concurring.
I agree with the opinion of the court that the borough hiring preference violates the equal rights clause of the Alaska Constitution and with much of the court's reasoning. But I prefer to address directly the question whether the ordinance discriminates on the basis of race.1 I believe that it does, for the reasons that follow.
Inupiat Eskimos are a racial rather than a tribal group.2 The ordinance frankly acknowledges that its goal is to benefit them. In a prefatory clause the ordinance states "that its purpose in establishing an employment preference for Native Americans is to employ and train its Inupiat Eskimo residents in permanent, full-time positions...." Another clause sounds the same theme: "Whereas, to increase the employment of Inupiat Eskimos, the North Slope Borough would like to give an employment preference to Native Americans...." Similarly, the implementation plan for the ordinance expressly states that its purpose is to employ Inupiat Eskimo residents. Further, at oral argument counsel for the borough explained that one reason the term "Native American" was defined in terms of tribal membership was that it served to distinguish eligible Native Americans from others who are not eligible for benefits under the preference ordinance even though they may have some Native American ancestors. Tribal membership was thus used as a convenient mechanism to de-seribe bona fide Native Americans.
«Based on the above we can say with confidence that the purpose of the ordinance was to discriminate on the basis of race. Because by the express terms of the civil rights clause of the Alaska Constitution race is a suspect category, the ordinance must be subjected to strict serutiny in order to determine whether it is permissible under the equal rights and civil rights clauses.3 But even if there were no clear indicators of an intent to discriminate on the basis of race, I believe that strict serutiny would still be required because tribal membership is not only a political category but a racial one.4
I reach the conclusion that state or municipal laws that grant individual benefits differentially based on tribal membership should be subject to strict serutiny for a number of reasons. 'As noted, this is how we treat all race-based classifications. Further, strict scrutiny is well designed to ensure that laws remain race-neutral, as contemplated by the *429framers of the Alaska Constitution.5 This case illustrates that tribal membership readily lends itself to use as a proxy for a racial classification and as a pretext for racial discrimination. An effective tool is necessary to prevent these abuses.6 In addition, strict serutiny is the approach taken by some federal courts in tribal classification cases when construing the equal protection clause of the Fourteenth Amendment to the federal constitution.7 Since the federal constitution contains provisions authorizing legislation on behalf of Native Americans, while the Alaska Constitution presumptively prohibits such legislation,8 it follows that stronger reasons exist for using the strict serutiny method for state constitutional questions than for those arising under the federal constitution.
Although strict scrutiny review presents a high barrier, it is a barrier that may be overcome in deserving cases. It is impossible to categorize the kinds of cases that might pass strict scrutiny review. But a federal law calling on the state to give preferential treatment to tribal members 9 would almost certainly present a compelling justification for state legislation. On balance, I believe that strict serutiny properly accommodates the state's strong interest in preventing discrimination on the basis of race and its relatively rare and limited need to act adjunctively with the federal government in programs that favor tribal members over other state citizens.
The present ordinance does not survive strict scrutiny review. As the opinion of the court establishes, the borough had no legitimate interest, much less a compelling one, in adopting the preference.10 I believe therefore that the ordinance is prohibited by article I, sections 1 and 3 of the Alaska Constitution.
. To put a human face on what might otherwise appear to be merely an abstract discussion of legal theory, I include the following from Judge Sedwick's opinion in this case:
Malabed is an [Asian-American] of Filipino descent; he is not a Native American. Mal-abed worked for NSB as a temporary security guard from 1994 through 1998. He applied for a permanent security guard position in July 1997. North Slope Transit [an arm of the North Slope Borough] hired Malabed as a permanent security guard in August 1997, but immediately thereafter canceled the appointment. North Slope Transit re-noticed the position and solicited new job applications. The re-notice announced that NSB's employment preference for Native Americans previously described would apply for the position Malabed sought. Malabed was not hired. North Slope Transit terminated Malabed's temporary assignment on January 14, 1998, because NSB law prohibits temporary employees from holding a position longer than 120 days. Malabed v. North Slope Borough, 42 F.Supp.2d 927, 929 (D.Alaska 1999).
. See Op. at. 424.
. Alaska Const. art. I, §§ 1, 3. We have consistently indicated that racial classifications are subject to strict scrutiny review. Gonzales v. Safeway Stores, Inc., 882 P.2d 389, 396 n. 7 (Alaska 1994); State, Dep't of Revenue, Permanent Fund Dividend Div. v. Cosio, 858 P.2d 621, 626 (Alaska 1993); Commercial Fisheries Entry Comm'n v. Apokedak, 606 P.2d 1255, 1261 (Alaska 1980). Using strict scrutiny, "differential treatment will be upheld only when the purpose of the enactment furthers a 'compelling state interest' and the enactment itself is 'necessary' to the achievement of that interest." State v. Ostrosky, 667 P.2d 1184, 1192 (Alaska 1983).
. See, eg., Arctic Slope Native Ass'n v. Paul, 609 P.2d 32, 37 (Alaska 1980) (describing "Tribe" as "a racially discrete population group").
. See Op. at n. 29 & accompanying text.
. The reasons for applying strict scrutiny are especially strong when preferential benefits are granted on the basis of a racial classification that benefits a majority of the constituents of the enacting entity. As Judge Sedwick stated: "Courts should be particularly alert when a majority arrogates to itself special privileges and rights otherwise denied to similarly situated members of the minority." Malabed, 42 F.Supp.2d at 940
. See Malabed, 42 F.Supp.2d at 937-40; Tafoya v. City of Albuquerque, 751 F.Supp. 1527, 1530-31 (D.N.M.1990).
. See Op. at 422-423.
. The Indian Child Welfare Act, 25 U.S.C. § 1901-1923, 1951, is an example. In response to this act the Alaska Child in Need of Aid Rules contain numerous provisions requiring differential treatment of Native Americans. See, eg., Alaska CINA Rules 17(c) and (d)(2), 18(c)(2)(B), and (3).
. Op. at 423.