Robert Malabed v. North Slope Borough c. Morris David Welch v. Charles Michael
Emerson
 99-35684 99-35750 99-35773

 IN THE UNITED STATES COURT OF APPEALS
 FOR THE NINTH CIRCUIT

 Nos. 99-35684, 99-35750, 99-35773

 ROBERT MALABED, Plaintiff-Appellee,

 v.

 NORTH SLOPE BOROUGH, Defendant-Appellant.

 MORRIS DAVID WELCH, Plaintiff-Appellee,

 v.

 NORTH SLOPE BOROUGH, Defendant-Appellant.

 CHARLES MICHAEL EMERSON, Plaintiff-Appellee,

 v.

 NORTH SLOPE BOROUGH, Defendant-Appellant.

 On Appeal from the United States District Court
 for the District of Alaska

 SUPPLEMENTAL BRIEF OF THE EQUAL EMPLOYMENT
 OPPORTUNITY COMMISSION AS AMICUS CURIAE

 C. GREGORY STEWART, General Counsel
 PHILIP B. SKLOVER, Associate General Counsel
 LORRAINE C. DAVIS, Assistant General Counsel
 ROBERT J. GREGORY, Senior Attorney

 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
 1801 L Street, N.W.
 Washington, D.C. 20507
 202-663-4059

 STATEMENT OF INTEREST

  The Equal Employment Opportunity Commission ("Commission) is the agency
  entrusted with the enforcement of Title VII of the Civil Rights Act
  of 1964, 42 U.S.C.  2000 et seq. ("Title VII").  On September 16,
  1999, the Commission filed a brief as amicus curiae in this case,
  arguing that Title VII's Indian preference provision (42 U.S.C. 
  2000e-2(i)) applies to preference programs established by employers
  operating on or near Native Alaska land.  Following oral argument,
  the Court issued an order, dated March 10, 2000, directing the parties
  to file supplemental briefs addressing, inter alia, "[w]hether 42
  U.S.C.  2000e-2(i) preempts the Alaska state, local, and constitutional
  provisions at issue in this case."  As the agency entrusted to enforce
  Title VII, the Commission has an interest in seeing that Title VII is
  not undermined by inconsistent state law.  The Commission, moreover,
  as an agency of the federal government, has an interest in preserving
  the federal government's "unique obligation toward the Indians," Morton
  v. Mancari, 417 U.S. 535, 555 (1974), as reflected in Title VII and
  related federal statutes and regulations.  To assist the court in
  resolving the preemption issue raised in its order of March 10, 2000,
  the Commission offers its views to the Court as amicus curiae.

 ARGUMENT

 TITLE VII'S INDIAN PREFERENCE PROVISION PREEMPTS STATE LAW TO THE EXTENT
 SUCH LAW WOULD INVALIDATE AN INDIAN PREFERENCE PROGRAM THAT MEETS THE
 STANDARDS OF TITLE VII.

  Congress enacted Title VII "to assure equality of employment
  opportunities."  Kremer v. Chemical Constr. Corp., 456 U.S. 461,
  468 (1982).  Aware that many states "had enacted some form of equal
  employment legislation," id. at 472, Congress adopted a "scheme of
  interrelated and complementary state and federal enforcement."  New York
  Gaslight Club, Inc. v. Carey, 447 U.S. 54, 65 (1980).  While Congress
  "viewed proceedings before the EEOC and in federal court as supplements
  to available state remedies for employment discrimination," id., Congress
  made clear its intent to preempt state law in at least two circumstances:
  first, when state law purports to "require or permit the doing of any
  act which would be an unlawful employment practice under [Title VII]"
  (42 U.S.C.  2000e-7); second, when state law is "inconsistent with
  any of the purposes of [the Civil Rights Act of 1964], or any provision
  thereof."  42 U.S.C.  2000h-4.
  In California Fed. Sav. and Loan Ass'n v. Guerra, 479 U.S. 272 (1987),
  the Supreme Court addressed the legal standards for determining the
  preemptive effect of Title VII.  The Court held that Title VII preempts
  state law to the extent the state law "actually conflicts with federal
  law."  Id. at 281.  The Court ruled that an "actual conflict" occurs
  "either because 'compliance with both federal and state regulations
  is a physical impossibility' or because the state law stands 'as an
  obstacle to the accomplishment and execution of the full purposes and
  objectives of Congress.'"  Id. (citations omitted).  The Court stressed
  that a state law is in "actual conflict" with Title VII where the law
  "requires or permits employers to violate Title VII" or "is inconsistent
  with the purposes of [Title VII]."  Id. at 283.<1>
  Under normal circumstances, preemption would not take place merely
  because Title VII permits or exempts an employment practice that would
  be unlawful under state law.  This is because states are generally
  permitted to provide greater protection against discrimination than that
  provided under Title VII.  See Guerra,479 U.S. at 280-92; see generally
  Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483, 498 (9th Cir. 1984)
  (stating that a "finding of preemption is particularly inappropriate
  when the state is regulating conduct permitted by federal regulation,
  but only as an exception to a broad federal prohibition").  We believe,
  however, that, under the unique circumstances of this case, preemption
  is the proper result.
  This case involves more than just the isolated Indian preference
  provision in Title VII.  The Indian preference provision is part of a
  large body of federal law designed to promote the economic opportunities
  of Native Americans.  See Brief of EEOC as Amicus Curiae at 12-17
  (discussing this law).  This body of law includes a number of federal
  contracting programs, which extend to federal contractors operating on
  or near Indian reservations, including Native Alaska land.  See, e.g.,
  48 C.F.R.  352.270-3 (1999); 48 C.F.R.  370.203 (1999); 48 C.F.R. 
  1426.7001 (1999); 48 C.F.R.  1452.226-71 (1999).  These programs either
  encourage or require federal contractors to adopt employment preference
  programs for Native Americans.  Id.  Under these circumstances,
  Title VII should be read in pari materia with these federal programs,
  reflecting a comprehensive federal scheme to promote the employment of
  Native Americans living on or near Native American land.  Permitting a
  state to outlaw preference programs that are encouraged or required
  under Title VII and these related federal initiatives would stand "'as
  an obstacle to the accomplishment and execution of the full purposes
  and objectives of [federal law].'" Guerra, 479 U.S. at 281.<2>
  This case also implicates the "unique legal status of Indian tribes
  under federal law" and "Congress' unique obligation toward the Indians."
  Mancari, 417 U.S. at 551, 555.  When the federal government acts in the
  area of Indian affairs, the federal government's pronouncements typically
  preempt inconsistent state law.  See New Mexico v. Mescalero Apache
  Tribe, 462 U.S. 324, 334 (1983) (state jurisdiction is presumptively
  preempted by the operation of federal law "'if it interferes or is
  incompatible with federal and tribal interests reflected in federal
  law'").  This is certainly true where, as here, a federal provision is
  part of a comprehensive federal scheme designed to regulate certain
  types of Indian-related activity (in this case, Indian employment on
  or near Indian land).  See, e.g., Warren Trading Post Co. v. Arizona
  State Tax Comm'n, 380 U.S. 685, 688-89 (1965) (state law preempted
  by "comprehensive federal regulation of Indian traders"); People of
  Togiak v. United States, 470 F. Supp. 423, 428-29 (D.D.C. 1979) (state
  law preempted by a "comprehensive scheme" of federal regulation, which
  included an exemption for Native Americans).  The Indian preference
  provision is not a "garden variety" statutory exemption, merely
  excepting certain conduct from the prohibitions of a federal statute.
  The provision reflects a broad congressional judgment that preference
  programs established for the benefit of  Native Americans are desirable
  in their own right.  See 110 Cong. Rec. 12723 (1964) (remarks of
  Sen. Humphrey) (stating that the preference provision "is consistent
  with the Federal Government's policy of encouraging Indian employment
  and with the special legal position of Indians"); 110 Cong. Rec. 13702
  (1964) (remarks of Sen. Mundt) (stating that the preference provision
  would allow Indians "to benefit from Indian preference programs now in
  operation or later to be instituted").  That judgment would be upended
  if states were permitted to define such programs as unlawful acts of
  discrimination.<3>
  In enacting Title VII, Congress "envisioned that Title VII's procedures
  and remedies would 'mes[h] nicely, logically, and coherently with
  the State and city legislation,' and that remedying employment
  discrimination would be an area in which '[t]he Federal Government and
  state governments could cooperate effectively.'" Carey, 447 U.S. at
  63-64 (quoting 110 Cong. Rec. 7205 (1964) (remarks of Sen. Clark)).
  Because "[p]arallel state anti-discrimination laws are explicitly made
  part of Title VII's enforcement scheme," federal policy often has "the
  same application to state law claims . . . as it does to Title VII
  claims."  Prudential Ins. Co. of Am. v. Lai, 42 F.3d 1299, 1303 n.1
  (9th Cir. 1994), cert. denied, 516 U.S. 812 (1995).  To preserve the
  "scheme of interrelated and complementary state and federal enforcement"
  envisioned by Congress, Carey, 447 U.S. at 65, it is essential that
  state law "on the same subject matter" not conflict with the purposes
  of Title VII or "any provision thereof."  42 U.S.C.  2000h-4.  It is
  reasonable to assume that in enacting the Indian preference provision,
  thereby furthering the federal government's  "unique obligation toward
  the Indians," Mancari, 417 U.S. at  555, Congress intended to invest
  that important federal policy with preemptive effect.
  From the Commission's perspective, preemption is necessary to give
  meaning to the Commission's interpretation of Title VII's Indian
  preference provision.  The Commission takes the view that the term
  "Indian reservation," as used in the preference provision, encompasses
  Native Alaska land.  If the Court agrees with that interpretation,
  employers in Alaska will be permitted to adopt Indian preference programs
  on or near Native Alaska land without running afoul of Title VII.
  If, however, the Court were to hold that there is no preemption under
  Title VII, the state would be free to treat these very same programs as
  unlawful, meaning that employers operating on or near Native Alaska land
  would be prohibited from adopting an Indian preference program.  If Title
  VII's Indian preference provision is not given preemptive effect, the
  Commission's interpretation of the provision, as applying to Native
  Alaska land, could well be rendered a nullity (in practical terms).<4>
  Finally, we note that adopting the preemption position in this case
  would not lead to some widespread preemption of state anti-discrimination
  statutes.  As noted above, this case has several distinguishing features,
  implicating an area of the law that is "unique[ly]" federal.  Mancari,
  417 U.S. at 555.  Even in the Indian context, moreover, the potential
  for conflict is not as great as it might appear.  Some states do not have
  their own laws against employment discrimination, meaning that an Indian
  preference program in those states would not run afoul of state law.
  Other states have such laws but also have Indian preference provisions
  that are patterned after Title VII's.  See Ariz. Rev. Stat. Ann. 
  41-1463(I) (West 2000); Maine Rev. Stat. Ann. tit. 5,  4573(5) (West
  1999); Neb. Rev. Stat.  48-1112 (1999); Nev. Rev. Stat. Ann.  613.390
  (Michie 1999); S.C. Code Ann.  1-13-80(I)(4) (Law. Co-op 1999); Utah
  Code Ann.  34A-5-106(3)(b) (1999).  The important federal interest
  in this case can be preserved without wreaking havoc with state
  anti-discrimination law.

 CONCLUSION

  If necessary to reach the point, this Court should hold that Title
  VII preempts any state law that invalidates an Indian preference
  program falling within the protection of Title VII's Indian preference
  provision.

         Respectfully Submitted,

         C. GREGORY STEWART
          General Counsel

         PHILIP B. SKLOVER
         Associate General Counsel

         LORRAINE C. DAVIS
         Assistant General Counsel

         ROBERT J. GREGORY
         Senior Attorney

         EQUAL EMPLOYMENT OPPORTUNITY
        COMMISSION
         1801 L Street, N.W.
         Washington, D.C. 20507

 April 13, 2000

     (202) 663

 1       In Guerra, Justice Scalia took
 the position, in a concurring opinion, that preemption under Title
 VII is governed exclusively by Section 708 of Title VII, 42 U.S.C. 
 2000e-7, which provides for preemption in the narrow circumstance in
 which state law requires or permits conduct that is unlawful under
 Title VII.  See Guerra, 479 U.S. at 295-96.  Justice Scalia, however,
 stood alone.  The four-Justice plurality, led by Justice Marshall,
 adopted a more expansive view of Title VII preemption, relying on the
 language set forth in Section 1104 of the 1964 Civil Rights Act, 42
 U.S.C.  2000h-4.  See id. at 282-83 (preemption exists under Title VII
 where the state law is "inconsistent with the purposes of the statute").
 The remaining Justices, with the exception of Justice Scalia, either
 assumed or agreed that the broader preemption standard of Section 1104
 provides an independent basis for preemption.  See id. at 292-93 n.1
 (Stevens, J., concurring in part and concurring in judgment) (assuming,
 for purposes of deciding the case, that the Section 1104 standard
 applied); id. at 304 n.12 (White, J., Rehnquist, C.J., and Powell, J.,
 dissenting) (analyzing the preemption issue under both Sections 708 and
 1104); see also Coalition for Economic Equity v. Wilson, 122 F.3d 692,
 709-10 (9th Cir.)   (testing Title VII preemption under both Sections
 708 and 1104), cert. denied, 522 U.S. 963 (1997).

 2       This case is distinguishable from Coalition for Economic
 Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997), where this Court held
 that Title VII did not preempt California's Proposition 209, which
 outlawed affirmative action in public employment.  In Wilson, this
 Court acknowledged that Title VII would preempt a state law, barring an
 employment preference program, if that law were inconsistent with the
 purposes of Title VII, "'or any provision thereof.'" Id. at 710 (quoting
 42 U.S.C.  2000h-4).  This Court held that preemption was not proper
 in that case because "Title VII's one command regarding race and gender
 preferences" was "entirely consistent" with the anti-preference stance
 of Proposition 209.  122 F.3d at 710 (citing 42 U.S.C.  2000e-2(j)).
 In this case, Title VII's "one command" regarding Indian preferences,
 the Indian preference provision, is not (to say the least) "entirely
 consistent" with an anti-preference stance.

 3       It is debatable whether the so-called "Indian preemption
 doctrine" applies in this case.  See Blunk v. Arizona Dep't of Transp.,
 177 F.3d 879, 882 n.5 (9th Cir. 1998) (suggesting that the Indian
 preemption doctrine applies exclusively to activities occurring inside
 "Indian country").  Even assuming, however, that this is not an "Indian
 preemption" case, as such, it is still significant that the federal
 provision at issue was adopted in recognition of "the unique legal status
 of tribal and reservation-based activities," a recognition that flows from
 Congress' "unique obligation toward the Indians."  Mancari, 417 U.S. at
 545-46, 555.  At the very least, the presence of such a uniquely federal
 interest provides additional impetus for the preemption argument.

 4       It is not clear whether Alaska law prohibits the type of
 Indian preference program at issue in this case.  The preemption  issue
 becomes relevant only if this Court concludes, as per the second issue
 in its order of March 10, 2000, that "the Borough's preference ordinance
 conflicts with the Borough charter or any other applicable Alaska law."