Native 8(a) Program (NACA) Has a Big Win in Court


On October 16, 2017, the U.S. Supreme Court denied a writ of Certiorari filed by the Rothe Development, Inc. Essentially, Rothe wanted to challenge the constitutionality of NACA’s existence and thus dismantle the program entirely.

NACA, a 501(c)6 trade association located in Washington, D.C., is an organization that advocates on behalf of Tribes, Alaska Native Corporations (ANC), and Native Hawaiian Organizations (NHO) on issues relevant to federal contracting. NACA’s job is to make sure that these groups share an equal voice and opportunity to win federal contracts. Members span the entire United States and conduct businesses both domestically and internationally. They constitute a a strong presence in the federal contracting marketplace as both prime and subcontractors. The net profits they make fund programs designed to safeguard native communities’ customs and traditions which are sadly eroding quickly across the country.

Rothe contended that NACA is a “race-based” program and is therefore unconstitutional. They took their case all the way to the DC Circuit Court of Appeals and, after receiving an unfavorable ruling, took the case all the way to the Supreme Court. The Court found that the statute contained language that might indicate racial preference, the operating language of the statute did not create a racial presumption. Not only that, but when the statute was written Congress specifically avoided using racially presumptive language. But, even if they had, there’s precedent for that (Congress has enacted other racially presumptive statutes, think Affirmative Action). Most importantly, the statute was enacted prior to the time that strict scrutiny applied to racial classifications.

Clearly, it was a very weak case. But it was certainly a relief that the ruling was decided as it was, allowing NACA to continue supporting its members who comprise such crucial players in the federal contracting marketplace.

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