[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