Federal court seeks guidance on Native-hire law

Posted: Sunday, August 13, 2000

ANCHORAGE - A federal appeals court has asked for guidance from the Alaska Supreme Court in deciding the legality of the North Slope Borough's Native-hire preference law.

A three-judge panel from the 9th U.S. Circuit Court of Appeals asked the state's highest court a single question: Does the borough ordinance conflict with local law, state law or the Alaska Constitution?

The federal panel said in late July that its decision could hinge on whether or not the Native-hire preference is permitted under Alaska law. It posed the question after failing to locate any precedent-setting rulings by the state supreme court.

Last year a federal judge in Anchorage declared the hiring preference invalid, ruling that it ran counter to an anti-discrimination clause in the borough's charter and that it violated the U.S. Constitution. The borough appealed.

Plaintiffs viewed the appeals court's request for state advice as a good sign.

``We argued all along that state law applied and that the borough didn't have any legal authority to enact such an ordinance,'' said Fairbanks lawyer Ken Covell, who represents three non-Natives who challenged the law.

Borough attorney Todd Sherwood declined to read anything into the appeals court move, saying only that ``it's not unusual when there's a state law they want to know about.''

David Crosby, a Juneau lawyer hired to handle the case for the borough, would not comment.

The North Slope Borough Assembly enacted the hiring preference in 1997, saying that it was warranted because Inupiat Eskimos had a higher unemployment rate and earned less than non-Natives.

Inupiat make up about three-quarters of the borough's population, and the borough and the North Slope School District account for more than 60 percent of the region's non-oil field jobs.

Robert Malabed sued the borough in 1998 after being bypassed for a $16.80-an-hour job as a Barrow bus station security guard. Malabed, who had held the guard job in a temporary capacity, claimed the position was given to a less-qualified Native.

Covell said Malabed, who is of Filipino descent, is currently working for the borough's honeybucket collection service.

Two other non-Natives later filed lawsuits that were consolidated into a single cases in U.S. District Court in Anchorage.

The borough maintained that under federal law a Native-hire preference was allowed for businesses or other enterprises on or near Indian reservations. Crosby argued that borough land qualified as a reservation for this purpose because village governments on the North Slope have federally recognized tribal status.

But U.S. District Judge John Sedwick rejected the reservation argument, stating that the U.S. Supreme Court made it clear that Indian country does not exist in Alaska in its 1998 landmark ruling in the so-called Venetie case.

Sedwick also ruled that the Native-hire ordinance violated the equal protection clause of the federal Constitution because the borough presented no evidence that Natives suffered local hiring discrimination based on their race.

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