Preference in Employment

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 5

RIN 1076-AD05

Preference in Employment

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.

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SUMMARY: The Bureau of Indian Affairs is proposing to amend the

Preference in Employment regulations by clarifying the application of

Indian preference not only within BIA but to other organizations within

the Department of the Interior and removing the extension of Indian

preference to the individuals of the Osage Tribe of Oklahoma who are at

least one-quarter degree Indian ancestry. These regulations have also

been rewritten in plain English as mandated by E.O. 12866.

DATES: Comments must be received by September 10, 1996.

ADDRESSES: Mail comments to James McDivitt, Acting Director, Office of

Management and Administration, Bureau of Indian Affairs, Department of

the Interior 1849 C St. NW., Mail Stop 4616-MIB, Washington, DC 20240;

OR, hand deliver them to Room 4140 at the above address. Comments will

be available for inspection at this address from 9:00 a.m. to 4:00

p.m., Monday through Friday beginning approximately July 26, 1996.

FOR FURTHER INFORMATION CONTACT: Carol Smalley, Bureau of Indian

Affairs, Department of the Interior, telephone number (202) 208-5116.

SUPPLEMENTARY INFORMATION:

Background:

Indian Preference

The Indian preference statute, 25 U.S.C. 472, Section 12 of the

Indian Reorganization Act of June 18, 1934, 48 Stat. 986, requires that

the Secretary of the Interior establish standards of health, age,

character, experience, knowledge, and ability for Indiana who may be

appointed to positions for the administration of functions or services

affecting any Indian tribe. It further provides that qualified Indians

shall have preference to the appointment to vacancies in such

positions

of June 18, 1934, 48 Stat. 986, requires that

the Secretary of the Interior establish standards of health, age,

character, experience, knowledge, and ability for Indiana who may be

appointed to positions for the administration of functions or services

affecting any Indian tribe. It further provides that qualified Indians

shall have preference to the appointment to vacancies in such

positions.

The legal position of the Department of the Interior on the scope

of the preference is set forth in a June 10, 1988, opinion by then-

solicitor Ralph Tarr, ``The Scope of Indian Preference Under the Indian

Reorganization Act'', M-36960, 96 I.D.1. It concludes, in general, that

the preference is limited in application to the Bureau of Indian

Affairs (BIA) or units removed intact from the Bureau of Indian Affairs

to another Departmental bureau. By memorandum dated April 10, 1996, the

Deputy Solicitor concluded that when a Bureau of Indian Affairs unit is

transferred intact by virtue of an administrative decision from the BIA

to a Departmental office where it will continue to perform the

functions it formerly performed as part of the BIA, it effectively

remains a BIA organization unit and the preference continues to apply.

The functions and personnel structure of the organizational unit remain

segregated from the remainder of the office to which it is transferred.

Indian Preference to the Individuals of the Osage Tribe of Oklahoma

office where it will continue to perform the

functions it formerly performed as part of the BIA, it effectively

remains a BIA organization unit and the preference continues to apply.

The functions and personnel structure of the organizational unit remain

segregated from the remainder of the office to which it is transferred.

Indian Preference to the Individuals of the Osage Tribe of Oklahoma

The Bureau of Indian Affairs must apply Indian preference in

filling every vacant position, however created, within the Bureau of

Indian Affairs, Freeman v. Morton, 499 F.2d 492 (DC Cir. 1974). The

Secretary issued a final rule for the definition of ``Indian'' on

January 17, 1978, which identified five categories of persons of Indian

descent eligible for Indian preference. The fifth criterion applied to

the Five Civilized Tribes of Oklahoma and to the Osage Tribe whose

rolls were closed by the Acts of Congress, and who had not as yet

reorganized to establish current membership standards. Many such

individuals have received employment preference based on the one-

quarter degree standard which was previously established by the

Secretary. In 1978, these Tribes were allowed three years, until July

17, 1981, to organize so that members would not be deprived of the one-

quarter eligibility standard rather than the one-half degree standard.

On October 4, 1984, the Bureau of Indian Affairs published a final

rule (49 FR 39157) to amend 25 CFR Part 5. Section 5.1(e) specified the

date of October 4, 1985, as the final date for making appointments of

persons of one-quarter degree Indian ancestry. On September 15, 1986,

the BIA published a final rule (51 FR 32632) to revise 25 CFR Part 5,

Preference in Employment. Section 5.1(e) specified the date of

September 5, 1988, as the final date for making appointments of persons

of one-quarter degree Indian ancestry. The last final rule published

(54 FR 282, January 5, 1989), extended Section 5.1(e) to January 5,

1990

degree Indian ancestry. On September 15, 1986,

the BIA published a final rule (51 FR 32632) to revise 25 CFR Part 5,

Preference in Employment. Section 5.1(e) specified the date of

September 5, 1988, as the final date for making appointments of persons

of one-quarter degree Indian ancestry. The last final rule published

(54 FR 282, January 5, 1989), extended Section 5.1(e) to January 5,

1990.

On February 10, 1994, the Assistant Secretary--Indian Affairs

approved the Osage Tribe constitution as ratified by qualified voters

of the Osage Nation February 4, 1994. By memorandum dated July 15,

1994, the Assistant Secretary--Indian Affairs recognized the authority

of the Osage National Council to identify those Osage Indians who are

eligible for Indian preference and suggested the voting list prepared

for the constitutional election and the election of officers serve as a

temporary membership roll.

The authority to issue rules and regulations is vested in the

Secretary of the Interior by 5 U.S.C. 301 and sections 463 and 465 of

the Revised Statutes, 25 U.S.C. 2 and 9.

Notice of our intent to amend Section 5.1(e), Indian Preference to

the Individuals of the Osage Tribe of Oklahoma, appeared in the

proposed rule which was published at 59 FR 47046 (Sept. 13, 1994). No

comments were received by the Bureau following the publication of the

proposed rule.

Certain individuals who are of Indian descent may receive

preference when appointments are made to vacancies in positions in the

Bureau of Indian Affairs and in any Bureau of Indian Affairs unit that

has been transferred intact to a bureau of office within the Department

of the Interior and continues to perform the functions it formerly

performed as part of the Bureau of Indian Affairs

rule.

Certain individuals who are of Indian descent may receive

preference when appointments are made to vacancies in positions in the

Bureau of Indian Affairs and in any Bureau of Indian Affairs unit that

has been transferred intact to a bureau of office within the Department

of the Interior and continues to perform the functions it formerly

performed as part of the Bureau of Indian Affairs.

Individuals seeking Indian preference in employment must subject

proof: of his or her membership in a Federally recognized Indian tribe;

of descendancy from a member and that he or she was residing within the

present boundaries of any Indian reservation on June 1, 1934; that he

or she is an Eskimo or another aboriginal person of Alaska as defined

by the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.); or

proof of one-half or more Indian

blood of tribes that are indigenous to the United States.

Section 5.3 is intended to clarify how eligibility for Indian

preference is determined. Specifically, the application of the

definition of Indian in the Indian Reorganization Act of June 18, 1934

(48 Stat. 984, 988, 25 U.S.C. 479) to descendants of members born after

June 1, 1934. By memorandum dated March 24, 1976, then-Associate

Solicitor for Indian Affairs, Reid P. Chambers, concluded:

[O]nly persons residing within any Indian reservation on June 1,

1934, who are descendants of members may be considered preference

eligibles. ``Members'' in this context means persons identified on

approved census rolls or through other means prior to June 1, 1934.

Persons born after June 1, 1934, must meet any of the other criteria in

order to qualify for preference eligibility.

The form to be used by the Bureau of Indian Affairs to verify

eligibility for Indian preference follows the proposed rule.

Publication of the proposed rule by the Department of the Interior

(Department) provides the public an opportunity to participate in the

rulemaking process

ersons born after June 1, 1934, must meet any of the other criteria in

order to qualify for preference eligibility.

The form to be used by the Bureau of Indian Affairs to verify

eligibility for Indian preference follows the proposed rule.

Publication of the proposed rule by the Department of the Interior

(Department) provides the public an opportunity to participate in the

rulemaking process. Interested persons may submit written comments

regarding the proposed rule to the location identified in the addresses

section of this document.

Evaluation and Certification

The Department has certified to the Office of Management and Budget

(OMB) that this rule meets the applicable standards provided in

sections 2(a) and 2(b)(2) of Executive Order 12778.

This rule is not a significant regulatory action under Executive

Order 12866 and does not require review by the Office of Management and

Budget.

This rule will not have a significant economic impact on a

substantial number of small entities under the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.).

The Department has determined that this rule does not have

``significant'' takings implications. This rule does not pertain to

``taking'' of private property interests, nor does it impact private

property.

The Department has determined that this rule does not have

significant federalism effects because it will not interfere with the

roles, rights and responsibilities of states and it impacts only the

application of the Indian preference by the Bureau of Indian Affairs

and the Department of the Interior.

The Department has determined that this rule does not constitute a

major Federal action significantly affecting the quality of the human

environment and that no detailed statement is required pursuant to the

National Environmental Policy Act of 1969.

This rule imposes no unfunded mandates on any governmental or

private entity and is in compliance with the provisions of the Unfunded

Mandates Act of 1995

ent has determined that this rule does not constitute a

major Federal action significantly affecting the quality of the human

environment and that no detailed statement is required pursuant to the

National Environmental Policy Act of 1969.

This rule imposes no unfunded mandates on any governmental or

private entity and is in compliance with the provisions of the Unfunded

Mandates Act of 1995.

This rule has been found to contain no information collection

requirements under the Paperwork Reduction Act of 1995. By memorandum

dated January 11, 1984, then-Deputy Administrator for the Office of

Information and Regulatory Affairs, Robert P. Bedell, Office of

Management and Budget (OMB), determined that information collections

related to certificates of Indian blood did not require OMB clearance.

Drafting Information. The primary authors of this document are

Carol Smalley, Bureau of Indian Affairs, Department of the Interior

and Mercedes C. Lewis, formerly of the Division of Personnel

Management.

List of Subjects in 25 CFR Part 5

Employment, Government employees, Indians.

For the reasons set out in the preamble, Part 5 of Title 25,

Chapter I of the Code of Federal Regulations is proposed to be revised

as set forth below.

PART 5--INDIAN PREFERENCE IN EMPLOYMENT

Sec.

5.1 Definitions.

5.2 Do certain individuals receive preference in employment?

5.3 How is eligibility for Indian preference determined?

5.4 When does Indian preference apply?

5.5 Is placement assistance provided to non-Indians affected by the

application of Indian preference?

5.6 Information collection.

Authority: 4 Stat. 737, 25 U.S.C. 43; 22 Stat. 88, 25 U.S.C. 46;

28 Stat. 313, 25 U.S.C. 44; 24 Stat. 389, 25 U.S.C. 348; and 48

Stat. 986, 25 U.S.C. 472 and 479, 93 Stat. 1056, 25 U.S.C. 472a and

5 U.S.C. 8336, 43 U.S.C. 1601.

Sec. 5.1 Definitions.

ctions formerly performed

as part of the Bureau of Indian Affairs.

Sec. 5.3 How is eligibility for Indian preference determined?

You are eligible for preference if:

(a) You are a member of any Federally recognized Indian tribe;

(b) You are a descendant of a member and you were residing within

the present boundaries of any Indian reservation on June 1, 1934;

(c) You are an Alaska Native; or

(d) You possess one-half or more Indian blood of tribes that are

indigenous to the United States.

Sec. 5.4 When does Indian preference apply?

(a) If you meet a standard in Sec. 5.3, you are eligible for

preference in an initial hire; reinstatement; transfer; reassignment;

reduction-in-force; promotion, including a temporary promotion; and

details exceeding 120 days.

(b) If you are eligible for preference, we may appoint you under a

Schedule A excepted appointment, Exception Number 213.3112(a)(7), and

after three consecutive years you may be converted to a career

appointment in competitive service. The conversion will not alter your

eligibility for preference in personnel actions.

(c) If you are within reach on a Civil Service Register, we may

give you a competitive appointment.

Sec. 5.5 Is placement assistance provided to non-Indians affected by

the application of Indian preference?

Yes. The Office of Personnel Management provides assistance to the

Bureau of Indian Affairs in placing non-Indian employees in other

Federal positions.

Sec. 5.6 Information collection.

In accordance with Office of Management and Budget regulations in 5

CFR 1320.4, approval of information collections contained in this part

is not required.

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Appendix to Part 5

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Ada E. Deer,

Assistant Secretary--Indian Affairs.

[FR Doc. 96-16672 Filed 7-11-96; 8:45 am]

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