The Navajo Preference in Employment Act

1
The Navajo Preference in Employment Act
Howard L. Brown, Esq. Honorable Raymond D.
Austin Shorall McGoldrick Brinkmann Distinguish
ed Jurist in Residence, 702 North Beaver Street
Indigenous Peoples Law and Flagstaff, AZ 86001
Policy Program 928.779.1050 James E.
Rogers College of Law fax [phone]
University of Arizona Tucson,
Arizona
2
Background

• What is the role of attracting employers to the
  N.N.?
• What is the role of the employer who has chosen
  to locate on the N.N.?
• Self-government includes regulation of employment
• Is there a pragmatic balance between Ee Rights
  and a Favorable Biz. Environment?

• How to deal with the Permanent Issues of
  Unemployment and Poverty?
• In 1997, 56 of Navajo people lived below the
  poverty level (Website of 21st N.N. Council)

3
History of the NPEA

• 1/1972 NTC established ONLR and ONLRs Plan of
  Operation
• Concerns regarding organized labor and large,
  industrial employers
• 8/1985 NTC adopted NPEA to provide employment
  opportunities for the Navajo Workforce.
• 10/1990 Amended the NPEA
• This is, for the most part, the NPEA we know
  today

4
Overview of the NPEA

• Regulates employment on the Navajo Nation
• Preferential Treatment for Navajos
• No At-Will Employment
• Monitored and Enforced by the ONLR and NNLC

5
Purpose of the NPEA

1. Provide employment opportunities for the Navajo
   work force
2. Provide training for the Navajo people
3. Promote economic development of the Navajo Nation
4. Lessen dependence on off-Reservation employment
5. Foster economic self-sufficiency
6. Protect the health, safety welfare of Navajo
   workers
7. Foster cooperative efforts with employers to
   assure expanded employment opportunities for the
   Navajo work force

6
Employers Subject to the NPEA

• Applies to persons, firms, associations,
  corporations, and the Navajo Nation and all of
  its agencies and instrumentalities, who engage
  the services of any person, whether as employee,
  agent, or servant.
• Regardless of number of individuals employed
• Applies to all employers doing business within
  the territorial jurisdiction (or near the
  boundaries of) the Navajo Nation, or engaged in
  any contract with the Navajo Nation.

7
Who is an Employer?Largo v. El Paso Natural
Gas Co. (1995)

• Co. did not actually hire, supervise or pay the
  subject employees
• Contracted with other entities in hiring
  employees
• Ruling El Paso had ultimate oversight
  control over hiring via testing
• Employer is defined broadly based on the
  actual relations of the parties

8
Cabinets Southwest, Inc. v Navajo Nation Labor
Commission (2004)

• Entered into a lease with NN on a parcel of land
  owned in fee by the NN
• Operated outside NN
• Lease stated that the employer would abide by all
  NN laws and consent to NN jurisdiction
• Ruling CSI was a Navajo Corp. and consented to
  application of the NPEA
• the Navajo Nation has the authority to regulate
  Navajo Corporations outside its territory
  regardless of the status of the land where the
  contract is to be performed

9
Jackson v. BHP World Minerals (2004)

• Employer engaging in operations inside and
  outside NN
• Employee applied for mining position within NN
  received training and drug-testing within NN
  records maintained within NN
• Assigned to a mine outside the NN and later
  terminated
• Ruling There was a sufficient nexus of activity
  on NN land (hiring training) to fall under NN
  jurisdiction

10
Employees covered by NPEA

• An individual employed by an employer. Does
  not include ind. contractors.
• On Its Face
• Act gives certain protections only to enrolled
  members of NN
• Only Navajos can file charges claiming violation
  of their rights
• Secondary preference for certain non-Navajo
  spouses

Staff Relief, Inc. v. Polacca (2000) Expanded
the Act to provide that any person alleging a
violation can file a charge Manygoats v.
Atkinson Trading Post (2003) Non-Navajos are
entitled to the NPEAs written notice and just
cause protections Safe and Clean Env? Free of
Prejudice?
11
Specific Requirements of the Act

1. Give preference in employment to Navajos and
   sometimes spouses of Navajos
2. File a written Navajo affirmative action plan
   with ONLR
3. Navajo employment preference policy statement in
   job announcements, ads employer policies
4. Post in a conspicuous place on its premises for
   its employees and applicants a preference policy
   notice prepared by ONLR
5. Modify seniority systems to comply with Act

12

1. Utilize NN employment sources job services for
   employee recruitment and referrals (with some
   exceptions)
2. Advertise announce all job vacancies in at
   least one NN newspaper and radio station (with
   some exceptions)
3. Use non-discriminatory job qualifications
   selection criteria in employment
4. Not take any adverse action against employee
   without just cause written notice
5. Maintain safe, clean working environment free of
   prejudice, intimidation harassment

13

• Training as part of affirmative action plan
• Cross-cultural programs educating non-Navajos
  on Navajo culture
• Ensure fringe benefits do not discriminate
  against Navajo religious traditions or cultural
  beliefs
• Establish written qualifications for each
  employment position provide a copy of these
  qualifications to each applicant when they
  express interest in a position

14
Preference for Navajos Spouses of Navajos

• Must hire Navajo applicant who meets the
  qualifications of the employment position
• Irrespective of qualifications of non-Navajo
  applicants
• RIFs
• A Navajo who meets necessary qualifications must
  be retained until all non-Navajos are laid-off
• Any Navajo who is laid off has the right to
  displace a non-Navajo in a position for which the
  Navajo is qualified

15
Non-Navajo Spouses

• Entitled to secondary employment preference
• Must provide proof of marriage to a Navajo
• Must reside within territorial jurisdiction of NN
  for a continuous 1-year period immediately
  preceding employment consideration
• Secondary Preference
• Does not have preference over Navajo applicants

16
Necessary Qualifications

• Employers must establish written necessary
  qualifications provide a copy for all
  applicants
• Definition
• Includes speaking/understanding Navajo language
  familiarity with Navajo culture
• Must be non-discriminatory

17
Necessary Qualifications, contd

• Employers are not required to hold positions open
  until unqualified Navajos become qualified (Largo
  v. Gregory Cook, Inc. (1995))
• What the NPEA requires
• When there are a number of qualified candidates,
  hire the qualified Navajo
• When there is a pool of qualified Navajo
  candidates, hire the most qualified Navajo

18
ONLR NNLC may over-rule an employers
determination as to whether a certain applicant
meets the necessary qualification and whether
one Navajo applicant is more qualified than
another Navajo applicant

• Stago v. Wide Ruins
• Community School (2002)

__________________________________________________
____________________
Silentman v. Pittsburgh and Midway Coal Mining
Company (2003)
The employee has the burden of showing that
he/she is qualified for the position in question
19
Practice Tips

1. Be sure to make the written qualifications
   stringent enough so that anyone who meets the
   bare minimum can perform the job well
2. Make sure the written qualifications are not
   unnecessarily demanding or unrelated to the job
   such that they could be considered discriminatory
3. Include the qualifications in Position
   Descriptions, give a copy to everyone who
   expresses an interest require each person to
   sign a form acknowledging receipt of the PD

20

• Re-opening a position or canceling a job posting
  may be suspect
• ONLR interprets this to mean that if a qualified
  Navajo applies, he/she must be hired
• If an employer receives a qualified Navajo
  applicant, he/she is prohibited from re-opening
  the position or canceling the job posting
• Recommendations
• Open until filled
• Demanding written qualifications
• Do not post a position unless youre sure you
  need it can afford it

Any Navajo who demonstrates the necessary
qualifications for an employment position shall
be selected by the employer
21
Affirmative Action Plans

• Act requires all employers to develop Affirmative
  Action Plans and Timetables
• Must file with ONLR within 90 days of starting
  business within the NN
• Failure to file an Plan Violation of Act
• ONLR is required to assist employers with
  development and implementation of plan
• Will review an employers plan either approve
  or disapprove it

22
Contents of Plan

• Training
• Employer-sponsored cross-cultural program
• Teaching Navajo culture to non-Navajos

• 2002 Human Services Committee of the NN Counsel
  adopted regulations that elaborate on the
  contents and implementation of these plans
• Policy Statement
• Indicates employers position on Navajo
  preference
• Assigns responsibility for implementing
  preference
• Sets forth a procedure for reporting monitoring

23

1. Policy Statement must discuss employment and
   training for Navajos
2. Policy Statement must state that employment
   actions will be handled based on the NPEA
3. Management-level employee must be appointed to
   implement monitor Affirmative Action Plan
4. Employer must establish goals timelines
5. Affirmative Action Plan should contain a
   workforce analysis

24

• In depth analysis
• Composition of Navajo/Non-Navajo employees
• Composition of applicant flow of
  Navajo/Non-Navajo
• Employee retention, promotion, transfer, etc.
• Apprentice programs company training
• The following require corrective action
• Under-utilization of Navajo employees
• Vertical movement of Navajo employees is less
  than non-Navajo employees
• Selection process eliminates significantly more
  Navajos
• Job descriptions are inaccurate in relation to
  actual duties of the job
• Testing has a higher adverse impact rate on
  Navajos
• Non-support of Companys Affirmative Action Plan
  by staff
• No formal criteria for evaluating Affirmative
  Action Plan

25
Termination Adverse Action

• NPEA prohibits adverse action without just cause
  written notice. No At-Will Employment.
• Adverse action is not defined in the Act
• Statutory context (Penalizing, disciplining,
  discharging or taking any adverse action)
• Inferred to include employment termination,
  demotion, pay reduction, etc.
• Sells v. Rough Rock Community School (2005)
• if it results in some tangible, negative effect
  on the Plaintiffs employment
• Must be an affirmative act by the employer that
  terminates ongoing employment

26

• Goldtooth v. Naa Tsis
• Aan Community School
• (2005)
• Non-renewal of term contract is not adverse
  action
• But, cannot use term contracts to avoid just
  cause
• Ex when an employer uses unnecessarily short
  terms for the same employees in a series of
  contracts

• Milligan v. Navajo Tribal Utility Authority
  (2006)
• Layoffs are considered adverse action

27
Just Cause

• Employer cannot take adverse action against an
  employee without just cause
• Smith v. Navajo Nation Department of Head Start
  (2005)
• Acknowledged a case-by-case analysis
• Just cause is a broad concept that involves
  unique factual circumstances
• Substantial misconduct not minor neglect of duty

28
Examples of Just Cause

• Etsitty v. Sessa Corp. (1995)
• Employee failed to show up for work for several
  days did not notify employer
• Bitsuie v. Agent Orange Family Assistance Program
  (1996)
• Employees acts included hanging up on his boss,
  failure to turn in his keys remarks stating
  that he did not have to talk to his boss
• Rock V. Redhair (1997)
• Employee used employers credit card for gas for
  non-work related travel in her vehicle
  deliberately altered a credit card receipt

29

• Blie v. Peabody Western Coal Company (1997)
• Employee had 2 occasions of sexually harassing
  behavior
• Despite being fully aware of Companys sexual
  harassment policy being warned that a second
  infraction would lead to termination
• Yazzie v. Navajo Tribal Utility Authority (1997)
• Employee violated Companys alcohol policy
• Violated the policy several previous times.
  Employer suspended the employee and warned that
  future violations could result in termination
• Grey v. Barlow (1998)
• Security guard Failed to wear company uniform on
  the job, wear required number of pepper sprays,
  comply with patrol procedures, cooperate with
  co-workers, etc.
• Employer took corrective actions warned that
  continued misconduct could lead to termination

30

• Cly v. Kayenta Trading Post (1998)
• 12 days of unauthorized sick leave in a 4 month
  period, refused assigned tasks
• Arrived late and left early without
  authorization
• Employer gave written and verbal warnings
• Smith v. Navajo Nation Department of Head Start
  (2005)
• Employee failed to call or report to a supervisor
  for 3 days
• Violated clear rule in employers personnel
  policies
• Kesoli v. Anderson Security Agency (2005)
• Employee engaged in a pattern of shouting at his
  subordinates

31
Just Cause for layoffs

• Milligan v. Navajo Tribal Utility Authority
  (2006)
• just cause for layoffs does not require
  substantial misconduct of employees layoff may
  be made when necessary to promote financial
  viability or operational efficiency
• Davis v. Lukachukai Community School (2008)
• To have just cause, must follow layoff
  procedures
• Also, must justify layoffs as necessary to
  promote financial viability or operational
  efficiency

32
An Aside on Training

• Toledo v. Bashas Dine Market (2006)
• Employee touched anther employees breast Just
  Cause for the touching employee to be terminated
• A terminated employee may rebut the employers
  just cause by arguing the employee was not
  properly trained
• Smith v. Navajo Nation Department of Head Start
  (2005)
• an ambiguous policy, in the absence of training
  to inform employees of what that policy means,
  cannot justify termination
• Employers must insure proper training on their
  policies

33
Written Notice of Just Cause

• Employer cannot take adverse action against an
  employee without just cause and a written notice
• Contents of Written Notice
• Explanation of Just Cause
• Smith v. Red Mesa Unified School District (1995)
  reasons for terminating an employees employment
  so employee may pursue legal remedies
• Dilcon Navajo Westerner/True Value Store v.
  Jensen (2000) written notification must be
  reasonably clear, with facts that support the
  adverse action
• Notice must be provided contemporaneously with
  adverse action to avoid ad hoc justifications
• Jackson v. BHP World Minerals (2004)
  Meaningfulness depends on whole context of
  employment relationship, not just the bare
  language in a vacuum.

34
Practice Tips

• MUST HAVE JUST CAUSE
• MUST PROVIDE EMPLOYEE WITH WRITTEN NOTICE
• Precautionary measures
• Document details of each incident when they occur
• Use progressive discipline when appropriate
• Smith v. Red Mesa Unified School District No 27
  (1995) Court refused petitioners claim that the
  employer must offer an improvement plan or
  progressive discipline. Nonetheless, employers
  are advised to use such methods when appropriate.
• Set forth standards for employee conduct
  procedures for disciplining employees
• Document that employees have read understand
  policies received training on policies
• Apply policies with uniformity

35
Prohibition Against Harassment

• all employers shall provide employment
  conditions free of prejudice, intimidation and
  harassment.
• Toledo v. Bashas Dine Market (2006)
• Harassment, including sexual, can be just cause
  for termination (see also Kesoli v. Anderson
  Security Agency (2005))
• Yazzie v. Navajo Sanitation (2007)
• Act does not authorize employee to file a claim
  with NNLC against the employer for sexual
  harassment
• Davis v. Lukachukai Community School (2008)
  (unpublished decision)
• An employer cannot be held strictly liable if it
  responds to allegations of harassment with swift
  action

36
Union Activities

• Navajo workers have the right to organize,
  bargain collectively, strike peacefully picket
• Right to strike picket does not apply to
  employees of NN, its agencies or enterprises
• July 25, 1994
• Regulations adopted authorizing the ONLR to
  certify unions through a petition and voting
  process

37
Prevailing Wage

• Act directs ONLR to establish a prevailing wage
  rate for each employee classification with
  respect to construction projects occurring within
  the NN
• Exempt construction projects
• Certain types, including those under 20,000.00
  those subject to the Davis-Bacon Act

38
Health and Safety of Navajo Workers

• All employers must maintain a safe and clean
  working environment
• adopt and implement work practices which conform
  to occupational safety and health standards
  imposed by law
• Issue Does OSHA apply in Indian County?

39
Contract Compliance

• All transaction documents must contain provisions
  by which the employer and other contracting
  parties agree to abide by requirements of the Act
• Also applies to
• Bid Solicitations
• Requests for Proposals
• Notice advertisement pertaining to contracts to
  be performed within NN

40
Polygraph Testing

• Employers are prohibited from issuing polygraphs
  to employees or applicants
• Employers are prohibited from terminating/discipli
  ning an employee for failing or refusing a test
• Does not apply to federal or state employees on
  NN

41
Breast Feeding in the Workplace

• Navajo Nation Healthy Start Act of 2008.
• Not codified as part of the NPEA, but creates new
  rights for certain employees on the Navajo
  Nation, it incorporates certain definitions from
  the NPEA and it is enforced by the ONLR and the
  NNLC.

42
Breast Feeding, contd

• Employers doing business within Navajo Nation, or
  engaged in any contract with Navajo Nation, shall
  provide to each working mother opportunities to
  engage in breast-feeding of their infant child,
  or use of a breast pump at the workplace

43
Breast Feeding, contd

• Employer must provide (1) a clean and private
  area or other enclosure near the employees
  workspace, and not a bathroom, to engage in
  breast-feeding or use of a breast pump and (2)
  a sufficient number of unpaid and flexible
  breaks within the course of the workday to allow
  a working mother to engage in breast-feeding or
  use of a breast-pump.
• Employers are required to file with the ONLR a
  written plan to provide working mothers with such
  opportunities

44
Breast Feeding, contd

• No exceptions/defenses for undue burden
• Failure to comply
• adverse action,
• failure to provide a safe and clean working
  environment, and a
• failure to provide employment free of prejudice,
  intimidation and harassment
• ONLR monitors/enforces NNLC conducts hearings

45
Monitoring Enforcement of the Act The ONLR

• Office of Navajo Labor Relations
• Monitors and enforces the Act
• Person may file charges with the ONLR or ONLR may
  file charges on its own initiative
• All charges must be filed with the ONLR within 1
  year after the accrual of the claim
• Accrual the date of the alleged violation, or
  when the employee reasonably should have known of
  the violation
• Employees participation in employers internal
  grievance process does not change the time.
  Moore v. BHP Billiton (2007).

46
ONLR, contd

• 20 days after the charge is filed ONLR must
  notify employer
• ONLR is required to investigate as to whether
  there is probable cause
• Subpoenas, Interviews, Interrogatories
• Generally, ONLR will issue a letter describing
  the charge will request responses to inquiries
  copies of documents
• 180 days after charge is filed
• Dismiss for lack of probable cause issue right
  to sue letter to employee
• Issue a probable cause determination
• Certify it will be unable to complete the steps
  in 180 days and issue right to sue letter

47
Navajo Nation Labor Commission

• After receiving right to sue or expiration of
  180 days after charge was filed
• Employee may file written complaint with NNLC
• Complaint must be filed within 360 after charge
  was filed with ONLR signed by ONLR employee
• NNLC is required to schedule a hearing within 60
  days of the filing of complaint

48

• Rules of Procedures for Proceedings Before the
  Navajo Nation Labor Commission
• Require employer to file a written answer to the
  complaint within 20 days after receipt of the
  notice of hearing
• NNLC has subpoena power
• Not bound by formal rules of evidence
• Parties have the right to
• Legal Counsel
• Present witnesses
• Cross-examine witnesses
• Employer has the burden of proof to show by a
  preponderance of the evidence that it complied
  with the Act. Manygoats v. Cameron Trading Post
  (2000).

49
Exhaustion of Employers Internal Remedies

• Taylor v. Dilcon Community School (2005)
• Exhaustion is not required.
• The only prerequisite to filing an NNLC Complaint
  is the statutory ONLR Charge process.

50
Res Judicata

• Peabody Western Coal Company v. NNLC Edward
  Silverhatband (2003) Employee barred by res
  judicata from bringing claim to NNLC
• Claim had already been adjudicated by an
  arbitrator
• 4 elements for res judicata
• Parties in 2nd action must be same as parties in
  1st action
• Cause of action must be the same or arise from
  same transaction/event
• Must have been a final decision in 1st action
• 1st decision must have been on the merits
• No jurisdiction over claims outside the Act
• NNLC must dismiss entire complaint, including
  NPEA claims

51
Remedies Relief

• May be awarded against an employer who violated
  the Act
• directed hiring, reinstatement, back-pay,
  front-pay, etc.
• If NNLC finds the violation intentional, it may
  impose civil fines
• Liability for compensatory damages shall not
  accrue from a date that is more than 2 years
  prior to the date of filing of the ONLR charge

52

• Yazzie v. Navajo Sanitation (2007)
• Certain remedies are not reasonably tied to
  making a person whole - (firing an employee based
  on the complaint by another employee)
• Does not compensate claimant punishes other
  employees
• ONLR v. West World (1994)
• Damages are calculated differently depending on
  whether the employee was hired on a definite or
  indefinite basis

• Definite basis
• Measure of the damages is the unpaid balance of
  salary less the sums earned or could have been
  earned during the remainder of the contract period

• Indefinite basis
• Measure of damages runs from the date of
  discharge to the time of judgment

53
Attorneys Fees and Costs

• If NNLC find that the ERs position was not
  substantially justified, it can award costs and
  attorneys fees
• Goldtooth II (2009)
• Position The overall conduct of the Er,
  including pre-litigation conduct, to be reviewed
  under a reasonable person standard
• Substantially Justified 1) the employees
  pleading or document was not submitted in good
  faith, or that it contains material misstatement
  of fact or law, or that it is not made upon
  adequate investigation or research or 2) that the
  employee failed to participate in the
  proceedings.

54
Enforcement Appeals of NNLC Decisions

• Commissions decisions may be enforced in the
  District Courts of the Navajo Nation
• Appeals
• Any party can appeal a NNLC decisions directly to
  the Supreme Court of the NN
• Must file a written appeal within 10 days after
  receipt of NNLCs decision

55
Navajo common Law (NCL)

• NCL - Values, customs traditions found in
  Navajo culture, spirituality, language sense of
  place (includes Fundamental Laws)
• Duty to Use NCL - 7 NNC sec. 204(A) (B)
• Use NCL to interpret Navajo statutory laws and
  regulations
• Apply NCL whenever Navajo statutes or regulations
  are silent on matters in dispute
• Knowledgeable Navajos can advise Court labor
  commission too on NCL.

56

• Rule on adoption of bilagaana law Non-Navajo law
  must be compatible with fundamental Navajo
  values. Goldtooth, 8 Nav. R. 682, 691 (2005).
• Fundamental Navajo postulates
• Navajo dispute resolution model hozho ? anahooti
  ? hozho (harmony ? problem ? harmony). Goals
  restore parties, clan, community etc. to hozho
  mend/heal relationships
• Hozho Gloss as a state/condition where
  everything is in its proper place and functioning
  in harmonious relationship to everything else.
  Witherspoon, Navajo Kinship Marriage (1975).
  Hozho is not blackletter law that applies to a
  legal issue.

57

• Fundamental Navajo postulates cont. ...
• Ke Gloss as unity through positive values such
  as respect, kindness, cooperation, friendliness,
  reciprocal relations love. Ke is not
  blackletter law it guides relationships
  interactions in Navajo society so people can live
  in hozho.
• Kei Navajo clan system
• Nalyeeh Traditional remedy (uses apology,
  forgiveness restitution/compensation) to heal
  restore relationships to make injured party
  whole.

58
NCL in NPEA cases

• Words are Sacred (WAS) Principle
• Navajo belief Words are powerful so they can
  be used to heal, destroy, persuade, etc.
• WAS principle is tool naataanii uses to lead. In
  Kesoli v. Anderson Sec. Agcy, 8 Nav. R. 724
  (2005), a supervisor (cast as naataanii)
  violated WAS principle when he shouted at
  subordinates (harassment). Harassment is just
  cause for his termination. A naataanii is held
  to high standards in traditional Navajo society
  which fits with hazhoogo (responsible use of
  freedoms) principle.

59

• WAS principle cont....
• WAS used to construe contract (lease). ONLR, ex
  rel Bailon, 8 Nav. R. 501 (2004) New Mex
  explicitly agreed to give Navajos job preference
  in 1st provision of lease. Using 2nd general
  provision, NM argues it would violate state fed
  laws prohibiting racial/national origin
  discrimination if it gave Navajos job preference.
  Court uses WAS principle to hold that 1st
  provision, as the explicit provision, controls
  the second (general provision). According to WAS
  principle, a party cannot give their word in one
  section of lease and take it back in the next.
  Id. at 506.
• WAS used to enforce employment contract. In
  Smith v. NN Dept. of Head Start, 8 Nav. R. 709
  (2005), worker was fired for violating personnel
  manual. Supreme Court uses WAS principle to find
  just cause to fire worker Manual is contract
  between worker and employer w/expectations that
  both will follow it to have hozho in workplace.
  Words in contract are sacred and never frivolous
  promises made must be fulfilled. Id. at 714-15.

60

• WAS cont. ...
• WAS principle used to find binding contract. In
  Goldtooth v. NTA Comty Sch, 8 Nav. R. 628 (2005),
  schools exec director, w/o school board
  approval, offered employment contract to worker
  who accepted. School board later invalidated
  contract. Court found valid contract because
  exec director had apparent authority to bind
  school board. Court used WAS and naataanii
  principles as rationale Exec director was a
  naataanii w/authority to offer employment
  contracts and, as such, his words carried great
  weight within the community.

61

• Nalyeeh in NPEA cases
• Tso v. NHA, No. SC-CV-20-06 (Dec. 6, 2007)
  Judgment entered v. employer who claims it cannot
  be forced to use federal to pay judgment.
  Court holds that NHA must pay judgment using
  non-federal funds because there are central
  principles of the Navajo Life Way that
  affirmatively require the NHA to satisfy the
  judgment. The important thing is that the NHA
  have respect for others and for decisions made by
  the Labor Commission, the lower court and this
  Court. Dine bio oo iil recognizes our
  relationships to each other and the
  responsibilities that those relationships
  create.
• Although Court has not expressly said so,
  attorneys fees and costs are likely recoverable
  under nalyeeh principle See e.g. Goldtooth v.
  NTA Comty Sch., No. SC-CV-12-06 (April 16, 2001).

62
NPEA Title VII of the Civil Rights Act

• NPEA provides for tribal preference (as opposed
  to Indian preference)
• Title VII
• Does not apply to Indian Nations (therefore can
  apply tribal preference without issue)
• Prohibits discrimination on basis of race, color,
  religion, sex, or national origin
• Contains an exception for employers located on
  or near Indian Reservations, who may give
  Indian preference pursuant to publicly
  announced employment practice

63
Under Title VII, is an Employer Permitted to
Grant Tribal Preference?

• Dawavendewa I (9th Cir., 1998)
• Ruling Navajo preference required by the NPEA
  constitutes illegal national origin
  discrimination under Title VII
• Employers on or near the NN have to choose
  between complying with NPEA and Title VII
• Dawavendewa II (9th Cir., 2002)
• Dawa I was denied cert. by Supreme Court
  remanded to Federal District Court
• On remand, case was dismissed for failure to
  join NN as a necessary indispensable party
  (procedural issue). Dismissal was appealed to
  9th Cir.
• On appeal, the 9th Cir. affirmed the dismissal

64
How to Reconcile Dawa I and Dawa II

• Does the 9th Circuits decision on the procedural
  issue in Dawa II do away with the 9th Circuits
  decision on the substantive issue in Dawa I?
• Or, does the Dawa I holding disallowing tribal
  preference stand?

65

• EEOC v. Peabody Western Coal Co. (2004)
• District Court Employer cannot be prosecuted
  for violating Title VII when that employer is in
  compliance with NPEA
• Appeal to the 9th Circuit Reversed on
  procedural grounds (joinder of the NN)
• Peabody Western appealed to Supreme Court but
  cert was denied
• NN then filed a Motion to Dismiss, which was
  granted.
• EEOC has appealed the dismissal to the 9th
  Circuit, where it is pending.

66
Contd

• EEOC has filed yet another case, this one
  involving Bashas.
• Stayed, pending Peabody
• Current status or tribal preference under Title
  VII?

67
The Navajo Preference in Employment Act
Howard L. Brown, Esq. Honorable Raymond D.
Austin Shorall McGoldrick Brinkmann Distinguish
ed Jurist in Residence, 702 North Beaver Street
Indigenous Peoples Law and Flagstaff, AZ 86001
Policy Program 928.779.1050 James E.
Rogers College of Law fax [phone]
University of Arizona Tucson,
Arizona