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MESCALERO APACHE TRIBE v. HICKEL

No. 40-70.

432 F.2d 956 (1970)

MESCALERO APACHE TRIBE, an Indian Tribe duly organized under the laws of the United States of America, Eugene Klinekole, Charles Smith, Jr., Plaintiffs-Appellants, v. Walter J. HICKEL, Secretary of the Interior, U. S. Department of Interior, Louis R. Bruce, Commissioner of Indian Affairs, E. M. Davidson, Albuquerque Area Personnel Officer, Bureau of Indian Affairs, Defendants-Appellees.

United States Court of Appeals, Tenth Circuit.

October 5, 1970.

Attorney(s) appearing for the Case

Reid P. Chambers, Washington, D.C. (George E. Fettinger, of Fettinger, Bloom & Overstreet, Alamogordo, N.M., Stuart J. Land and F. Browning Pipestem, of Arnold & Porter, Washington, D.C. were with him on the brief) for appellants.

Carl Strass, Dept. of Justice, Washington, D.C. (Shiro Kashiwa, Asst. Atty. Gen., Victor R. Ortega, U.S. Atty., John A. Babington, Asst. U.S. Atty., Albuquerque, N.M., and George R. Hyde, Dept. of Justice, Washington, D.C., were with him on the brief) for appellees.

Lee J. Sclar (George F. Duke, Richard B. Collins, Jr., and Robert J. Donovan, Berkeley, Cal., were with him on the brief) for California Indian Legal Services, Inc., amicus curiae.

Before LEWIS, Chief Judge, and PICKETT and HICKEY, Circuit Judges.

LEWIS, Chief Judge.

This case, as one of first impression, questions the extent of the employment preference with the Bureau of Indian Affairs (B.I.A.) given by statute to Indians. Specifically, we are asked to decide whether the preference in appointment, established by 25 U.S.C. §§ 44-47, 472, comprehends similar preferential treatment to Indians when agency reductions in force are made.1 Plaintiffs-appellants Klinekole and...

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