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DOES THE EQUAL
PROTECTION CLAUSE APPLY TO INDIANS?
William
Perry Pendley, Mountain States Legal Foundation
On April 21, amidst the long list of cases that the U.S.
Supreme Court announced it would not decide on the merits
and thus on which it "denied certiorari," was AirStar
Helicopter v. National Park Service. AirStar, which flies
recreational tours over portions of Grand Canyon National
Park, asked the Court to decide if a 1974 decision of the
Court had been overruled by a 1995 decision. Specifically,
AirStar asked the Court to decide whether disparate
treatment accorded American Indians violated the U.S.
Constitution's equal protection guarantee.
AirStar found itself at the Supreme Court due to regulations
adopted by the National Park Service (NPS), ostensibly to
achieve "natural quiet" at the Grand Canyon. AirStar and its
colleagues who provide recreational air tours there maintain
that they have achieved "natural quiet" already and that the
NPS, under the direction of Interior Secretary Babbitt who
vowed to end air tours over Grand Canyon, was using junk
science to do just that. Worse, the NPS admitted both that
its regulations would be economically ruinous to the air
tour providers and that the cost of the regulations would
far exceed their benefit. Finally, the NPS decided that,
because the regulations would be just as economically
burdensome to the Hualapai Tribe, those American Indians
would be exempt.
AirStar president Ron Williams was incensed by the decision
of the NPS to exempt some American citizens from the
environmental regulations because of their race or
ethnicity. Williams had flown helicopters for the U.S. Army
in Vietnam and, in his words, "When we got a call that
Americans were down, we didn't ask their race; we went to
get them out."
The NPS asserted that it could make such distinctions
because of a 1974 Supreme Court decision in a case called
Morton v. Mancari. In Mancari, the Bureau of Indian Affairs
(BIA) had adopted a hiring preference for American Indians,
which was challenged by a job seeker arguing that the
Constitution's equal protection guarantee barred racial
preferences. In a decision that it labeled sui generis ("the
only one of its own kind; peculiar"), the Supreme Court
sustained the BIA's hiring preference, ruling that
"legislation that singles out Indians for particular and
special treatment" will be upheld if, applying the rational
basis test, "it can be tied rationally to the fulfillment of
Congress' unique obligation toward the Indians..."
AirStar argued, first in briefs and argument before the U.S.
Court of Appeals for the District of Columbia and then in
its petition for writ of certiorari to the Supreme Court,
that Mancari had been overturned by a 1995 Supreme Court
decision, Adarand Constructors, Inc. v. Pena. For unlike the
Court in Mancari, which applied the rational basis test
under which almost every governmental decision is upheld,
the Court in Adarand used the "strict scrutiny test," which
has been described as "strict in theory, but fatal in fact"
to every governmental action to which it is applied. In
fact, Justice Stevens, dissenting in Adarand, recognized the
threat that Adarand posed to Mancari. Thus informed, the
Court of Appeals noted the implicit conflict but ruled it
had no power to resolve the conflict; thus, it sustained the
NPS's rules.
That the Supreme Court declined to hear AirStar's petition
does not mean that the majority: fails to recognize the
conflict, thinks that Mancari remains despite Adarand, or
believes that federal distinctions based on race are
constitutional. It merely means that four justices did not
want to hear this case at this time, for whatever reason.
But the Court will have another opportunity later this month
to address this issue. A Montana woman will seek Supreme
Court review because she was convicted of violating Montana's
big game hunting regulations when, possessing a license
and tag, she bagged a deer on her neighbor's private land.
The reason: she and her neighbor are non-Indians whose
property lies within an Indian Reservation. The basis:
Morton v. Mancari!
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