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Indian Preference at Bureau of Indian Affairs (1)
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Indian Preference at Bureau of Indian Affairs (1)
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The original documents are located in Box 3, folder "Indian Preference at Bureau of Indian
Affairs (1)" of the Bradley H. Patterson Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
DEPARTMENT
INTERIOR
United States Department of the Interior
for
BUREAU OF INDIAN AFFAIRS
March
OFFICE
WASHINGTON, D.C. 20245
IN REPLY REFER TO:
Personnel Management
JUN 2 C. 1976
Memorandum
To:
All Area Directors
FORD LIBRARY & GERALD
From:
Commissioner of Indian Affairs
Subject: Non-competitive examination of Indian preference eligibles
Questions have been raised repeatedly in the past few years regarding the
Bureau's policy of requiring Indian preference eligibles to successfully
pass an examination prior to being considered for a position in the
Bureau.
It is the policy of the Bureau to use the qualification requirements
established by the Civil Service Commission for all positions within the
Federal service, except in the instances where we have found that it has
been necessary to develop excepted qualification requirements. Excepted
qualification standards have been developed where there has been a problem
in recruiting Indian candidates at the established entrance level, for
positions which are unique in the Bureau, and for a variety of clerical,
and technical positions.
In December, the Juneau Area Office requested a legal interpretation from
the Field Solicitor regarding the use of the written test in making
excepted appointments in the Bureau. Enclosed for your information is the
response from the Office of the Solicitor.
We will continue the policy of using the written test when filling position
for which a test is part of the qualification requirements for the position
While we strive to increase our Indian employment in the Bureau, we must
also keep in mind that we are to provide services to the Indian people.
In order to do this in the most effective manner, we must find capable and
well qualified employees for each position.
Monis Thompson
Attachment
AMERICAN REVOLUTION
RECEIVED
ADMINISTRATION
done. 530
JUL 6 1976
1776-1976
©
NAVAIO
AREA OFFICE
Digitized from Box 3 of the Bradley H. Patterson Files at the Gerald R. Ford Presidential Library
THE
STATE
Bureau of In
UNITED STATES
Personnel
DEPARTMENT OF THE INTERIOR
OFFICE OF THE SOLICITOR
JUN
March
1819
WASHINGTON, D.C. 20240
Central
JUN 1 1 1976
MEMORANDUM
TO:
Commissioner of Indian Affairs
Att'n: Personnel Management
FROM:
Assistant Solicitor, Indian Affairs
SUBJECT:
Non-competitive examination of Indian
preference eligibles
By a memorandum dated March 2, 1976, the Juneau Field
Solicitor requested our views on the question posed by
the Juneau Area Director of the Bureau of Indian Affairs
of whether the Bureau policy of requiring that an Indian
preference eligible in seeking a position take and pass
a written test, if it is part of a Civil Service Commission
qualification standard for that position, is in compliance
with statutory requirements. Copies of the memoranda are
attached.
The pertinent statutory provision is the preference pro-
vision of the Indian Reorganization Act, 25 U.S.C. S472.
It, in part, provides:
"The Secretary of the Interior
is directed to establish stan-
dards of health, age, character,
experience, knowledge, and abil-
ity for Indians who may be ap-
pointed, without regard to civil
service laws, to the various
positions maintained, now or
hereafter, by the Indian Office
Such qualified Indians
shall hereafter have the pre-
ference to appointment to va-
cancies in any such positions. "
ANERICAN REVOLUTION WEENTENNING
1776-1976
-2-
The last sentence is mandatory in that no exceptions can
be made in filling vacancies. Freeman V. Morton, 499 F.
2d 494 (D.C. Cir. 1974), However, the first sentence
provides for discretion. Furthermore, it is clear this
discretion involves the establishment of standards
which do not have to .conform to those of the Civil Service
Commission. Since preference is implemented in non-
competitive selections by conferring a Schedule A
appointment, 5 CFR $213.3112 (a) (1), requiring examination
seems a confusion with a Schedule B appointment; see 5
CFR $$213.3201 and 213.3212.
Nevertheless, the Secretary is empowered to establish
standards and to adopt Civil Service standards which he
finds appropriate for the Indian positions. It is a matte
of policy as to the standard adopted and the Secretary
must insure that the candidate is qualified as the final
sentence of S472 mandates.
Thus, existing Civil Service tests which are found by the
Secretary to be appropriate measures of standards for
Indian positions may be utilized for determining ap-
pointments to those positions.
Derard R, Barnes
Duard R. Barnes
Attachments
IN REPLY
or INTERIOR
UNITED STATES
STERIOR DEPT. DEPARTMENT OF THE INTERIOR
14570.0
OFFICE OF THE SOLICITOR
March
1812
i
MAR 4 1976
P. O. Box 849
SOLICITOR'S
Juneau, Alaska 99802
DOCKET
March 2, 1976
Memorandum
To:
Duard R. Barhes, Assistant Solicitor
Division of Indian Affairs
From:
Field Solicitor, Juneau
Subject: Indian Preference for Employment
Enclosed please find opinion request dated December 11,
1975, which asks if Indians may be appointed to positions
in the Bureau without examination.
The Commissioner's Office has adopted a policy that Indian
candidates must take and pass a written test when said test
is part of an existing Civil Service Commission Qualificatio
Standard, if such tests are available. Because the above
policy has been promulgated by the Commissioner's Office and
because the determination on the request for opinion may
effect Indian preference employment nation-wide, Charles
Soller has advised that I forward the opinion request to
your office for disposition.
If additional information is required in this matter, please
advise.
John John H. Kelly
Field Solicitor
Enclosure
CC: Area Director
UNITED STATES GOVERNMENT
Memorandum
DEC 12 REC'D
TO
:
Field Solicitor
DATE: December 11, :
FROM : Area Director
SUBJECT: Indian Preference for Employment
I am requesting a legal interpretation regarding the administration of
Indian Preference to effect employment in the Juneau Area of the Bureau
of Indian Affairs. The decision requested could affect the manner in
which Indian Preference is administered in the BIA in total. I have
set forth first the information relied upon to support my conclusion,
which is followed by the result I believe is justified.
The basis for Indian Preference in employment is, in part, as follows:
48 Statute 984 of 1934 known as the "Indian Reorganization Act" also,
as the "Wheeler-Howard Act." Section 12 additionally identified as
25 USC Section 472, provides:
The Secretary of the Interior is directed to establish
standards of health, age, character, experience, knowl-
edge, and ability for Indians who may be appointed,
without regard to Civil Service laws, to the various
positions maintained, now or hereafter, by the Indian
Office, in the administration of functions or services
affecting any Indian tribe. Such qualified Indians
shall hereafter have the preference to appointments to
vacancies in any such positions.
This has been reiterated in the "Composite Indian Reorganization Act
for Alaska," Alaska Amendment of May 1, 1936 (copy attached).
The U.S. Civil Service Commission Federal Personnel Manual (FPM) Chapter
302 is concerned with employment in the Excepted Service. Part 370
DM (Departmental Manual) 302 (copy attached) prescribes regulations
implementing excepted appointments, including the Indian Preference
appointing authority. 44 IAM (Indian Affairs Manual) 302 (copy attached)
specifies eligibility standards including Indian Preference. FPM Chapter
213 (copy attached) identifies the basis and provisions for the excepted
service. Part 370 DM 213 (copy attached) identifies the Indian Pref-
erence appointing authority as Schedule "A," Section 213.3112 (a) (7).
Buy U.S. Savings Bonds Regularly on the Payroll Savings Plan
B018-108
2
370 DM 300 (copy attached) identifies the Department's responsibilities
in the employment of Indians. FPM Chapter 271 (copy attached) is con-
cerned with the need for and development of qualification standards.
370 DM 271 (copy attached) identifies parties responsible for the devel
opment of qualification standards and provides guidelines for the conte
FPM Chapter 338 (copy attached) prescribes the manner in which excepted
qualification standards will be utilized. 370 DM 338 (copy attached)
prescribes the same. 44 IAM 338 (copy attached) prescribes the same.
By memorandum dated May 30, 1973 (copy attached) the then Acting Chief
Personnel Officer for the BIA in Washington, D. C. stated that when a
written test is part of an existing CSC Qualification Standard, Indian
candidates must take and pass such test in order to meet that qualifi-
cations. By memorandum dated July 30, 1975 (copy attached) the current
Chief Personnel Officer reiterated the policy and provided an alterna-
tive for isolated locations where there are no CSC approved test moni-
tors available.
By memorandum dated April 4, 1975 (copy attached), the Commissioner of
Indian Affairs stated policy in the administration of Indian Preference
In correspondence dated August 7, 1975 (copy attached) from the Commis-
sioner of Indian Affairs to all Tribal Chairmen, discussed was Indian
Preference and the results of research on the issue.
The Indian Affairs Manual cites as the authority to effect Indian Pref-
erence appointments the Indian Reorganization Act of 1934 and Executive
Order 8043. The Act has been recognized and interpreted in the Supreme
Court decision on Mancari VS. Morton wherein Indian Preference does not
constitute invidious racial discrimination violative of the Due Process
Clause of the Fifth Amendment nor was it repealed (by implication) with
the passage of the Equal Employment Opportunity Act of 1972, and the
Court of Appeals decision on Freeman VS. Morton wherein it states:
"It is accordingly ordered this 21st day of December 1972,
that all initial hirings, promotions, lateral transfers,
and reassignments in the Bureau of Indian Affairs as well
as any other personnel movement therein intended to fill
vacancies in that agency, however created, be declared
governed by 25 U.S.C. Section 472 which requires that
preference be afforded qualified Indian candidates."
3
On January 31, 1939 the President issued Executive Order 8043 which pe.
mits the appointment of Indians of one-quarter or more degree of India
blood to any position in the Indian Service without examination. FPM
Chapter 213 subchapter 2.a(1) identifies Schedule A (which includes Inc
Preference) as positions other than those of a confidential or policy
determining character for which it is not practicable to examine.
I am of the opinion that there has been sufficient promulgation, by law
and regulation, to determine that, in the administration of Indian Pref
erence appointments in the "Bureau of Indian Affairs, such appointments
may be effected without examination (written test).
AdingArea
Attachments a/s
So
OF THE INITIOR
United States Department of the Interior
BUREAU OF INDIAN AFFAIRS
for
March ) 1849
WASHINGTON, D.C. 20242
IN REPLY REFER TO:
Personnel Management
JUN 24 1976
Memorandum
To:
All Area Directors
From:
Acting Chief Personnel Officer
Subject: Definition of Indian in 25 USC 479 to Descendants
of Members born after June 1, 1934
For your information and guidance in interpreting the new
Indian preference policy attached is a copy of a memorandum
from the Solicitor clarifying the meaning of "who are
descendants. "
Attachment
RECEIVED
ADMINISTRATION
JUN 28 1976
NAVAJO
Inc 530
AREA OFFICE
Ey 5 100
UNITED STATES
DEPARTMENT OF THE INTERIOR
OFFICE OF THE SOLICITOR
Much
TE
WASHINGTON. D.C. 20240
DIVISION OF
cc:102,1
CONTRACTING
MAR 24 1976
Memorandum
To:
Commissioner of Indian Affairs
Attn: Director, Office of Administration
From:
Associate Solicitor, Indian Affairs
Subject: Application of Definition of Indian in
25 U.S.C. S479 to Descendants of Members
Born after June 1, 1934
In recent discussions concerning the change of the
definition of "Indian" for purpose of the preference
in employment from the present quarter-degree standard
to one coinciding with the definition in 25 U.S.C. S479,
the question of the ambiguity in the descendants category
has been frequently raised.
Section 19 of the Wheeler-Howard or Indian Reorganization
Act, Act of June 18, 1934, 48 Stat. 984, 988, 25 U.S.C.
$479, in pertinent part provides:
"The term 'Indian" as used in
this Act shall include all persons
of Indian descent who are members
of any recognized Indian tribe
now under Federal jurisdiction, and
all persons who are descendants of
such members who were, on June 1,
1934, residing within the present
boundaries OI anv Indian reservation,
REVOLUTION
1776-1976
-2-
The part underscored is ambiguous in that it is unclear
whether the referent for the term "who" after "members"
is members or descendants. If it is the member who
must have resided within the reservation on June 1, 1934,
then the class of descendants is one which is not closed,
but which could be of significant size and could--over
time--be composed of persons of remote degrees of Indian
ancestry. If it is the descendant that must have resided
within the reservation, that person must have been a living
person on June 1, 1934, SO that the class is a closed one,
gradually diminishing as such persons pass away.
In my opinion, the latter interpretation is the correct one.
First, it is consistent with the overall scheme of the Re-
organization Act which was that descendants could become
members of tribes reorganizing under the Act. Prior to
the Act, there were few tribes with current official
membership rolls and even fewer with formal standards.
The most common means of identifying persons as Indian
at that time was by census rolls--rolls that listed
persons who were reservation residents and who were
identified by Bureau census-takers as members. *
But without formal membership standards, such rolls
were reliable for only indicating residents having some
Indian ancestry of the tribe or tribes settled on the
reservation. With adoption of a basic organic tribal
document pursuant to the Act, formal membership criteria
were established for the first time. Descendants could
vote to accept the Act and constitution which would
then officially make them members as defined under the
first category (members of tribes as quoted above) if
/
Some other types of rolls were also of value in identif
ing persons as tribal members. Two examples are: 1) rolls
prepared to effect payments of funds derived from reservation
resources; and 2) rolls prepared to identify specific tribes
on specific reservations due annuity payments. An example
of a roll which cannot be relied on for identifying members
is one which was prepared to effect annuity payments which
became descendant oriented and wherein reservation residency
was unnecessary.
-3-
they met the requirements specified in the constitution.
Until a tribe formally organized under the Act (see 25
U.S.C. 3478) and adopted a constitution and membership
requirements, then persons alive in 1934 of Indian
ancestry descended from persons listed on earlier
official rolls would be within the definition.
Secondly, it seems unlikely that Congress intended a
proliferation of preference eligibility over time.
Such a class of preference eligibles would have a
minimal Indian blood quantum (less than the statutory
one-half degree) and no membership in any federally
recognized tribe served by the Bureau. Such persons
would be simply a racial classification bearing little
relationship to the needs and functions of either the
Bureau of Indian Affairs or its service population.
Finally, the legislative history of the Act shows that at
least the Senate Committee considering the revision of the
Department's original bill, H.R. 7902, 73d Cong. 2d Sess.
(1934), was made aware of this feature of the definition.
Each version of the original and revised bills had a def-
inition provision including a descendant class of reser-
vation residents. When the final bill, S. 3645, was before
the Senate Committee on Indian Affairs, the following expla-
nation of the descendant class was given by BIA Commissioner
Collier:
Senator Thomas of Oklahoma. Well,
if someone could show that they
were a descendant of Pocahontas,
although they might be only five-
hundredth Indian blood, they could
come under the terms of this act.
Commissioner Collier. If they are
actually residing within the present
boundaries of an Indian Reservation
at the present time.
Hearings on S. 3645, Senate Comm. on Indian Affairs, 73d
Cong. 2d Sess. at 263-264 (1934).
-4-
It is clear that Senator Thomas was referring only to
descendants and Commissioner Collier explained that it
was the descendants who had to be residing on the
reservation. Since the BIA drafted the original bill,
and since this exchange is the only legislative history
instructive on this point, Commissioner Collier's
comment is entitled to some weight.
In applying this provision of the definition of "Indian",
I conclude that only 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.
Reid Peyton Chambers
Reid Peyton Chambers
RIO!
Diates Department of the Interior
BUREAU OF INDIAN AFFAIRS
WASHINGTON, D.C. 20245
Much
1219
IN REPLY REFER TO:
Personnel Management
JUN 2 1 1976
Memorandum
To:
All Area Directors
From:
Acting Chief Personnel Officer
Subject:
Information regarding new Schedule A appointing authority
Attached for your information is a copy of the most recent letter to
the Civil Service Commission requesting a new Schedule A appointing
authority which will apply under the revised Indian preference/criteria.
We have asked the Commission to continue an authority whereby we may
appoint individuals who are 1/4 or more degree Indian ancestry of a
currently federally-recognized tribe whose rolls have been closed by an
act of Congress. We would utilize this authority for a three year period
which would permit time for the Five Civilized Tribes and Osage Tribe
to organize and establish current membership standards. A "grandfather"
provision will be used to protect individuals who are presently employed
and may lose preference as a result of the new policy. Employees who
are now eligible for preference and do not meet the criteria of the new
policy will be covered by the "grandfather" clause as long as they are
continuously employed by the Bureau.
Attachment
RECEIVED
Inc:s 530
ADMINISTRATION
Cy : 100
JUN 13 1976
AMERICAN REVOLUTION WENTENNING
NAVAJO
AREA OFFICE
1776-1976
e
interior
OFFICE OF THE SECRETARY
WASHINGTON, D.C. 20240
JUN 1 i 1976
Dear Mr. Hampton:
In a letter dated March 18, 1976, I requested the Commission's
consideration of a modification in the Schedule A excepted
appointment authority implementing Indian preference in the
Indian Service, 5 CFR 5213.3112(a)(7).
The proposed modification would abolish the present quarter-
degree Indian ancestry standard and would establish five
criteria for eligibility. This change is required in our
view by the definition of "Indian" contained in the Indian
Reorganization Act, 25 U.S.C. 8479, which sets forth three
criteria (and a fourth standard for the special circumstance
of Alaska natives). Section 479, in pertinent part, reads as
follows:
The term 'Indian'
shall in-
clude all persons of Indian descent
who are members of any recognized
Indian tribe now under Federal
jurisdiction, and all persons who
were on June 1, 1934, residing
within the present boundaries of
any Indian reservation, and shall
further include all other persons of
one-half or more Indian blood
Eskimos and other aboriginal peoples
of Alaska shall be considered Indians."
This definition is applicable to the preference-in-employment
provision of the same act, 25 U.S.C. 3472. The legal principle
which compels a modification is that the quarter-degree standard
established by executive orders is in derogation of standards
set by statute.
My purpose in writing now is twofold. First, in my carlier
letter I stated that a "grandfather" clause would be extended
to all current employees of the Bureau of Indian Affairs of
one-quarter or more Indian ancestry who received preference
prior to the requested change so that they would retain their
preference eligibility as long as they were continuously
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employed in the Bureau. To be as certain as possible of the
validity of this provision, I now request that the Commission
specifically approve this measure.
Secondly, it has been called to my attention that the fifth
criterion proposed in the March 18 letter may be inconsistent
with the statutory provision. That criterion would extend
preference eligibility to
"(v) a descendant of an enrolled
member Of" a currently federally-
recognized tribe whose rolls have
been closed by an act of Congress. "
My purpose in proposing this special standard of eligibility -
limited to just a few tribes, specifically the Five Civilized
Tribes and the Osage Tribe - VOS to take account of the fact
that those tribes had been treated differently by Congress from
other tribes; at the time of the enactment of the Indian Re-
organization Act in 1934, their reservations had been dis-
established and their rolls closed, so that the only "members"
were those listed on the final rolls compiled in 1906. Thus,
descendants of members of most tribes whose rolls had been
closed would not qualify as tribal "members," / and the
application of the criteria set. out in 25 U.S.C. 8479 to such
persons would in effect be to require that they be of one-half
degree Indian ancestry to qualify for preference. Many such
persons have heretofore net the quarter-degree requirement and
received preference in employment. Thus, it was to avoid the
hardship and inequity of narrowing the eligibility standard
in this somewhat unique situation that : special criterion was
proposed.
It has now been brought to my attention that in light of section
479 there exists some question as to the lawfulness of the
addition of such a special descendancy standard for these tribes.
/ Only the Seminole Nation, several Creck towns and one
Cherokee band have since reorganized.
-3-
Nevertheless, the reasons for the establishment of a separate
standard in recognition of their special situation remains. I
would request, therefore, that the original proposal be modified
so that the fifth criterion shall have a limited duration of three
years from the date of the Commission's approval. This would
allow the affected tribes time to organize under the Oklahoma
Indian Welfare Act, 25 U.S.C. 8501 ct seq., or otherwise, and
to establish current membership standards - which will allow
the individuals in question to qualify for preference as tribal
members.
Thus, I would recommend that the fifth criterion be modified as
follows:
(v) until
, 1979,
a descendant of at least one-
quarter degree Indian ancestry
of a currently federally-recognized
tribe whose rolls have been closed
by an act of Congress.
A date three years from the effective date of the Commission's
approval may be inserted at the appropriate time. This pro-
vision, I feel, will provide a reasonable transition period
and will not unduly disrupt legitimate expectations as would
be entailed in the immediate imposition of a standard which
does not include any fifth criterion.
Sincerely yours,
/s/ Thomas S. Kleppe
Secretary of the Interior
Honorable Robert Hampton
Chairman
United States Civil Service Commission
Washington, D.C. 20415
UI
CI.
Interior
BUREAU OF INDIAN AMEAIRS
WASHINGTON, D.C. 20245
March
1349
IN REPLY REFER TO:
MAY 21 1976
Personnel Management
MEMORANDUM
To:
All Area Directors
Field Administrator, Administrative Services Center
From:
Commissioner of Indian Affairs
Subject:
Indian Preference Policy
On April 22 you were forwarded copies ct the revised policy statement
effective April 20. The purpose of the revised statement was to bring
the granting of preference in conformance with the statutory require-
ments of the Indian Reorganization Act, June 18, 1934. The criteria
outlined in the memorandum will apply in the following types of
personnel actions:
(a) Promotion;
(b) reassignment - this term includes reassignment and
change of appointing office from within the Department
of the Interior;
(c) lateral transfer - the appointment of an individual
with competitive status to BIA from another Federal
agency;
(d) voluntary request for change to lower grade;
(e) establishment of retention registers.
Individuals who are members of any recognized Indian tribe now under
Federal jurisdiction will be eligible for preference based on the
new criteria. The tribe is not required to have been organized under
the IRA.
We have asked the Civil Service Commission for a new appointing autho-
rity whereby we may make initia1 excepted appointments (Schedule A)
under the revised criteria. I have also requested that for three years
from the date of publication of the new criteria by Civil Service,
individuals who are one-quarter or more degree Indian blood of a
Federally recognized tribe continue to be considered preference eligible
for appoin.ment. This transition period will allow time for tribes
REVOLUTION
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MAY 26 1976
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whose rolls have been closed by Congress to organize and thereby put
their members on a par with other Indians by allowing them to be pref-
erence eligible under 25 U.S.C. 472 and 479 by virtue of tribal membersh
Individuals who receive or have preference in Bureau employment will
continue to receive preference as long as they are continuously employed
by the Bureau (Grandfather clause).
Employees will be responsible for providing the personnel offices with
documentation that they are entitled to preference. All employees who
feel that they meet the new criteria for preference should immediately
take steps to furnish their Personnel Offices with a statement from
their home agency superintendent that they meet one of the four criteria
Employees having questions concerning their eligibility under the new
criteria should direct their inquiry to their agency or Area Branch of
Tribal Operations.
Personnel actions that were not effective before April 20 should be
reviewed to assure that any individual who applied for a position is
properly considered under the new criteria.
Attached are questions and answers which will be helpful to you.
Additional questions concerning the interpretation of the new policy
in Personnel matters should be directed to the Division of Personnel
Management. A continuing list of questions and answers will be compiled
to share with other appointing offices.
You are urged wherever there is exclusive union recognition that this
information be brought to their attention at the earliest possible time.
Moris Thompson
Attachment
nacerved
ADMINISTRATION
MAY 25 1976
NAY WO
AREA OFFICE
INDIAN PREFERENCE April 20, 1976
1. Q. Will an individual currently employed in BIA based on ½ degree
preference retain preference for promotion or reassignment when the
individual does not meet one of the four criteria now being used?
A. Yes, assuming that the Civil Service Commission approves the
Secretary's plan. Under that plan, the individual will be a
preference eligible so long as he is continuously employed in
the Bureau or in the exercise of statutory reemployment rights.
(Grandfather clause.) But until further notice, the individual
is to be a preference eligible.
2. Q. Will an individual who has a competitive appointment with another
Federal agency receive preference in an appointment to the Bureau
based on one of the four criteria?
A. Yes - the transfer would not be a new appointment to the Federal
service.
3. Q. If an individual on a Civil Service certificate meets one of the
new criteria will he be eligible for preference in the Bureau
now?
A. Yes - if the individual is within reach on the Civil Service register
he would be given a competitive appointment.
4. Q. Would an individual meeting the 1/4 degree blood quantum requirement be
in competition for preference in appointment with an individual who
meets one of the new criteria and is on the Civil Service register?
A. Yes, if the individual meeting the new criteria is within reach on
the register. For now, we do not have an excepted appointing authority
for anyone except those who are 1/4 or more degree blood quantum.
5. Q. May preference in appointments continue to apply based on 1/4 degree
blood quantum?
A. Yes - As long as we have the present Schedule A appointing authority.
6. Q. Will a "grandfather" clause apply to individuals given an excepted
appointment based on 1/4 degree blood quantum between April 20 and the
time the Civil Service Commission issues a new appointing authority?
A. Yes, with the approval of the Civil Service Commission. With the
Commission's approval, the grandfather clause will apply to all such
persons as long as they are continuously employed by BIA. (See No. 1.)
7. Q. When will the 1/4 degree blood quantum criterion no longer be a preference
factor in making initial appointments?
A. At such time as we receive a new appointing authority from CSC.
8. Q. For preference eligibility is it necessary to be a member of a tr:be
organized under IRA? (Tribe means any Federally recognized Indian grc
A. No - Preference will be provided to individuals who are members of any
organized Federally recognized tribe.
9. Q. Will personnel actions be delayed until applicants can establish that
they meet one of the criteria?
A. No - Applicants/candidates must submit a certificate from their Agency
verifying that they are eligible for Indian preference based on one 01
the criteria. Applicants/candidates are responsible for ensuring that
proper documentation is on file or with their application when they
apply for promotional consideration or a position change. Employees
should take steps immediately to verify that they are entitled to
preference under the criteria if they have an application currently
under consideration.
10. Q. What action is to be taken now on certificates pending selection?
A. All applications should be reviewed to ensure applicants/candidates
who may be preference eligibles receive consideration. However, it
is not necessary to readvertise the vacancy.
11. Q. How much information regarding preference should be included in vacanc
announcements?
A. The information must include preference for 1/4 degree in initial appoir
ments and the four new criteria. After a new appointing authority has
been received, the wording on 1/4 degree will be changed. (See No. 1)
12. Q. How do you identify "who are descendants of such members who were, on
June 1, 1934, residing within the present boundaries of any Indian
reservation?"
A. Only persons residing within any Indian reservation on June 1, 1934, W
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 afte
June 1, 1934, must meet any of the other criteria in order to qualify
for preference eligibility.
13.
Q. Does the criteria "all others of one-half or more Indian blood" apply
to any tribe other than Federally recognized tribes?
A. Yes - the burden of proof is on the individual that he meets the crite
14. Q. May excepted and competitive retention registers continue to be
combined in reduction in force?
A. Yes.
15. Q. Does the preferred retention standing of Indian preference emplo: ees
still apply on retention registers?
A. Yes.
Teletype received at PHS, Window Rock 4/26/76
ACTING AREA DIRECTOR NAVAJO
BUREAU OF INDIAN AFFAIRS
WINDOW ROCK AZ 86515
RE 4-20-75 75 MEMORANDUM STATING REVISED INDIAN PREFERENCE POLICY
ANY COMMITMENT MADE FOR FILLING A POSITION PRIOR TO APRIL 20
MUST BE DOCUME NTED IN WRITING AS TO THE DATE OF THE COMMITMENT.
COMMITMENTS MADE AFTER APRIL 20 MUST BE MADE IN ACCORDANCE WITH
THE REVISED POLICY STATEMENT, IMPLEMENTING INSTRUCTIONS WILL BE
ISSUED IMMEDIATELY.
COMMISSIONER OF INDIAN AFFAIRS
MORRIS THOMPSON
AGAINISTRATION
1.1
APR 27 1976
Cy 530
GALLUP, NEW MEXICO
DIVISION OF ADMIN.
9L. WH 60 8 17 HJY
3 THE
JJ-5
United States Department of the Interior
BUREAU OF INDIAN AFFAIRS
WASHINGTON, D.C. 20245
IN REPLY REFER TO:
APR 2 0 1976
To:
All Area Directors
Field Administrator, Administrative Services Center
From:
Commissioner of Indian Affairs
Subject: Indian Preference Policy
During the past several months an extensive study has been made of the
definition of Indian in terms of the present policy and the statutory
definition in the Indian Reorganization Act, June 18, 1934.
Effective April 20, 1976, the definition of Indian as stated in Section 19,
Indian Reorganization Act of June 18, 1934, 25 USC 479, will be the criteria
used in recognizing an individual for the purpose of Indian preference in
certain personnel actions in the Bureau. Indian means persons of Indian
descent:
1) Who are members of any recognized Indian tribe now under
Federal jurisdiction;
2) Who are descendants of such members who were, on June 1, 1934,
residing within the present boundaries of any Indian reservation
3) All others of one-half or more Indian blood, and
4) Eskimos and other aboriginal peoples of Alaska.
An individual meeting any one of the above criteria of the statutory defini-
tion will be afforded preference in actions filling a vacancy by a promotion,
reassignment or lateral transfer, in the Bureau. This policy will not apply
to initial hiring until a new Schedule A appointing authority has been
received from the Civil Service Commission. Employees will be responsible
for providing the Personnel Office with certificates verifying that they meet
one of the criteria above.
You are urged wnerever there is exclusive unlon recognition that this inf rma-
tion be brought to their attention at the earliest possible time.
Inc 530
Ccj
$00
RECEIVED
REVOLUTION
AMERICAN
BICENTENNIAL
APR 26 1976
NAYAJO
AREA OFFICE
TOTAL
United States Department of the Interior
OFFICE or THE SECRETARY
WASHINGTON, D.C. 20240
Mr. Robert E. Hamoton
Chairman
United States Civil Service Commission
1900 E Street, N.W.
MAD 8 1976
Washington, D. C. 20415
Dear Chairman Hampton:
This is to request the Commission's consideration of a change in
the definition of "Indian" for purposes of the Schedule A excepted
appointment authority now contained in 5 CFR $213.3112(a)(7).
The Schedule A authority is conferred in order to implement
a preference in employment of Indians. At present eligibility
for preference in the selection for positions in the Bureau
of Indian Affairs is extended to persons of one-quarter degree
Indian ancestry. Numerous statutes 1/ provide the basis for a
preference for Indians in employment in the Indian Service.
All except one do not define "Indian." The one statute which
does, establishes a different definition of "Indian" than that
embodied in the present excepted appointment authority. Thus,
it is to harmonize the excepted appointment authority with the
statutory definition that we request your approval.
The quarter-degree standard is based on executive orders. 2/
Obviously, executive orders cannot derogate from a statutorily
I/
Act of June 30, 1834, 25 U.S.C. 345, 4 Stat. 737; Act of
July 4, 1884, 25 U.S.C. $46, 23 Stat. 97; Act of
February 8, 1887, 25 U.S.C. 8348, 24 Stat. 339; Act of
August 18, 1694, 25 U.S.C. 544, 23 Stat. 313; Act of
April 30, 1903, 25 U.S.C. S47, 36 Stat. 361; and
Section 12, Act of June 18, 1934, 25 U.S.C. S472,
43 Stat. 934. Several treaties with Indian tribes also
have preference provisions. Hendbook of Federal Indian
Law, 534-535 (1953 ed.).
2/ E.O. 6675, April 14, 1934; 1.0. 7916, 3 CFR 350 (June 24,
1933); E.O. 8043, 3 CFR 449 (January 31, 1933); E.O. 8383,
3 CFR 636 (March 28, 1940).
-2-
set standard. The statutory standard is established by Section 19
of the Indian Reorganization Act of June 18, 1934, suora, note 1,
25 U.S.C. $479. Section 12 of the Indian Reorganization Act
established an absolute preference for Indians in their
selection to fill all vacancies in the Bureau. Freeman V.
Morton, Civ. So. 327-71 (D.D.C.), filed December 21, 1972;
aff'd 499 F.2d 494 (D.C. Cir. 1974). Furthermore, the Supreme
Court has held that the Indian preference statutes, particularly
$472, 3/ were not impliedly repealed by the 1972 Equal Employment
Opportunity amendments to the, 1964 Civil Rights Act, 42 U.S.C.
(Supp. II 1973) 52000b-16(a); nor are non-Indian employees
deprived of property rights in the application of preference to
Indians. Morton V. Mancari, 417 U.S. 535 (1974). The Associate
Solicitor for Indian Afrairs has advised that the definition
of "Indian" in Section 19 of the Indian Reorganization Act must
be read in pari neteria with Section 12. This opinion was
rendered in response to several administrative appeals of persons
who are members of federally-recognized tribes, but who were
denied preference eligibility because they are less than a
quarter-degree. In addition, another person-a member of a
tribe organized under the Indian Reorganization Act but of
less than a quarter-degree Indian ancestry--has filed suit
claiming eligibility. Whiting V. United States, Civ. No.
75-3007 (D. S.Dak.).
The definition established in Section 19 is that for purposes
of the Act "Indian" means persons of Indian descent:
1) who are members of any recognized Indian
tribe now under Federal jurisdiction;
2) who are descendants of such members who were,
on June 1, 1934, residing within the present
boundaries of any Indian reservation;
3) all others of one-half or more Indian blood,
and
4) Eskimos and other aboriginal peoples of
Alaska.
The Court indicated that Section 472 replaced the earlier
and more narrowly drawn preference statutes. Norton V.
Mancari, 417 U.S. at 536, n. 2; see also note 1, sucra.
-3-
The objective of the Indian Reorganization Act was to out an end
to the diminution of the Indian land base and to allow tribes,
which at that time were frequently coopted by Indian Service
agents, to reorganize into organizations which would have some
measure of celf-government. Thus, rather than have standards of
membership established by Federal officials, viable tribal organ-
izations established under the Act were to set standards. The
difficulty has been that from a personnel administration stand-
point tribal membership standards vary from tribe to tribe; and
in some instances, tribes do not maintain current membership rolls.
Furthermore, some tribes, the largest - the Navajo - in particular,
elected not to organize under the Act and others, particularly
Oklahoma tribes, could not organize under it, but individuals
were not exempt from the preference and definition provisions.
What this has treant is that it has been in the Bureau's interest
to maintain a uniform standard of preference eligibility for all
Indians; but it has been at the expense of depriving some
individuals of a right conferred by law. 4/ That deprivation
can no longer be unheld. The Court in Mancari stated that "[t]he
preference, as applied, is granted to Indians not as a discrete
racial group, but, rather as members of quasi-sovereign tribal
entities
=
417 U.S. at 554.
Thus, we request that 5 CFR 213.3112(a) (7) be modified to
provide as follows:
(7) All positions in the Bureau of Indian Affairs
and other positions in the Department of
the Interior directly and primarily related
to the providing of services to Indians when
filled by the appointment of persons of
Indian descent who are either:
(i) a member of a recognized tribe under
federal jurisdiction; 01
(ii) a descendant of a member of a tribe who
was on June 1, 1934, residing within the
boundaries of any Indian reservation; or
4
While many tribes have blood quantum requirements of
one-cuarter degree and thus a change in the preference
eligibility standard as proposed would result in little
real change in the number of eligibles, = few have no
minimum but obviously require some ancestry of the tribe.
(iii) a person of one-half degree or more
Indian ancestry; or
(iv) an Eskimo and other aboriginal persons
of Alaska; or
(v) a descendant of an enrolled member of a
currently federally-recognized tribe whose
rolls have been closed by an act of
Congress.
Current employees of the Bureau of Indian Affairs who are of one-
quarter or more Indian ancestrv of a federally recognized tribe
and who received preference prior to this change, shall continue
to be preference eligibles as long as they are continuously
employed in the Bureau. This "Grandfather" clause will be
included in the Bureau's regulations to protect current employees'
rights.
These criteria will also apply to competitive personnel actions
within the Bureau for promotions, reassignments and transfers.
Under Section 18 of the Reorganization Act, tribes could vote to
reject the application of it to their reservation. Nevertheless,
other preference statutes, note 1, supra, would allow for the
application of the same preference and the same definition of Indian.
Thus, the above criteria would set a uniform standard throughout
the Bureau; although membership standards and degrees of Indian
ancestry vary.
While Section 13 of the Reorganization Act provides that some Oklahoma
tribes cannot organize under the Act, the preference and definition
sections do apply SO that Indians of Oklahoma tribes are under these
provisions. However, there are now no Indian reservations within
the State and the rolls of several Oklahoma tribes (Cherokee, Choctew,
Creek, Chickasaw anc Osage) - were closed by acts of Congress 51
SO that there are today no current membership rolls for these tribes.
The provisions of the definition of Section 19 may be inapplicable
to persons of such tribal ancestry except to the extent they are
one half DI more Indian. In order to achieve the utrost uniformity
in standards of eligibility, we propose the fifth criterion SO as
to include descendants of the members of these tribes.
5 Act of April 26. 1906, 35 Stat. 137; Act of June 28, 1906, 34
Stat. 539.
-5-
Since this redification is dictated by statute, we believe it can be
achieved through the rulemaking authority of the Commission, 5 U.S.C.
$1302. Therefore, we request that approval be civen to the proposal
and that it be published according to your rulemsking procedures for
rodification in an agency's excepted appointment authority.
Upon your approval and publication of the new authority, these
provisions will become effective within the Bureau of Indian Affairs
and the Department of the Interior. If there are any questions,
please do not hesitate to contact US.
Sincerely yours,
(Sgd) Tom
Secretary of the Interior
26
500
United States Department of the Interior
#018
OFFICE OF THE SECRETARY
WASHINGTON, D.C. 20240
March
VIT
FEB 2 1976
1976FEB11 PH 1:30
Dear Mr. Chairman:
This responds to your request for the views of this Department
on H.R. 4958, H.R. 5858 and H.R. 5968, similar bills "To revise
retirement benefits for certain employees cf the Bureau of
Indian Affairs and the Indian Health Service nct entitled to
Indian preference, provide greater opportunity for advancement
U
and employment of Indians, and for other purposes."
We recommend that these three bills not be enacted.
Provisions of the three bills
We understand that H.R. 4988, H.R. 5858 and H.R. 5968 are intended
to relieve the situation of those civil service employees of the
Bureau of Indian Affairs and Indian Health Service who are nct
eligible for "Indian preference" in promotions, lateral transfers,
and reassignments within those agencies.
The bills relate tc non-Indian preference employees who were
employed by the BIA cr IHS cn June 17, 1974, the date of the
U.S. Supreme Court decision on the subject of Indian preference.
They would appear to be based upon the theory that the United
States Court of Appeals for the District of Columbia and the
Supreme Court decisions of 1974, which established absolute
Indian preference in BIA and IHS employment, caught these employees
in mid-career and left them with little opportunity for advance-
ment in those agencies.
H.R. 5858 and H.R. 5968 are identical. H.R. 4988 is a similar
bill. All three bills would amend 5 U.S.C. 8336 to provide for
optional retirement after 20 years of service, not necessarily
with BIA or IHS, for those non-Indians of either agency who have
been continuously employed by the agency since June 17, 1974
(the date of the Supreme Court decision on Indian preference)
and who will have completed 20 years of service before December 31,
1985 (E.R. 5858 and H.R. 5968) or December 31, 1984 (E.R. 4988).
This special provision would not apply to anyone who "is other-
wise entitled to full retirement benefits."
CONSERVE
AMERICA'S
ENERGY
Inc.
500/w0
Cy-
101
E.R. 4988 provides that the Secretaries of the Interior and of
Health, Education and Welfare may delay retirement thereunder for
one year under certain circumstances, and an employee continues
to be eligible for early retirement even if he becomes eligible
for voluntary retirement during that delay.
All three bills amend 5 U.S.C. 8339 to provide a formula for
computing the annuity. While there are differences in the amend-
ments between the two versions, bcth amendments would provide
qualified non-Indian employees-who in certain cases may be
in their forties or younger--the opportunity to retire with en
annuity equal tc that of most Federal employees who retire at
age 60 or over with approximately 27 years of service. None
of the three bills refer to that provision of 5 U.S.C. 8339(h)
which contains a formula reducing annuities for retirements before
age 55.
Background
On November 26, 1975, this Department transmitted our views to
the Committee on H.R. 5465, a bill that would provide for out
placement of non-Indian preference employees of the BIA and IHS
to other parts of those Departments. This report details the
background of Indian preference, including the case lawion the
subject (rp. 2-3). We opposed enactment of the bill because we
had formulated a Department Assistance Program to assist Indian
and non-Indian BIA employees adversely affected by Indian pre-
ference and the Indian Self-Determination Act (p. 4). A copy
of the November 26, 1975 report is enclosed.
The present early retirement law
Under 5 U.S.C. 8336(d)(1) an employee with 20 years of service
at age 50 or with 25 years of service at any age is entitled to
retire on an immediate annuity if his job is abolished. This
provision applies to any eligible employee cf the BIA.
Under 5 U.S.C. 8336(a)(2) an employee may voluntarily retire
with an immediate annuity if, upon application of his agency to
the Civil Service Commission, the Commission determines that such
agency has a "major" reduction-in-force (RIF). The agency could
then authorize, during a time period prescribed by the Commission,
the employee's retirement if he ceets the requisite age and
service qualifications (same as 8336(d)(1)).
2
The annuity formula for employees who retire under 5 U.S.C. 8336(d),
determined by U.S.C. 8339(h), reduces. annuities by 1/6 of 1% for
each month the employee is under age 55.
In 1973, 1974 and 1975 the BIA received determinations of major
RIF's from the Civil Service Commission under 5 U.S.C. 8336(a)(2).
In 1973, 22 BIA employees chose early retirement; 26 employees
chose it in 1974, and 167 employees voluntarily retired in 1975.
Those who chose to retire were both Indian and non-Indian employees.
The effect of Indian preference and the Indian Self-Determination
Act
Not all non-Indian employees of the Bureau of Indian Affairs
have been adversely affected by Indian preference as interpreted
by recent ccurt decisions. In fact, many non-Indian employees
in a number of occupations have had and continue to have remark-
ably successful careers within the Bureau.
In many career fields (such as Forestry, Engineering, Social Work,
Teaching, Personnel Management, and Financial Management) there
are not adequate numbers of Indian candidates to fill the large
number of entry level vacancies which exist at any given time in
the Bureau. In such fields, Indian preference creates no impedi-
ment to non-Indian employees for promotion to the jcurneyman level
of these occupations. This is true, for example, in teaching
where 75 percent of vacancies each year are filled by non-Indian
employees despite concerted and vigorous attempts to recruit
qualified Indians.
However, the effects of Indian preference in scze occupations
become more apparent above the journeyman levels. Competition
for such positions is intense and no Federal employee is offered
any guarantee of promotion to supervisory or managerial positions.
Nonetheless, even above the journeyman level some promotional
opportunities continue to exist for non-Indian employees.
While it is the policy of the Department of the Interior and
the Bureau of Indian Affairs to recruit, develop, and utilize
qualified Indians to the maximum extent possible, that policy
does not rule out utilization and advancement of non-Indian
employees. The Comissioner of Indian Affairs has stated:
There are many opportunities within the Bureau
of Indian Affairs for the continued employment
and advancement of the present work force. Although
accelerated recruitment efforts are being made
for qualified Indian candidates, experience has
3
shown that there are vacancies for which we have
not been able to recruit qualified Indians. Non-
Indians have been appointed and promoted to these
vacancies.'
We recognize that some non-Indian employees have had their careers
affected by the recent court decisions on Indian preference. As
noted in our report on H.R. 5465 this Department is assisting
these employees to find continued career opportunities outside
the BIA. Additionally, we are increasingly concerned about the
potential effects of the Indian Self-Determination Act (P.L.93-
638) on Indian and non-Indian employees alike. The Indian Self-
Determination Act could ultimately result in significant numbers
of BIA employees leaving the Federal work force.
Fecommendation
This Department is committed to cur assistance program which
provides placement assistance to those Indian and non-Indian
employees of the BIA whose jobs or opportunities have been fore-
closed by either Indian preference cr the operation of P.L.93-638.
The present situation in the SIA does nct justify the liberal
retirement benefits contemplated by the three bills which far
surpass the benefits available to other Federal employees, and
we cannot support such a provision. BIA employees who wish to
retire early under 5 U.S.C. 8336 should be subject to the same
annuity formula as all other employees who retire pursuant to
that provision.
Further, employees of the BIA who are adversely affected by the
contracting requirement of P.L. 93-638 =ay retire pursuant to
the provisions of 5 U.S.C. 8336(d).
With regard to the provisions which concern the Department of
Health, Education and Welfare, and the Civil Service Commission,
we defer in our views to those two agencies.
The Office of Management and Budget has advised that there is no
objection to the presentation of this report and that enactment
of H.R. 4988, H.R. 5858, and H.R. 5968, would not be in accord
with the program of the President.
Sincerely yours,
Jamm Secretary T.Clate of the Interior
Honorable David N. Henderson
Chairman, Committee on
Post Office and Civil Service
House of Representatives
Department
Interior
OFFICE or THE SECRETARY
NOV 20 1375
Dear Mr. Chairman:
This responds to your request for the views of this Department
on H.R. 54-5, 3 bill "To allow Federal employment preference to
certain exployees 01 the Bureau of Indian Affairs, and to certain
employees of the Indian Health Service, who are not entitled to
the benefits of, or who have been adversely affected by the appli-
cation of, certain Federal laws allowing employment preference to
Indians.
He rece mend against enactment of H.R. 5465. The Department is
currently in the process of formulating an assistance program to
resolte the problem addressed by H.R. 5485 and we believe that this
available administrative solution is the most viable approach.
Provisions of H.R. 5465
We understand that H.R. 5465 is intended to relieve the situation
of those civil service employees of the Bureau of Indian Affairs
and Indian Health Service the are not eligible for "Indian preference
in promotions, lateral transfers, and reassignments within those
agencies.
H.R. 5465 relates to non-Indian preference employees who were employed
by the BCA or IHS on June 17, 1974, the date of the U.S. Supreme sourt
decision on the subject of Indian preference. For the purposes cf
H.R. 5465, these employees are defined as "eligible employees' under
section 1 of the bill.
The bill would appear to be based upon the theory that the United
States Court of Appeals for the District of Columbia and the Supreme
Court decisions of 1974, which established absolute Indian preference
in BIA and IHS employment, caught these "eligible employees" in mid-
career and left them with little opportunity for advancement in those
agencies.
The bill proposes relief by authorizing special treatment designed
to aid "elinible employees" who wish to leave the BIA and the IHS.
It would require the Departments of the Interior and of Health,
Education and Welfare to provide for out-placement of "eligible
employees" of the BIA and IHS under the bill to other parts of those
Departments.
EXCHOR
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Section ? of the bill relates specifically to the Department of the
Interior. Under section 2 of the bill, all applications by "eligible
employees" of the BIA who are cualified in the order of their rating
shall be given contistory priority by the Department in consideration
of their application for each vacancy occurring in the Interior Depart-
ment, other than 2 meaney in the BIA. However, the provisions cf
section 2 shall not anyly to applications for filling 3 vacancy by
transfer CC appointment of = preference eligible, including those
entitled to veteren's preference, reinstatement of such a preference
eligible, or resturation of a person entitled by law to veterans'
re-employment rights.
Under section 3, an "eligible employee" is entitled to the next
occurring vaconcy, unless the Department files compelling reasons for
passin: over such employee with the U.S. Civil Service Commission.
The Con ission yould then be required to determine the sufficiency of
such reasons, and the Department would be required to comply with the
findings of the Commission.
Section 5 authorizes the Civil Service Commission to prescribe regulations
to carry out the bill's provisions.
Section (u) provides that H.R. 5405 would apply to vacancies occurring
duris = three year period beginning after ninety days after enactment,
except that the Civil Service Commission could extend such period for
one year.
Backsround
A number of provisions concerning Indian preference in Federal "Indien
Service" employment had been enacted by the Congress during the 19th and
early 20th conturies (see for example 25 U.S.C. 41-17). However, the
broadest and most modern provision, and the one on which the current
Indian preference requirements are based, is section 12 of the Indian
Reorganization Act of 1934 (43 Stat. 986; 25 U.S.C. 472) which provides:
"Tre Secretary of the Interior is directed to establish
standards of health, age, character, experience, knowledge,
and ability for Indians who may be appointed without regard
to civil-service laws, to the various positions maintained,
now or hereafter, by the Indian Office, in the administra-
ticn of functions or services affecting any Indian tribe.
Such qualified Indians shall hereafter have the preference
to appointment to vacancies in any such position."
Prior to 1972, the Indian preference provision was administered by
the Bureau of Indian Affairs as applying only to initial appoint-
ments and not to subsequent promotions. In 1972 the BIA policy yas
changed to extend the preference to promotions, transfers from
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outside the BIA, and reassignments within the BIA which improved
promotional prospects. The 1972 policy provided the possiblity for
the Commissioner 2: Inlian Affairs to grant exceptions to Indian
preference by approving the selection and appointment of non-Indians
when he considered it in the best interest of the Bureau. The 1972
policy did not extend Indian preference to purely lateral reassignments
which did not improve promotional prospects. Indian preference is
also utilized in establishing employee retention registers for use
in reductions-in-force situations.
In addition, the BIA now encourages tribes to contract for control
and operation of most BIA reservation level activities and the January
1975 enactment of section 102 of the Indian Self-Determination Act
(83 Stat. 2206; 25 U.S.C.S. 450f) directs the contracting of Iost
BIA activities "upon the request of any Indian tribe".
Case Lew on Indian Preference
Two recent court decisions have upheld the validity of section 12
of the Indian Reorganication Act, and its application to initial
hires, promotions, transfers and reassignments.
On April 25, 1974, the United States Court of Appeals for the District
of Columbia in Freeman V. Morton, 499 F.2i 494, upheld an unreporte1
District Court decision in 3 suit brought by four Indian BIA employees.
The Court heli that under the 1934 Indian preference provision Indian
preference applies to the filling of all vacancies in the SIA,
including initial hires, promotions, lateral transfers, and reassign-
ments in the Bureau, and that no exceptions are possible where there
is at least a minimally qualified candidate THE is eligible for Indian
preference.
On June 17, 1974 the U.S. Supreme Court in an 8-0 decision (Morton :.
Mancari, 417 U.S. 535) reversed the decision of a three judge District
Court for the District of New Mexico which had held, in a suit by 2
group of non-Indian BIA employees, that the 1934 Indian preference
provision (25 U.S.C. 472) had been impliedly repealed by enactment
of Section 11 of the Equal Employment Opportunity Act of 1972 (SE Stat.
111; 42 U.S.C. 2000 e-16), prohibiting discrimination in most Federal
employment on the basis of race.
The Court held that Indian preference was not a racial preference
but, rather, it was an employment criterion reasonably designed to
further the cause of Indian self-government and to make the BIA
more responsive to the needs of its constituent groups.
3
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Departmental Assistance Program
This Department is aware that the Freemen and Cancari decisions
and the implementation of the Indian Self nation Act will,
in many cases, have an adverse impact ucon both non-Indian and Indian
employees of the Startment is or itted to providing
placement assistance to those Indian and non-Indian employees of
the BIA whose jobs 02 concroprities have been foreclosed by either
Indian preference or the Department's Indian Determination
policy, and has been fortulating : 2 program to provide such assist-
ance. This pro is being implemented and will become fully
operational in December, 1975. Scne initial crientation sessions for
the program have been held at both field Readquarters locations
and further sessions are currently in the planning stare and will
be
held
in
future.
CODE
or
the
instructions which
describe the program and the implementing trededures is enclosed for
your information.
This program will assist BIA employees with placement within other
bureaus in the Department, and with locating reassignments in other
Federal agencies.
Within the Department, first priority placement assistance would be
given to cometitive carder and career-con itional BIA employees
when: (1) there is 2 reduction in force 2. there are no opportunities
for reassignment within the BIA: (2) 21 activity or function is buing
contracted by 3 tribe and the employee's position is being abolished
and (3) it is imerative to reassig an employee because of certain
hardships such as ill-health, loss of effectiveness with a trite, or
other compelling circumstances. Cue cosition offer would ce made to
employees under the mandatory placement sicns.
Secondary priority placement assistance would be afforded to competitive
career and career-conditional BIA employees who can demonstrate that
they no longer have an opportunity for career advancement in the Bureau
because of Indian preference regulations.
Recommendations
benister
Secretary
::
We are opposed to the enactment of H.R. 5465. Since the Department
is committed to its assistance program, we telleve that this available
administrative solution should be adopted and tried before any
solutions are mandated by legislation. In cur judgment, our program,
when implemented, will meet the objectives cî H.R. 5465.
In our judgment, enactment of this legislation may result in an
adverse impact uson the Department: it does not differentiate the
need among employees for varying degrees of assistance; and it proposes
an administrative process which may result in some personnel disruptions.
Best Possible Scan from Poor Quality Original
The broad application of section 2 could have a widespread impact
upon the process c: filling positions throughout the Department.
Application of H.R. 5455 tc the filling of positions internally
through reassignment or promotion could go beyond any similar employ-
ment preference accorded under re-employment pricrity or separated
career employee programs of the Civil Service Commission.
The bill grants, in section 3, virtually mandatory employment rights
to all "eligible employees" of BIA, regardless of their particular
occupational situation. It would provide mandatory placement rights
to individuals who might wish to leave BIA because they anticipate
career obstacles but who have not actually been displaced. We would
note that 2 significant distinction exists between persons who are
actually displaced through formal procedures and those whose opper-
tunities are either limited or might be limited by Indian preference.
Enactment of this legislation may potentially affect the BIA program
capability in that it could deprive the Bureau of Indian Affairs of a
number of highly experienced employees with technical and managerial
expertise at a time when their skills and experience are most needed
by the BIA. Ne believe that the Departmental program now nearing
implementation will provide 2 reaningful and gradual process for out-
placement.
With regard tc the provisions which concern the Department of Health,
Education and Welfare, and the Civil Service Commission, we defer in
our views to those two agencies.
The Office of Management and Budget has advised that there is no
objection to the presentation of this report from the standpoint of
the Administration's program.
Sincerely yours,
Assistant Secretary of the Interior
Honorable David N. Henderson
Chairman, Committee or
Post Office and Civil Service
House of Representatives
Washington, D.C. 20515
Enclosure
5
United States Department of the Interior
OFFICE OF THE SECRETARY
WASHINGTON, D.C. 20240
October 17, 1975
PERSONNEL MANAGEMENT LETTER NO. 75-40 (330)
SUBJECT:
Departmental Career Placement Assistance Program
Regulations
To:
Personnal Officers
Attached is an advance copy of the Departmental Career Placement
Assistance Program (DCPA) Regulations.
The procedural requirements of the regulations are effective the
date of this PML and are to be incorporated into the Departmental
Manual pending receipt of the published regulations.
Training sessions will be conducted for all servicing personnel
offices of the Department to provide guidance on the implementation
and operation of DCPA. À schedule will be published in the near
future listing locational sites and dates for training sessions.
Organization
Personnel Management
Attachments
INQUIRIES: Mr. S. Donald Youso, Division of Organization and Manpower
Management, Room 5023, Extension 7764
DISTRIBUTION: Bureau Headquarters
CONSERVE
AMERICA'S
ENERGY
Department of the, Interior
DEPARTMENTAL MANUAL
Personnel
Part 370 DM Addition to FPM
Recruitment, Selection and
Chapter 330
Placement (General)
370 DM 330. 1.1
Subchapter 1. Career Placement Assistance Program.
.1 Purpose. This chapter describes the Departmentwide Carcer
Placement Assistance Program which provides placement assistance
to eligible employees of the Department. The Departmentwide Career
Placement Assistance Program (DCPA) provides the primary method
through which employees can apply and be considered for placement
assistance. It is the intent of the Department to provide continu-
ing career opportunities for all employees. In the past, situations
have existed in the Department where certain activities were
expanding. At the same time, other activities were faced with
reduction-in-forde situations. This program provides coordination
of Departmentwide movement and placement of employees from one
activity to another.
.2 Policy. It is the policy of the Department to provide maximum
placement assistance to employees whose careers are affected by
reduction in force, contracting out of Departmental functions,
changes in oversoas employment, and the implementation of Indian
preference in the Bureau of Indian Affairs.
.3 Coverage, Scane, Relationships and Definitions.
A. Departmentwide Career Placement Assistance Program.
(1) The Department Career Placement Assistance Program
(DCPA) is the mechanism through which the Department assists
employees who qualify under the program eligibility criteria to
find other employment in the Department.
(2) The terms and provisions of this program shall apply
to all eligible employees without regard to age, race, color,
religion, sex, national origin, or any other non-merit factor.
(3) The Career Placement Assistance Program is an ex-
tension of and a supplement to existing Department and Civil
Service Commission policies and programs and is not intended to
supersede or negate other Department or CSC requirements concern-
ing placement assistance.
Department of the, Interior
DEPARTMENTAL MANUAL
Personnel
Part 370 DM Addition to FPM
Recruitment, Selection and
Chapter 330
Placement (General)
370 DM 330,
Subchapter 1. Career Placement Assistance Program.
.1 Purpose. This chapter describes the Departmentwide Carcer
Placement Assistance Program which provides placement assistance
to eligible employees of the Department. The Departmentwide Career
Placement Assistance Program (DCPA) provides the primary method
through which employees can apply and be considered for placement
assistance. It is the intent of the Department to provide continu-
ing career opportunities for all employees. In the past, situations
have existed in the Department where certain activities were
expanding. At the same time, other activities were faced with
reduction-in-force situations. This program provides coordination
of Departmentwide movement and placement of employees from one
activity to another.
.2 Policy. It is the policy of the Department to provide maximum
placement assistance to employees whose careers are affected by
reduction in force, contracting out of Departmental functions,
changes in overseas employment, and the implementation of Indian
preference in the Bureau of Indian Affairs.
.3 Coverage, Scane, Relationships and Definitions.
A. Departmentwide Career Placement Assistance Program.
(1) The Department Career Placement Assistance Program
(DCPA) is the mechanism through which the Department assists
employees who qualify under the program eligibility criteria to
find other employment in the Department.
(2) The terms and provisions of this program shall apply
to all eligible employees without regard to age, race, color,
religion, sex, national origin, or any other non-nerit factor.
(3) The Career Placement Assistance Program is an ex-
tension of and a supplement to existing Department and Civil
Service Commission policies and programs and is not intended to
supersede or negate other Department or CSC requirements concern-
ing placement assistance.
Department of the Interior
DEPARTMENTAL MANUAL
Personnel
Part 370 DM Addition to FOX
Recruitment, Selection and
Chapter 330
(General)
370 DM 330, 1.33
B. Basic Requirement. Under the DCPA, employees who are
eligible for and have applied for career placement assistance,
will be afforded maximum consideration for vacancies throughout
the Department. It is the responsibility of each servicing
personnel office to .insure that DCPA applicants receive priority
consideration for all vacancies for which they are qualified,
and at geographical locations where they have indicated availa-
bility.
C. Category I Placement Assistance. Category I placement
assistance provides eligible candidates consideration for all vacan-
cies at their current grade level Departmentwide, for which they
qualify, and offers placement opportunity in 1 continuing position
when there is an available vacancy which matches their grade level
and geographical location preference. Category I placement assis-
tance will be given to competitive career and career-conditional
employees of the Department under the following circumstances:
(1) When an employee is faced with loss of job caused by a
reduction in force.
(2) When an employee of the Bureau of Indian Affairs must be
reassigned because of documented life or health threatening
circumstances beyond the employee's control, and when reassignment
cannot be effected within the Burezu by reason of the operation of
Indian preference.
(3) When an employee of the Trust Territory of the Pacific
Islands in displaced by a Micronesian and must return to the
Continental United States.
(4) Eligibility for retention on a DCPA List for Category I
placement assistance is limited to a two year period.
D. Category II Placement Assistance. Category II placement
assistance provides eligible candidates consideration for all
Vacancies at their current grade level Departmentwide, for which
they qualify. Category II placement assistance will be afforded to
employees of the Department under the following circumstances:
(1) When career and career-conditional employees of BIA
can demonstrate that opportunities for career advancement in the
Bureau of Indian Affairs are not possible because of Indian prefe-
rence regulations.
Department of the, Interior
DEPARTMENTAL MANUAL
Personnel
Part 370 DM Addition to FPM
Recruitment, Selection and
Chapter 330
Placement (General)
370 DM 330, 1.32(2)
(2) When an employee in the Virgin Islands, Guam, Trust
Territory of the Pacific Islands, and in American Samoa having re-
instatement eligibility, expresses an interest in returning to the
Continental United States.
(3)
employee in the Excepted Service in the
Government American Samoa without reinstatement eligibility,
wishes to return to the Continental United States, and is within
reach on a Civil Service Commission register for a position to be
filled
(4) Eligibility for retention on a DCPA List for Category
II placement assistance is limited to 2 two year period.
E. Salary and Pay.
(1) Highest Previous Fate. An employee of the Department
who is plac through DCPA will have his/her pay fixed in the new
grade at a Step which preserves, as far 25 cossible, his/her last
earned rate when such rate is earned while serving under a
temporary pec: Onion.
E.
(2) Sulery Retention. An employee placed in a lower grade,
who is eligible for salary retention under FPM Chapter 531, Sub-
chapter 5,-vill be accorded salary retention if such rate is higher
than that which can be provided under the highest previous rate rule.
F. Continuing Positions. It is intended that employees
referred to: Macement will DC placed in continuing positions. A
continuing position is an unencumbered or uncommitted fulltime
position in the competitive service without a known termination date
that is scheduled to be filled, or any full-time position in the
competitive service without a known termination date encumbered by
a TAPER, or to corary appointec or promotee. The standard RIF
definition of = position that will continue for more than 90 days
will not tc used as the criterion.
4 Responsibilities.
C.
A. Department of the Interior - Office of the Secretarv.
for
(1) The Office of Organization and Personnel Management
is responsible for:
(a)
Career
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Department of the. Interior
DEPARTMENTAL MANUAL
Personnel
Part 370 DM Addition to FPM
Recruitment, Selection and
Chanter 330
(Gonoral)
370 DM 330, 1.40(1)(a)
representative to assist employees eligible to apply for the
program.
(b) Exploring placement efforts for applicants for the
program, and referring to the bureau hosdquarters applicants who
cannot be placed within that personnel office's area of responsibi-
lity. Referrals made to bureau headquarters will document placement
efforts that have been made.
(c) Insuring that all personnel actions are made in
accordance with the requirements spelled out in this chapter.
(d) Determining employee eligibility for the program,
counseling employees, and registering exployees in the program in
accordance with paragraph 370 DM 330, 1.5E.
(e) Establishing contacts with local Federal agencies
to be appraised of their recruitment needs and referring employees
who request Career Placement Assistance.
.5 Procedures.
A. Advance Pleaning. The Departmentwide Career Placement
Assistance Program presupposes that all servicing personnel offices,
faced with a reduction-in-force situation, or other personnel
situations requiring action and qualifying under the Category I or
Category II placement assistance aspects of this Chapter, will make
every effort to effect satisfactory placements. As part of this
effort, each office/bureau will develop an internal manpower
relocation program. This program will provide for a systematic and
equitable way to reassign bureau personnel to accomodate changes in
program priorities and to provide for proper utilization of
personnel within the bureau. Referrals by a bureau of individuals
eligible for placement under the Career Placement Assistance Program
should not be made until such time as all placement efforts have been
exhausted within the bureau.
B. Eligibility.
(1) Employees are eligible to apply for the Career Place-
ment Assistance Program who qualify under the criteria listed in
370 DM 350, 1.3C and D.
Department of the Interier
DEPARTMENTAL MANUAL
Personrel
Part 370 DM Addition to TPM
Recruitment, Selection and
Chapter 330
Placement (General)
370 DM 330, 1.5E(2)
(2) Employees who receive a specific notice of reduction
in force must apply for the program no later than 50 calendar days
after the date of receipt of the RIF notice in order to be eligible.
(3) Employees applying for Category II Placement Assistance
under the provisions of 370 DM 330, 1.3D(1), must do so by
September 30, 1976, in order to receive consideration.
(4) Career or career-conditional employees of the Bureau of
Indian Affairs, not eligible for Indian preference, employed after
the Supreme Court decision (Mancari vs Morton) of June 17, 1974, are
not eligible for Category II Assistance. This does not obviate the
opportunity for placement assistance under the Category I provisions
of this chapter.
C. Application.
(1) Application is voluntary on the part of eligible
employees, and only those who are willing to accept employment at
other activities within the Department should apply.
(2) When an eligible employee applies for the DCPA, the
losing servicing personnel office obtains an updated SF-171, a
supervisory evaluation, and a completed Career Placement Assistance
Form DI 1832. This form is included as attachment A to this chapter,
and should be obtained through the usual supply channels. Until
regular stock of DI 1832 is obtained, the form may be reproduced
locally. A copy of SF-171, a copy of the supervisory evaluation, and
a copy of DI 1832 are sent by the losing personnel office to the
Bureau Headquarters for appropriate action. A copy of DI 1832 should
be given to the employee. A copy of DI 1832 will be retained by the
servicing personnel office.
(3) Eligible employees will be given a choice in selecting
geographical areas where they are willing to work. In the applica-
tion process, the losing personnel office should advise applicants
that a broad geographical preference area will afford increased
opportunities for placement. However, applicants must be cautioned
that completion of the application form requesting placement
consideration in a specific geographic area means they must accept
a position if offered in that particular geographic area. If they
do not, their names will be removed from the DCPA List and they will
not be eligible for the program.
Department of the Interior
DEPARTMENTAL MANUAL
Personnel
Part 370 DM Addition to 7PM
Recreitment, Sciection and
Chapter 330
Placement (General)
370 DM 330, 1.50(4)
(4) Employees may apply for not more than three occupational
series for which they are qualified and available which do not
exceed their provint grade level or the grade level held at the time
of the reduction-in-force action. They may also apply for accept-
able lower grade positions for which they qualify. Employees may not
apply at grade levels to which temporarily promoted.
(5) Applications must be submitted to the Bureau Head-
quarters as soon 35 possible prior to the proposed date to terminate
the employee or in allow for reassignment in a hardship case. The
Bureau Career Placement Assistance Coordinator will review
the application : determine if all bureau placement efforts have been
exhausted. This must is accomplished no later than 20 days after the
application is received. Only then will the request be forwarded to
the Department. If placement assistance is requested because of
medical reasons, 2 statement from a medical doctor must accompany
the application.
D. Employee Colivations. Applicants must cooperate with and
keep their servicing personal office advised of current address
and terenhone member where they can be contacted. They must notify
such office immediately if for some reason they are not available
to accept Department employment, or if they decide to withdraw as a
participant in the program.
E. Counseling.
(1) Eligible employees will be counseled, by the losing
personnel office, regarding their rights and obligations under the
DCPA and will be provided information about Department activities
in which they have expressed in interest. If appropriate,
applicants should also be counseled on the advantage of considering
lower grade positions because of the additional opportunity for
selection which will be afforded. Upon completion of the counseling
session and preparation of the Career Placement Assistance Appli-
cation Forms, DI 1S32, both the applicant and the representative of
the servicing personnel office will-sign the forms.
(2) This counseling will be important for all employees,
but especially for employees of the Bureau of Indian Affairs who are
applying for Category II placement assistance. These employees must
receive guidance regarding career opportunities, and it must be
determined if the employee has other career interests, or specialized
skills or experience which can be identified. These applicants
Best Possible Scan from Poor Quality Original
Department of the Interior
DEPARTMENTAL MANUAL
Personnel
Part 370 DM Addition to FPM
Recruitment, Selection and
Chapter 330
Placement (Ceneral)
370 DM 330, 1.5E(2)
should be advised that, realistically, it may not be possible to
provide immediate nincement and a reasonable length of time should
be allowed for suitable vacancias to be located.
(3) When an applicant fails to receive an offer after a
reasonable period of time (60-90 days). and the losing servicing
personnel office determines that it is unlikely that placement will
be made because of the size of the original area or the employee's
restrictions as to availability (positions, locations, or acceptable
grade level) the employee will be comseled on the various possi-
bilities of increasing the opportunities for placement.
F. Preparation and Distribution of DCPA Lists.
(1) Career Placement Assistance Program Lists will be
prepared by the Departmental Career Placement Assistance Coordinator
from the application forms (Attachment A) provided by the Head-
quarters Office of each bureau, and will follow the format found in
Attachment 5. Conics of the list will be distributed to each major
servicing personnel office Departmentwide, and to each Bureau llead-
quarters =s listed in Attachment C. The servicing personnel
offices are responsible for further distribution of the lists to any
office under the jurisdiction which exercises appointing authority.
(2) The lists will be divided into two groups, individuals
eligible for Category I placement consideration and individuals
eligible for Category II placement consideration.
(3) A new and complete list of current applicants will be
prepared and distributed at the beginning of each month. Periodi-
cally during the month update information will be distributed by the
Departmental Career Placement Assistance Coordinator.
(4) Losing personnel offices are responsible for keeping the
Departmental Career Placement Coordinator informed of changes to be
made in the lists.
G. Selections from Career Placement Assistance Program Lists.
(1) When a servicing personnel office receives a DCPA List
of eligibles for placement consideration, the list will be screened
to determine if there are applicants whose skills match existing
vacancies.
Department of :he Interior
DEPARTMENTAL MANUAL
Personnel
Part 370 DM Addition to FPM
Recruitment, Selection and
Chapter 330
Placement (General)
370 DM 330, 1.5G(2)
(2) If, after screening the DCPA List there are applicants
whose skills match vacancies, requests will be made for the SF-171's
of the available applicants. Contact is made directly with the
the Departmental Program Coordinator to obtain the SF-171's.
(3) Category I and Category II applicants will be afforded,
as 3 minimum, the same consideration as eligibles on an Interior
Receployment Priority List in every location for which they have
indicated availability. Selections of DCPA applicants must be in
accordance with the procedures governing selection from a RPL as
described in MI Chapter 330, Subchapter 2. Category I and Category
II applicants may be selected noncompetitively for lateral reassign-
ment or for placement in positions of a lower grade level.
If the appointing authority announces a position through merit
promotion procedures, Category I and II applicants must be entered
into the promotion file and given maximum consideration for
placement.
(4) Selections from the DEPA Listo must == made in
category order. Persons in Category I must be selected before
persons in Category II. The losing activity will release employees
within two works after positions are accepted, or in no case later
than 30 days without mutual agreement between the releasing and
gaining activities.
(5) It is the responsibility of each bureau headquarters
to monitor placement efforts within their bureau. If Category I
applicants are not placed within 60 days after distribution of a
DCPA List or if Category II applicants are not placed within 120
days after distribution of a DCPA List, the Office of Organization
and Personnel Management will review the placement efforts of each
bureau and determine the appropriate action required to effect
placement. Such measures for Category I may include, but are not
limited to, action by the Office of the Secretary in imposing
Departmentwide hiring restrictions for specific occupations,
locations or organizations, directed placement procedures, or other
action which will be necessary to effect placement. Bureau
personnel officers will be consulted prior to implementation of
extended placement procedures.
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Department of the Interior
DEPARTMENTAL MANUAL
Personnel
Part 370 DM Addition to FPM
Recruitment, Selection and
Chapter 330
Placement (General)
370 DM 330. 1.5H
H. A Valid Offer. A valid offer is the offer of a continuing
position by a activity which meets the grade level (s)
and location(s) for which the employee has applied provided the
offer includes payment of travel and transportation expenses either
by the gaining or losing office when relocation is required. Only
one position offer will be made to an applicant eligible for either
Category I or Category II Placement Assistance.
I. Payment of Travel Expenses. As a general rule, the losing
office will pay the applicable travel and transportation expenses.
However, arrangements may be made, through negotiation between the
gaining and losing offices, for cost sharing of travel expenses.
J. Removal From the Program. When an applicant accepts a
position, declines a designated valid offer as specified in
paragraph 370 DM 330, 1.31, fails to keep the losing servicing
personnel office informed of his/her whereabouts, or requests
voluntary removal from the program, the losing servicing personnel
office will immediately instruct the Department Chreer Placement
Coordinator to remove the applicant from the program. To the extent
possible, DCPA Lists should contain only available eligibles. In
view of this, the above notification should be made initially by
telephone. This will be followed by a confirmation memorandum
stating the applicant's name, organization, servicing personnel
office, and the reason for removal.
K. Records and Reports.
(1) Losing servicing personnel offices will maintain an
individual folder on each employee applicant in the Department
Career Placement Assistance Program. The folder will be maintained
for a period of one year after the applicant is removed from the
program and will contain the following information:
(a) A copy of the Career Placement Assistance
Application Form. (DI 1832).
(b) Dates of counseling, and name of individual
providing counseling.
(c) Position title, series, and grade at time of
application.
Best Possible Scan from Poor Quality Original
Department of the Interior
DEPARTMENTAL MANUAL
Personnel
Part 370 DM Addition to FPM
Recrui Ement, Selection and
Chapter 330
Placement (General)
370 DM 330. 1.5K(1)(d)
(d) Copies of any general or specific reduction-in-
force, separation or demotion notices, functional transfer offers,
and declinations.
(e) Offers received, accepted, or declined and from
which organizations or activities.
(f) Reasons for declinations.
(g) Date removed from the Program and the reason.
(2) Each servicing personnel office will submit a 60 day
report to their bureau headquarters detailing placement efforts
that have been made for applicants of the DCPA. The report will list
the total number of Category I and Category II applicants considered
and the successful placements made.
Consolidated reports will be submitted to the Director, Office of
Organization and Personnel Management by each bureau headquarters.
Attachment A
DEPARTMENT OF THE INTERIOR
CAREER PLACEMENT ASSISTANCE APPLICATION
This form is designed to be used by individuals applying for the Departmental
Career Placement Assistance Program (DCPA). Application is voluntary on the
part of eligible employees, and only employees applying for the DCPA will be
provided placement assistance. The information contained on this form will
be used to establish elicibility and provide placement assistance for applicants
of the DCPA as provided in 370 DM 330.1.
Form will be completed in triplicate. One copy is retained by the servicing
personnel office; one copy is given to the applicant; one copy is forwarded
to the bureau headquarters with the SF-171 and supervisory evaluation.
To be completed by servicing personnel office in consultation with employee.
I. PERSONAL DATA
1. Name:
2. Position Title:
3. Organization and Employment Location:
4. Service Computation Date:
Year Month Day
5. Category Group:
(I or II)
6. Reason for Requesting Assistance:
7. Special Family Needs: Health, Schools, or other unique problems:
II. POSITIONS
The positions below are those for which the employee is qualified under
CSC Handbook X-118 and in which the employee has expressed interest.
Pay Plan
Series
Grade(s)
1.
2.
3.
Lowest Acceptable Salary
Lowest Acceptable Grade
III. LOCATIONS
Indicate below the geographic areas where the employee is available to work.
1.
2.
3.
4.
5.
If an employee declines an offer of a position and grade and location for which
application is made, the applicant will be removed from the program.
All applicants must keep their servicing personnel office advised of current
address and telephone number where they can be reached and if. for any reason
they are not available to accept Departmental employment. Employees who fail
to keep the servicing personnel office informed of their whereabouts and cannot
be located will be removed from the program.
Employee's Signature
Date
Personnel Office Representative's Signature
Date
Servicing Personnel Office
Attachment B
DEPARTMENT OF THE T APERIOR
CAREER PLACEMENT ASSISTANCE PROGRAM ELIGIBLES
Name
(2) Present Pay/ (3) Title/Duty (4) Other Series/ (5) Category (6) Accp. Geog. (7) Accp. (8
Scries/Grade
Station
Grade Qualified
Group
Location
Grade
ey, C. B.
GS-341-12
Admin. Off.
342.. 11,12
I
Az.
GS-11 I
Tucson, Az.
343.- 11,12
NM
Servicing Personnel Office number identifics the office which submitted the Career Placement Assistance
Application. See Attachment C for listing.
SERVICING PURSONNEL OFFICE IDENTIFICATION CODES
IN01
Office of the Secretary - Division of. Personnel Services
IN19
Alaska Power Administration
IN04
Southeastern Power Administration
IN03
Southwestern Power Administration
IN02
Bonneville Power Administration
IN09
Bureau of Mines - Headquarters Office
IN091
Bureau of Mines - Pittsburgh Office
IN092
Bureau of Mines - Denver Office
IN20
MESA - Headquarters Office
IN20P
MESA - Pittsburgh Office
IN20D
MESA - Denver Office
IN150
Fish and Wildlife Service - Headquarters Office
IN151
Fish and Wildlife Service - Portland Region 1
IN152
Fish and Wildlife Service - Albuquerque Region 2
IN153
Fish and Wildlife Service - Twin Citics Region 3
IN154
Fish and Wildlife Service - Atlanta Region 4
IN155
Fish and Wildlife Service - Boston Region 5
IN156
Fish and Wildlife Service - Denver Region 6
IN17
Bureau of Outdoor Recreation
IN05
Bureau of Land Management - Headquarters Office
IN0550
Bureau of Land Management - Alaska State Office
IN0504
Bureau of Land Management - California State Office
IN0536
Bureau of Land Management - Oregon State Office
IN0552
Bureau of Land Management - Denver Service Center
INOS
Geological Survey - Headquarters Office
TOONT
Geological survey - tastern Region ULICE
IN0S2
Geological Survey - Central Region Office
IN083
Geological Survey - Western Region Office
IN0S4
Geological Survey - Mid-Continent Personnel Office
INIOE
National Park Service - Headquarters Office
IN10E1
National Park Service - National Capital Parks
IN10A
National Park Service - Scutheast Regional Office
IN10G
National Park Service - Midwest Regional Office
INIOK
National Park Service - Western Regional Office
IN10F
National Park Service - Mid-Atlantic Regional Office
IN10P
National Park Service - North Atlantic Regional Office
INIOM
National Park Service - Pacific Northwest Regional Office
IN10J
National Park Service - Southwest Regional Office
IN100
National Park Service - Rocky Mountain Regional Office
INION
National Park Service - Harpers Ferry Center
IN07
Bureau of Reclamation - Headquarters Office
IN0710
Bureau of Reclamation - Engineering & Research Center
IN0701
Bureau of Reclamation - Pacific Northwest Regional Office
IN0702
Bureau of Reclamation - Mid-Pacific Regional Office
IN0703
Bureau of Reclamation - Lower Colorado Regional Office
IN0704
Bureau of Reclamation - Upper Colorado Regional Office
IN0705
Bureau of Reclamation - Southwest Regional Office
IN0706
Bureau of Reclamation - Upper Missouri Regional Office
IN0707
Bureau of Reclamation - Lower Missouri Regional Office
IN06K
Bureau of Ind
Affairs - Headquarters Offic
IN961
Burcau of Indian Affairs - Aberdeen Area Office
IN06C
Bureau of Indian Affairs - Billings Area Office
IN06C
Burcau of Indian Affairs - Muskogee Area Office
IN06N
Burcau of Indian Affairs - Navajo Area Office
IN06P
Bureau of Indian Affairs - Portland Area Office
IN06S
Bureau of Indian Affairs - Administrative Services Center
IN06E
Bureau of Indian Affairs - Juneau Area Office
IN06M
Bureau of Indian Affairs - Albuquerque Area Office
INOCK
Bureau of Indian Affairs - Phoenix Area Office
OF
United S tes Department of the In rior
500
BUREAU Or INDIAN AFFAIRS
WASHINGTON, D. C. 20245
IN REPLY ICHER TO:
AUG 7 1975
To A1 Tribal Chairmen:
Indian preference for employment in the Bureau has ranked
very high among the major policy issues facing the Bureau
during the past two and one-half years. Now that the
Supreme Court has upheld employment preference for Indians,
a secondary question of how the determination is made as to
who has Indian preference must be faced. The present criteria
of "one-fourth degree of Indian blood of a Federally-recognized
tribe" which was established by Executive Order, has been
challenged through administrative appeal and as of April 17
1975, by court action.
In October, 1974 I established a BIA Study Committee to
give me a recommendation as to how we should proceed to
more effectively advance our Indian preference policies
including a thorough review of the existing policy state-
ment. The majority of this Committee recommended that the
present policy be changed to more accurately reflect the
preference requirements set forth in Section 19 of the
Indian Reorganization Act (IRA).
In December, 1974 I requested that the Solicitor research
the question of Indian employment preference and advise me
concerning the legal basis for the administration of this
policy. In April the Solicitor issued his. opinion which
advised that the Indian Reorganization Act of 1934 contained
the primary statutory basis for Indian preference, and that
this Act did in fact supercede the Executive Orders, upon
which the present policy is based. According to the
Solicitor's research, the Bureau's Indian preference policy
in terms of qualifications for BIA employment, must be
expanded to provide "preference" to all members of tribes
organized under the Indian Reorganization Act of 1934
regardless of degree of Indian blood.
The expansion of Indian preference employment eligibility
represents a significant policy change for the Bureau. The
Solicitor has advised that some flexibility does exist for
ICENED
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AMERICA'S
I'me 100
N
ENERGY
Cy 530
1975
Save Enerov and You Sorve Americal
-2-
the extension of the "tribal membership" criteria to other
Federally-recognized non-IRA tribes. Before we start the
action necessary to make this policy change, I would like
to have an expression from you and your Tribal Council on
this matter. Based on the recommendations from the Committee
I appointed to study this matter and the research and findings
of the Solicitor, I am proposing that the following be
adopted as the BIA policy for Indian preference in employ-
ment:
"An Indian has preference in initial appointment,
including lateral transfer from outside the
Bureau, reinstatement and promotion. To be
eligible for preference, an individual must meet
any one of the following:
(a) a member of any recognized tribe now
under Federal jurisdiction, or
(b) a descendant of a member of a Federally-
recognized tribe who was on June 1, 1934,
residing within the boundaries of any
Indian reservation under Federal juris-
diction (For purposes of definition, the
residing of either the descendant or the
antecedent members satisfies the require-
ments of this provision.), or
(c) one-half or more Indian blood, or
(d) an Eskimo or a person descended from the
other aboriginal peoples of Alaska, or
(e) a person one-fourth or more Indian blood
who is a descendant of a member of the
Five Civilized Tribes in Eastern Oklahoma
and the Osage tribe that have not organized
under the Oklahoma Welfare Act, or
(f) a person of one-fourth degree of more
Indian blood of a Federally-recognized
tribe who was eligible for "preference"
under existing policy as of the effective
date for this new policy."
The alternative would be to follow a very strict interpretation
of the 1934 Act which would mean that only members or descendants
of members of tribes organized under the IRA and other related
acts would be eligible for employment preference without
-3-
regard to degree of Indian blood. The following represents
the optional approach to the proposed policy:
"An Indian has preference in initial appointment,
including lateral transfer from outside the
Bureau, reinstatement and promotion. To be
eligible for preference, an individual must
meet any one of the following:
(a) a member of any recognized tribe organized
under the Indian Reorganization Act and
other related acts now under Federal
jurisdiction, or
(b) a descendant of a member of a Federally-
recognized tribe organized under the
Indian Reorganization Act or other
related acts who was on June 1, 1934,
residing within the boundaries of any
Indian reservation under Federal juris-
diction (For purposes of definition, the
residing of either the descendant or the
antecedent members satisfies the require-
ments of this provision. or
(c) one-half or more Indian blood, or
(d) an Eskimo or a person descended from the
other aboriginal peoples of Alaska, or
(e) a person one-fourth or more Indian blood
who is a descendant of a member of the
Five Civilized Tribes in Eastern Oklahoma
and the Osage tribe that have not organized
under the Oklahoma Welfare Act, or
(f) a person of one-fourth degree of more
Indian blood of a Federally-recognized
tribe who was eligible for "preference"
under existing policy as of the effective
date for this new policy. "
Two things should be noted in your considerations: (1) This
policy change effects BIA employment qualifications only and
has no bearings on program or service eligibility. (2) This
proposal contains a provision which maintains the eligibility
for all persons covered under the present policy.
- 4 -
I would like to have your response to this proposed policy
change by September 15, 1975. If possible, I would like
to have a Council resolution expressing the position of
the majority of the Council on this matter. I recognize
that this is a short time allowance, particularly for a
Council resolution. The reason for the short response
time is that a case has been filed in Federal court on the
very question of tribal membership in an IRA tribe and
eligibility for Indian preference. It is, therefore, very
important that we move as quickly as possible in determin-
ing the new policy for Indian preference and not have the
courts directing the Indian employment preference.
Your cooperation and assistance in this vital policy area
will be appreciated.
Sincerely yours,
Morris Chompson
Commissioner of Indian Affairs
OPING FORM 10
MAY EDITION
GSAPPMN
UNITED STATES GOVERNMENT
Memorandum
TO
:
Area Directors
DATE: JUL 11 1975
Central Office Directors
FROM : Commissioner of Indian Affairs
SUBJECT: Indian Preference Policy
Attached is a letter which I plan to send out to all Tribal
Chairmen soliciting their recommendations for the revision
of the Bureau's Indian preference employment policy. This
letter is based on the Solicitor's opinion given on April 9.
I would like for you to review this letter immediately and
phone your comments and recommendations to Jim Robey on or
before July 18. I regret the short turn-around time in this
vital matter. However, I feel we must get the letter to
the Tribal Chairmen in the mail by July 28 in order to have
their responses by September 1. This very tight timetable
is dictated by a court action on this subject now pending
in the Aberdeen area.
Your cooperation and assistance is greatly appreciated.
Morris Tompson
Attachment
17 1275JUL17 PT 2:02
7/10
draft
To All Tribal Chairmen:
Indian prefercnce for employment in the Bureau has ranked
very high among the major policy issues facing the Bureau
during the past 2 1/2 years. Now that the Supreme Court
has upheld the policy of employment preference for Indians,
the secondary question of how the determination is made on
who is an Indian must be faced. The present policy of
"1/4 degree Indian blood of a Federally-recognized tribe"
which was established by 1934 Executive Order, has been
challenged through administrative appeal and as of 4/17/75
by court action.
In December, 1974 I requested that the Solicitor research
the question of Indian employment preference and advise me
concerning the legal basis for the administration of this
policy. In April the Solicitor issued his opinion which
advised that the Indian Reorganization Act of 1934 contained
the primary statutory basis for Indian preference, and that
this Act did in fact supercede the 1934 Executive Order, upon
which the present policy is based. According to the Solicitor's
research, the Bureau's Indian preference policy, in terms of
qualifications for BIA employment, must be expanded to
provide "preference" to all members of tribes organized under
the Indian Reorganization Act of 1934 regardless of degree
of Indian blood.
-2-
The expansion of Indian preference employment eligibility
represents a significant policy change for the Bureau. The
Solicitor has advised that some flexibility does exist for
the extension of the "tribal membership" criteria to other
Federally-recognized non-IRA tribes. Before we start the
actions necessary to make this policy change, I would like
to have an expression from you and your Tribal Council as
to the policy that should be adopted. Based on the Solicitor'
findings there are two primary options that can be reasonably
considered.
Option I contains the basic requirements derived from the
Solicitor's research. That is that enrolled members of an
IRA tribe are eligible for Indian preference for BIA employ-
ment. Under this option all other persons from other Federally
recognized (non-IRA) tribes qualify on the same basis as they
do now; one quarter or more of Indian blood.
Option II would extend the tribal membership basis to all
Federally-recognized tribes as a qualification for Indian
preference eligibility; in other words, the proviso would
be as written, that enrolled members of all Federally-
recognized tribes would be eligible for Indian preference.
Additionally, the one quarter degree requirement would be
maintained primarily for descendants of members of the five
civilized tribes in Oklahoma.
Two things should be noted in your considerations: (1) This
policy change affects BIA employment qualifications only and
-3-
has no bearings on program or service eligibility.
(2) Each option contains a provision which maintains the
eligibility for all persons covered under the present
policy.
I would like to have your response, in terms of a preferred
option, by September 1. If possible, I would like to have
a Council resolution expressing the wishes of the majority
of the Council on this question. I recognize that this may
be a short time span, particularly if a Council resolution
is requested. The reason for the short response time is that
a case has been filed in Federal court on the very question
of tribal membership in an IRA tribe and eligibility for
Indian preference. It is, therefore, very important that
we move as quickly as possible in determining the new policy
for Indian preference.
Your cooperation and assistance in this vital policy area
will be apprecdated.
Sincerely,
Commissioner of Indian Affairs
Option I
Under this option persons may qualify for "Indian Preference"
in seeking employment with the Bureau of Indian Affairs who
meet either of the following qualifications of Indian ancestry
Members of tribes organized under the Indian
Reorganization Act.
Persons who are 1/4 degree Indian blood of a Federally
recognized tribe.
Option II
Under this option persons may qualify for "Indian Preference"
in seeking employment with the Bureau of Indian Affairs who
meet either of the following qualifications cf Indian ancestry
Members of Federally-recognized tribes.
Persons who are 1/4 degree Indian blood of a Federally
recognized tribe.
JULY
ED'TION
GS/ 141 CFRI 101.11.6
UNITED STATES GOVERNMENT
30230
Memorandum
:
Mr. James Robey, Office of the Commissioner
DATE: 11 JUL 1975
ROM : Acting Chief Personnel Officer
:BJECT: Draft of Letter to the Tribal Chairmen re: Indian Preference
I have discussed your draft with Mr. Billy by telephone: It is his wish
that we proceed with the letter to the Tribal Chairmen which was worked
out in accordance with discussions with the Deputy Commissioner and the
Commissioner. The letter needs some editing and change in format, but
otherwise indicates the thinking of the participants in a meeting last
month with Deputy Commissioner Frankel, Ron Esquerra, Les Gay of Tribal
Operations and others.
As a side note on your draft, however, you state present policy is based
on a 1934 Executive Order which was superceded by the Indian Reorganization
Act. This is in error. Present policy and Civil Service Commission
regulations are based on E.O. 8043 signed on January 31, 1939. Personnel
in the Bureau and in the Department are of the opinion the regulations are.
based on an interpretation of the IRA in order to implement the provisions
of the Act in a "reasonable and equitable" manner, as stated in the present
regulations.
In the second paragraph you also state "According to the Solicitor's research
the Bureau's Indian preference policy, in terms of qualifications for BIA
employment, must be expanded ---". We believe the word should be "may" since
it is an opinion we are discussing, not a court order. The Chairman of the
Interior and Insular Affairs Committee in his letter of May 19, 1975, addressed
to the Solicitor questions whether legal opinions of Associate Solicitors are
binding upon employees of the Department in their official activities, unless
it has been determined that such opinions are binding, it does not appear the
Commissioner is mandated to change policy or regulations. It should be noted
that the particular opinion of April 9, 1975, was questioned in the letter
cosigned by Senator Jackson and Congressman Meeds as to its validity as a
Secretarial position.
Know m. Finder
Inc. 100 100
ADMISCRIVED
0
any
AUG as 1975
Buy U.S. Savines Bonds Regularly 012 the Pavroll Savings Plan
draft
To All Tribal Chairmen:
Indian preference for employment in the Bureau has ranked
very high among the major policy issues facing the Bureau
during the past 2 1/2 years. Now that the Supreme Court
has upheld the policy of employment preference for Indians,
the secondary question of how the determination is made on
who is an Indian must be faced. The present policy of
"1/4 degree Indian blood of a Federally-recognized:tribe"
which was established by 1934 Executive Order, has been
challenged through administrative appeal and as of 4/17/75
by court action.
In December, 1974 I requested that the Solicitor research
the question of Indian employment preference and advise me
concerning the legal basis for the administration of this
Weent
policy. In April the Solicitor issued his opinion which
advised that the Indian Reorganization Act of 1934 contained
1939 8043 on
the primary statutory basis for Indian preference, and that
this Act did in fact supercede the 1934 Executive Order, upon
which the present policy is based. According to the Solicitor's
research, the Bureau's Indian preference policy, in terms of
qualifications. for BIA employment, must be expanded to
provide "preference" to all members of tribes organized under
the Indian Reorganization Act of 1934 regardless of degree
of Indian blood.
The expansion of Indian preference employment eligibility
represents a significant policy change for the Bureau. The
Solicitor has advised that some flexibility does exist for
the extension of the "tribal membership" criteria to other
Federally-recognized non-IRA tribes. Before we start the
actions necessary to make this policy change, I would like
to have an expression from you and your Tribal Council as
to the policy that should be adopted. Based on the Solicitor's
findings there are two primary options that can be reasonably
considered.
Option I contains the basic requirements derived from the
Solicitor's research. That is that enrolled members of an
IRA tribe are eligible for Indian preference for BIA employ-
ment. Under this option all other persons from other Federally-
recognized (non-IRA) tribes qualify on the same basis as they
do now; one quarter or more of Indian blood.
Option II would extend the tribal membership basis to all
Federally-recognized tribes as a qualification for Indian
preference eligibility; in other words, the proviso would
be as written, that enrolled members of all Federally-
option
recognized tribes would be eligible for Indian preference.
no
Additionally, the one quarter degree requirement would be
for
maintained primarily for members of tribes in Oklahoma whose
rolls have been closed for several years.
For
Two things should be noted in your considerations: (1) This
policy change effects BIA employment qualifications only and
has no bearings on program or service eli bility.
(2) Each option contains a provision which maintains the
eligibility for all persons covered under the present
policy.
I would like to have your response, in terms of a preferred
option, by September 1. If possible, I would like to have
a Council resolution expressing the wishes of the majority
of the Council on this question. I recognize that this may
be a short time span, particularly if a Council resolution
is requested. The reason for the short response time is that
a case has been filed in Federal court on the very question
of tribal membership in an IRA tribe and eligibility for
Indian preference. It is, therefore, very important that
we move as quickly as possible in determining the new policy
for Indian preference.
Your cooperation and assistance in this vital policy area
will be appreciated.
Sincerely,
Commissioner of Indian Affairs
Option I
Under this option persons may qualify for "Indian Preference"
in seeking employment with the Bureau of Indian Affairs who
meet either of the following qualifications of Indian ancestry.
Enrolled members of tribes organized under the
Indian Reorganization Act.
Persons who are 1/4 degree Indian blood of a Federally-
recognized tribe.
Option II
Under this option persons may qualify for "Indian Preference"
in seeking employment with the Bureau of Indian Affairs who
meet either of the following qualifications of Indian ancestry.
Enrolled members of Federally-recognized tribes.
Persons who are 1/4 degree Indian blood of a Federally-
all
recognized tribe.
1/720 il
INDIAN PREFERENCE ALTERNATIVES:
(1) NO CHANGE- CONTINUE TO OPERATE AS WE HAVE BEEN
Advantages
Disadvantages
Uniformity and Consistency. One
Law Suits. Inaction would not.
Nation-wide standard that is gen-
resolve and of the present. Coc
erally accepted by employees and
and Administrative appeals com
Tribes.
the 1/1. criteria.
Operational Guidelines. Provid-
Court Decision. Inscrion may
ential Executive Order, Civil
result in a Court weking the
Service Commission, Department
determination which may or any
and Bureau regulations are all
not conform with BIA or Tribal
related to 1/1. criteris. Our
desires.
Indian appointment authority is
based on the Executive Order and
we would not have to request
another Order.
Indian. A person would have to be
at least 1/1 degree Indian blood
before we recognize him as an
Indian.
Federal Employment. The 1/L degree
requirement is designed for Federal
employment procedures or. a national
scale. Many present BIA employees now
are able to transfer to other Federal
Agencies.
Lack of Discontent. Ve have had
very few appeals by employees OF
applicants concerning the 1/1: degree
requirement over the last 35 years.
No organized employee group has in-
dicated that they desire to change
this criteria.
is change could load to other der Menges.
If the 1/1. critication to modified for
employment purposes; individual: and
Tribes would soon question its application
in other Bureau matters (e.g. enrollment
in Bureau Boarding Schools, eligibility
for educational grants etc.)
Best Possible Scan from Poor Quality Original
(2) ADOIT ASSOCIATE SOLTOTTOR'S RECOMMEND TTON FOR INA TRIBUS (i.u.
Indians are members of federally-recernized tribes; or descendants of
members of federally-recornized tribes who were residing within the
boundaries of a reservation on June 1, 1931 or all other persons of
one-half or more defree Indian ancestry, whether or not, a member of
a federally-recognized tribe and whether or not the derree of ancentry
is attributable to more than one federally-recornized tribe) WITH TE.
1/2 PROVISO AND ADMINISTRATIVELY ESTABLISH A 1/1 DECREE CRITERIA FOR
ALL OTHER TRIBES.
Advantages
Disadvantages
Law. Preference regulations
Indian. This would create = situation
would conform with IRA pro-
where the Bureau would be menting pre
visions for TRA tribes.
once to individuals of little or no In
blood under the IRA tribal membership
Tribal Members. This would
proviso.
oliminate the situation where
tribal members of IRA trives
Current. Regulations. Presidential Eye
who are less than 1/1 degree
Order, CSC criteria and Departmental
are treated differently than
regulations are all based or 1/1 degre.
other tribal members.
requirement and they would have 1,0 be
changed.
Law Suits. This would settle
all suits from members of IRA
Differing Criteria. A dual system for
tribes appealing the 1/1
and non-IRA tribes would have to be
criteria.
established.
Indian Appointments. Indian excepted
appointments are based on 1/1 critoria
we have no authority to appoint using :
different criteria. We could 9:02
Indians under the TRA criters with a
Executive Order VAS insued. THIS Date
would place Lis in the position of basic
initial appointments on I/I: contentia is
other personnel actions for ... withol
members on a different criturin.
Executive Order. A new Executive Orde.
would have to be issued mior to a chai
in excepted appointment procedures. Ti
could take up to two years in complete.
Five Civilized Tribon. with
closed membership roles world DU excula
Best Possible Scan from Poor Quality Original
(3) TRIBAL MEMBERSHIP ROIES THE SOLE CRITERIA.
Advantages
Disadvantages
Would treat all tribal
Require a new Executive Order.
members the samo.
Consideration would have t.o be given
NCAI supports this
by each personnel office to the
criteria.
membership criteria of more than 100
separate tribal entities.
Enchances the benefits
of tribal membership.
Would place an additional burden on
RTA staff in developing and maintaini
current tribal membership roles; a
task that is already larging.
Without current roles, Personnel Offi.
could not determine who was and who V.
not Indian. This would dolay filling
positions and could result in impropor
appointments or in Court ordered free:
on hiring until roles are current.
Would not be appropriate for the Five
Civilized Tribes as they have closed
mambership roles. The adoption of
Tribal constitutions allowing the
enrollment of descendants and
continuing enrollment on 3 current bas
could change modify this disadvantage.
Tribes might not accept. "Indian"
candidates for HIA positions whose
Indianness WAS based on other "ribes
criteria.
Would not allow Indian employees TO
transfer to other Civil Service positic
(4) IRA TRIBAL MEMBERSHIP WITH 1/? PROVISO AND 1/4 DEGREE FOR ALL
OTHER FEDERALLY RECOGNIZED TRIBES.
Advantages
Disadvantages
Basically the same as option #?.
Same as Option #2
Eliminate Indians from non-
Federally recognized Tribes.
NOTE: We also listed a fifth option. This option allows for
nation-wide tribal consultation prior to any firm decision.
This could be done prior to implementing any of the other
options.
(5) TRIBAL CONSULTATION PRIOR TO ANY ACTION
Advantages
Disadvantages
This options gives the
This approach would not resolve any
tribes the opportunity
of the immediate personnel problems.
for input on this mejor
policy decision prior
to any final decision.
Could request the Courts
for a stay on pending
law suits until- this
nation-wide review com-
plete.
Would anticapate top
Congressional interest
in any change of policy
Jackson- Meeds letter
montioned Associate
Solicitor's letter.
Copy attached
Attachment - TRIBAL EMBERSHIP (includes Alaska)
figures given
are estimates.
Total membership of BIA recognized tribes
- 800,000
IRA tribal membership
- 600,000
Non-IRA tribal membership
- 200,000
Indians possessing at least one quarter
degree of Indian blood (3/4 of total Indian
population)
- 600,000
Number of IRA tribes (50% current roll)
-
206
Number of non-IRA tribes (50% current roll)
-
278
Number of IRA tribes requiring minimum of
1/4 degree (generally no blood degree
requirement for baseroll, meaning blood
degree requirement applicable persons
under 18 years.)
?
Number of non-IRA tribes requiring 1/4
minimum (generally no blood degree
requirement for baseroll, meaning blood
?
degree requirement applicable to persons
under 18 years.)
Number of Indians at least eighteen years
of age (ratio 4 children to 6 adults)
270,000
BURBAU (i) INDIAN AFFAIRS
WASHINGTON, D. C. 20245
In KEPLY REPAR TO:
Personnel Management
Dear Mr. Chairman:
Historically, the Bureau has always granted preference to
Indians in employment. This preference has been greatly
expanded within the last few years to include filling of
all vacancies whether for initial hire, or as a result of
promotions, lateral transfer or reassignment in the Bureau.
The Supreme Court's ruling in Mancari V. Morton affirmed
that this expanded preference policy is consistent with law.
There can be no exceptions to this policy. The growing
importance of Indian preference has led to an examination of
the Bureau's criteria for establishing eligibility for Indian
preference.
A number of laws established Indian preference in employment
beginning with the establishment of the Bureau. Gradually,
regulations were issued and appointing procedures formalized
which included instructions for determining who was an Indian.
This process resulted in an Executive Order signed by
President Roosevelt in 1939 which allowed the Bureau to
appoint Indians of one-fourth or more degree Indian blood
to positions without regard to Civil Service Competitive
rules. The Bureau throughout the years has followed this
blood quantum requirement and the additional requirement
that the applicant must be a member of a Federally recognized
tribe in establishing its regulations defining Indian for
employment preference purposes.
Our personnel regulations have been built around this require-
ment since 1939. The Civil Service Commission expanded Indian
preference to reduction-in-force actions in the early 1950's
using the same criteria to determine who is an Indian.
CONSERVE
ENERGY
Save Energy and You Serve Americal
2
We have used this criteria to grant Indian preference
appointments and more recently to identify employees entitled
to preference in promotions and other personnel actions.
Recently, a number of studies have questioned the one-cuarter
degree requirement. They point out that the Indian Reorgani-
zation Act, the most recent law establishing Indian preference,
defines an Indian using different criteria. Under the IRA,
Indians are:
(A) all persons of Indian descent who are members of
any recognized Indian tribe now under Federal
jurisdiction.
(B) all persons who are descendants of such members
who were on June 1, 1934, residing within the
present boundaries of any Indian reservation.
(c) all persons of one-half or more Indian blood.
(D) Eskimos and other aboriginal Indians of Alaska.
The IRA definition has no effect on Tribes that did not accept
it.
I need your views and opinions. Do we need to change our
present one-quarter degree requirement? The alternative
would be to use IRA criteria for those Tribes organized under
that Act and another acceptable criteria for non-IRA Tribes
(perhaps the present one-quarter criteria). This multiple
system in identifying individuals eligible for Indian preferchce
admittedly would be more complex to administer from our point
of view. This, however, is not the real issue. Whatever system
we have must be consistent with law and to the maximum extent
possible with the desires of the Indian tribes and their people.
I would appreciate your views on changing or retaining our
criteria of using one-quarter degree Indian blood and membership
in a Federally recognized tribe to identify Indian preference
eligibles.
Would you favor retaining the present one-quarter requirement,
or adopting the IRA alternative or seeking legislation to allow
implementation of other criteria. Could I have your views
within 60 days.
Sincerely yours,
Commissioner of Indian Affairs
United States Department of the Interior
OFFICE OF THE SOLICITOR
WASHINGTON, D.C. 20240
IN REPLY REFER TO:
APR. 9 1975
Memorandum
To:
Commissioner of Indian Affairs
From:
Associate Solicitor, Indian Affairs
Subject: Definition of "Indian" for Preference
Eligibility
By memorandum dated December 9, 1974, you requested an
opinion on the legal constraints on the definition of the
term "Indian" for purposes of employment preference, so
as to aid in deciding certain appeals by Bureau employees
claiming preference. Some of these appeals involve the
issue of whether persons who are enrolled members of a
federally-recognized tribe organized under the Indian
Reorganization Act (IRA), 25 U.S.C. 3 461, et seq., are
entitled to preference eligibility under section 472 by
virtue of the definition of the term "Indian" under
section 479, even though they do not possess one-quarter
degree of Indian blood. Presently, the Bureau's regula-
tions provide that a person must be one-quarter degree or
more Indian blood in order to qualify for a preference in
CONSERVE
AMERICA'S
ENERGY
Save Energy and You Serve America!
employment. 44 BIAM 335, 3.1, issued October 30, 1972.
However, the definition of "Indian" in 25 U.S.C. $ 479
establishes membership in a tribe, irrespective of blood
quantum, as a standard for preference eligibility.
I have concluded that preference must, as a matter of
law, be afforded to all persons of Indian descent who are
members of tribes organized under the Indian Reorganiza-
tion Act and to all other persons not members of any
federally-recognized tribe who are of one-half degree
Indian blood. However, the Bureau may - as a matter of
policy - establish a one-quarter degree standard for
members of recognized tribes not organized under the
Indian Reorganization Act. My analysis follows.
It will be helpful in rendering our opinion to trace the
evolution of Indian preference and the quarter-degree
standard. Various statutes, beginning with one in the
year 1834, have established one form or another of
preference. Act of June 30, 1834, 25 U.S.C. $ 45, 4
Stat. 737; Act of July 4, 1884, 25 U.S.C. S 46, 23 Stat.
97; Act of February 8, 1887, 25 U.S.C. $ 348, 24 Stat.
389; Act of August 18, 1894, 25 U.S.C. $ 44, 28 Stat.
313; Act of April 30, 1908, 25 U.S.C. $ 47, 36 Stat. 861;
2
and Section 12 of the IRA, supra. See Morton V. Mancari,
U.S.
,
42 L,W. 4933, 4935 (June 17, 1974).
Several treaties also have preference provisions, Federal
Indian Law, 534-535 (1958 ed.). These provisions of law
Imply, and sometimes state, that the Secretary of the
Interior has the responsibility for affording preference.
Compare 25 U.S.C. SS 44, 47 and 472 with 55 45, 46 and
348. However, ever since the inception of the Federal
Civil Service in the year 1883, the Bureau has been under
its aegis.
Indians entering the Office of Indian
Affairs were required to qualify in
regular Civil Service examinations,
except that certain preferences were
allowed in compliance with statutes
providing that Indians shall be
employed whenever practicable.
Federal Indian Law, at 533.
The Civil Service is governed by a commission through
the President who implements the recommendations of the
commission by executive order. See Act of January 16,
1883, 22 Stat. 403; 5 U.S.C. §§ 1301 and 3301. The
essence of civil service is that of merit and competition.
Thus, because preference is contrary to ordinary civil
service principles, it has been afforded by virtue of an
executive order promulgating civil service rules which
3
confer certain excepted appointment authority on the
Secretary of the Interior.
The Civil Service Rules established by Executive Order
209, March 20, 1903, for example, provided for a
Schedule A appointment for:
Indians employed in the Indian
Service at large, except those
employed as superintendent, teachers,
manual training teachers, kinder-
gartners, physicians, matrons,
clerks, seamstresses, farmers, and
Industrial teachers.
Schedule A, VI(7)
The excepted appointment authority for Indians was
expanded by Executive Order 4948 of August 14, 1928, and
contracted by Executive Order 5213 of October 28, 1929.
However, no appointment authority to that date defined
an Indian. The first Departmental employment manual in
the year 1932 mentioned a preference for Indians in the
Bureau field services; but, again, Indian was not
defined. Regulations Governing Appointments in the
Field Services of the Department of the Interior,
Section 43 (January 11, 1932).
4
With thè depression of the 1930s, federal employment was
used as a means of resurrecting a healthy economy and
countering massive unemployment in the private sector.
The Work Projects Administration and Civillan
Conservation Corp. are the most notable of these efforts.
But also an Indian Civillan Conservation Corp. was
created to provide jobs for Indians. See Federal Indian
Law, supra, at 539. In this manner, many became
employees of the Bureau of Indian Affairs through
excepted appointments.
A liberalization of the excepted appointment authority
was conferred in Executive Order 6676 of April 14, 1934.
It established a Schedule B appointment: a non-competi-
tive examInation for Indians of one-quarter or more
Indian blood. Prior to that time, it was only Indian
applicants for particular positions listed in Schedule A
who received an excepted appointment if they were
otherwise qualified. So, some two months before
enactment of the Indian Reorganization Act, the quarter-
degree standard was administratively established. 1/
17 An earlier version of the IRA bill, S.3645, 73rd
Cong., 2nd Sess., contained a definition of "Indian" in
Section 21 in Terms the same as the present Section 479
except that one-quarter degree was used rather than one-
half. See 78 Cong. Rec. 11732. The cuarter-degree
standard was raised to one-nalf by House Conference
Report 2049, 73rd Cong., 2nd Sess., 73 Cong. Rec. 12004.
5
The development of personnel regulations pertaining to
Indians up to the time of passage of the IRA is
succinctly described in a statement circulated to
Interested Indians soliciting their views on implementa-
tion of the employment preference in section 472.
For several years the Indian Service
was permitted to appoint Indians to
many types of positions without
civil service examination; and for
certain other types, such as teaching
and clerical work, they might qualify
for appointment by passing a non-
competitive examination, that is, by
meeting the minimum requirements. In
1929, by Executive Order, the range
of positions to which Indians could
be appointed without examination was
narrowed and Indians were required to
qualify in competitive civil service
examinations for practically ali
positions for which white applicants
had been required to qualify in that
manner. There was adopted at that
time, however, a preferential clause
whereby Indians could be certified in
order of rating on a separate Indian
register of civil service eligibles
and be considered before white
applicants. This arrangement failed
to increase materially the number of
Indians appointed to Indian Service
positions since it was necessary for
Indians desiring positions to wait
until a regular civil service
examination was announced, and during
recent years, due to economic
conditions, few new examinations were
needed to maintain civil service
lists of eligibles.
6
In April, 1934, this situation was
remedied by an Executive Order
permitting noncompetitive examina-
tions for Indians of one-fourth or
more Indian blood for all positions
not then excepted for examination.
Under the provisions of this Order,
a noncompetitive examination can be
given only when there is a specific
vacancy for which the Indian to be
examined is recommended by the
Commissioner, subject to passing
the examination. In carrying out
the plan for noncompetitive
examinations, all applications for
employment received by the Indian
Office from Indians of one-fourth
or more Indian blood are carefully
classified under the various types
of civil service positions for
which the applicants appear to be
qualified. As vacancies arise,
the persons listed for the kinds
of work involved are considered
and one or more (not over five)
names are submitted to the civil
service commission for non-
competitive examination.
Manual of Civil Service Require-
ments for Indian Service Positions
(February 1935).
Of course, the underlying statutory preference provisions
were expanded by Congress in enacting the IRA. See
Morton V. Mancari, supra, at 4935-4936, and Freeman V.
Morton, 499 F.2d 494 (CA DC 1974). However, the subse-
quent executive orders seem not to have taken into
consideration the effects of a more expanded preference
and the definition of Indian.
7.
On June 24, 1938, Executive Order 7916 (3 CFR 350) was
as
signed which brought all positions not then in the
be
competitive classified civil service into it. If an
an
Indian occupled a position excepted under Schedule le A A or
or
had taken a noncompetitive examination, passed and
cassed
nd
received a Schedule B appointment, he then received, by
ved, by
virtue of the Order, a classified competitive appointment.
dointment.
Executive Order 7916 also promised revision of Schedules
Schedules
A and B. Those schedules were revised in Executive Order
Executive
Order
8043 of January 31, 1939, 3 CFR 449, which brought the
the
excepted appointment previously conferred in Executive
Executive
Order 6676 in Schedule B to Schedule A. Thereafter,
heresfter,
Indians of one-quarter degree need not have taken an
have Taken an
examination in order to obtain employment in the Bureau.
BAT
Bureau.
Then, on March 28, 1940, Executive Order 8383, 3 CFR 636,
636;
brought all those employees who had received excepted
excepted
appointments in the Bureau of Indian Affairs into the
the
competitive civil service, just as Executive Order 7916
had done for the general civil service.
The one-quarter degree requirement is an administrative
strative
doctrine which - absent any statute defining an Indian -
would appear to be within the Commissioner's discretion
8
to establish. But with respect to preference under
section 472, the definition of Indian in the Indian
Reorganization Act must be used where the tribe which the
person is affillated with comes under the Indian
Reorganization Act.
With respect to tribes which voted to accept the Indlan
Reorganization Act and those which did not reject It and
the provisions of the act are applicable to the tribe,
the definition established by section 479 sets the
standard for preference eligibility. Those persons of
Indian descent are:
1. Members of federally-recognized tribes;
2. Descendants of members of federally-recognized tribes
who were residing within the boundarles of a reservation
on June 1, 1934; and
3. All other persons of one-half or more degree Indian
U
ancestry, whether or not a member of a federally-
recognized tribe and whether or not the degree of
ancestry is attributable to more than one federally-
recognized tribe.
It is our bellef that where Congress provided for the
formal organizing of the tribe under a constitution
9
approved by the Secretary of the Interior, membership
criteria would as a consequence be forma!ized and
membership would then be a meaningful standard for
defining an Indian. Defining a person as Indian entails
more than identifying mere Indian ancestry. If
preference is to have any meaning, some measure of
"Indianness" must be the sfandard of eligibility. The
Supreme Court in the Mancari decision emphatically
How
put
stated that "[+]he preference, as applied, is granted
to
to Indians not as a discrete racial group, but, rather
child
of
as members of quasi-sovereign tribal entities whose lives
and activities are governed by the BIA in a unique
fashion. Morton V. Mancari, supra, Slip Opin. at 18.
The mandate of Congress in enacting the Indian
Reorganization Act was that tribes, rather than the
Bureau of Indian Affairs, would have the power to
define their members by way of a formal organization
and a basic self-governing document. That inherent
power must be recognized to the extent Congress intended.
In order that the present authority to confer preference
on Indians may be modified to comply with the statutory
definition of Indian, the present excepted appointment
authority in 5 CFR 5 213.3112(a) (7) would have to be
10
revised by executive order. The procedure for obtaining
an executive order is set out in I CFR Part 19. We
would also advise you that In order to avold any
questioning of the manner in which those present
employees who have competitive appointments and who are
to receive preference in the selection for a position do
not lose their competitive appointment that a modifying
executive order also contain the authority to afford
preference by not conferring an excepted appointment.
On the other hand, I believe that you possess discretion
to set a quarter-blood standard for preference
eligibility with respect to members of recognized tribes
that voted to reject the Indian Reorganization Act. It
is my opinion that rejection of the IRA meant not only
rejection of the opportunity to organize a tribal
government under it, but also to be defined under Its
terms and receive the benefits of preference.
The three-judge New Mexico District Court in the case of
Mancari V. Morton, 359 F. Supp. 585, held that preference
under section 472 extended to individuals regardless
whether their tribal members had voted to accept or
reject the act. 359 F. Supp. at 588. The court stated
that
11.
...
we cannot belleve that Congress
Intended all the Indian tribes to
vote on the extension of boundaries
of the Papago Reservation (section
463a, 50 Stat. 536), on the Secretary
making rules and regulations for the
operation and management of Indian
forestry units (section 466, 48 Stat.
986), or on appropriations for
vocational and trade schools (section
471, 48 Stat. 985), or on other
provisions found in the Indian
Reorganization Act. Id. (underscoring
added).
As you know, the District Court's declsion was reversed.
Even apart from the validity of the decision in light of
Its reversal, the court's reasoning seems Incorrect.
The citation to section 463a In the part of the opinion
just quoted is erroneous. Section 463a was not enacted
until the year 1937. Act of July 28, 1937, 50 Stat. 536.
To be sure, there are several provisions In Section 3 of
the IRA, 48 Stat. 984, now section 463, which affect the
Papago Reservation, but the main provision calls for the
restoration to tribal ownership of the remalning surplus
lands of a reservation which had been opened to sale - a
matter upon which tribal members could well express
their desire. Furthermore, the act also established the
Revolving Lean Fund in Section 10, the eligibility for
loans from whlch was originally Ilmited to Indian
12
chartered ccrporations. Section 10 of IRA, now 25 U.S.C.
S 470. But the eligibility provision has been twice
amended: first by extending It to Individual Indians of
not less than one-quarter degree of tribes which had not
voted to reject the act, Act of May 10, 1939, 53 Stat.
698, 25 U.S.C. S 480; and, second, by extending it to
tribes and their members who had voted to reject the act
or had not organized under it, Act of May 7, 1948, 62
Stat. 211, 25 U.S.C. & 482. See Senate Interior
Committee Report on H.R. 2622, Sen. Rept. No. 1147, 80th
Cong., 2d Sess. and House Committee on Public Lands
Report on H.R. 2622, H. Rept. No. 939, 80th Cong., 2d
Sess. If the benefits of the revolving loan fund were to
be extended to all Individuals of more than a quarter-
degree Indian blood after the first amendment there would.
have been no need to enact the second amendment. But it
Is clear from the Department's legislative flle on the
1948 Amendment that members of tribes that had not
organized under the IRA or Oklahoma Welfare Act, Act of
June 26, 1936, 49 Stat. 1967, 25 U.S.C. S 501, et seq.,
had been Interpreted by the Department to be inellgible
for a loan.
13
I conclude, accordIngly, that you possess discretion as
Commissioner to establish standards for preference
eligibility for this group of persons under the earlier,
pre-1934 preference statutes. 25 U.S.C. §§ 44-46.
Reid Perston chander
Reid Peyton Chambers
Inc: 530
Cy: 510 100
of
500
94TH CONGRESS
1ST SESSION
H.R.5465
IN THE HOUSE OF REPRESENTATIVES
MARCH 25, 1975
Mr. HENDERSON introduced the following bill : which was referred to the Com-
mittee on Post Office and Civil Service
A
BILL
To allow Federal employment preference to certain employees
of the Bureau of Indian Affairs, and to certain employees
of the Indian Health Service, who are not entitled to the
benefits of, or who have been adversely affected by the appli-
cation of, certain Federal laws allowing employment pref-
erence to Indians.
1
Bc it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That, for purposes of this Act-
4
(1) "eligible employee" means an employee who-
5
(A) is employed in a position in the Bureau
6
of Indian Affairs of the Department of the Interior,
7
or in the Indian Health Service of the Department
I
2
1
of Health, Education, and Welfare, under a career
2
or a career-conditional appointment, and who has
3
been SO employed since June 17, 1974; and
4
(B) is not entitled to benefits under, or has
5
been adversely affected by the application of-
6
(i) section 12 of the Act of June 18, 1934
7
(25 U.S.C. 472) ;
8
(ii) the first section of the Act of June 7,
9
1897 (25 U.S.C. 274) ;
10
(iii) the Act of April 30, 1908, and section
11
23 of the Act of June 25, 1910 (25 U.S.C.
12
47) ;
13
(iv) section 6 of the Acts of May 17, 1882,
14
and July 4, 1884 (25 U.S.C. 46) ;
15
(v) section 2069 of the Revised Statutes
16
(25 U.S.C. 45) ;
17
(vi) section 10 of the Act of August 15,
18
1884 (25 U.S.C. 44) ; or
19
(vii) any other provision of Federal law
20
providing Indians preferential employment con-
21
sideration for positions within the Federal com-
22
petitive service.
23
(2) "vacancy" means a vacancy in a position in the
24
competitive service for which the minimum rate of
25
basic pay is less than the minimum rate for GS-16.
3
1
SEC. 2. (a) Applicants for each vacancy occurring in
2 the Department of the Interior (other than a vacancy in
3 the Bureau of Indian Affairs) shall, except as provided in
4 subsection (b), be considered in the following order:
5
(1) all eligible employees of the Bureau of Indian
6
Affairs who are qualified to fill such vacancy, in the
7
order of their ratings, and
8
(2) remaining applicants, in the order and number
9
which would have occurred in the absence of this Act.
10
:
(b) The provisions of subsection (a) shall not apply
11 with respect to the filling of a vacancy by-
12
(1) transfer or appointment of a preference eligible
13
who is entitled to additional points under section 3309
14
(1) of title 5, United States Code,
15
(2) reinstatement of a preference eligible who is
16
entitled to additional points under section 3309 (1)
17
or (2) of such title,
18
(3) restoration of a person under chapter 43 of
19
title 38, United States Code, relating to veterans' re-
20
employment rights.
21
SEC. 3. When an appointing authority has twice con-
22 sidered and passed over an eligible employee (disregarding
23 any instance in which another eligible employee or an in-
24 dividual referred to in section 2 (b) of this Act was ap-
25 pointed to the position, or in which the eligible employee
4
1 was passed over, under this section, for compelling rea-
2 sons), such eligible employee is entitled to appointment to
3 the next occurring vacancy in such Department for which
4 he applies, unless the appointing authority determines that
5 compelling reasons exist for passing over such employee,
6 and files such reasons in writing with the Civil Service
7 Commission. The Commission shall make these reasons a part
8 of the record of the eligible employee. The Commission may
9 require the submission of more detailed information in support
10 of the passing over of such employee. The Commission shall
11 determine the sufficiency or insufficiency of the reasons sub-
12 mitted and shall send its findings to the appointing authority.
13 The appointing authority shall comply with the findings of
14 the Commission. The eligible employee or his representative,
15 on request, is entitled to a copy of-
16
(1) the reasons submitted by the appointing au-
17
thority; and
18
(2) the findings of the Commission.
19
SEC. 4. The appointment to each vacancy occurring in
20 the Department of Health, Education, and Welfare (other
21 than a vacancy occurring in the Indian Health Service) shall
22 be made, with respect to applicants who are eligible employ-
23 ees of the Indian Health Service, in accordance with sections
24 2 and 3 of this Act.
25
SEC. 5. (a) The Civil Service Commission shall pre-
5
1 scribe such regulations as it deems necessary to carry out the
2 provisions of this Act.
3
(b) The foregoing provisions of this Act shall apply
4 with respect to vacancies occurring during the three-year
5 period beginning with the month which begins more than
6 ninety days following the date of the enactment of this Act,
7 except that the Civil Service Commission may extend such
8 period one additional year with respect to vacancies—
9
(1) in the Department of the Interior, or
10
(2) in the Department of Health, Education, and
11
Welfare, or
12
(3) in both Departments.
500 file
TELEGRAPHIC MESSAGE
NAME OF AGENCY
PRECEDENCE
SECURITY CLASSIFICATION
ACTION:
BUREAU OF INDIAN AFFAIRS
INFO:
ACCOUNTING CLASSIFICATION
DATE PREPARED
TYPE OF MESSAGE
K00-53/5/3500/7265
2/14/75
X
SINGLE
FOR iNFORMATION CALL
BOOK
NAME
PHONE NUMBER
MULTIPLE-ADDRESS
David E. George
5547
THIS SPACE FOR USE OF COMMUNICATION UNIT
MESSAGE TO BE TRANSMITTED (Use double spacing and all capital letters)
TO: ALL AREA DIRECTORS (SEE ATTACHED LIST OF ADDRESSEES)
FEB 19 1975
ACTING ADMINISTRATOR, ADMINISTRATIVE SERVICES CENTER
PROJECT DIRECTOR, JOINT USE ADMINISTRATIVE OFFICE
IT HAS COME TO OUR ATTENTION THAT WE NEED TO CLARIFY INSTRUCTIONS WITH
RESPECT TO THE APPLICATION OF INDIAN PREFERENCE. WHEN ONE POSITION IS
ADVERTISED AT SEVERAL DIFFERENT GRADE LEVELS, THE FACT REMAINS THAT
THERE IS ONLY ONE POSITION TO BE FILLED, THEREFORE IF THERE IS A
QUALIFIED INDIAN AVAILABLE AT ANY ONE OF SUCH GRADE LEVELS, THAT INDIAN
HAS PREFERENCE TO THE VACANCY AND A NON-INDIAN MAY NOT BE SELECTED AT
ONE OF THE OTHER GRADE LEVELS so LONG AS THE INDIAN IS AVAILABLE. 44
IAM 335,3.15 ESTABLISHES TIME LIMITS FOR ACCEPTING APPLICATIONS UNDER
VACANCY ANNOUNCEMENTS. THESE TIME LIMITS SHOULD BE ADHERED TO AND LATE
APPLICATIONS WHETHER FROM INDIANS OR NON-INDIANS SHOULD NOT BE ACCEPTED
FOR THAT PARTICULAR VACANCY. IN THE EVENT INSUFFICIENT APPLICATIONS
WERE RECEIVED OR NO SELECTION IS MADE FROM THE CERTIFICATE OF ELIGIBILES,
THE POSITION SHOULD BE READVERTISED.
DIRECTOR, OFFICE OF ADMINISTRATION
RECEIVED
AdUJ
ADMINISTRATION
SECURITY CLASSIFICATION
FEB 21 1975
PAGE NO.
NO. OF PGS
MAY/MD
AREA OFFICE
STANDARD FORM 14
IN REPLY REFER TO:
THE INTERIOR
UNITED STATES
DEPARTMENT OF THE INTERIOR
March
1849
BUREAU OF INDIAN AFFAIRS
Navajo Area Office
P. 0. Box 1060
Gallup, New Mexico 87301
DEC 2 0 1974
Memorandum
To:
All Employees, Navajo Area
From:
Area Director
Subject: BIA current Indian preference policy
The current Indian preference policy in the Bureau of Indian
Affairs is summarized below:
In filling any position in the Bureau of Indian Affairs,
whether by new appointment, reinstatement, transfer,
reassignment, or promotion, an Indian will be selected,
if a qualified Indian is available. A non-Indian may be
selected only when no qualified Indian is available.
In keeping with the policy of the Bureau of Indian Affairs re-
garding Indian preference in employment and the concept of
self-determination, the following changes in Navajo Area re-
cruiting and staffing procedures will be effective immediately:
1. All vacant positions GS-7 and above will be advertised
at least Bureau-wide in an attempt to locate qualified
Indian candidates.
2. The Personnel Office and operating officials will make
positive recruiting efforts to locate potential Indian
applicants. These recruiting efforts should be docu-
mented and made available on request.
3. Selecting officials will make every effort to select,
train and promote persons qualified for Indian preference.
4. When practical, vacancies will be re-engineered to the
lowest level to provide vehicles for advancement of those
employees in the lower grades and to provide maximum
opportunity for Indian candidates.
2
5. The Personnel Office will make every effort to publicize
known vacancies in other Bureaus of the Department of the
Interior. Those non-Indian employees believing their
career opportunities are diminished as a result of the
Bureau of Indian Affairs preference policy will be given
every assistance in applying for positions in other
Federal Agencies. Any resulting vacancies will be
filled according to procedures stated above.
In addition to the above changes, a letter of introduction, copy
attached, will be available from the Area Personnel Office and the
Agency Personnel Offices for those desiring to actively seek positions
outside the Bureau of Indian Affairs.
I expect each employee and supervisor to support and endorse the
statements listed above.
IN REPLY REFER TO:
STATE S OF THE INTERIOR
UNITED STATES
DEPARTMENT OF THE INTERIOR
"HE
March 3. 1849
BUREAU OF INDIAN AFFAIRS
Navajo Area Office
P. 0. Box 1060
Gallup, New Mexico 87301
DEC 17 1974
To:
ASST.
From:
Area Director, Navajo Area, Bureau of Indian Affairs
Subject: Letter of Introduction
This is to introduce
, an applicant for
employment in your agency, and to explain his reasons for seeking
such employment.
The Indian preference policy in the Bureau of Indian Affairs is
stated:
In filling any position in the Bureau of Indian Affairs,
whether by new appointment, reinstatement, transfer,
reassignment, or promotion, an Indian will be selected
if a qualified Indian is available. A non-Indian may be
selected only when no qualified Indian is available.
Many non-Indian employees feel this policy restricts their career
opportunities and desire employment in other Federal agencies.
Your consideration and employment of this individual will provide
you with an experienced, ambitious employee and will create a
vacancy with the Bureau of Indian Affairs, which will probably
be filled with an Indian employee. This will help effect the
policy of self-determination, Indians serving Indians.
Your serious consideration of this candidate is appreciated.
R Fumbline
wasiam unio:
ets HAVAJO AREA OFFICE
wishow ROCK. ARIZONA
4.5.4
APR 15 10 35 AM '74
The Px 4916
4
HEGEIVED-HAIL&FILES
10
MS1
02/11/74 FIOM
ICS FSH
08183 COVT WARINGTON 10 1411 624 117
PAS 1.1. ANTHONY 11 FINCELN
1+11 PIERCTOR 1F INLIAN AFFAIRS
VINDER NCB 17 76541
WE HAVE BEEN NOTIFIED THAT THE u.s. DISTRICT comer NORTHERN
DIVISION OF south DAKOTA HAS ISSUED a TEMPORARY RESTRAINING
ORDER ENJOINING BIA FROM FILLING VACANCIES WARREVER TUALION
WEREAN, INDIAN PREFERENCE R41ES utill BE GIVEN CONSIDERATION
FIRM COMMETMENTS Made PRIOR 10 THIS DATE MAY BE HONOLED. NO
COMMITMENTS For Filling a VACANCY ARE TO BE MADE AFTER THE
DATE of THIS Teleqram Further INSTRUCTIONS will BE PROCIDED
AS SOON AS POSSIBLE. WE ARE DILUEENTLY TAKING STEPS TO PROVIDE
FURTHER REMEDY.
KENNETH L. PEYTON
which
1114 DEPARTY
by
DIEAT
INTERIOR
United States Department of the Interior
BUREAU OF INDIAN AFFAIRS
March
1
THE
WASHINGTON, D.C. 20242
IN REPLY REFER TO:
BCCO 3401
EEO
Mr. John A. Buggs
APR 25 1974
Staff Director
U. S. Commission on Civil Rights
Washington, D. C. 20425
Dear Mr. Buggs:
Further reference is made to your letter of June 19, 1973, pertaining
to recommendations based on information developed in hearings in
Albuquerque, New Mexico, and Phoenix, Arizona, on the civil rights
problems of American Indians in the Southwest.
It would appear that the Bureau of Indian Affairs is exceeding your
recommendations Nos. 1 thru 4 concerning employment, promotion, and
reassignment of Indians, even to the point of being unable to satisfy
the requirements of the Civil Service Commission in the field of
Equal Employment Opportunity. It is a matter of record that in the
Bureau of Indian Affairs an Indian has preference, by law, in appointment
provided the candidate has established proof that he or she is one-
fourth or more Indian and meets the minimum qualifications for the
position to be filled. (25 U.S.C. Section 472). This legislation
directs the Secretary of the Interior "to establish standards of health,
age, character, experience, knowledge, and ability for Indians who
may be appointed, without regard to civil service laws, to the various
positions maintained, now or Mereafter, by the Indian Office; in the
administration of functions or services affecting any Indian tribe.
Such qualified Indian shall hereafter have the preference to appointment
to vacancies in any such position."
In the case of Freeman VS. Morton the U.S. District Court for the
District of Columbia issued a summary decision which reads as follows:
"It is accordingly ordered this 21st day of December 1972,
that all initial hirings, promotions, lateral transfers,
and reassignments in the Bureau of Indian Affairs as well
as any other personnel movement therein intended to fill
vacancies in that agency, however created, be declared
governed by 25 U.S.C. Section 472 which requires that
preference be afforded qualified Indian candidates.
Inc.100
The mandate of Indian preference is determined to be of such import
as to require that when attempting to fill positions, by any means,
all efforts will be asserted to locate qualified Indian candidates.
Until such time as this mandate is by legal means determined void -
Indian preference is the over-riding policy of the Bureau of Indian
Affairs.
We estimate that Bureau-wide during Calendar Year 1973, at least
ninety percent of all new appointees and employees promoted were
Indian. In the Muskogee Area, for instance, the actual figure was 97%.
Recommendation 5 is being met by the inclusion of a standard condition
in all contracts directing attention of bidders to sections 701 (b) (1)
and 703 (i) of Title VII of the Civil Rights Act of 1964 which provide
that preference in employment may be given to Indians living on or
near an Indian Reservation.
Recommendation 6 is adequately covered in existing regulations and
we are prepared to move decisively if and when any substantiated
cases are brought to our attention. Action needed to improve the
Indian eduational system administered by the Bureau of Indian
Affairs.
1. Participation of Indian parents and community groups in
the education programs operated by the Bureau of Indian
Affairs is both encouraged and facilitated. Indian com-
munities have the option of contracting with the Bureau
for the management and operational control of schools
serving their communities. In 1973-74 there were 14
schools operating under such contracts. The Bureau has
also contracted with Indian groups for the operation
of summer programs, ESEA Title programs, pre-school pro-
grams and for the administration of higher education
assistance programs and Johnson-O'Malley funds. A
total of more than $48 million in education funds was
expended in 1974 through contracts with Indian groups
for education services and materials. This represents
an increase of $32 million over 1973.
In addition, advisory school boards are functioning at all
Bureau schools. All schools with Title I programs have a
"I: parent advisory council. Special training is provided for
school board members to help them function more effectively.
2. The number of Indian personnel at some levels of the
BIA school system has been limited by the availability
of qualified persons. The Bureau's rapidly growing
higher education assistance program is helping to
correct this. Of the more than 13,500 Indian college
students receiving assistance in 1973-74, more than
one-fifth are majoring in education. One phase of
this program is now assisting approximately 85 students
toward post-graduate degrees in education administration.
Career opportunity programs in the Bureau schools are
also providing Indian aides the chance to obtain college
degrees while continuing to earn a salary. Most of these
programs permit aides to become certified teachers in
four years -- a substantial development of their OWN
potential and a valuable contribution of more Indian
teachers in the Bureau schools.
3. It is now required that all schools receiving Johnson-
Malley funds have an Indian advisory committee which
participates in the planning, development and monitoring
of the programs for which Johnson-O'Malley funds are
used. The amount of Johnson-O'Malley money used for
special programs, as opposed to basic school support,
has increased substantially in recent years. Basic
support is still necessary, however, in some areas.
You have touched upon some of my major concerns in the administration
of Indian Affairs and I appreciate the opportunity to comment on the
recommendations of the Civil Rights Commission staff. Please be
assured of my continuing interest and commitment to providing service
to the Indian people in a competent and equitable manner.
Sincerely yours,
In Follett3uth
Acting Deputy
Commissioner of Indian Affairs
AD!
MAY : 1874
mr Franklen
494
499 FEDERAL REPORTER, 2d SERIES
Appellant's reliance upon our decision
tions had already been taken by both
in Hartigh V. Latin, 158 U.S.App.D.C.
parties. Surely, if facts amounting to
289, 485 F.2d 1068 (1973), is misplaced.
racial discrimination were in existence,
In the two cases decided by our opinion,
the appellant had had opportunities over
orders of certification to the Superior
the seven months of litigation to bring
Court were reversed for error in the in-
them before the court.
terpretation of the Supreme Court deci-
We find no abuse of discretion in the
sion in District of Columbia V. Carter,
District Court Order of certification on
409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d
the record before us. Accordingly, we
613 (1973). In neither case had the de-
affirm that order.
fendants disputed the plaintiffs' allega-
So ordered.
tion that the amount in controversy ex-
ceeded $10,000. Moreover, in both cases
there were allegations of severe physical
injuries and assaults committed by po-
KEYNUMBER
SYSTEM
lice during incarceration, and in both
cases medical assistance was sought and
shown on the record.
Appellant also proposes that the Dis-
Enola E. FREEMAN, on behalf of herself
trict Court erred in certifying the case
and all others similarly situated
so promptly after District of Columbia
V.
V. Carter, supra, that appellant was de-
Rogers C. B. MORTON, Secretary of the
prived of the opportunity to assert juris-
Interior, et al., Appellants.
diction under a separate statute, 42 U.
No. 73-1409.
S.C. § 1981 (1970),12 which provides for
jurisdiction under 28 U.S.C. § 1343(1)
United States Court of Appeals,,
(1970) without a minimum jurisdiction-
District of Columbia Circuit.
al amount. Appellant argues that he
April 25, 1974
would have reformulated his complaint
Argued Feb. 21, 1974.
in the face of the Carter decision. He
admits, however, that many of the facts
supporting a reformulation into a § 1981
Indian employees of BIA sought de-
action, a private suit for racial discrimi-
claratory judgment that statute relating
nation, are not in the record presently.
to Indian preference in filling of vacan-
Nowhere in the present pleadings is
cies within the BIA applied to lateral
there an allegation of racial discrimina-
transfers, promotions, and training, as
tion. Nor do we find any precedent in
well as to initial hiring. The District
law or basis in policy for requiring a
Court for the District of Columbia,
trial court to consider whether some set
Howard F. Corcoran, granted employees'
of additional facts might be pleaded
motion for summary judgment as
which would preserve federal jurisdic-
to lateral transfers and promotions,
tion before that court certifies a case to
and Secretary of the Interior ap-
a local court. Appellant had already
pealed from the ruling with respect to
amended his complaint once, and deposi-
lateral transfers. The Court of Appeals,
In the latter case, there was testimony that
every State and Territory to make and en-
after detention in a back room of a grocery
force contracts, to suc, be parties, give ev-
store for some twenty minutes for question-
idence, and to the full and equal benefit of
ing. the plaintiff was "hysterical and in
all laws and proceedings for the security
tears." In both cases, moreover, there seems
of persons and property as is enjoyed by
to have been no probable cause for the de-
white citizens, and shall be subject to like
tention.
punishment, paius, penalties, taxes, licens-
12. All persons within the jurisdiction of the
es, and exactions of every kind, and to 1.0
United States shall have the same right in
other.
FREEMAN V. MORTON
495
Cite as 499 F.20 491 (1974)
Christensen, Senior District Judge, held ing of vacancies within administrative
that statute applied to lateral transfers
agency for emergency situations, or
as well as to hirings and promotions;
transfer of nonpreferred employees nec-
and that statute did not grant Commis-
essary to maintain efficiency, solution to
sioner of Indian Affairs the right to
the problem must come from the legisla-
make exceptions to the policy for ex-
ture and not the judiciary.
ceptional administrative or management
5. Statutes 219(4)
reasons.
Any conflicting administrative in-
Affirmed.
terpretation must yield to clear provi-
sions of a congressional act.
I. Indians 0=1
6. Indians =
Statute giving preference to Indians
Any ambiguities which might be
in the filling of vacancies within the
perceived in statute providing prefer-
BIA applies to all appointments to fill
ence for Indians in appointment to va-
vacancies, whether filled from within or
cancies within the BIA should be re-
without the bureau and whether effected
solved, reason permitting, in favor of
through initial hiring, promotions, reas-
the Indians. Indian Reorganization Act,
signments within same office, or lateral
§ 12, 25 U.S.C.A. § 472.
transfers from another office. Indian
7. Indians 0-4
Reorganization Act, § 12, 25 U.S.C.A. §
Statute giving preference to Indians
472.
in the filling of vacancies within the
2. Indians
0=4
BIA does not give Commissioner of In-
For purposes of statute giving pref-
dian Affairs discretion to make limited
erence to Indians in the filling of vacan-
exceptions with reference to lateral
cies in the BIA, whether a vacancy ex-
transfers or promotions, even when
ists depends upon whether a position is
Commissioner expressly finds the excep-
vacant and susceptible of being filled,
tion to be in the best interests of the
not upon how it is filled. Indian Reor-
Bureau. Indian Reorganization Act, $
ganization Act, § 12, 25 U.S.C.A. § 472.
12, 25 U.S.C.A. § 472.
3. Indians 0-4
When position in BIA is open, need-
ing to be filled, there is a "vacancy" in
Eva R. Datz, Atty., Dept. of Justice,
contemplation of statute giving prefer-
with whom Wallace II. Johnson, Asst.
ence to Indians in the filling of vacan-
Atty. Gen., Harold H. Titus, Jr., U. S.
cies, and if the position is filled by
Atty. at the time the brief was filed,
transferring to it an employee from a
Leonard Belter, Asst. U. S. Atty., and
position of similar status elsewhere
Edmund B. Clark, Atty., Dept. of Jus-
within the BIA, that employee's former
tice, were on the brief for appellants.
position also becomes a "vacancy" to be
John A. Terry and James F. McMullin,
filled with due regard for, the Indian
Asst. U. S. Attys., also entered appear-
preference. Indian Reorganization Act,
ances for appellants.
§ 12, 25 U.S.C.A. § 472.
Patrick F. J. Macrory, Washington, D.
See publication Words and Phrases
C., with whom Stuart J. Land, Washing-
for other judicial constructions and
ton, D. C., was on the brief, for appel-
definitions.
lees.
4. Constitutional Law (>70.1(12)
Before BAZELON, Chief Judge, Mc-
If there are no reasonable adminis-
GOWAN, Circuit Judge, and
trative or management alternatives to
CHRISTENSEN,* United States Senior
violation of mandated preference in fill-
District Judge for the District of Utah.
Sitting by demination pursuant to 28 U.S.C. § 294(d).
496
499 FEDERAL REPORTER, 2d
JES
CHRISTENSEN,
Senior.
District
hirings only. Appellees were, and pre-
Judge.
sumably still are, employed by the Bu-
reau of Indian Affairs. Each at one or
This is an appeal by defendants-appel-
lants Rogers C. B. Morton and other of-
more times during her employment ap-
ficials of the Bureau of Indian Affairs
plied for assignment to a vacant position
(BIA), from a final order of the United
within the Bureau, had been classified
States District Court for the District of
at least as "qualified" and in some cases
Columbia granting summary declaratory
as "well qualified" or "best qualified"
judgment in favor of plaintiffs-appellees,
and was denied the position when a
Enola E. Freeman and three other em-
non-Indian was given the assignment.
In some instances the non-Indian had re-
ployees of BIA, "that all initial hirings,
promotions, lateral transfers and reas-
ceived a lower qualification rating than
signments in the Bureau of Indian Af-
the Indian applicant. Challenging this
fairs as well as any other personnel
construction as altogether too grudging,
movement therein intended to fill vacan-
appellees asserted in this action that the
cies in that agency, however created, be
Indian preference applies to all appoint-
ments whether filled from within or out-
declared governed by 25 U.S.C. Sec. 472
This section, which was a
side the Bureau, and whether effected
part of the Indian Reorganization Act of
through initial hiring, promotions, reas-
signments within the same office or lat-
1934 provides as follows:
eral transfers from another office.
Standards For Indians Appointed
While this action was pending the Bu-
To Indian Office
reau issued a revised policy statement
The Secretary of the Interior is di-
allowing Indians a preference not only
rected to establish standards of
in hiring but generally in promotions,
health, age, character, experience,
transfers from outside the Bureau and
knowledge, and ability for Indians
reassignments within the Bureau which
who may be appointed, without regard
improved promotion prospects. Purely
to civil-service laws, to the various po-
lateral reassignments within the Bureau,
sitions maintained, now or hereafter,
however, were excepted from such poli-
by the Indian Office, in the adminis-
cy, as were promotions with respect to
tration of functions or services affect-
which the Commissioner found a "waiv-
ing any Indian tribe. Such qualified
er" of the general policy to be in the
Indians shall hereafter have the pref-
best interest of the Bureau. Plaintiffs
erence to appointment to vacancies in
limited their claims for relief to a decla-
any such positions. June 18, 1934, c.
ration of their preference rights.¹ The
576, § 12, 48 Stat. 986.
ruling of the district court that the In-
From the passage of the statute until
dian preference did not extend to train-
the institution of this suit the Bureau
ing opportunities is not in question.
had narrowly applied this preference
Neither party has attacked the prefer-
provision by construing the term "ap-
ence on civil rights or constitutional
pointment to vacancies" to mean initial
grounds.³ Furthermore, the parties
I. In addition to declaratory relief the amend-
pellees took no cross-appeal. See Fed.R.App.
ed complaint sought prohibitory and manda-
P. 4(a).
tory injunctions, as well as damages. For pur-
3. During the proceedings below A three-judge
poses of their motion for summary judgment,
court in New Mexico. not reaching the consti-
however. plaintiffs waived all relief other than
tutional issue presented, ruled that the statute
a declaration of their preferential rights in
construed here was impliedly repealed by the
the areas of promotion, lateral transfers and
Civil Rights Acts of 1964 and 1972 (42 U.S.C.
training.
§ 2000c-2 as amended). Mancari V. Morton.
2. The district court rejected appellees' claim
359 F.Supp. 585 (D.N.M.1973). The applica-
that the preference rights included preferen-
tion of that ruling has been stayed pending ap-
tial designation for training assignments. Ap-
peal to the Supreme Court, where probable
FREEMAN V. MORTON
497
Cite as 490 F.2d 491 (1974)
agree that all of the controlling facts ap-
I. Does 25 U.S.C. § 472 apply to
pear without dispute of record and that
transfers and reassignments within the
the case was ripe for resolution by sum-
Bureau of Indian Affairs which are
mary judgment one way or another.4
purely lateral? 8
The Tenth Circuit holding that the Indi-
II. Does that section allow the grant-
an preference does not apply to reduc-
ing of exceptions to the preference poli-
tion-in-force situations has not been
cy with reference to promotions, as well
questioned in these proceedings. And
as with respect to lateral transfers or
the parties have accepted the definition
reassignments, for exceptional adminis-
of "Indians" as those of one-quarter or
trative or management reasons?
more Indian blood 6 as valid and as
applying to each of the plaintiffs for the
I
purposes of the statute. As a conse-
[1] The appellants argue that the
quence of these circumstances the issues
district court's order is erroneously
presented by the parties and to which
broad because it gives Indians prefer-
we shall limit further discussion are
ence "even as regards purely lateral
narrow and apparently of first
reassignments
where a job
impression: 7
and/or its occupant is merely relocated."
jurisdiction has been noted. 414 U.S. 1142,
voke control by Section 472. Mancari V. Mor-
94 S.Ct. 893. 39 LEd.24 99 (1973). Except
ton, 359 F.Supp. 585 (D.N.M.1973). supra,
as it documents the shared position of all par-
expressly excludes our problem from considera-
ties before this court that the Indian prefer-
tion by the following language "The United
ence, however, it is construed to resolve the
State District Court for the District of Colum-
issue here, is valid, it may be more interesting
bia
had before it the question of
than significant to note that both appellants'-
whether or not section 472 gave the plaintiff
counsel and counsel representing appellees are
a preference over all non-Indian employees in
asking the Supreme Court to reverse Man-
the Bureau of Indian Affairs with respect to
cari. See 42 U.S.L.W. 3158, No. 73-302
promotions, reassignments to vacant positions
(1973) Id., No. 73-361.
within the BIA. and to assignments to avail-
The district
4. There were extensive demands for admission
able training positions
which were largely undenied except as they
court in Freeman held that section 472 required
called for conclusions of law.
the preference be given in promotions and re-
assignments to vacant positions within the
5. Mescalero Apache Tribe v. Hickel. 432 F.2d
Bureau
We do not decide whether
956 (10th Cir. 1970). cert. denied, 401 U.S.
the preference is as broad as the court in
981, 91 S.Ct. 1195. 28 L.E4.20 333 (1971).
Freeman v. Morton indicates. It is sufficient
6. Employees eligible for Indian preference are
to permit consideration of the basic issue to
those with one-fourth or more degree Indian
observe that no one challenges the application
blood, regardless of the type of appointment
of the preference acts to initial hiring and
they have received, and those employees with
indeed the wording does not permit such a
lesser degree of Indian blood to whom pref-
challenge." 359 F.Supp. at 589.
erence was extended at the time of appoint
8. I. c., movements of personnel which do not
ment. 44 BIA Manual 713. 1.2. It is noted
entail promotions or changes in salary, re-
in the Manual that there are a few individuals
sponsibility or promotion potentials, the latter
in the latter category who were appointed be-
element of which appellants concede also would
fore the one-fourth Indian blood requirement
justify considering the transfer as a promotion.
went into effect.
We see difficulties in any such differentia-
7. This court's decision in Fass V. Gray, 91
tion: the practical one of predicting promo-
U.S.App.D.C. 28. 197 F.2d 5S7. cert. denied,
tional opportunity or lack of it in any shift:
344 U.S. S39, 73 S.Ct. 39. 97 L.Ed. 653
the control superiors would have through judg-
(1952), involved a reduction-in-force problem
mental or discretionary action over the ap-
of veterans in the context of a significantly
plication of the Indian preference. by reason
different statute and the rule making power
of this uncertain aspect. and the opportunities
of the Civil Service Commission. Mescalero
for thwarting the preference itself by trans-
Apache Tribe v. Hickel, 432 F.2d 956 (10th
fers of current non-Indian employees from.
Cir. 1970). cert. denied. 401 U.S. 981. 91 S.Ct.
positions having no available qualified Indian
1195. 28 L.Ed.24 333 (1971). supra. also was
replacements to vacant positions for which
a reduction-in-force case although involving
there are qualified Indians available. These
Indians; the court held that "appointments
problems are reduced or eliminated by the dis-
to vacancies" were not involved SO as to in-
trict court ruling.
499 F.2d-32
498
499 FEDERAL REPORTER, 2d SERIES
They rely upon statements in Mescalero
volving the creation of, or appointment
Apache Tribe V. Hickel, 432 F.2d 956,
to, vacancies are unaffected, unless of
960 (10th Cir. 1970), supra, and draw
course these personnel adjustments are
particular attention to a comment that
used as mere subterfuges to avoid the
"[t]he language of § 472 was specifical-
statute as interpreted here.
ly limited to 'appointments to vacancies'
The most persuasive situation for an
because of concern that the section as
exception to the preference was specifi-
originally drafted would allow qualified
cally presented only after the entry of
Indian applicants to immediately dis-
the court's order, in connection with the
place 'white' employees of the B.I.A."
application for its stay: 10 circumstances
But the reason Mescalero did not ap-
dictating the transfer of a particular
ply the Indian preference to reduction-
non-Indian employee because of prob-
in-force situations was simply that no
lems beyond his control or when his
"appointments to vacancies" within the
safety or continued effectiveness is
contemplation of the preference statute
threatened, for example. Even though
were involved. The declaratory judg-
such a necessity may be thought not to
ment under review here covers only
justify disregard of the preference in
"personnel movements
intend-
any lateral transfer to an existing va-
ed to fill vacancies in that [BIA] agen-
cancy, appellants argue that at least an
cy, however created.
"
Under
exchange of positions would be proper to
the order if no vacancies to be filled ex-
meet such an emergency. This lateral
ist the preference does not apply, but if
swapping of positions would bring into
there is a vacancy to be filled, whether
more acute question the meaning of "va-
for initial hiring, or by or as a result of
cancy" as well as "appointment".
promotions, lateral transfers or reas-
Where two employees of identical status,
signments in the Bureau, it does apply.
with the approval of their superiors,
We agree with the district court that
merely exchange positions it is suggest-
this is what Section 472 means, and
ed by appellants that there would be no
requires.9
vacancy with respect to either position.
Vague reference is made by appellants
Of course if this device were to be em-
to "mere" relocations of jobs or reas-
ployed to shift an employee contemplat-
signments of duties essential to efficient
ing retirement or promotion from a po-
administration, which they imply are
sition having an available Indian re-
undesirably inhibited by the district
placement to a position (on a different
court's judgment. It would be inappro-
reservation for example) having only
priate for us to pursue such generalities
non-Indian replacements available, ob-
not involved in the situations of the
viously the intent of the statute under
plaintiffs nor defined in the record, ex-
any view would be defeated. Yet appel-
cept to indicate, as did the trial court,
lees say that the BIA should be permit-
that only appointments to vacancies are
ted to utilize in good faith this theory of
covered by the preference; readjust-
exchange of positions without applying
ments in assignments or tasks not in-
the Indian preference.
9. "A 'vacancy' is a "vacancy", its opinion
usually result from conditions over which an.
observed. "no matter how created. Congress
employee has no control. These situations re-
drew no distinction-as it could easily have
quire that the employee be moved as quickly
done had it SO intended."
as possible to avoid further alienation of the
10. The McKune affidavit in support of the re-
tribe. and occasionally, the threat of physical
quest for a stay on appeal stated "Lateral
violence to the employee and his family. When
reassignment of Bureau of Indian Affairs'
a qualified Indian candidate is available for
employees to vacant positions are frequently
the position to which A non-Indian employee
made because of a breakdown in relationships
may be reassigned under these circumstances,
between an employee at the agency level and
it becomes impossible to move the non-Indian
the tribes that he serves. Such breakdowns
employee."
FREEMAN V. MORTON
499
Cite ns 400 F.2d 191 (1974)
[2,3] As tempting as this continued
appellees do, that "appointment" refers
softening of the statute may appear, we
not only to initial hiring, but also to
cannot approve it. That would require
promotions, while maintaining that the
an unacceptable torsion of the term "va-
term does not include lateral transfers,
cancy" or the word "appointment", or
would be to only selectively accept the
both. Whether a vacancy exists depends
contended-for meaning, but largely to
upon whether a position is vacant and
reject it to coincide with previously an-
susceptible of being filled, not upon how
nounced policies and the exigencies of
it is filled. According to appellants' ar-
this suit.
gument, for example, if an employee in
office A should retire, his former posi-
[4] Except in extremely exceptional
tion would be vacant only if his replace-
circumstances a non-Indian would be
ment were either promoted to that posi-
transferred out of an existing position
tion or hired from outside the BIA to
only if, taking into consideration the In-
fill it; the determination of whether a
dian preference, he could fill legally an-
vacancy occurs would be delayed until
other vacancy because of the unavailabil-
the vacancy no longer existed. We be-
ity of a qualified Indian. If he were
lieve Judge Corcoran correctly reasoned
thus laterally transferred, then his
that when a position is open, needing to
former position would become vacant,
be filled, it is vacant in the contempla-
subject to being filled also in a manner
tion of the statute, and if the position is
consistent with the Indian preference. To
filled by transferring to it an employee
bend this interpretation of the statute in
from a position of similar status some-
an effort to accommodate its contrary
where else within the BIA, that em-
terms to extraordinary situations envis-
ployee's former position also becomes a
aged by appellants would not be justi-
vacant position to be filled with due re-
fied. Many administrative adjustments
gard for the Indian preference.
already have been necessary, and more
should have been made earlier, to
Appellants' approach to the word "ap-
achieve the purposes and mandate of the
pointment" is to say that the word has
law. If there are no reasonable admin-
come to mean, through custom and
istrative or management alternatives to
usage in civil service contexts, "initial
violation of the mandated preference for
hiring from outside", and it is suggested
meeting the situations discussed-and
that this was the meaning intended by
the record falls far short of demonstrat-
Congress in using the word in the statu-
ing that there are not-the problem is a
tute. It is interesting to note in pass-
legislative and not a judicial one. In
ing, as the record indicates, that Civil
view of the legislative history it does
Service practice now accepts promotions
not appear likely that it will be weak-
as "appointments". But here we are not
ened by Congress for insubstantial rea-
dealing with Civil Service application
son; more to the point, it is not within
but practices expressly intended to de-
our province to do so at all.
part from them. The Secretary is di-
Relevant legislative history disclosed a
rected "to establish standards
congressional intent actively and posi-
for Indians who may be appointed with-
tively to establish, through an orderly
out regard to civil-service laws
process, Indian control of Indian serv-
Furthermore, to concede, as
ices. 11 True, Congress did not envi-
11. "The result [of present civil service rules]
dians the principal agents in their own eco-
has been that the Indians have been given no
nomic and racial salvation and
opportunity to handle their own affairs or to
progressively reduce and largely decentralize
be trained in their own affairs. This bill. we
the powers of the Federal Indian Service."
think. gives them the opportunity to which
Memorandum on S. 2755 by John Collier, Com-
they are entitled
[T]o make the In-
missioner for Indian Affairs. reprinted in
500
499 FEDERAL REPORTER, 2d SERIES
sion the mass termination of all non-In-
interests of the Bureau. 14 The existing
dian employees, 12 but there can be little
administrative interpretation to this ef-
doubt that traditional civil service secu-
fect, the appellants assert, is entitled to
rity for non-Indians in the Indian serv-
great weight in view of such cases as
ice was deliberately subordinated to the
Udall V. Tallman, 380 U.S. 1, 85 S.Ct.
objectives of the Indian preference. 13
792, 13 L.Ed.2d 616 (1965). To the con-
We conclude that the district court
trary, we consider appellants' contention
correctly determined the reach of Sec-
weakened by the fact that shortly before
tion 472.
its present position was taken it was
Bureau policy not to recognize promo-
II
tions as falling within the purview of
Even assuming, as we hold, that the
Section 472 at all. The contention is
Indian preference applies to lateral
rendered suspect by the illogic of read-
transfers in connection with which va-
ing exceptions into the statute with re-
cancies are to be filled, appellants con-
gard to promotions and applying an in-
tend that the Commissioner of Indian
flexible rule concerning initial hirings, 15
Affairs has a discretion to make limited
is further thrown into question by a cer-
exceptions with reference to lateral
tain confusing ambivalence in appel-
transfers, as well as promotions when
lants' position even during the final
i
this is expressly found to be in the best
hearing below, 16 and is dissipated by a
Hearings on S. 2755 Before Senate Committee
14.
"
It is the policy for promotional
on Indian Affairs, 73d Cong., 2d Sess., 1, 19
consideration that where two or more candi-
(1934).
dates who meet the established qualification
"The definite goal [of the Act] is to
requirements are available for filling a vacan-
have Indians eventually handling everything.
C.V. if one of them is an Indian, he shall be
"
Testimony of Commissioner Col-
given preference in filling the vacaney. In ac-
lier, Senate Hearings, 322.
cordance with the policy statement approved
"Indian progress and ambition will be
by the Secretary. the Commissioner may grant
enormously strengthened as soon as we adopt
exceptions to this policy by approving the se-
the principle that the Indian service shall
lection and appointment of non-Indians. when
gradually become, in fact as well as in name.
he considers it in the best interest of the
an Indian service predominantly in the hands
Bureau." 44 BIA Manual 335, 3.1 (as amend-
of educated and competent Indians." Rep.
ed June 23, 1972).
Howard. 78 Congressional Record 11731
15. Appellants assure us in their brief that "it
(1934).
is not contended that there is discretion to
"[Section 4721 directs the Secretary of the
make exceptions as regards initial hiring" but
Interior to establish the necessary standards
do not attempt to reconcile this long stand-
of health. age, character. experience. knowledge
ing position with their view of discretion as to
and ability for Indian eligibles and to appoint
promotions, although they now concede in gen-
them without regard to civil service laws
eral that promotions are covered by the Sec-
This provision in no way signifies
tion.
a disregard of the true merit system. but it
adapts the merit system to Indian tempera-
16. On June 22. 1972. Secretary Morton ex-
ment. training and capacity." 1d.
panded the recognition of preferences to pro-
motions and training. By December S, 1972,
17
12. "This does not mean a radical transforma-
when the motions for summary judgment came
tion overnight or the onsting of present white
before the district court the position of the
employees. It does mean a preference right to
defendants was modified: they apparently
qualified Indians for appointments to future
contended that while the Indian preference
vacancies in the local Indian field service and
could be applied by the Bureau to promotions,
an opportunity to rise to the higher administra-
such application was not required but that the
tive and technical posts." Id.
Bureau could accommodate the preference to
c
13.
[W]c must not blind ourselves
special circumstances justifying exceptions. as
to the fact that the effect of this bill if worked
was their contention concerning lateral assign-
out would unquestionably be to replace white
ments. In the course of the argument below
1
employees by Indian employees, I do not know
they then seemed to withdraw somewhat from
how fast, but ultimately it ought to go very
the concessions of that statement by arguing
far indeed." Comm'r Collier, Hearings on
that the statute did not necessarily require
H.R. 7902 Before House Committee on Indian
the preference to be applied in cases of promo-
O
Affairs, 734 Cong., 2d Sess., 39 (1934).
tion but it may be "extended administratively
t
FREEMAN V. MORTON
501
Cite as 499 F.2d 494 (1974)
comparison of the provisions of prior In-
to the clear provisions of the act. Even
ef-
dian preference statutes with those of
though some ambiguities might be per-
to
the act controlling in. the circumstances
ceived under certain situations they
as
of this case.17 As pointed out by Judge
should be resolved, reason permitting, in
S.Ct.
Corcoran, the controlling statute does
favor of the Indians. Choate v. Trapp,
con-
not say the 'Indians
may
224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941
have preference'. It says:
(1912) 18 But ambiguities, as has been
before
qualified Indians shall hereafter have
pointed out, are largely confined to the
was
preference" and "if Congress
shifting position of the appellees and
promo-
had intended to write discretionary now-
their predecessors who, in administering
of
er into the language of Sec. 472 it would
a statute designed in 1934 to progres-
is
have done SO expressly
One
sively correct a situation where there
read-
need only look at various Indian prefer-
was a smaller proportion of Indians in
re-
ence statutes to recognize that Congress
the BIA then than there was in 1900,19
in-
was well aware of the distinction be-
have achieved little more than the old
15
tween discretionary and mandatory ac-
ratio during the intervening forty
a
cer-
tion."
years.20 All of these circumstances are
appel-
final
[5, 6] Any conflicting administrative
at least as persuasive as those in Morton
interpretation to the contrary must yield
V. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39
by
a
notional
into the area of promotions". and that non-In-
of clerical, mechanical, and other help on res-
candi-
dians "may be. promoted other than as a last
ervations and about agencies. In contrast,
fication
resort." Later in the argument appellants'
Section 472. the most recent Congressional
vacan-
counsel argued generally that Congress did not
mandate on the subject. provides that the In-
be
intend to cover promotions as distinguished
dians involved here, without regard to Civil
In
ac-
from initial hiring. and finally the claim
Service laws "shall hereafter have the prefer-
pproved
seemed to be that while the preference statute
ence to appointment to vacancies.
"
grant
did generally apply to promotions and Interal
18. "But in the government's dealings with the
the
se-
assignments. as well as initial hiring. a discré-
Indians the rule is exactly the contrary. The
when
tion resided in the Bureau to make exceptions
of
in cases of administrative convenience or neces-
construction. instead of being strict. is liberal:
the
doubtful expressions, instead of being resolved
amend-
ity. Counsel for appellants then said: "In a
in favor of the United States, are to be re-
situation where selecting someone who is
solved in favor of a weak and defenseless
qualified but whose qualifications simply don't
that
"it
people. who are wards of the nation, and de-
match someone else's and where a program
to
pendent wholly upon its protection and good
might be jeopardized, the commissioner may
but
faith. This rule of construction has been rec-
make an exception; but. virtually. that is it.
stand-
ognized. without exception, for more than a
A qualified Indian gets preference for promo-
hundred years.
"
as
to
224 U.S. at 675.
tion." Later counsel for appellants said:
in
gen-
See also Choctaw Nation V. Oklahoma. 397
"With respect to promotion we are saying the
the
Sec-
U.S. 620, 631, 612. 90 S.Ct. 1328, 25 L.Ed.2d
statute says vacancies, it must apply across the
board
615. (1970) (interpretation of treaties). and
Now in the area of training
Ilaley V. Seaton, 10S U.S.App.D.C. 257. 281
CX-
the statute says vacancies: it is in-
to
pro-
applicable to training."
F.2d 620, 023 (1960) (interpretation of execu-
tive orders).
1972,
17. 25 U.S.C. § 44, originally enacted in 1894.
came
28 Stat. 313, provided that in the Indian Serv-
19. "Thirty four years ago, in 1900, the num-
of
the
ice Indians shall be employed as herders,
ber of Indians holding regular positions in the
parently
Indian Service, in proportion to the total posi-
teamsters, and laborers, "and where prac-
eference
ticable in all other employments in connection
tions was greater than it is today." (Memo-
motions,
randum on S. 27.5 submitted to the Senate
with the agencies and the Indian Service.
that
the
" Section 45, derived from the Act
Committee on Indian Affairs by John Collier,
rence
to
of June 30, 1834, -1 Stat. 737, provides that
Commissioner of Indian Affairs, reprinted in
Sons.
as
in all cases of the appointments of interpreters
Senate Hearings, supra.)
assign-
or other persons employed for the benefits of
20. The record indicates that Indians comprised
below
the Indians. a preference shall be.given to per-
51% of the total number of employees in 1941
at
from
sons of Indian descent, "if such can be found.
but that this percentage decreased to 4S%
arguing
who are properly qualified for the execution of
in 1969. In 1970 only a little more than
require
the duties." Section 46. derived from the Act
half of all employees were Indians and the
promo-
of May 17. 1882. 22 Stat. SS provides that
majority of these were employed in the lower
atively
reference shall at all times, as far as prac-
ranking jobs.
ticable. be given to Indians in the employment
502
499 FEDERAL REPORTER, 2d SE
:S
L.Ed.2d 270 (1974), against control of
theretofore had granted a preference
judicial interpretation by administrative
only "insofar as practicable", would ren-
treatment.²¹
der understandable a disinterment of the
ancient grievance against the duality of
In oral argument appellants' counsel
deceit to which the Indian race SO long
suggested that the word "preference"
reacted and which it was to be hoped
connoted "a choice" according to some
had been laid to rest by considerate
dictionary definition or rulings in other
modern legislation, including Section
context. It was implied that this
472. We conclude that this section
"choice" was to be made by the Commis-
means what it says, as the trial court
sioner. We reject this play on words,
determined.
and return to the clear meaning of the
Act in context with its purpose, history
The partial stay heretofore granted 22
and wording-qualified Indians, not the
is vacated and the judgment and order
of the district court affirmed.
Commissioner, have a right to the pref-
erence in appointments to vacancies.
The statute makes the choice.
I
KEY
C
NUMBER
SYSTEM
[7] In Mescalero Apache Tribe V.
1
Hickel, 432 F.2d 956, 959-960 (10th Cir.
1970), cert. denied, 401 U.S. 981, 91 S.
t
Ct. 1195, 28 L.Ed.2d 333 (1971), Chief
Judge Lewis, writing for the court, rec-
I
Dick JONES ct al., Appellants,
ognized that the government's position
t
V.
contained "overtones of the age-old [In-
S
dian] complaint of the 'forked tongue'
DISTRICT OF COLUMBIA REDEVELOP-
t
MENT LAND AGENCY et al.
" and that the objective of Sec-
D
(three cases).
tion 472 for the BIA to "gradually be-
d
come an Indian service predominantly in
Nos. 73-1507, 73-1638 and 73-1751.
the hands of educated and competent In-
United States Court of Appeals,
a
dians" was not being realized. That
District of Columbia Circuit.
S.
court felt constrained to hold that the
Decided April 26, 1974.
Indian preference did not apply to re-
ductions-in-force because "no appoint-
Argued July 24, 1973.
SC
ments to vacancies" were involved. Ac-
B
cepting the rationale of Mescalero as ap-
Residents of area in proposed urban
plied to the facts there, as we have, and
renewal plan brought action against the
Ii
that the promotions and lateral trans-
District of Columbia Redevelopment
ti
fers involved in the case before us do in-
Land Agency, the National Capital Plan-
m
volve appointments to vacancies, as we
ning Commission and the Department of
must, for us to hold that the Indian
Housing and Urban Development to
ai
preference established by Section 472
challenge the legality of certain actions
need not be observed if it is determined
of the agencies in formulating and exe-
impractical to do SO by the Commission-
cuting plan for urban renewal pursuant
1.
er, notwithstanding, as we have noted,
to neighborhood development programs.
that Section 472 was intended by the
The United States District Court for the
tu
Congress to change prior statutes which
District of Columbia, Howard F. Cor-
in
21. "We have recognized that the weight of an
to be granted deference it must be consistent
al
administrative interpretation will depend,
with the congressional purpose." (Citations
among other things, upon 'its consistency with
omitted.)
ce
earlier and later pronouncements' of an agen-
ro
22: The district court refused any stay of its or-
cy. In this instance the BIA's somewhat
th
der, but upon application of appellants we al.
inconsistent posture belies its present asser-
lowed a stay pendente lite but limited to the
tions. In order for an agency interpretation
effect of the order upon lateral transfers.
at
OF THE INTI KIOR
50
United States Department of the Interior
BUREAU OF INDIAN AFFAIRS
Much
1849
WASHINGTON, D.C. 20242
IN REPLY REFER TO:
Personnel Management
APR 18 1974
Memorandum
To:
Area Directors
Acting Director, Administrative Services Center
Director, Southeast Agencies
From:
Commissioner of Indian Affairs
Subject: Guidelines to Implementation of Stay in
Freeman Decision
The Circuit Court of Appeals for the District of Columbia
issued a stay order in Freeman V. Morton, No. 73-1409 on
November 7, 1973.
A noncompetitive reassignment of a non-Indian employee may
be made to a vacant position, providing it is to a position
where there is no promotion potential, only under situations
where compelling circumstances are present. Compelling
circumstances are any one of the following: (1) For reasons
of health of either the employee or members of his immediate
family, when documented by a letter from a physician; (2)
Where, by tribal council resolution, replacement of a
particular employee at an agency is requested: (3) Where the
employee has lost the confidence of the Indian community, or
has ceased to be effective in his position, or is subjected
to threats or he or his family is under duress from the Indian
community. When filling the vacancy created by the reassign-
ment, a vacancy announcement will be issued and the present
policy in granting preference to Indians will apply.
Reduction-in-force will be conducted in accordance with
Civil Service Commission, Department, and Bureau regulations.
Indian preference will continue to be applied in reduction-
in-force. In reduction-in-force situations, employees may
be reassigned to positions with no known promotion potential
even though the resulting vacancy remains unfilled or is
abolished.
RECEIVED
ADMINISTRATION
APR 23 1974
Cy nese neblee
NAVAJO
AREA OFFICE
A report must be sent to this office in every instance when
personnel actions are taken pursuant to the above. This
includes a personnel action involving a change to lower grade.
The report shall include full documentation on the steps taken
to fill the vacancy resulting from the reassignment, or, if
the vacancy is not filled or the position is abolished, a
complete statement of reasons for that action.
(Sga)
ADMINISTRATION RECEIVED
APR 24 1974
NAVAJO
AREA OFFICE
500
FROM MARVIN FRANKLIN ASSISTANT TO THE SECRETARY FOR
INDIAN AFFAIRS
TO TONY LINCOLN AREA DIRECTOR NAVAJO AREA
BY ORDER OF THE SUPREME COURT ON AUGUST 16, 1973, THE
DECISION OF THE COURT IN THE MANCARI CASE PROHIBITING THE
APPLICATION OF INDIAN PREFERENCE HAS BEEN STAYED.
ALL PERSONNEL ACTIONS ARE NOW, UNTIL FURTHER INSTRUCTED,
TO BE TAKEN APPLYING THE FREEMAN DECISION, WHICH HAS
HELD: "THAT ALL INITIAL HIRING, PROMOTIONS, LATERAL
TRANSFERS AND REASSIGNMENTS IN THE BUREAU OF INDIAN
AFFAIRS AS WELL AS ANY OTHER PERSONNEL MOVEMENT THEREIN
INTENDED TO FILL VACANCIES IN THAT AGENCY, HOWEVER CREATED,
BE DECLARED GOVERNED BY 25 USC 472, WHICH REQUIRES THAT
PREFERENCE BE AFFORDED QUALIFIED INDIAN CANDIDATES. "
Called from Phoenix Area Office 4:15 p. m., 8/17/73, by Lillian in
Mr. Artichoker's Office.
C
O
P
DECEIVED
IN THE UNITED STATES DISTRICT COURT
1972 JUN -5
FOR THE DISTRICT OF NEW MEXICO
C. R. MANCARI, ANTHONY FRANCO,
RECEIVED
WILBERT GARRETT and JULES
)
COOPER, on behalf of them-
)
JUN 1 1973
selves and all others
)
similarly situated,
)
E.E. GREESON
)
CLERK
Plaintiffs,
)
)
V.
)
)
ROGERS C. B. MORTON, as
)
No. 9626 Civil.
Secretary of the Interior,
)
LOUIS R. BRUCE, as Commissioner
)
of Indian Affairs, WALTER O.
)
OLSON, as Area Director, Bureau
)
of Indian Affairs, Albuquerque
)
FILED
Area Office, and ANTHONY LINCOLN,
)
AT. ALBUQUERQUE
as Area Director, Bureau of
)
Indian Affairs, Navajo Area Office,
)
JUN 1 1973
)
Defendants.
)
E. E. GREESON
CLERK
JUDGMENT
IT IS ORDERED, ADJUDGED AND DECREED that the named
defendants are hereby permanently enjoined from implementing
any policy in the Bureau of Indian Affairs which would hire,
promote, or reassign any person in preference to another
solely for the reason that such person is an Indian, since
25 U.S.C. §§ 44, 46 and 472 are contrary to the Civil Rights
Act, and are inoperative.
IT IS SO ORDERED.
United States Circuit Judge.
United States District Judge.
Sh he
RECEIVED
ADMINISTRATION
United States District Judge.
JUN 7 1973
NAVAJO
AREA OFFICE
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
C. R. MANCARI, ANTHONY FRANCO,
)
WILBERT GARRETT and JULES
)
COOPER, on behalf of them-
)
selves and all others similarly
)
situated,
)
)
Plaintiffs,
)
)
V.
)
)
ROGERS C. B. MORTON, as
)
No. 9626 Civil.
Secretary of the Interior,
)
LOUIS R. BRUCE, as Commissioner
)
of Indian Affairs, WALTER O.
)
OLSON, as Area Director, Bureau
)
FIUED
of Indian Affairs, Albuquerque,
)
AT, ALBUQUERQUE
Area Office, and ANTHONY LINCOLN,
)
as Area Director, Bureau of
)
JUN 1 1973
Indian Affairs, Navajo Area Office,
)
)
E.E. GREESON
Defendants.
)
CLERK
MEMORANDUM OPINION
This is a class action brought by the named plaintiffs
on behalf of themselves and all other employees of the Bureau
of Indian Affairs who are of less than twenty-five per cent
Indian blood. Plaintiffs seek to enjoin the defendants from
implementing and enforcing a policy of the Bureau of Indian
Affairs to give preference to persons of one-quarter or more
Indian blood in initial hiring, training, promotion, and
reinstatement.
Plaintiffs allege that Title 25, United States Code,
§§ 44-46 and 472 (hereinafter the Indian Preference Statutes),
are being improperly construed by the Secretary and the
Commissioner in that these sections were meant to extend a
-1-
preference to Indians in initial hiring only. Plaintiffs fur-
ther allege that this expanded policy violates their rights
under the Civil Rights Acts of 1964 and 1972, which rights are
guaranteed them in Title 42, United States Code, §§ 2000e et
seq., and Public Law 92-261, § 717. Finally plaintiffs allege
that the Indian Preference Statutes are unconstitutional be-
cause they deprive plaintiffs of their rights to property
without due process of law in violation of the Fifth Amendment
to the United States Constitution.
The non-Indian plaintiffs are longtime employees of the
BIA. They are teachers at the Albuquerque Polytechnic Insti-
tute, or programmers, or in computer work, or teachers in other
areas. They testified as to particular training or advance-
ments for which they had applied, and which in their opinion
were denied by reason of the application of the preference
policy. We find that the plaintiffs demonstrated sufficient
connection with the application of the policy to bring this
action for themselves and others similarly situated.
The defendants are persons occupying official positions
relating to the BIA and are responsible for the application
of the Acts herein concerned.
We find that there are asserted substantial constitu-
tional questions requiring consideration by a three-judge
court.
The United States Attorney, who appears for the de-
fendants, challenges the court's jurisdiction over the sub-
ject matter. The Court of Appeals in Mescalero Apache Tribe
v. Hickel, 432 F.2d 956 (10th Cir.), held that there was
-2-
jurisdiction under 5 U.S.C. § 704 in that action. Here the
plaintiffs assert jurisdiction under 42 U.S.C. § 2000e and
28 U.S.C. $ 1346(a)( (2) This could be considered under the
latter statute since the action was against "Rogers C. B.
Morton, as Secretary of the Interior," and against other nam-
ed persons in their official capacities. As indicated, the
United States Attorney has 'appeared as counsel for the defend-
ants. However, we hold that there is jurisdiction under 42
U.S.C. § 2000e, and any further challenge before the Depart-
ment concerned would be an idle gesture in the face of the
issuance of the policy statement and its implementation by re-
gulations and orders. The issue is not an interpretation of
policy statements or their application, but is a direct chal-
lenge to the validity of the statute on which the departmental
policy is based. There is thus no purpose shown why any fur-
ther administrative action would serve any useful purpose.
Mescalero Apache Tribe V. Hickel, 432 F.2d 956 (10th Cir. )
we believe, is significant on this point although it dealt
with 5 U.S.C. § 704 where no administrative machinery was ex-
pressly provided.
Defendants contend that they are directed by 25 U.S.C.
$ 472 to implement the policy of Indian preference. Section
472 provides as follows:
"The Secretary of the Interior is directed
to establish standards of health, age, character,
experience, knowledge, and ability for Indians
who may be appointed, without regard to civil-
service laws, to the various positions maintained,
now or hereafter, by the Indian Office, in the
administration of functions or services affecting
any Indian tribe. Such qualified Indians shall
hereafter have the preference to appointment to
vacancies in any such positions.
-3-
Other statutory provisions relating to preference, al-
though less explicit, appear at 25 U.S.C. §§ 44 and 46.
The gist of the preference policy which precipitated
the challenge was embodied in Personnel Management Letter
No. 72-12, issued by the Albuquerque Area Office of the BIA,
which provided in part as follows:
"The Secretary of the Interior announced
today he has approved the Bureau's policy to ex-
tend Indian preference to training and filling
vacancies by original appointment, reinstatement
and promotions
"The new policy provides as follows: Where
two or more candidates who meet the established
requirements are available for filling a vacancy,
if one of them is an Indian, he shall be given
preference in filling the Mcancy. This policy
is effective immediately, and is incorporated
into all existing programs such as the Promotion
Program
"
The policy was officially announced and, as we find from
the evidence that it is being carried out, applies the prefer-
ence in hiring and promotions. Instances of promotional pre-
ferences were testified to by the witnesses. The policy is
thus a reality, and far beyond the formative stage.
A preliminary issue relates to the validity of 25 U.S.C.
§ 472, quoted above, in view of its inclusion in the hetero-
geneous Indian Reorganization Act of 1934. This provision was
included in the Reorganization Act together with other sec-
tions which relate to a variety of subjects. In one of the
sections, now 25 U.S.C. § 478, provision is made for submission
of "the Act" for acceptance or rejection by the various Indian
tribes. This voting section (478) on its face would appear to
make the application of section 472, with which we are here
concerned, optional with individual tribes by requiring a
-4-
special election of the adult members of the tribe to vote on
the application of the entire Act.
The Reorganization Act was submitted and voted on and
was rejected by a considerable number of tribes. This rejec-
tion and acceptance tribe by tribe creates some uncertainty,
but a careful reading of the other sections, as well as a re-
view of the Congressional history of the Act, convinces us
that the elections were to be only for the purpose of accept-
ing or rejecting sections 476 and 477 of Title 25, 48 Stat.
987-88. For example, we cannot believe that Congress intended
all the Indian tribes to vote on the extension of boundaries
of the Papago Reservation (section 463a, 50 Stat. 536), on
the Secretary making rules and regulations for the operation
and management of Indian forestry units (section 466, 48 Stat.
986), or on appropriations for vocational and trade schools
(section 471, 48 Stat. 985), or on other provisions found in
the Indian Reorganization Act. It is difficult to see how
under any other construction the Act would be valid.
Senator Wheeler, one of the sponsors of the Reorgani-
zation Act, made the following remarks in his discussion of
sections 476 and 477 of the Act:
"The third purpose of the bill is to stabi-
lize the tribal organization of Indian tribes by
vesting such tribal organizations with real,
though limited, authority, and by prescribing
conditions which must be met by such tribal or-
ganizations. This provision will apply only if
a majority of the Indians on any Indian reserva-
tion desire this sort of organization. As a mat-
ter of fact, however, it does not change to any
great extent the present tribal organization,
except that when a majority of the Indians want
to establish this tribal organization and extend
the provisions of the bill to it, they may do so."
(1934 Congressional Record, p. 11123)
-5-
Nothing which followed in the debate or in the way of amend-
ments suggests to us that the option of acceptance was extend-
ed to any other portion of the Act, and therefore the prefer-
ence section here concerned must be held to extend to all
Indians as individuals.
The issue of the proper construction of 25 U.S.C. § 472
is urged on this appeal and 'is a significant problem. The
United States Court of Appeals for the Tenth Circuit in
Mescalero Apache Tribe V. Hickel, 432 F.2d 956, considered
the application of the preference statutes to reductions in
the work force of the Bureau of Indian Affairs, and held the
preference not applicable. There section 472 was considered,
as were sections 44 and 46 of 25 U.S.C., and references were
made to the legislative history. The parties and the court
were there concerned only with the particular issue at hand.
There was no other issue nor a general challenge to the Act.
The preference thus does not apply to reductions in the work
force.
The United States District Court for the District of
Columbia, in Freeman V. Morton, Civ. No. 327-71 (not yet
reported), had before it the question of whether or not sec-
tion 472 gave the plaintiff a preference over all non-Indian
employees in the Bureau of Indian Affairs with respect to
promotions, reassignments to vacant positions within the
BIA, and to assignments to available training positions (the
contrary position was that the preference was only as to
initial hiring). The district court in Freeman held that
section 472 required the preference be given in promotions
-6-
and reassignments to vacant positions within the Bureau, but
that it did not extend to positions in training programs.
We do not decide whether the preference is as broad as
the court in Freeman V. Morton indicates. It is sufficient
to permit consideration of the basic issue to observe that
no one challenges the application of the preference acts to
initial hiring and indeed the wording does not permit such a
challenge.
We turn now to the asserted conflict between the Indian
Preference statute and the Civil Rights Acts of 1964 and
1972 (Equal Employment Opportunity Act, 1972, Public Law
92-261). As indicated above plaintiffs assert that the Indian
Preference Policy adopted and implemented by the Bureau is in
direct conflict with the Civil Rights Acts of 1964 and 1972,
and more specifically with Title 42, United States Code,
§ 2000e-2 and as amended by Public Law 92-261. Plaintiffs in
their challenge to the preference acts thus assert that the
Bureau, by refusing to obey the Congressional mandate set forth
in section 717 of Public Law 92-261, is violating the rights
given them under that added section.
Section 717 provides in part as follows:
"Sec. 717. (a) All personnel actions af-
fecting employees or applicants for employment
(except with regard to aliens employed outside
the limits of the United States) in military de-
partments as defined in section 102 of title 5,
United States Code, in executive agencies (other
than the General Accounting Office) as defined
in section 105 of title 5, United States Code
(including employees and applicants for employ-
ment who are paid from nonappropriated funds),
in the United States Postal Service and the
Postal Rate Commission, in those units of the
Government of the District of Columbia having
positions in the competitive service, and in
-7-
those units of the legislative and judicial branch-
es of the Federal Government having positions in
the competitive service, and in the Library of
Congress shall be made free from any discrimination
based on race, color, religion, sex, or national
origin."
On its face, section 717 applies to all agencies of the
federal government. There is nothing in the Committee Report
or in House Report No. 92-238, accompanying H. R. 1746, enact-
ed into law as Public Law 92-261, which would indicate that
the Bureau of Indian Affairs be excepted from its provisions
(see 1972 U.S. Code Cong. & Ad. News, pp. 2137, 2157). Excep-
tions are contained in the Act, but none as to the Indians or
the Bureau.
Senator Byrd of West Virginia, speaking in favor of the
bill, made the following remarks:
"Ido not favor special treatment or special
consideration or favored employment of any indivi-
dual on the basis of that person's being black or
white, male or female.
Notwithstanding what
I have just said, the fact remains that discrim-
ination in employment, on the basis of race, does
exist, and discrimination against sex does persist.
Wherever there is such discrimination in employ-
ment, it is violative of the Constitution of the
United States
"In other words, he should rise or fall on
the basis of merit, not on the basis of race or
religion or sex. Every qualified individual --
black, white or else --- should be given an equal
chance -- not preferential treatment -- at employ-
ment. " (Congressional Record, January 26, 1972,
ES S. 590).
And Senator Humphrey, speaking for the bill, made the
following statement:
"We must make absolutely clear the obligation
of the Federal Government to make all personnel
actions free from discrimination based on race,
color, sex, religion, or national origin." (Con-
gressional Record, January 20, 1972, at SS. 172-
173).
-8-
This is not a simple instance of a relationship of a
general statute to a special subject statute which often
occurs. Each statute purports to cover the same particular
subject of personnel actions relating to, as section 717
described them, "
discrimination based on race, color,
religion, sex, or national origin. If One Act applies to all
but some excepted bureaus or agencies and the other to the
"Indian Office. If This is not a sufficient difference in the
scope to bring into consideration the doctrine relating to
conflicts between special and general statutes. Further by
the nature of the subject matter and scope, the two cannot
exist side by side. See Posadas V. National City Bank,
296 U.S. 497.
There was no evidence introduced to show in any way that
having seventy-five per cent non-Indian blood and twenty-five
per cent Indian blood was in any way a job-related criterion.
Griggs V. Duke Power Co., 401 U.S. 424. There was no evidence
whatever presented to show any national-public purpose con--
cerned in the preference policy as compared with the nondis-
crimination statutes. There would certainly have to be some
showing of these factors before defendants' arguments could
be considered to supprt the preference statutes as an excep-
tion.
Me as not consider that Board of County Comm'rs V.
Seber, 318 U.S. 705, or Simmons V. Eagle Seelatsee, 384 U.S.
209, led to 2 contrary conclusion. It is apparent that Indian
tribes have been the subject of particular legislation from
time to time. But this of itself is no reason for a different
-10-
treatment of Indians generally. Indians as such are not con-
sidered to have rights, so far as here pertinent, different
from other citizens; they are citizens and are obviously en-
titled to all rights, privileges, and burdens thereof.
We have not considered the challenge by plaintiffs to
the constitutionality of the preference statutes. This is-
sue involves the consideration of the reasonable governmental
purpose or objective sought to be attained in creating the
preferred position for certain persons having a stated per
centage of Indian blood as compared to others. There was
testimony as to the manner in which certain non-Indians were
affected by the policy. The separate treatment was thereby
established together with its impact on the individuals.
The defendants had the burden of coming forward with evidence
of an important governmental objective but put on no evidence
directed to this matter. Under these circumstances, we could
well hold that the statute must fail on constitutional grounds,
but instead we hold as above described that the preference
statutes must give way to the Civil Rights Acts.
Delh
United States Circuit Judge.
United States District Judge.
5.7 le
United States District Judge.
-11-
OF
DEP INITRIOR
United States Department of the
OFFICE OF THE SECRETARY
March
681
1972DEC 12 WASHINGTON, D.C. 20240
DIRECTOR'S OFFICE
ARIA
OFFICE
DEC 7 1972
Memorandum
To:
Area Directors and Chief, Field Support Services Office,
Bureau of Indian Affairs
From:
Director, Organization and Personnel Management
Subject: Implementation of Indian Preference Policy and Clearance
Required for Filling Vacancies at GS-13 and Above
Per your discussion with Secretary Bodman, we are enclosing memoranda
relative to the procedural application of the new Indian preference
policy in the Bureau of Indian Affairs and the Secretary's require-
ment that all vacancies filled at GS-13 and above have prior
approval of this office.
In the near future you will receive more specific instructions from
the Bureau Chief Personnel Officer concerning the application of
Indian preference in promotions. The Secretary's memorandum applies
to vacant positions filled by original appointment, transfers and
promotions. Lateral reassignments within the bureau and promotions
resulting from reclassification actions do not require prior approval
of this office unless such clearance is required by 370 DM 311.
Your requests to fill vacancies should be directed to the Acting Chief
Personnel Officer, Bureau of Indian Affairs, who will coordinate with
and obtain the approval of this office.
If you have any questions about either of these policies, please
feel free to call me on 202-343-6761.
7.
m-Benn
Enclosure
CC:
101 200 300
all
DEP OF
United Ccates Department of the interior
OFFICE OF THE SECRETARY
March
,
GREAT
WASHINGTON, D.C. 20240
NOV 22 1972
Memorandum
To:
Assistant Secretaries
Deputy Assistant Secretaries
Bureau Chiefs
Office Heads
From:
Secretary of the Interior
Subject: Candidates for Senior Level Positions (GS-13 and above)
In view of the anticipated volume of requests for employment during
the next three months, it is imperative that maximum coordination on
recruitment actions exist throughout the Department.
Accordingly, until further notice, the qualifications of all prospective
candidates for employment in senior level positions will be reviewed by
Assistant Secretary Bodman's office before any commitments are made.
All accessions, promotions, and transfers into vacant positions should
be forwarded to the Office of Personnel Management for appropriate
review and processing.
Rogers CB Moston
OF
ROIBBINI
United States Department of the Intérior
OFFICE OF THE SECRETARY
March
OFFICE
WASHINGTON, D.C. 20240
OCT 30 1972
Memorandum
To:
Commissioner, Bureau of Indian Affairs
From:
Assistant Secretary - Management and Budget
Subject: Implementation of New Indian Preference Policy
Your proposed procedures implementing the new policy extending
Indian preference into promotions have been reviewed by this office.
The attached procedures, which have been amended to conform to Departmental
policy, are approved for implementation in the Bureau.
We understand the difficulties faced by your staff in developing these
procedures. The new Indian preference policy and procedures will have
a significant impact on employment practices in the Bureau. Their
development has required a special sensitivity to this impact to insure
the application of preference on an equitable basis within statutory
limitations.
Training
Your covering memorandum of August 14 and the proposed procedures addresses
the issue of preference in training. Although the policy statement ap-
proved by the Secretary on June 22, 1972, provided for greater emphasis on
training for the development of Indian employees, it did not extend absolute
preference into training. By letter dated July 5, 1972, Chairman Hampton
of the Civil Service Commission endorsed our new Indian preference policy.
We have since had discussions with members of the Commission staff and
they point out that Chairman Hampton's endorsement of our policy did not
include an endorsement of preference in training.
Training will continue to be performed in accordance with Federal training
policy and Chapter 41 of Title 5, USC, i.e., to meet the immediate and
long-range needs of the agency. Any reference to Indian preference in
training must be deleted from Bureau issuances.
Promotions, Reinstatements and Initial Appointments.
The statement of policy outlined in the Bureau's implementing procedures
states in the last sentence, first paragraph: "Positions may be filled by
transfers, reassignments, reinstatement, or initial appointment, but
Indian preference applies in all cases except (1) when the Commissioner makes
an exception and (2) in lateral transfer and reassignment before a
Promotional Opportunity Bulletin is issued. "
The policy statement approved by the Secretary extended Indian preference
into filling of vacancies by original appointment, reinstatement, and
promotion. Transfers into the Bureau from other Federal agencies should
be considered original appointments to the Bureau rolls and therefore
subject to the same requirements as original appointments as far as
Indian preference is concerned. The noncompetitive reassignment of
employees within the Bureau was not covered by the policy statement. We
believe that the application of Indian preference in lateral reassign-
ment actions would restrict unnecessarily your authority to reassign
employees as the needs of Bureau programs may dictate. Since the non-
competitive lateral reassignment (actions which do not result in
reassignment to a position with known promotion potential) would not place
an employee in a better competitive position for advancement, preference
would serve no useful purpose. Therefore, such actions should be exempt
from the Indian preference requirements. However, there will be instances
when an employee is reassigned to a position with known potential for
advancement. In making a reassignment of this nature, Indian preference.
must be applied, since a promotion would ultimately result. We have amended
the approved procedures accordingly.
Keeping Employees Informed.
You proposed to provide a copy of the justification for selecting a non-
Indian employee to each candidate or applicant who was not selected from a
promotion certificate. It is our opinion that such action would have no
value. In addition, Federal Merit Promotion Policy, contained in FPM Chapter
335, states that: "An employee is not entitled to see an appraisal of
another employee. " Since the justification for selecting a non-Indian
employee for promotion would of necessity take the form of an evaluation or
appraisal of his capabilities to perform in a particular position, such
justification would be inappropriate for distribution to all candidates.
We have deleted this statement from your procedures.
Exceptions to Indian Preference in Promotion.
Exceptions to the Indian preference policy are expected to be limited,
according to the approved policy. It is contemplated that exceptions will
be granted only in those rare instances where the qualifications of a
non-Indian candidate for promotion are so superior to competing Indian
candidates that a decision not to select him will jeopardize the success of
a program or project. We feel that it is important to all employees that
the credibility of the Indian preference policy be maintained. Any
exceptions will be subjected to close scrutiny by Indian and
non-Indian employed alike. It is important, ther. ,re, that the
Bureau grant exceptions only in instances which fully meet the
rigid requirements of the policy.
Rahard SModiam
Enclosure
.1 Policy - An Indian has preference in initial appointment,
including lateral transfer from outside the Bureau, reinstatement,
and promotion. To be eligible for preference, an individual must
be one-fourth or more degree Indian blood and be a member of a
Federally-recognized tribe. It is the policy for promotional consid-
eration that where two or more candidates who meet the qualification
requirements are available for filling a vacancy, if one of them is
an Indian, he shall be given the preference in filling the vacancy.
In accordance with the policy statement approved by the Secretary,
the Commissioner may grant exceptions to this policy by approving
the selection and appointment of non-Indians, when he considers it in
the best interest of the Bureau. Positions may be filled by transfer,
reassignment, reinstatement, or initial appointment, but Indian
preference applies in all cases except (1) when the Commissioner makes
an exception and (2) in reassignment within the Bureau.
The Promotion Program does not restrict the right of management to
fill positions by methods other than through promotion.
All items remain the same except for I.
12 Content of Announcement
I. The following statement will be included on each POB issued:
"In filling this vacancy by promotion, initial appointment,
lateral transfer from outside the Bureau, or reinstatement, priority
in selection will be given to candidates who present proof of
eligibility for Indian preference. A Certificate of Indian Blood
must be part of the official personnel record of an applicant who
claims Indian preference."
Items A, C, D, E, F, and G remain the same
14 Methods and Procedures for Consideration.
B. Applications
An employee may file for an announced vacancy by submitting an
SF-171 through supervisory channels to the appropriate job
holding office. The supervisor will complete an evaluation
form to attach to the application and forward it to the Personnel
Office for submission to the job-holding Personnel Office.
An employee who claims Indian preference is responsible for
submitting a Certificate of Indian Blood with his application
if none is currently on record. Employees are responsible
for submitting a CIB to the job-holding Personnel Office, if
other than their current servicing Personnel Office. Indian
preference in promotion will not be considered unless there is
a CIB on file for the applicant claiming preference.
17 A & B are new - pen and ink changes renumbering old 17B to 17C; old
27C to 17D; and old 17D to 17E.
17 Evaluating Eligible Candidates
All qualified candidates to be considered for a vacancy will be
arranged in two groups - Indian and non-Indian.
A. Method of Evaluating. Candidates who are basically eligible
will be evaluated on 2 combination of factors dealing with their
overall knowledge, skills, education, and experience. Rating
panels will be established, unless it is impracticable to do so,
in order to rate candidates for positions at GS-5 and above under
the Promotion Plan. When rating panels are used in the evaluation
process, personnel staff members and the selecting official may
serve only in a technical or advisory capacity.
B. Evaluation of Outside Candidates. When recruitment efforts
are extended to include applications from candidates outside the
Federal service and other Federal agencies, these applications
will be rated, ranked, and certified in the same manner as Bureau
employees applying for consideration. When written evaluations
are not available, telephone contacts with former or present
employers will be documented as the supervisor's evaluation.
This paragraph will supersede entire paragraph .18
18 Ranking and Selection
A. Ranking by Category
1. Indian candidates. All Indian candidates who meet the
minimum qualification requirements for a position will be
rated as qualified and they will be ranked into two groups -
Qualified and Highly Qualified according to paragraph .17,
"Evaluating Eligible Candidates. " The best qualified will
be selected from the Highly Qualified group.
2. Non-Indian Candidates. All non-Indian candidates who meet
the minimum qualification requirements for a position will be
rated as qualified and they will be ranked into two groups -
Qualified and Highly Qualified according to paragraph .17,
"Evaluating Eligible Candidates. " The best qualified will
be selected from the Highly Qualified group.
B. Referral of Candidates to Selection Official (Certification)
1. Three to 5 of the best qualified Indian candidates will be
listed on the certificate. If meaningful distinctions cannot
be made among the best qualified candidates as many as 10 names
may be certified.
2. Where there are no best qualified Indian candidates available,
3 to 5 of the best qualified non-Indian candidates will be
certified together with all qualified Indian candidates. Con-
sideration of non-Indians will not be made until all qualified
Indians have been considered. Selection of a best qualified
non-Indian candidate, when there are qualified Indian candidates
on the certificate, will require approval by the Commissioner as
an exception to the Indian preference policy.
C. Exceptions. Requests for approval of the selection of a non-
Indian will be submitted to the Commissioner. Exceptions will
be granted only in those rare instances where the qualifications
of a non-Indian candidate for promotion are so superior to
competing Indian candidates in relation to job requirements,
including any special needs, that a decision not to select him will
jeopardize the success of a program or project.
1. Justification for Exception. A complete justification of why
the selected non-Indian has superior qualification to the qualified
Indian shall be submitted to the Washington Office together with
the certificate of eligibles, applications, and supervisors
evaluations.
Form 5-4408 (Revi
1)
Illustration 8
CERTIFICATE OF ELIGIBLES
BEST QUALIFIED INDIAN CANDIDATES
QUALIFIED INDIAN CANDIDATES (may not be selected when best qualified
Indians are available)
BEST QUALIFIED NON-INDIAN CANDIDATES (The selection of a non-Indian candidate
is subject to approval by the Commissioner if there are qualified
or best qualified Indian candidates available)
Selecting Official
IN REPLY REFER TO:
OF FINE INTERIOR THE INTERIOR
UNITED STATES
Personnel
DEPARTMENT OF THE INTERIOR
March 3. 1849
BUREAU OF INDIAN AFFAIRS
Navajo Area Office
P. O. Box 1060
Gallup, New Mexico 87301
JUN 2 6 1972
Memorandum
To:
All Employees, Navajo Area
From:
Area Director
Subject: Indian Preference
In order that all Navajo Area employees will be informed of the
latest developments regarding Indian preference, excerpts of the
Commissioner's latest wire are stated as follows:
"THE SECRETARY OF THE INTERIOR ANNOUNCED
TODAY HE HAS APPROVED THE BUREAU POLICY TO
EXTEND INDIAN PREFERENCE TO TRAINING AND TO
FILL VACANCIES BY ORIGINAL APPOINTMENT, RE-
INSTATEMENT AND PROMOTION.
THE SECRETARY
OF THE INTERIOR AND THE COMMISSIONER STRESS
THAT CAREFUL ATTENTION MUST BE GIVEN TO PRO-
TECTING THE RIGHTS OF NON INDIAN EMPLOYEES
THIS NEW POLICY IS EFFECTIVE IMMEDIATELY
AND IS TO BE INCORPORATED INTO ALL EXISTING
PROGRAMS SUCH AS THE PROMOTION PROGRAM.
REVISED MANUAL RELEASES WILL BE ISSUED PROMPTLY
FOR REVIEW AND COMMENT. 11
We will make every effort to make available copies of the revised
manual releases as soon as they are received from the Washington
Office.
Area Director
IN REPLY REFER TO:
UNITED STATES
DEPARTMENT OF THE INTERIOR
OFFICE OF THE SOLICITOR
THE
Room 7102
FEDERAL BUILDING AND U.S. COURT HOUSE
i
POST OFFICE Box 1696
ALEUQUERQUE, NEW MEXICO 97103
October 28, 1971
Mr. Walter O. Olson
Area Director
Bureau of Indian Affairs
P.O. Box 8327
Albuquerque, N.M. 87108
Re: Mescalero Apache Tribe V. Hickel, et al., Court
of Appeals, Tenth Circuit, No. 40-70.
Dear Mr. Olson:
On March 22, 1971, the U.S. Supreme Court denied the
Plaintiff's petition for review of the decision of
the Court of Appeals, Tenth Circuit. The effect of
this denial is that the Court of Appeals' decision,
affirming the District Court ruling, stands.
This now concludes this litigation, and I am closing
our file on the matter.
Sincerely yours,
Mar
Lotario D. Ortega
CC: Mescalero Agency
Field Solicitor
IN REPLY REFER TO:
CI
J.2.
THE INTERIOR INTERIOR
UNITED STATES
NMC532
DEPARTMENT OF THE INTERIOR
SSS
BUREAU OF INDIAN AFFAIRS
Much
1549
staffind
ALBUQUERQUE AREA OFFICE
P.O. BOX 8327
ALBUQUERQUE. NEW MEXICO 87108
& ge WILLS 333
Raw.53
as
53
FEB 24 1071
Memorandum
To:
Area Directors
From:
Area Director
Subject:
Mescalero Apache Tribe, et al., V. Morton, Sec'y of Interior
et al., No. 1186, U.S. Supreme Court. Government's Brief.
Enclosed is a copy of the Government's Brief in opposition to the petition
for writ of review filed by the plaintiffs December 31, 1970.
This Brief is transmitted to keep you currently advised of the status of
the case.
Acting Area Director
Enclosure
IN REPLY REFER TO:
or
UNITED STATES
for
DEPARTMENT OF THE INTERIOR
OFFICE OF THE SOLICITOR
ROOM 7102
FEDERAL BUILDING AND U.S. Cc.. HOUSE
POST OFFICE Box 1696
ALBUQUERQUE, NEW MEXICO 87103
February 16, 1971
Mr. Walter O. Olson
Area Director
Bureau of Indian Affairs
P.O. Box 8327
Albuquerque, N.M. 87108
Re: Mescalero Apache Tribe, et al., V. Morton, Sec'y.
of Interior, et al., No. 1186, U.S. Supreme Court.
Dear Mr. Olson:
Enclosed for your information and records is a copy of
the Government's Brief in opposition to the petition
for writ of review filed by the plaintiffs December 31,
1970. We will advise you of the Court's decision on
whether it chooses to review the lower court's decision
as soon as it is announced.
Sincerely yours,
Lotario D. Ortega
1 Enclosure
Field Solicitor
In the Supreme Court of the United States
OCTOBER TERM, 1970
No. 1186
MESCALERO APACHE TRIBE, ET AL., PETITIONERS
v.
ROGERS C. B. MORTON, SECRETARY OF THE
INTERIOR, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. A,
1a-10a) is reported at 432 F.2d 956. The opinion of
the district court (Pet. App. B, 11a-14a) is unre-
ported.
JURISDICTION
The judgment of the court of appeals was entered
on October 5, 1970. The petition for a writ of cer-
(1)
2
tiorari was filed on December 31, 1970. The jurisdic-
tion of this Court is invoked under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether probationary Indian employees of the
Bureau of Indian Affairs must be preferred over
tenured non-Indian civil service employees during a
reduction in force.
STATUTES INVOLVED
25 U.S.C. 44 provides:
In the Indian Service Indians shall be employed
as herders, teamsters, and laborers, and where
practicable in all other employments in connec-
tion with the agencies and the Indian Service.
And it shall be the duty of the Secretary of the
Interior and the Commissioner of Indian Affairs
to enforce this provision.
25 U.S.C. 46 provides:
Preference shall at' all times, as far as prac-
ticable, be given to Indians in the employment of
clerical, mechanical, and other help on reserva-
tions and about agencies.
25 U.S.C. 472 provides:
The Secretary of the Interior is directed to
establish standards of health, age, character, ex-
perience, knowledge, and ability for Indians who
may be appointed, without regard to civil-serv-
ice laws, to the various positions maintained,
now or hereafter, by the Indian Office, in the
administration of functions or services affecting
any Indian tribe. Such qualified Indians shall
8
hereafter have the preference to appointment to
vacancies in any such positions.
STATEMENT
Two Indians, discharged during an ordinary reduc-
tion in force, brought an action for mandatory in-
junctive relief to require the Bureau of Indian Af-
fairs to re-employ them. The two Indians, a care-
taker and a building repairman, each had less than
three years' service with the Bureau of Indian Affairs
and were in a career-conditional, or probationary,
status. Two non-Indians were retained in similar -
jobs; each had more than three years' service, and
thus was in a career, or tenured, status under standard
Civil Service Commission and Bureau practices. The
Indians asserted that, because they would have had
a statutory preference in hiring for the jobs, under
25 U.S.C. 44, 46 and 472, they must also be given
retention preference during a reduction in force,
without regard to their different tenure status. After
a hearing, the district court ruled that (Pet. App.
B, 14a) :
Only a strained construction of the
preference statutes will result in the interpreta-
tion that they are intended to apply to reductions
in force, and this conclusion is equally applicable
to the cited legislative history.
The court of appeals affirmed, finding the statutory
interpretation sought by the Indians "strained and
untenable." The court said (Pet. App. A, 9a-10a) :
Congress intended to promote Indian
employment in the B.I.A. but also to provide job
4
security for non-Indian employees by giving In-
dians only a preference in "appointment to va-
canices." This security is lost if the Indian
preference statutes are applied to reductions in
force since inevitably all non-Indian employees
would be "ousted" 1 by such reductions. Besides
posing a threat to non-Indians now employed by
the B.I.A., the loss of job security would also
constitute a significant deterrent in recruiting
non-Indians for B.I.A. jobs. Although qualified
Indians are to be actively sought and accorded
a preference in initial hiring, it may still be
necessary to employ non-Indians whenever it is
not "practicable" to do otherwise.
***
ARGUMENT
The decision is correct, does not conflict with any
decision of this Court or any court of appeals, and
presents no question warranting further review.
The statutes involved do not, in their face, deal
with reductions in force. 25 U.S.C. 44 and 46 speak
of employing Indians "where practicable." As the
court of appeals noted, if an extensive search for a
qualified Indian employee fails, and a non-Indian
must be hired, that could hardly be done if the non-
Indian could be offered no job security of any kind.3
1 This is a reference by the court to the legislative history,
78 Cong. Rec. 11731 (1934).
2 This is a reference by the court to Chapter 713 of the
Bureau of Indian Affairs Manual, sec. 713, 1.2B.
8
Reductions in force in the Bureau of Indian Affairs occur
once or twice a year (Tr. 10).
5
25 U.S.C. 472, on its face, applies only to vacarcies,
and its legislative history, 78 Cong. Rec. 11731
(1934), shows plainly that it was not meant to cause
the discharge of non-Indians in the Bureau of In-
dian Affairs. While the Bureau of Indian Affairs has
in the past used the Indian preference in chooing
among employees with identical civil service status
during reductions in force, nothing in the administra-
tive history suggests that probationary employees,
although Indian, are to be favored over tenured mes.
So to hold would be entirely contrary to established
practice. See 5 U.S.C. (Supp. V) 3502; 5 C.F.R.
351.501, 351.602.
CONCLUSION
The petition for a writ of certiorari should be
denied.
Respectfully submitted.
ERWIN N. GRISWOLD,
Solicitor General.
SHIRO KASHIWA,
Assistant Attorney General.
GEORGE R. HYDE,
CARL STRASS,
Attorneys.
JANUARY 1971.
$. GOVERNMENT PRINTING OFFICE; 1971
414731 413