Judge directs Department of Interior to comply with Indian preference laws

EVEN LONG-STANDING workers’ rights can come under attack. When that happened at the U.S. Department of the Interior, the AFT-affiliated Indian Educators Federation (IEF) was forced to take an extreme route to rectify the situation: litigation.

The union charged that Interior has systematically undermined the laws entitling American Indians to hiring preference, as well as preference in promotion, lateral transfer and reassignment. After four years in court, IEF won its lawsuit.

IEF represents federal employees throughout the Interior Department’s Bureau of Indian Affairs (BIA) and Office of Special Trustee for American Indians (OST).

U.S. District Judge Thomas F. Hogan ruled in late March that Indians must be given hiring preference departmentwide for positions that “directly and primarily relate to providing services to Indians,” according to Richard Hirn, IEF’s attorney.

Federal policy regarding Indian preference for positions serving Indian peoples dates back to at least 1834. The Indian Reorganization Act of 1934 restated Congress’ long-standing position regarding Indian preference, and added that it would be “without regard to civil service laws.” Congress expanded the scope in 1979 to include Indian preference in the event of a reduction-in-force.

Interior’s missteps started in 1988 when it took the position that “Indian preference applies only within the Bureau of Indian Affairs.”

In 1991, a U.S. Court of Appeals directed the department to re-examine its interpretation, which led to a proposed rule change in 1996 regarding the scope of Indian preference.
By fall 2004, when the IEF filed suit, no final rule had been issued. Meanwhile, Interior underwent reorganizations in 2000 and 2003, transferring employees to new or consolidated offices within the department. Each time, Interior announced further limitations on preference.

In ruling for the IEF, Judge Hogan wrote that “the court is persuaded that the agency has failed to demonstrate a ‘reasoned’ analysis for its change in course.”

IEF is now seeking an injunction to force the Department of the Interior to apply Indian preference to all Interior positions that are directly and primarily related to providing services to Indians.

In 1999, IEF became the certified collective bargaining representative of non-supervisory employees working for OST. In 2001, non-supervisory employees, including teachers in BIA schools, voted for IEF representation. IEF is currently seeking to expand its exclusive representation status to all non-supervisory employees in Interior’s Office of the Assistant Secretary for Indian Affairs.