy, just as it does when it ignores Congress's protection of bona fide seniority systems under section 703(h) of Title VII.

B. Statutory Indian Preferences

The tribal employment preference provisions of Title VII 1 and other statutes further indicate that Congress does not intend the antidiscrimination requirements of Executive Order No. 11,246, along with their cumbersome compliance regulations, to apply to tribal employment. Recall that Senator Mundt, who introduced the preference provision into Title VII, characterized it and the provision to exclude tribes from Title VII's coverage as a means of assuring tribes "of the continued right to protect and promote their own interests." Furthermore, in Morton v. Mancari, the Supreme Court noted the pervasiveness of Indian preferences throughout the history of the United States' dealings with tribes and matters affecting tribes:

The federal policy of according some hiring preference to Indians in the Indian service dates at least as far back as 1834. Since that time, Congress repeatedly has enacted various preferences of the general type here at issue. 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; to further the Government's trust obligation toward the Indian tribes; and to reduce the negative effect of having non-Indians administer matters that affect Indian tribal life.

The Court also characterized Title VII's exemption of tribes as employers and its preference provision as "a clear congressional recognition, within the framework of Title VII, of the unique legal status of tribal and reservation-based activities." Citing Senator Humphrey's statement, the Court added that "[t]his exemption is consistent with the Federal Government's policy of encouraging Indian employment and with the special legal position of Indians." As discussed previously, Mancari held that the 1972 amendments to Title VII, which extended that Act's prohibition of discrimination to federal, state, and local employment, did not repeal Indian preference laws. In its reasoning, the Court explained that the fundamental difference between antidiscrimination laws and Indian preference laws

is a prototypical case where an adjudication of repeal by implication is not appropriate. The preference is a longstanding, important component of the Government's Indian program. The antidiscrimination provision, aimed at alleviating minority discrimination in employment, obviously is designed to deal with an entirely different and, indeed opposite, problem ....

The "problems" that Indian preference provisions address are, of course, the previously discussed dichotomy between the goals of integrating minority groups in general into the American labor force and that of preserving autonomy for a "special" minority group. The preference provisions allow Native Americans to take "a greater control of their own destinies" --that is, maintain their sovereignty--through employment in activities and services that affect them. Tribal employment preferences directly advance tribal sovereignty. As a commentator has pointed out, preference of tribal members in tribally-related businesses

supports a tribal goal which, stated in its most basic terms, involves the maintenance of tribal identity, integrity, custom, and, in some circumstances, its very existence. Tribal preference ordinances also correct much of the discrimination which has kept reservation Indians from getting jobs or job training. Additionally, tribes have an interest in creating and maintaining a job market on the reservation to encourage Indian labor to remain.

Congress has recently indicated its approval of a broader reading of tribal preferences than those recognized by agency regulations. Some tribes have enacted preference ordinances stating that employment preference can be made on the basis of tribal membership. Even though OFCCP regulations provide for an Indian preference, 21 however, they state that a contractor "shall not ... discriminate among Indians on the basis of religion, sex, or tribal affiliation." 21 Similar language appears in Bureau of Indian Affairs and Indian Health Service regulations. In the 1994 amendments to the Indian Self-Determination and Education Assistance Act of 1975, governing federal assistance to tribes in the form of self-determination contracts, Congress mandates that "with respect to any self-determination contract ... that is intended to benefit one tribe, the tribal employment or contract preference laws adopted by such tribe shall govern with respect to the administration of the contract ...." The purpose of this amendment was to "remove the source of conflict by endorsing tribal TERO [[[tribal employment rights ordinances] where they are in place." Thus, if a tribe discriminates in employment in favor of tribal members under its laws, the contracting agency must follow the tribal law.

As stated in Mancari, tribal preference laws are a "long-standing, important component" of the federal policy toward Native American employment. Congress' action in recognizing tribal preference laws in self-determination contracts reinforces the Congressional policy of tribal self-determination. OFCCP regulations reject tribal preference laws; thus, they run counter to federal policy and congressional intent.

There is another reason, given the policy behind preference laws, that it does not make sense to impose Executive Order No. 11,246 on tribal employers. The Order is primarily directed toward hiring of racial and ethnic minorities. But the preference provisions, by their very terms, exempt tribes from any duty to hire from other racial or ethnic groups. Under the preference laws, tribal employment will be overwhelmingly Native American, a "minority" group recognized by the OFCCP. Moreover, preferences on the basis of tribal membership could lawfully exclude from consideration anyone--male or female-- who is not a tribal member. It simply makes nosense to impose the requirements of Executive Order No. 11,246 on tribes when tribal employment is by its very nature employment of "minorities" within the meaning of the OFCCP's own regulations.

C. The Indian Self-Determination and Education Assistance Act

The most recent congressional pronouncement that the executive order program is not appropriate to tribal contracts appears in the 1994 amendments of the Indian Self-Determination and Education Assistance Act (ISDA). 21 There Congress makes clear that it did not intend for federal contracting regulations, including Executive Order No. 11,246, to apply to self-governance contracts between tribes and the United States under the Indian Self-Determination and Education Assistance Act of 1975, 2 which represent the sole source of federal funds for many tribal programs. Under self-determination contracts, tribes receive lump sums from the Bureau of Indian Affairs or the Indian Health Service to administer tribal programs themselves that would otherwise be administered by a government agency. 21

The original purpose of the ISDA was to authorize tribes "to contract with the federal government to operate programs serving their tribal members." Tribes, rather than the federal government, would thus administer programs benefitting their members. The Act was passed in response to President Nixon's 1970 policy statement to Congress on tribal self-determination:

For years we have talked about encouraging Indians to exercise greater self-determination, but our progress has never been commensurate with our promises. Part of the reason for this situation has been the threat of termination. But another reason is the fact that when a decision is made as to whether a Federal program will be turned over to Indian administration, it is the federal authorities and not the Indian people who finally make that decision.

This situation should be reversed. In my judgment, it should be up to the Indian tribe to determine whether it is willing to assume administrative responsibility for a service program which is presently administered by a federal agency.

The 1988 ISDA amendments resulted from Congress's realization that "the original goal of ensuring maximum tribal participation in the planning and administration of federal services, programs and activities for the benefit of Indians had been undermined by excessive bureaucracy and contract requirements." It noted that "federal bureaucrats had imposed administrative and reporting requirements on Indian tribes which were more stringent than the standards which would apply to direct federal operation of the programs" and that "the contract approval process required an average of six months rather than the 60 days mandated by the Act." So Congress mandated that the BIA and the IHS develop new joint regulations "with the participation of Indian tribes" for the implementation of contracting under the Act. The regulations were to be "relatively simple, straightforward, and free of unnecessary requirements or procedures."

The 1988 amendments allowed the agencies one year to promulgate the new regulations, but the regulations were not proposed until January 20, 1994. Congress found the proposed regulations to "contain hundreds of new requirements ... [many of which] 'are more restrictive than existing regulations and raise new obstacles and burdens for Indian tribes seeking the opportunities for effective tribal self-government promised by the Act."' Congress further noted the tribes' dissatisfaction with the new regulations, as many of the regulations did not comport with the tribes' understandings of the agreements they had reached with the BIA and IHS in their consultations with those agencies on the regulations. These findings led to the enactment of the Indian Self-Determination Contract Reform Act of 1994 (Contract Reform Act). The purpose of the Contract Reform Act was to "limit the promulgation of regulations under the Indian Self- Determination and Education Assistance Act and to prescribe the terms and conditions which must be used in any self-determination contract between an Indian tribe and the Departments of Interior and Health and Human Services." 23 The Contract Reform Act totally divests these agencies of the power to issue regulations governing self-determination contracts, and it enacts terms and specifications for all self-determination contracts.

The Contract Reform Act specifically states that, except for "construction contracts," federal contracting laws and regulations do not apply to self-determination contracts, "except to the extent that such laws expressly apply to Indian tribes." It adds a definition of "constructioncontract" to "assure that the federal acquisition regulations are not applied to contracts which do not involve classic construction activities." 23 It then specifies a number of federal acquisition statutes and regulations which will not apply even to construction contracts, including Executive Order No. 11,246.

The Contract Reform Act further evinces Congress' intent to preserve the "unique legal status" of tribal employment. It has mandated that employment involved in the administration of tribal programs and services under self-determination contracts be free from governmental interference through the executive order program. It makes no sense to differentiate between employment under self-determination contracts and employment involved in tribally owned businesses that hold other federal contracts; in either case, the tribe is still the employer.

D. No Waiver ofImmunity

Finally, the executive order program cannot be interpreted to waive tribal sovereign immunity from government actions. The Executive has no power to waive tribal sovereign immunity; only Congress can legislate over tribal affairs. Nowhere in any legislation that can be deemed to authorize Executive Order No. 11,246 does there appear any waiver--express or otherwise--of tribal sovereign immunity from governmental actions to enforce the Order. Under federal law, a waiver of tribal sovereign immunity must be "unequivocally expressed." By exempting tribes from its coverage, Title VII reinforces tribal sovereignty and sovereign immunity. Significantly, Congress amended Title VII in 1972 to expressly cover state and local governments, thereby waiving their immunity from federal enforcement of Title VII; it did not do so for tribes.

Moreover, policy dictates that Congress' exclusion of tribes from antidiscrimination actions cannot be deemed a protection that tribes can waive by entering into a contract with the government or a prime government contractor. As stated previously, most tribes are dependent on federal funding; they have no alternative source of income. Because of tribes' dependency on federal funding for their survival, they must enter into federal contracts and have little or no power to bargain over the terms of the contracts. In that regard, federal contracts are akin to adhesion contracts. Thus, in order to avoid any possibility of having to defend a discrimination action under Executive Order No. 11,246 (from which they are otherwise immune by statute), tribes would be forced to forego participation in federal contracts. The alternative is to incur significant administrative costs to comply with the Order and to be subjected to the possibility of incurring even greater costs in defending agency actions to enforce compliance. Tribal treasuries can ill afford such costs. The OFCCP's placement of tribes in such a position flouts congressional policy promoting tribal self-determination and self-sufficiency.

Congress recognized the power of federal agencies to dictate terms of contracts and create obstacles to the tribes' ability to govern themselves when it amended the Indian Self-Determination and Education Assistance Act of 1975. It terminated these powers by enacting contractual language for self-determination contracts and by stripping the Departments of Interior and Health and Human Services of their ability to issue regulations governing such contracts. In subjecting tribes to the requirements of and regulations under Executive Order No. 11,246, the OFCCP likewise obstructs and thereby diminishes the tribes' ability to attain Congress' stated goals of tribal self-determination and economic self-sufficiency.

V. AN APPROACH TO NONDISCRIMINATION UNDER FEDERAL CONTRACTS THAT ACCOMMOD ATES TRIBAL SOVEREIGNTY, FEDERAL INTERESTS, AND CONGRESSIONAL INTENT

There is a way to accommodate the tribes' interest in maintaining sovereignty and the federal government's interest in withholding taxpayers' dollars from employers that discriminate. It is of course in a tribal employer's interest to treat its employees fairly; by maintaining a strong and loyal workforce, a tribal nation will enhance its sovereignty. In its "government-to-government relationship" with tribes, however, the federal government must respect the tribes' ability to govern themselves and manage their own affairs, which Congress and the federal courts have acknowledged repeatedly.

The Indian Civil Rights Act of 1968 (ICRA) provides a means to reconcile the tribal interest in autonomy and the federal interest in nondiscrimination. Under the authority of the ICRA, the federal government can place antidiscrimination conditions on tribes' participation in federal contracts that would accomplish its goal of preventing employment discrimination without infringing on tribal sovereignty and thwarting congressional goals of self-determination and economic self-sufficiency. The government can simply require, as a contract term, that tribal contractors agree to a limited waiver of sovereign immunity to provide a forum and appropriate remedies for employees' or applicants' complaints of unfair treatment under the due process and equal protection provisions of the ICRA, which would cover employees' claims of unfair treatment. Many tribes provide such employee protections in their laws. Under the ICRA, "due process" and "equal protection" are defined by tribal law and custom. Thus, tribes would be obligated as employers under federal contracts to provide the same rights to their employees that they are obligated to provide under the ICRA. An explicit waiver to such effect in federal contracts would protect the government from inability to enforce the provision under a sovereign immunity defense.

Congress has already approved such an approach in the Contract Reform Act. Its prescribed language for self-determination contracts specifies that tribal contractors agree to comply with the ICRA in administering programs under the contract. The same approach in all federal contracts will accommodate federal and tribal interests and will further the United States' government-to-government relationship with sovereign tribal nations.

VI. CONCLUSION

Coverage of tribes and tribal employment by Executive Order No. 11,246 is an invalid exercise of executive authority because such coverage is inconsistent with congressional intent expressed in various statutes, federal policy toward tribal self-determination, self-sufficiency, and economic development, and federal law pertaining to tribal sovereign nations.

As suggested above through the Indian Civil Rights Act, however, federal contracts with Native American tribes can be administered in a way that protects federal interests in nondiscrimination in federally funded contracts as well as federal and tribal interests in tribal self-determination. Such an approach is consistent with federal law and policy toward Native American tribes and achieves federal goals of nondiscrimination.