§5117 — Title 25 Indians | U.S. Code

Summary

When a layoff happens at the Bureau of Indian Affairs or the Indian Health Service, the agencies must combine their competitive and excepted service retention lists. Workers who are entitled to Indian preference and who fall in the same retention group keep their jobs ahead of workers who are not entitled to Indian preference. Military preference set by agency rules still counts. Indian preference does not apply to reassigning a non‑Indian‑preference employee (unless the reassignment is to a higher grade) when the move is needed to protect the employee’s or a household member’s health or safety, is part of a layoff, or is needed because the employee’s working relationship with a tribe has broken down. The Secretary of the Interior (for the Bureau) or the Secretary of Health and Human Services (for IHS) must make those decisions and they can only delegate that power to a Deputy Secretary or Assistant Secretary. If all tribal organizations involved give a written waiver, Indian preference does not apply to that personnel action. A person who accepts such a waiver is not covered by section 8336(j) of title 5 or by section 2011(f) of this title. The Office of Personnel Management must help place non‑Indian employees in other federal jobs, and other agencies must help. Definitions: tribal organization — a tribe’s official governing body or an organization it has given waiver authority; Indian preference laws — laws that give promotion and hiring preference to Indians; Bureau of Indian Affairs — the BIA and other Interior units that mainly serve Indians.

Title 25, §5117

Indians — Source: USLM XML via OLRC

(a)For purposes of applying reduction-in-force procedures under subsection (a) of section 3502 of title 5 with respect to positions within the Bureau of Indian Affairs and the Indian Health Service, the competitive and excepted service retention registers shall be combined, and any employee entitled to Indian preference who is within a retention category established under regulations prescribed under such subsection to provide due effect to military preference shall be entitled to be retained in preference to other employees not entitled to Indian preference who are within such retention category.

(b)(1)The Indian preference laws shall not apply in the case of any reassignment within the Bureau of Indian Affairs or within the Indian Health Service (other than to a position in a higher grade) of an employee not entitled to Indian preference if it is determined that under the circumstances such reassignment is necessary—

(A)to assure the health or safety of the employee or of any member of the employee’s household;

(B)in the course of a reduction in force; or

(C)because the employee’s working relationship with a tribe has so deteriorated that the employee cannot provide effective service for such tribe or the Federal Government.

(2)The authority to make any determination under subparagraph (A), (B), or (C) of paragraph (1) is vested in the Secretary of the Interior with respect to the Bureau of Indian Affairs and the Secretary of Health and Human Services with respect to the Indian Health Service, and, notwithstanding any other provision of law, the Secretary involved may not delegate such authority to any individual other than a Deputy Secretary or Assistant Secretary of the respective department.

(c)(1)Notwithstanding any provision of the Indian preference laws, such laws shall not apply in the case of any personnel action respecting an applicant or employee not entitled to Indian preference if each tribal organization concerned grants, in writing, a waiver of the application of such laws with respect to such personnel action.

(2)The provisions of section 8336(j) of title 5 shall not apply to any individual who has accepted a waiver with respect to a personnel action pursuant to paragraph (1) of this subsection or to section 2011(f) 11 See References in Text note below. of this title.

(d)The Office of Personnel Management shall provide all appropriate assistance to the Bureau of Indian Affairs and the Indian Health Service in placing non-Indian employees of such agencies in other Federal positions. All other Federal agencies shall cooperate to the fullest extent possible in such placement efforts.

(e)For purposes of this section—

(1)The term “tribal organization” means—

(A)the recognized governing body of any Indian tribe, band, nation, pueblo, or other organized community, including a Native village (as defined in section 1602(c) of title 43); or

(B)in connection with any personnel action referred to in subsection (c)(1) of this section, any legally established organization of Indians which is controlled, sanctioned, or chartered by a governing body referred to in subparagraph (A) of this paragraph and which has been delegated by such governing body the authority to grant a waiver under such subsection with respect to such personnel action.

(2)The term “Indian preference laws” means section 5116 of this title or any other provision of law granting a preference to Indians in promotions and other personnel actions.

(3)The term “Bureau of Indian Affairs” means (A) the Bureau of Indian Affairs and (B) all other organizational units in the Department of the Interior directly and primarily related to providing services to Indians and in which positions are filled in accordance with the Indian preference laws.

Notes & Related Subsidiaries

Editorial Notes

References in Text

section 2011(f) of this title, referred to in subsec. (c)(2), was in the original a reference to section 1131 of the Education

Amendments

of 1978, Pub. L. 95–561, meaning section 1131 of Pub. L. 95–561 prior to the general

Amendments

of chapter 22 (§ 2000 et seq.) of this title by Pub. L. 103–382, title III, § 381, Oct. 20, 1994, 108 Stat. 3979, and Pub. L. 107–110, title X, § 1042, Jan. 8, 2002, 115 Stat. 2007. As added by Pub. L. 107–110, section 1131 of Pub. L. 95–561 relates to policy for Indian control of Indian education and is classified to section 2011 of this title. Provisions relating to waivers of education personnel actions are now contained in section 2012(f) of this title. Codification Section was formerly classified to section 472a of this title prior to editorial reclassification and renumbering as this section.

Amendments

1998—Subsec. (d). Pub. L. 105–362, § 801(e)(3), struck out par. (1) designation and struck out par. (2) which read as follows: “The Secretaries of the Interior and Health and Human Services, and the Director of the Office of Personnel Management shall each submit a report to Congress following the close of each fiscal year with respect to the actions which they took in such fiscal year to place non-Indian employees of the Bureau of Indian Affairs and the Indian Health Service in other Federal positions.” Pub. L. 105–362, § 801(e)(1), (2), redesignated subsec. (e) as (d) and struck out former subsec. (d) which read as follows: “The Secretaries of the Interior and Health and Human Services shall each submit to the Congress a report following the close of each fiscal year with respect to the actions which they took in such fiscal year to recruit and train Indians to qualify such Indians for positions which are subject to preference under the Indian preference laws. Such report shall also include information as to the grade levels and occupational classifications of Indian and non-Indian employees in the Bureau of Indian Affairs and the Indian Health Service.” Subsec. (e). Pub. L. 105–362, § 1302(d), which directed the amendment of subsec. (e) by striking out par. (1) designation after “(e)” and striking out par. (2), could not be executed because par. (1) designation did not immediately follow “(e)” subsequent to amendment by Pub. L. 105–362, § 801(e)(2). See above. Pub. L. 105–362, § 801(e)(2), redesignated subsec. (f) as (e). Former subsec. (e) redesignated (d). Subsec. (f). Pub. L. 105–362, § 801(e)(2), redesignated subsec. (f) as (e). 1990—Subsec. (b)(2). Pub. L. 101–509 substituted “a Deputy Secretary” for “an Under Secretary” before “or Assistant Secretary”. 1988—Subsec. (c)(1). Pub. L. 100–581 substituted “an applicant or employee” for “an employee”.

Statutory Notes and Related Subsidiaries

Change of Name

“Secretary of Health and Human Services” substituted for “Secretary of Health, Education, and Welfare” in subsec. (b)(2) pursuant to section 509(b) of Pub. L. 96–88 which is classified to section 3508(b) of Title 20, Education.

Effective Date

of 1990 AmendmentAmendment by Pub. L. 101–509 effective on first day of first pay period beginning on or after Nov. 5, 1990, with continued service by incumbent Under Secretary of the Interior, see section 529 [title I, § 112(e)(1), (2)(B)] of Pub. L. 101–509, set out as a note under section 3404 of Title 20, Education.

§5117 Indian Preference Laws Applicable to Bureau of Indian Affairs and Indian Health Service Positions

Summary

Title 25, §5117

Notes & Related Subsidiaries

Editorial Notes

References in Text

Amendments

Amendments

Amendments

Statutory Notes and Related Subsidiaries

Change of Name

Effective Date

Citations & Metadata