[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Proposed Rules]
[Pages 36671-36677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16672]


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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.
    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

    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.
    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.
    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

[[Page 36672]]

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. 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.
    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.

[[Page 36673]]

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.

    Alaska Native means a member of an Alaska Native Tribe; or, an 
individual whose name appears on the roll of Alaska Natives prior to 
July 31, 1981, and not subsequently disenrolled; or, an individual who 
was issued stock in a Native corporation pursuant to 43 U.S.C. 
1606(g)(1)(B)(i).
    Indian tribe means an Indian or Alaska Native tribe, band, nation, 
pueblo, village, or community that the Secretary of the Interior 
acknowledges to exist as an Indian tribe pursuant to Public Law 103-
454, 108 Stat. 4791. Annually, the Bureau of Indian Affairs publishes a 
list of Federally recognized tribes in the Federal Register.
    Roll of Alaska Natives means the roll of Alaska Natives prepared 
pursuant to the Alaska Native Claims Settlement Act, 43 U.S.C. 1601 et 
seq.


Sec. 5.2  Do certain individuals receive preference in employment?

    Yes. Certain persons who are of Indian descent, as described in 
Sec. 5.3, receive preference when appointments are made to vacancies in 
positions:
    (a) In the Bureau of Indian Affairs; and
    (b) In any unit that has been transferred intact from the Bureau of 
Indian Affairs to a Bureau or Office within the Department of the 
Interior and that continues to perform the functions 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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Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-16672 Filed 7-11-96; 8:45 am]
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