The Indian Preference does not constitute invidious racial discrimination in violation of the Due Process Clause of the Fifth Amendment but is reasonable and rationally designed to further Indian self-government.

As challenging labor markets and low unemployment rates concern employers nationwide, workplace equity and inclusivity provide a strong foundation for hiring and talent development. A recent study from the Brookings Institute indicates that the demographics of the United States are changing rapidly, and workforces are becoming increasingly diverse. As employers across the country develop strategies to build inclusive workplaces and maximize the benefits of a culturally and ethnically diverse workforce, we need to look no further than Indian Country for effective employment strategies. Indian preference, or the ability of Native American Tribes or other employers in Indian Country to prefer Native American Tribal members for employment has been available in the United States for close to 200 years. Indian preference in employment is also an exception to the nondiscrimination principles reflected in Title VII of the Civil Rights Act of 1964, as amended, which prohibits the hiring, firing, or segregation of employees or the limiting of pay, benefits, employment, and training opportunities because of race, color, religion, sex, or national origin. Native American Tribes use Indian preference to exercise their authority as sovereign nations over employment matters in Indian Country and require on or near-reservation employers and contractors to hire Tribal members or other Native Americans before non-Natives.

“Indian preference” refers to the ability of the federal government, Native American Tribes, and Native American enterprises to use federal and Tribal laws to provide preference to Indians in employment-related decisions, such as hiring, promoting, and training. Indian preference is also considered when executing required workforce reductions. As will be discussed in this article, private employers and federal contractors located on or near Indian reservations may additionally provide preferential employment for Indians living on or near those reservations.