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15 Years ago in the Sounder - North Slope Borough considers Native-preference hiring

January 6th 7:55 pm | Duncan Adams Print this article   Email this article   Create a Shortlink for this article

Barrow - The North Slope Borough Assembly was scheduled Tuesday night to consider adoption of a controversial new ordinance that has raised a number of red flags for the borough's law department but has also gathered the support of some locals who believe Inupiat are disproportionately underemployed.

As proposed, the ordinance would either require or recommend that Native American applicants for borough jobs be given special preference. Last week, Borough Attorney Joseph Levesque acknowledged that legal challenges would almost certainly follow the ordinance's adoption, especially if its final version echoes a draft that states, "A Native American applicant who meets the minimum qualifications for a position shall be selected..."

Levesque said his department anticipates that enactment of a hard and fast hiring preference ordinance could spur lawsuits citing constitutional objections, both state and federal, as well as jeopardize state and federal funding sources that unequivocally require non-discriminatory hiring practice.

"We were concerned that if (the assembly) passed a Native American preference ordinance they might subject the borough to having $44 million in grants pulled."

The Civil Rights Act of 1964 does provide an exception allowing for preferential hiring under certain circumstances. That section, which defines an exception to Title VII's general non-discrimination principles, allows "certain employers under certain circumstances to exercise and employment preference in favor of (Native Americans)."

Specifically, section 703(i) states, "Nothing contained in this title shall apply to any business of enterprise on or near an Indian reservation with respect to any publically announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation."

An "informal letter" last August from the U.S. Equal Employment Opportunity Commission advised the borough that agency officials believe the phrase "any business of enterprise" could include governmental activities. Still, Levesque feels too many questions remain about how the exception might be applied to a political entity as unique as the borough.

Assembly Member Jacob Adams doesn't share the law department's concerns. In a memo to Assembly President Molly Pederson, Adams wrote: "Their (the law department's) pitch was that the equal protection clause of the Alaska Constitution prohibits the North Slope Borough from enacting such an ordinance and the borough risked losing some $44 million in revenues from the state and federal governments. These arguments have no basis."

The Alaska Constitution holds that "...all person are equal and entitled to equal right, opportunities, and protection under the law..."

Adams has contacted an independent law firm in Washington D.C., for its counsel on the proposed ordinance. And his draft version of a hiring preference ordinance is the strongest yet. Requiring not only that preference be give to Native Americans but limiting the preference to Native Americans enrolled as members of Native villages "situated on the North Slope of Alaska or the Inupiat Communities of the Arctic Slope."

But limiting the preference in this way might run afoul of the EEOC. The agency's August leer to the borough noted, "...the EEOC interprets section 703(i) to sanction preferences only to Native Americans generally, not to Native Americans of a particular tribe. "

Meanwhile, in his memo to Pederson, Adams cited data he attributed to an economic study conducted in 1992 by the borough. Adams wrote, "The report...brought out a glaring fact: For every 100 Inupiat employed on the North Slope, there were 70 non0Inupiat employed...In real terms, the Inupiat residents represented 70 percent of the population, but a high percentage of the non-Inupiat had the jobs."

 

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