Subpart 326.5 - Indian Preference in

Employment, Training, and Subcontracting

Opportunities

Parent topic: PART 326 - OTHER SOCIOECONOMIC PROGRAMS

326.501 Statutory requirements.

Any contract or subcontract pursuant to subchapter II, chapter 14, title 25 of the United States

Code, the Act of April 16, 1934 (48 Stat. 596), as amended, or any other Act authorizing Federal

contracts with or grants to Indian organizations or for the benefit of Indians, shall, to the greatest

extent feasible, comply with section 7(b) of the Indian Self-Determination and Education Assistance

Act, Public Law 93-638, 88 Stat. 2205, 25 U.S.C. 450e(b) which provides preferences and

opportunities for training and employment in connection with the administration of such contracts,

and preference in the award of subcontracts in connection with the administration of such contracts

to Indian organizations and to Indian-owned economic enterprises as defined in section 1452 of title

25, United States Code.

326.502 Definitions.

For purposes of this subpart, the following definitions shall apply:

(a) Indian means a person who is a member of an Indian tribe. If the contractor has reason to doubt

that a person seeking employment preference is an Indian, the contractor shall grant the preference

but shall require the individual provide evidence within 30 days from the tribe concerned that the

person is a member of the tribe.

(b) Indian tribe means an Indian tribe, pueblo, band, nation, or other organized group or community,

including any Alaska Native Village or regional or village corporation as defined in or established

pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688, 43 U.S.C. 1601), which the

United States recognizes as eligible for special programs and services because of its status as

Indian.

(c) Indian organization means the governing body of any Indian tribe, or entity established or

recognized by such governing body, in accordance with the Indian Financing Act of 1974 (88 Stat.

77, 25 U.S.C. 1451).

(d) Indian-owned economic enterprise means any Indian-owned commercial, industrial, or business

activity established or organized for the purpose of profit, provided that such Indian ownership shall

constitute not less than 51 percent of the enterprise, and the ownership shall encompass active

operation and control of the enterprise.

(e) Indian reservation includes Indian reservations, public domain Indian allotments, former Indian

reservations in Oklahoma, and land held by incorporated Native groups, regional corporations, and

village corporations under the provisions of the Alaska Native Claims Settlement Act (85 Stat. 688,

43 U.S.C. 1601 et seq.).
(f) On or near an Indian reservation means on a reservation or reservations or within that area

surrounding an Indian reservation(s) where a person seeking employment could reasonably

commute to and from in the course of a work day.

326.503 Compliance enforcement.

The contracting officer shall promptly investigate and resolve written complaints of noncompliance

with the requirements of the clauses at 352.226-1, Indian Preference and 352.226-2, Indian

Preference Program filed with the contracting activity.

326.504 Tribal preference requirements.

(a) When the contractor will perform work under a contract on an Indian reservation, the

contracting officer may supplement the clause at 352.226-2, Indian Preference Program by adding

specific Indian preference requirements of the tribe on whose reservation the contractor will work.

The contracting activity and the tribe shall jointly develop supplemental requirements for the

contract. Supplemental preference requirements shall represent a further implementation of the

requirements of section 7(b) of Public Law 93-638 and require the approval of the affected program

director and the appropriate legal office, or a regional attorney, before the contracting officer adds

them to a solicitation and resultant contract. Any supplemental preference requirements the

contracting officer adds to the clause at 352.226-2, Indian Preference Program shall also clearly

identify in the solicitation the additional requirements.

(b) Nothing in this part shall preclude tribes from independently developing and enforcing their own

tribal preference requirements. Such independently-developed tribal preference requirements shall

not, except as provided in paragraph (a) of this section, become a requirement in contracts covered

under this subpart, and shall not conflict with any Federal statutory or regulatory requirement

concerning the award and administration of contracts.

326.505 Applicability.

The contracting officer shall insert the clause at 352.226-1, Indian Preference, and the clause at

352.226-2, Indian Preference Program, in contracts to implement section 7(b) of Public Law 93-638

for all Department of Health and Human Services (HHS) activities. Contracting activities shall use

the clauses as follows, except for those exempted solicitations and contracts issued and or awarded

pursuant to Title I of Public Law 93-638 (25 U.S.C. 450 et seq.):

(a) The contracting officer shall insert the clause at 352.226-1, Indian Preference, in solicitations,

contracts, and orders when -

(1) The award is (or will be) pursuant to an act specifically authorizing such awards with Indian

organizations; or

(2) The work is specifically for the benefit of Indians and is in addition to any incidental benefits

which might otherwise accrue to the general public.
(b) The contracting officer shall insert the clause at 352.226-2, Indian Preference Program, in

solicitations, contracts, and orders when -

(1) The dollar amount of the acquisition is expected to equal or exceed $650,000 for nonconstruction work or $1.5 million for construction work;

(2) The solicitation, contract, or order includes the Indian Preference clause; and

(3) The contracting officer makes the determination, prior to solicitation, that performance will take

place in whole or in substantial part on or near an Indian reservation(s). In addition, the contracting

officer may insert the Indian Preference Program clause in solicitations, contracts, and orders below

the $650,000 or $1.5 million level for non-construction or construction contracts, respectively, but

which meet the requirements of paragraphs (b)(2) and (3) of this section, and in the opinion of the

contracting officer, offer substantial opportunities for Indian employment, training, and

subcontracting.