Fourth Circuit Decision on Indian Preference

Last week the United States Court of Appeals for the Fourth Circuit rejected one of the most recent attacks on Indian preference, this one brought against the Eastern Band of Cherokee's casino contract manager, Harrahs, for compliance with the Eastern Band's Tribal Employment Rights Ordinance. In addition to rejecting on the merits the nonmember's claims brought under the Family and Medical Leave Act, the Court also staved off the plaintiff's effort to end-run the express exemptions supporting Indian preference contained in Title VII of the 1964 Civil Rights Act by filing suit under 42 U.S.C. sec. 1991, the post-Civil War statute now interpreted to cover employment contracts. Section 1981, of course, contains no express exemptions permitting Indian preference, although a reasonable argument could be made that it was impliedly limited in this respect adoption of Title VII. The Fourth Circuit avoided all such difficult questions, holding that the Eastern Band of Cherokees was a necessary and indispensable party to the litigation and since they could not be sued due to their sovereign immunity from suit, the litigation could not proceed. The opinion, Yashenko v. Harrahs NC Casino, can be found at http://caselaw.lp.findlaw.com/data2/circs/4th/051256p.pdf.