The court has dismissed Peabody Coal’s third-party claims against the federal government:
It’s weird (or is it in the case of the EEOC?) to see two federal agencies in opposition to each other. Regardless, the court here buys the Department of Interior’s argument that the tribal preference in employment rules applicable to Peabody Coal are okay under Title VII because Interior approved the leases from which the preference originated under the Indian Mineral Leasing Act, which predated Title VII. The court was not so persuaded that all tribal preference in employment rules are acceptable but was persuaded that Interior’s approval muted any invalid discrimination. Here is what I consider to be the crux of the opinion:
While it is likely that Congress intended to only exempt Indian employment preferences in general and not tribe-specific preferences from Title VII in situations where an employer discriminates against members of a particular tribe without oversight or approval by the federal government, that is not the situation presented in this case.
EEOC argued that Congress, in enacting the Indian preference statute, here (look for section 703(i)), implicitly intended to make tribe-based discrimination invalid. The court rejected that claim, relying in part on Morton v. Mancari‘s other less-famous holding:
Implied repeals are disfavored . [Mancari] The DOI’s practice of including tribe-specific employment preferences in mining leases dates back to before the passage of Title VII, and, as discussed above, such preferences are a part of the federal government’s attempt to meet its various obligations towards the Nation and to foster tribal self-sufficiency, self-governance, and economic development. In addition, the Nation has located and identified at least 326 DOI-approved business leases on tribal lands within the last decade that include a tribespecific employment preference. Elimination of this longstanding and ubiquitous DOI practice would require a far more explicit showing of Congress’s intention to do so than is reflected in § 703(I).
I guess we’ll see what the Ninth Circuit says next in this long-running case.