State of Tennessee
Office of the Attorney General
Attorney General
500 Charlotte Avenue
Nashville, Tennessee 37243-0497

  Memorandum
----------------------

To:	John M. White
	State Representative 70th Legislative District
	[ D-Lawrenceburg - Lawrence, Lewis, part of Wayne and Maury Counties
	  http://www.legislature.state.tn.us/House/Members/h70.htm ]

From:	Paul G. Summers
	Attorney General and Reporter

	Vickie P. Hall
	Assistant Attorney General

Date:	December 20, 2000

Re:	Request for Informal Opinion - Validity of Statute 
Requiring Tennessee Commission of Indian Affairs to Consist 
of at Least Three Individuals of Native American Lineage

  You have asked this Office to opine informally on whether it is
constitutional for Tenn. Code Ann. § 4-34-104 to require at least three
members of the Tennessee Commission of Indian Affairs to be of not less
that [sic] twenty-five percent (25%) Native American lineage.  For the
reasons set forth below, this statute is constitutionally suspect.

  Tenn. Code Ann. § 4-34-104 sets forth a statutory obligation for the
governor to appoint persons of not less than twenty-five percent (25%)
Native American lineage to at least three of the five member positions of
the Tennessee Commission of Indian Affairs.  The language of this statute
is similar to two other Tennessee statutes whose constitutionality was
determined to be suspect in two separate Attorney General Opinions.  Op.
Tenn. Atty. Gen. 93-9 (January 28, 1993); Op. Tenn. Atty. Gen. 89-140
(December 8, 1989). (Copies of each attached.) [not here]

  The 1989 opinion asked whether the reservation of two positions on the
Metropolitan Government Charter Commission for persons of "African American
descent" was constitutional. Citing _Peters v. Moses_, 613 F. Supp. 1328
(W.D. Va. 1985), concerning reservation of two school board positions for
members of the black community, the opinion concluded that to categorically
exclude persons from consideration for public office solely on the basis of
race was a violation of the Equal Protection Clause, unless it could
survive a strict scrutiny analysis. The 

[end page 1.  begin page 2.]


opinion also cited _City of Richmond v. Croson_, 488 U.S. 469, 109 S.Ct.
706,102 L.Ed.2d 854 (1989) which held that the standard of review under the
Equal Protection Clause for race-based classifications is a strict scrutiny
analysis.  The Court went further to say that even measures purporting to
alleviate past discrimination through racial classification are subject to
strict scrutiny.  Id. at 494, 109 S.Ct. at 722.

  The 1993 opinion questioned whether legislation requiring race-based
classifications for membership on the Parole Eligibility Review Board would
violate the Equal Protection Clause.  Relying on _Wygant v. Jackson Bd. of
Ed., 476 U.S. 267, 106 S.Ct. 1842, 132 L.Ed. 2d 158 (1986) among other
cases, this opinion concluded that, while this legislation was not per se
unconstitutional, it was constitutionally suspect because it would be
subject to a review under strict scrutiny and must be narrowly tailored to
achieve a compelling governmental interest.

  Since the issuance of these opinions, the Supreme Court has affirmed that
all racial classifications, imposed by any federal, state or local
governmental actor, must be analyzed by the reviewing court under strict
scrutiny.  _Adarand Constructors, Inc. v. Pena_, 515 U.S. 200, 115 S.Ct.
2097 (1995).  Further, the Court held that such racial classifications are
constitutional only if they are narrowly tailored to further a compelling
governmental interest.  _Id._ at 227, 115 S.Ct. at 2113.

  This Office, of course, is not a fact-finding entity and is not aware of
the circumstances that led to the enactment of the racial classification
within the statute.  However, in reviewing the language of the statute, it
does not state any reasons for the requirement of three Native American
commission members.  Perhaps there are compelling state interests not
articulated in the statute which could withstand a court's review under the
very high standard of strict scrutiny required by case law.  Absent any
compelling state interests to support this race-based classification,
however, the statute is unconstitutional.

[end page 2.  end of document.]