## Facts

- The North Slope Borough enacted a 1997 ordinance requiring a hiring preference in borough employment for “Native Americans,” defined as members of any federally recognized Indian tribe under 25 U.S.C. § 3703(10).
- The preference applied to hiring, promotion, transfer, and reinstatement; qualified Native American applicants had to be selected over non-Native applicants, and selection among qualified Native applicants was based on relative qualifications.
- A later version extended the preference to applicants meeting “most” minimum qualifications, allowing completion of remaining requirements during a probationary period, with dismissal if requirements were not met.
- The Borough stated the preference was motivated by findings that local Inupiat/Native residents were underemployed and had lower per-capita earnings than other residents.
- Robert Malabed (Filipino descent) alleged he was denied permanent employment and replaced by a Native American applicant; Morris Welch and Charles Emerson (both non-Native) alleged they lost promotions or opportunities due to the preference.
- The plaintiffs challenged the ordinance in federal court; the federal district court enjoined enforcement, and the Ninth Circuit certified to the Alaska Supreme Court the question whether the ordinance violated Alaska law, including the Alaska Constitution.

## Issues

1. Whether a home-rule borough may lawfully adopt a mandatory Native American employment preference for municipal jobs under Alaska’s equal protection clause (Alaska Const. art. I, § 1).
2. Whether the Borough had a legitimate governmental interest and sufficient means-ends fit, under Alaska’s sliding-scale equal protection analysis, to justify a broad tribal-membership-based preference affecting public employment.

## Decision

- The Alaska Supreme Court answered the certified question by holding the ordinance violated Alaska Constitution article I, section 1 and was invalid under state law.
- The court concluded the Borough lacked a legitimate governmental interest to enact a preference favoring one class of citizens at the expense of others in municipal employment.
- The ordinance’s breadth—covering all federally recognized tribal members, including nonresidents, and applying across borough jobs—undercut the asserted remedial and cultural justifications.
- The court treated the preference as a race/ancestry-linked classification in local public employment, triggering heightened review under Alaska’s sliding-scale approach.
- Because the ordinance failed Alaska equal protection review, it could not be enforced.

## Legal Principles

- Alaska Constitution article I, section 1 requires that “all persons are equal and entitled to equal rights, opportunities, and protection under the law,” and this constraint binds local governments.
- Alaska applies a sliding-scale equal protection test considering: (1) the importance of the individual interest, (2) the character of the classification, (3) the legitimacy and importance of the governmental objective, and (4) the closeness of the fit between means and ends.
- Public employment opportunities are an important interest; race- or ancestry-linked classifications require more exacting justification and tailoring.
- A municipality may not justify a broad, mandatory preference in public employment by general socioeconomic disparities where the classification and scope are overinclusive relative to the stated remedial target.
- Tribal-membership definitions that operate as proxies for racial or ancestry preferences in municipal hiring are subject to Alaska’s equal protection limits, even if similar classifications may be treated differently in certain federal Indian-law contexts.

## Conclusion

The Alaska Supreme Court held that the North Slope Borough’s mandatory Native American hiring preference for borough employment violated Alaska’s equal protection guarantee because the Borough lacked a legitimate governmental interest and the ordinance was overly broad and insufficiently tailored to its asserted remedial and cultural aims.


Malabed v. North Slope Borough, 70 P.3d 416 (Alaska 2003)