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James P. Mills

Abstract

This article argues that Native corporations can provide employment preferences for Alaska Natives, so long as they are appropriately tailored to provide employment preferences to that corporation's shareholders or those closely related to the shareholders. Moreover, a hiring preference based on shareholder status is not a preference based on race and, as such, does not violate Alaska state law.24 But even if the Alaska Supreme Court found that these hiring preferences did violate the state constitution, given the federal government's unique relationship with Native corporations 25 and Congress's clear intent for Native corporations to favor Alaska Natives in their hiring practices, federal courts would likely find that under ANCSA, Congress has preempted Alaska state law that would disallow hiring preferences for shareholders and their families. Thus, if properly tailored, Native corporations could use hiring preferences to meet the needs of shareholders, their spouses, and their closely related descendants. The article is divided into six parts. Part I provides background about the Alaska Native corporations and their justifications for using hiring preferences. Next, Part II discusses related federal law issues and provides background on Native American hiring preferences in the lower forty-eight states under the Morton v. Mancari decision. Part III addresses Congress's extension of hiring preferences to Native corporations. Then, Part IV discusses Alaska constitutional law, Alaska statutes, and Malabed v. North Slope. Part V draws from the previous discussion and considers the future of hiring preferences in Native corporations after Malabed, particularly in the context of Alaska state law, federal preemption, and permissible forms of hiring preferences. Finally, Part VI concludes by suggesting congressional amendments that might strengthen Congress's intent to preempt state laws to allow hiring preferences for Alaska Natives.

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