WASHINGTON - The U.S. Supreme Court on April 21 decided not to hear an argument put forth by the air tour industry that an exemption to a federal regulation benefiting Arizona's Hualapai tribe is racial preference which is forbidden by the Equal Protection Clause of the 14th Amendment.
This same post-Civil War Constitutional amendment was the subject of the high court's April 1 proceedings regarding the University of Michigan's affirmative action admissions policies.
Why did the Supreme Court decline a minority preference case against an Indian tribe, but accept one against the University of Michigan?
In 1987 Congress passed a law, the National Parks Overflights Act, which ordered federal agencies to restore quiet to the Grand Canyon National Park. The Federal Aviation Administration and the National Park Service created regulations which limited the number and location of air tours around the Grand Canyon.
But there is an exemption for the Hualapai tribe, which allows air tour operators who have a contract with the tribe to take off and land from the reservation's airport.
The tribe, headquartered in Peach Springs, Ariz., has a million-acre reservation along the Colorado River and in the Grand Canyon. The federal government granted the exemption because the tribe, which doesn't have a casino, is economically dependent on tourism.
"Politics makes strange bedfellows," said Mark Twain's colleague, Charles Dudley Warner. But the challengers to the Grand Canyon flight regulations prove that fighting federal agency rules makes stranger bunkmates still.
The Grand Canyon Air Tour Coalition, a group of 13 air tour operators, was joined by three other interveners in a lawsuit against the FAA. These were the environmentalists (including the Sierra Club and the Audobon Society), the Hualapai tribe, and the Clark County, Nevada Department of Aviation .
As District of Columbia Circuit Judge Merrick Garland wrote in his September 1998 decision, the air tour operators, the tribe, and Clark County complained that the FAA's rule did too much, too soon. The environmentalists charged that the rule did too little, too late.
The Haulapai tribe and the air tour industry were on the same side of the fence, for different reasons, at this earlier stage. The tribe said the FAA's flight-free zones would transfer the aircraft noise from the Grand Canyon Park onto its reservation, damaging its sacred sites.
The Grand Canyon Air Tour Coalition argued that the final regulations were unnecessary because adequate noise reduction had already been achieved, and these rules hurt the air tour industry, which the FAA had a duty to protect.
Attacking from the other side, the environmentalists said the regulations had not reduced the noise levels at the Grand Canyon. They pointed to the fact that air tours had doubled from 50,000 flights per year to 100,000 flights per year in the 11 years between the law's passage and 1998 - the year that the FAA was using to determine the tour operators' maximum annual number of allowed flights.
The court rejected the attackers' arguments and said the FAA was acting in good faith, and just needed a few more years to accomplish its goal of making the Grand Canyon quiet.
On its own, AirStar Helicopters Inc. appealed, and among its arguments it claimed that the Hualapai exemption was a racial classification for a tribe.
Glenn Feldman is the lawyer for the tribe. He says AirStar's argument has a political component. The company knows that this Supreme Court has been aggressively opposed to affirmative action programs.
"The Supreme Court over the years has made it tougher and tougher with respect to affirmative action and benefits to minorities," he says. "The air tour operators were trying to argue that a tribal preference is nothing different than a racial preference."
Alexander Dreier is an attorney who represented some of the environmental groups in the case. He says the government, which was defending its exemption for the tribe, pointed to the long-standing doctrine that allows it to treat tribes differently from non-Indians, based on tribal membership and sovereignty and the government's power to enter into treaties with tribes.
"When the government treats a tribe differently, is that racial or is it political? The Court generally has said it's political, so it is subject to a much lower standard of review, a rational basis test. Did the government have a rational basis for doing this? In this case they did."
Dreier says the Hualapai tribe's economic dependence on the tourism industry was an acceptable reason for granting it an exemption from the Grand Canyon air tour restrictions.
Feldman says the law with respect to Indian preference is very clear. Both lower courts and the Supreme Court have dealt with it many times. And this is what distinguishes the AirStar case from the University of Michigan affirmative action case.
"They understand that tribal preference is a political determination, based on the government-to-government relationship between a federally recognized tribe and the United States, which is unlike a preference in law school admissions for blacks, Hispanics, or others. That's a different animal."
If the Supreme Court had agreed to hear this case, even though the racial preference allegations were very specific to the Hualapai tribe, a Supreme Court decision would apply to all tribes.
Feldman says this isn't the first time, and probably won't be the last, that somebody unhappy with a tribal preference tries to lump it under the heading of a racial preference.
"Eventually they are hoping to find some judge somewhere who is going to buy into this argument, and that's the camel's nose under the tent - what we're trying to avoid," he says. "The fact that [the Supreme Court] still understands the difference between racial and tribal preference is a hopeful sign."