[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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.
BILLING CODE 4310-02-P
[[Page 36674]]
Appendix to Part 5
[GRAPHIC] [TIFF OMITTED] TP12JY96.003
[[Page 36675]]
[GRAPHIC] [TIFF OMITTED] TP12JY96.004
[[Page 36676]]
[GRAPHIC] [TIFF OMITTED] TP12JY96.005
[[Page 36677]]
[GRAPHIC] [TIFF OMITTED] TP12JY96.006
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-16672 Filed 7-11-96; 8:45 am]
BILLING CODE 4310-02-C
