[Congressional Record Volume 146, Number 132 (Thursday, October 19, 2000)]
[Extensions of Remarks]
[Page E1864]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      INTRODUCTION OF THE NATIVE AMERICAN EQUAL RIGHTS ACT OF 2000

                                 ______
                                 

                            HON. CURT WELDON

                            of pennsylvania

                    in the house of representatives

                       Thursday, October 19, 2000

  Mr. WELDON of Pennsylvania. Mr. Speaker, I rise today to introduce 
the ``Native American Equal Rights Act of 2000.''
  Most Americans believe that ours should be a color-blind society in 
which an individual's merit, not his or her race, is the determining 
factor in whether that individual climbs the ladder of success to 
achieve the American dream. Most Americans, therefore, oppose any 
racial preferences in our Nation's laws. Most Americans would be 
surprised, therefore, to learn that non-Indians may be lawfully 
discriminated against under what are known as ``Indian preference 
laws.''
  The Federal Indian preference laws do three things. First, Federal 
law allows discrimination against all non-Indians with respect to 
employment at the Bureau of Indian Affairs and the Indian Health 
Service. Second, Federal law allows discrimination against all non-
Indians with regard to certain Federal contracts. Third and finally, 
Federal law provides an exception to the civil rights laws that allows 
discrimination against all non-Indians in employment at the two Federal 
agencies and with respect to contracts.
  Mr. President/Mr. Speaker, African-Americans, Asian-Americans, and 
white Americans should have the same rights to compete for jobs at the 
Bureau of Indian Affairs and the Indian Health Service that Indians do. 
Likewise, all Americans should have equal rights, regardless of race, 
to compete for Federal contracts. Finally, the civil rights laws should 
protect all Americans equally from the scourge of discrimination. That 
is why I believe that the Indian preference laws are wrong.
  A recent decision by the Supreme Court of the United States has 
called the constitutionality of Indian preference laws into serious 
question. On February 23, 2000, the Supreme Court handed down its 
decision in Rice v. Cayetano. The case involved a challenge to a law of 
Hawaii that limits the right to vote for trustees of the Office of 
Hawaiian Affairs to persons who are defined under the law as either 
``Hawaiian'' or ``native Hawaiian'' by ancestry. Harold Rice, who was 
the plaintiff in the case, is a citizen of Hawaii who nevertheless does 
not qualify, under the Hawaii law, as ``Hawaiian'' or ``native 
Hawaiian.'' Mr. Rice sued Hawaii because he believed that this law 
deprives him of his constitutional right to vote because of his race.
  The U.S. District Court for Hawaii rejected Mr. Rice's claim. In 
doing so, the District Court argued that the Congress and native 
Hawaiians have a guardian-ward relationship that is analogous to that 
which exists between the U.S. government and Indian tribes. Based on 
this analogy, the District Court determined that the Hawaii is entitled 
to the same constitutional deference that the Supreme Court has shown 
towards the Congress when it enacts laws under its authority over 
Indian affairs.
  The U.S. Court of Appeals for the Ninth Circuit affirmed the District 
Court's decision. Mr. Rice asked the Supreme Court review his case. The 
Court agreed to do so.
  By a vote of 7-2, the Supreme Court reversed the decision of the 
Court of Appeals and ruled in Mr. Rice's favor. In his opinion for the 
Court, Justice Kennedy rejected the lower courts' use of the analogy of 
the Hawaii law limiting voting rights to the Federal laws granting 
preferences to Indians.
  Under the Federal Indian preference laws, individuals who have ``one-
fourth or more degree Indian blood and. . . [are] members of a 
Federally-recognized tribe'' are given preferences with respect to 
hiring and promotions at the Bureau of Indian Affairs of the U.S. 
Department of the Interior, as well as with regard to employment and 
subcontracting under certain Federal contracts. The Supreme Court 
upheld the Indian preference laws in its 1974 decision in a case called 
Morton v. Mancari. Even though the Indian preference laws clearly have 
the effect of giving one race an advantage over others, the Mancari 
Court held that they are ``political rather than racial in nature'' 
because they are not ``directed towards a `racial' group consisting of 
`Indians,' but rather only to members of `federally recognized' 
tribes.''
  In his opinion for the Supreme Court in Rice, Justice Kennedy said 
that Hawaii had tried to take the Mancari precedent too far. ``It does 
not follow from Mancari,'' Justice Kennedy wrote, ``that Congress may 
authorize a State to establish a voting scheme that limits the 
electorate for its public officials to a class of tribal Indians, to 
the exclusion of all non-Indian citizens.''
  In a technical legal sense, in the Rice case the Supreme Court did 
not reconsider its ruling in the Mancari case that the Indian 
preference laws are constitutional. Instead, the Court avoided the 
issue by attempting to draw a distinction between the Indian preference 
law from the Hawaii voting rights law.
  In a broader philosophical sense, though, the Rice decision seriously 
calls into question the constitutionality of the Indian preference 
laws. The racial preference for voters in Hawaii that the Court held to 
be unconstitutional clearly was politically and not racially motivated. 
The Court found, however, that a well-meaning political motivation 
behind a law that has the effect of favoring one race over another does 
not make it constitutional. Likewise, it is clear that what motivated 
the Congress to pass the Indian preference laws was not racism, but 
rather political favoritism. The effect of the Indian preference laws, 
though, is no less to favor one race over all others than was the case 
with the Hawaii voting rights law. Under Rice, this political 
motivation should not save the Indian preference law from being found 
to be unconstitutional for the same reason as was the Hawaii law.
  In an insightful opinion article in The Washington Times on May 5, 
2000, Thomas Jipping, Director of the Free Congress Foundation's Center 
for Law and Democracy, recognized the inconsistency between the Supreme 
Court's decisions with respect to the Indian preference laws and the 
Hawaii voting rights law. ``Either it is legitimate to avoid the 
Constitution,'' Mr. Jipping wrote, ``by relabeling a racial preference 
[as a political one] or it is not.'' ``Gimmicks such as relabeling or 
declaring the context in which a case arises as `unique' [are] simply 
not sufficient to overcome a constitutional principle so fundamental 
and absolute.'' ``Both the U.S. District Court and the U.S. Court of 
Appeals in this case believed that Hawaii's relationship with Hawaiians 
is similar to the United States['s] relationship with Indian tribes,'' 
Mr. Jipping noted. ``They were right and the U.S. Constitution applies 
to both of them,'' he asserted. ``Rather than preserve a precedent 
through verbal sleight-of-hand,'' Mr. Jipping concluded, ``the Supreme 
Court should have said the fundamental constitutional principle that 
decided Rice also calls its precedent in Mancari into question.''
  Mr. Speaker, it is absolutely clear to me that statutory provisions 
that grant special rights to Indians with respect to employment, 
contracting, or any other official interaction with an agency of the 
United States are racial preference laws. Racial preference laws are 
fundamentally incompatible with the equal protection of the laws that 
is provided to all Americans by the Constitution. The Constitution 
simply does not tolerate racial preferences of any kind, for any 
reason.
  The Congress, no less than the Supreme Court, has a duty to uphold 
the Constitution of the United States. We should not wait for the 
Supreme Court to recognize the very serious constitutional mistake it 
made when it upheld the constitutionality of the Indian preference 
laws. Congress should repeal the Indian preference laws now.
  The legislation that I am introducing today, the ``Indian Racial 
Preferences Repeal Act of 2000,'' does just that. I ask unanimous 
consent for the full text of my bill, as well as a section-by-section 
analysis, to be printed in the Record immediately following the 
conclusion of my remarks.

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