25 U.S.C. § 5323 — Retention of Federal employee coverage,

Page 730 TITLE 25—INDIANS § 5323 PRIOR PROVISIONS A prior section 103 of Pub. L. 93–638 was classified to former section 450g of this title prior to repeal in part and transfer in part to former section 450f(d) of this title by Pub. L. 100–472, title II, § 201(b)(1), Oct. 5, 1988, 102 Stat. 2289, and editorial reclassification and renum- bering of former section 450f(d) as section 5321(d) of this title. AMENDMENTS 1990—Subsec. (a)(3). Pub. L. 101–644, which directed the substitution of ‘‘Indian country (as defined in chap- ter 53 of title 18)’’ for ‘‘reservation boundaries’’ in ‘‘sec- tion 301(a)(3) of the Indian Self-Determination Act’’, was executed to this section, which is section 103(a)(3) of that Act, to reflect the probable intent of Congress. 1988—Subsec. (a). Pub. L. 100–472, § 202(b), inserted ‘‘or’’ at end of par. (2), substituted a period for ‘‘; or’’ at end of par. (3), and struck out par. (4) which read as follows: ‘‘the planning, designing, monitoring, and eval- uating of Federal programs serving the tribe.’’ Subsec. (b). Pub. L. 100–472, § 202(c), substituted ‘‘Health and Human Services’’ for ‘‘Health, Education, and Welfare’’. Subsecs. (d), (e). Pub. L. 100–472, § 202(d), added sub- secs. (d) and (e). Statutory Notes and Related Subsidiaries AUTHORITY OF SECRETARY TO ACQUIRE LANDS IN TRUST Pub. L. 101–644, title II, § 203(g)(2), Nov. 29, 1990, 104 Stat. 4666, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall not alter or otherwise modify or affect existing prohibitions or lim- itations on the Secretary’s authority to acquire lands in trust.’’ § 5323. Retention of Federal employee coverage, rights and benefits by employees of tribal or- ganizations (a) to (d) Omitted (e) Eligible employees; Federal employee pro- grams subject to retention Notwithstanding the provisions of sections 8347(o), 8713, and 8914 of title 5, executive order, or administrative regulation, an employee serv- ing under an appointment not limited to one year or less who leaves Federal employment to be employed by a tribal organization, the city of St. Paul, Alaska, the city of St. George, Alaska, upon incorporation, or the Village Corporations of St. Paul and St. George Islands established pursuant to section 1607 of title 43, in connection with governmental or other activities which are or have been performed by employees in or for Indian communities is entitled, if the employee and the tribal organization so elect, to the fol- lowing: (1) To retain coverage, rights, and benefits under subchapter I of chapter 81 (‘‘Compensa- tion for Work Injuries’’) of title 5, and for this purpose his employment with the tribal orga- nization shall be deemed employment by the United States. However, if an injured em- ployee, or his dependents in case of his death, receives from the tribal organization any pay- ment (including an allowance, gratuity, pay- ment under an insurance policy for which the premium is wholly paid by the tribal organiza- tion, or other benefit of any kind) on account of the same injury or death, the amount of that payment shall be credited against any benefit payable under subchapter I of chapter 81 of title 5, as follows: (A) payments on account of injury or dis- ability shall be credited against disability compensation payable to the injured em- ployee; and (B) payments on account of death shall be credited against death compensation pay- able to dependents of the deceased employee. (2) To retain coverage, rights, and benefits under chapter 83 (‘‘Retirement’’) or chapter 84 (‘‘Federal Employees Retirement System’’) of title 5, if necessary employee deductions and agency contributions in payment for coverage, rights, and benefits for the period of employ- ment with the tribal organization are cur- rently deposited in the Civil Service Retire- ment and Disability Fund (section 8348 of title 5); and the period during which coverage, rights, and benefits are retained under this paragraph is deemed creditable service under section 8332 of title 5. Days of unused sick leave to the credit of an employee under a for- mal leave system at the time the employee leaves Federal employment to be employed by a tribal organization remain to his credit for retirement purposes during covered service with the tribal organization. (3) To retain coverage, rights, and benefits under chapter 89 (‘‘Health Insurance’’) of title 5, if necessary employee deductions and agen- cy contributions in payment for the coverage, rights, and benefits for the period of employ- ment with the tribal organization are cur- rently deposited in the Employee’s Health Benefit Fund (section 8909 of title 5); and the period during which coverage, rights, and ben- efits are retained under this paragraph is deemed service as an employee under chapter 89 of title 5. (4) To retain coverage, rights, and benefits under chapter 87 (‘‘Life Insurance’’) of title 5, if necessary employee deductions and agency contributions in payment for the coverage, rights, and benefits for the period of employ- ment with the tribal organizations are cur- rently deposited in the Employee’s Life Insur- ance Fund (section 8714 of title 5); and the pe- riod during which coverage, rights, and bene- fits are retained under this paragraph is deemed service as an employee under chapter 87 of title 5. (f) Deposit by tribal organization of employee de- ductions and agency contributions in appro- priate funds During the period an employee is entitled to the coverage, rights, and benefits pursuant to the preceding subsection, the tribal organization employing such employee shall deposit cur- rently in the appropriate funds the employee de- ductions and agency contributions required by paragraphs (2), (3), and (4) of such preceding sub- section. (g) Election for retention by employee and tribal organization before date of employment by tribal organization; transfer of employee to another tribal organization An employee who is employed by a tribal orga- nization under subsection (e) of this section and Page 731 TITLE 25—INDIANS § 5323 such tribal organization shall make the election to retain the coverages, rights, and benefits in paragraphs (1), (2), (3), and (4) of such subsection (e) before the date of his employment by a tribal organization. An employee who is employed by a tribal organization under subsection (e) of this section shall continue to be entitled to the bene- fits of such subsection if he is employed by an- other tribal organization to perform service in activities of the type described in such sub- section. (h) ‘‘Employee’’ defined For the purposes of subsections (e), (f), and (g) of this section, the term ‘‘employee’’ means an employee as defined in section 2105 of title 5. (i) Promulgation of implementation regulations by President The President may prescribe regulations nec- essary to carry out the provisions of subsections (e), (f), (g), and (h) of this section and to protect and assure the compensation, retirement, insur- ance, leave, reemployment rights, and such other similar civil service employment rights as he finds appropriate. (j) Additional employee employment rights Anything in sections 205 and 207 of title 18 to the contrary notwithstanding— (1) an officer or employee of the United States assigned to a tribal organization (as de- fined in section 5304(l) of this title) or an inter- tribal consortium (as defined in section 5381 of this title), as authorized under section 3372 of title 5 or section 48 of this title may act as agent or attorney for, and appear on behalf of, such tribal organization or inter-tribal consor- tium in connection with any matter related to a tribal governmental activity or Federal In- dian program or service pending before any de- partment, agency, court, or commission, in- cluding any matter in which the United States is a party or has a direct and substantial in- terest: Provided, That such officer or employee must advise in writing the head of the depart- ment, agency, court, or commission with which the officer or employee is dealing or ap- pearing on behalf of the tribal organization or inter-tribal consortium of any personal and substantial involvement with the matter in- volved; and (2) a former officer or employee of the United States who is carrying out official du- ties as an employee or as an elected or ap- pointed official of a tribal organization (as de- fined in section 5304(l) of this title) or inter- tribal consortium (as defined in section 5381 of this title) may act as agent or attorney for, and appear on behalf of, such tribal organiza- tion or intra-tribal consortium in connection with any matter related to a tribal govern- mental activity or Federal Indian program or service pending before any department, agen- cy, court, or commission, including any mat- ter in which the United States is a party or has a direct and substantial interest: Provided, That such former officer or employee must ad- vise in writing the head of the department, agency, court, or commission with which the former officer or employee is dealing or ap- pearing on behalf of the tribal organization or inter-tribal consortium of any personal and substantial involvement that he or she may have had as an officer or employee of the United States in connection with the matter involved. (k), (l) Omitted (m) Conversion to career appointment The status of an Indian (as defined in section 5129 of this title) appointed (except temporary appointments) to the Federal service under an excepted appointment under the authority of section 5116 of this title, or any other provision of law granting a preference to Indians in per- sonnel actions, shall be converted to a career ap- pointment in the competitive service after three years of continuous service and satisfactory per- formance. The conversion shall not alter the In- dian’s eligibility for preference in personnel ac- tions. (Pub. L. 93–638, title I, § 104, formerly § 105, Jan. 4, 1975, 88 Stat. 2208; Pub. L. 89–702, title II, § 210(a), as added Pub. L. 98–129, § 2, Oct. 14, 1983, 97 Stat. 843; Pub. L. 99–221, § 3(a), Dec. 26, 1985, 99 Stat. 1735; renumbered § 104 and amended Pub. L. 100–472, title II, § 203, Oct. 5, 1988, 102 Stat. 2290; Pub. L. 101–301, § 2(a)(6), May 24, 1990, 104 Stat. 206; Pub. L. 110–81, title I, § 104(b), Sept. 14, 2007, 121 Stat. 740.) Editorial Notes CODIFICATION Section was formerly classified to section 450i of this title prior to editorial reclassification and renumbering as this section. Section is comprised of section 104 of Pub. L. 93–638. Subsecs. (a) to (d) of section 104 of Pub. L. 93–638 are classified to section 3371 of Title 5, Government Organi- zation and Employees, section 2004b of Title 42, The Public Health and Welfare, section 3806 of Title 50, War and National Defense, and section 4762 of Title 42, re- spectively. Subsecs. (k) and (l) of section 104 of Pub. L. 93–638 are classified to section 3372 of Title 5. PRIOR PROVISIONS A prior section 104 of Pub. L. 93–638 was renumbered section 103 by Pub. L. 100–472 and is classified to section 5322 of this title. AMENDMENTS 2007—Subsec. (j). Pub. L. 110–81 amended subsec. (j) generally. Prior to amendment, text read as follows: ‘‘Anything in sections 205 and 207 of title 18 to the con- trary notwithstanding, officers and employees of the United States assigned to an Indian tribe as authorized under section 3372 of title 5, or section 48 of this title and former officers and employees of the United States employed by Indian tribes may act as agents or attor- neys for or appear on behalf of such tribes in connec- tion wth [sic] any matter pending before any depart- ment, agency, court, or commission, including any matter in which the United States is a party or has a direct and substantial interest: Provided, That each such officer or employee or former officer or employee must advise in writing the head of the department, agency, court, or commission with which he is dealing or appearing on behalf of the tribe of any personal and substantial involvement he may have had as an officer or employee of the United States in connection with the matter involved.’’ 1990—Subsec. (m). Pub. L. 101–301 substituted ‘‘an In- dian (as defined in section 5129 of this title) appointed (except temporary appointments)’’ for ‘‘an Indian ap- pointed’’. Page 732 TITLE 25—INDIANS § 5324 1 So in original. Probably should be ‘‘provisions’’. 1988—Subsecs. (a), (b). Pub. L. 100–472, § 203(b), (c), amended subsecs. (a) and (b). See Codification note above. Subsec. (e). Pub. L. 100–472, § 203(d), (e), in introduc- tory provisions, substituted ‘‘Notwithstanding the pro- visions of sections 8347(o), 8713, and 8914 of title 5’’ for ‘‘Notwithstanding any other law’’ and struck out ‘‘on or before December 31, 1988’’ after ‘‘title 43’’, and in par. (2), inserted ‘‘or chapter 84 (‘Federal Employees Retire- ment System’)’’. Notwithstanding directory language that the substitution of ‘‘Notwithstanding the provi- sions of sections 8347(o), 8713, and 8914 of title 5’’ be made in par. (2) of subsec. (e), the substitution was made in introductory provisions of subsec. (e) to reflect the probable intent of Congress because the language replaced appeared only in those introductory provi- sions. Subsecs. (k), (l). Pub. L. 100–472, § 203(f), added sub- secs. (k) and (l). See Codification note above. Subsec. (m). Pub. L. 100–472, § 203(f), added subsec. (m). 1985—Subsec. (e). Pub. L. 99–221 substituted ‘‘1988’’ for ‘‘1985’’. 1983—Subsec. (e). Pub. L. 89–702, § 210(a), as added by Pub. L. 98–129, inserted ‘‘, the city of St. Paul, Alaska, the city of St. George, Alaska, upon incorporation, or the Village Corporations of St. Paul and St. George Is- lands established pursuant to section 1607 of title 43’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2007 AMENDMENT Pub. L. 110–81, title I, § 105(d), Sept. 14, 2007, 121 Stat. 741, provided that: ‘‘The amendments made by section 104 [amending this section and section 207 of Title 18, Crimes and Criminal Procedure] shall take effect on the date of the enactment of this Act [Sept. 14, 2007], except that section 104(j)(2) of the Indian Self-Deter- mination and Education Assistance Act [25 U.S.C. 5323(j)(2)] (as amended by section 104(b)) shall apply to individuals who leave Federal office or employment to which such amendments apply on or after the 60th day after the date of the enactment of this Act.’’ PRIBILOF ISLAND NATIVES EMPLOYED BY FEDERAL GOVERNMENT ON OCTOBER 28, 1983 Pub. L. 89–702, title II, § 210(b), as added by Pub. L. 98–129, § 2, Oct. 14, 1983, 97 Stat. 844, provided that: ‘‘Not- withstanding any other provision of law, any Native of the Pribilof Islands employed by the Federal govern- ment on October 28, 1983, shall be deemed to have been covered under chapters 81, 83, 85 and 87 of title 5, United States Code, on such date for the purposes of deter- mining eligibility for continuity of benefits under sec- tion 105(e) of the Act of January 4, 1975 (Public Law 93–638), known as the Indian Self-Determination and Education Assistance Act [25 U.S.C. 5323(e)].’’ Executive Documents EX. ORD. NO. 11899. PROVIDING FOR PROTECTION OF CER- TAIN CIVIL SERVICE EMPLOYMENT RIGHTS OF FEDERAL PERSONNEL WHO LEAVE FEDERAL EMPLOYMENT TO BE EMPLOYED BY TRIBAL ORGANIZATIONS Ex. Ord. No. 11899, Jan. 26, 1976, 41 F.R. 3459, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055; Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617, pro- vided: By virtue of the authority vested in me by section 105(i) of the Indian Self-Determination and Education Assistance Act (88 Stat. 2210, 25 U.S.C. 450i) [now 25 U.S.C. 5323], section 3301 of title 5 of the United States Code, section 301 of title 3 of the United States Code, and as President of the United States of America, it is hereby ordered as follows: SECTION 1. The Office of Personnel Management is hereby designated and empowered to exercise, without approval, ratification, or other action by the President, but after consultation with the Department of the Inte- rior and the Department of Health and Human Serv- ices, the authority vested in the President by Section 105(i) of the Indian Self-Determination and Education Assistance Act [25 U.S.C. 5323(i)] (hereinafter referred to as the Act), to issue regulations necessary to carry out the provisions of subsections (e)(2), (e)(3), (e)(4), (f), (g) and (h) of section 105 of the act [25 U.S.C. 5323(e)(2), (3), (4), (f), (g), (h)], to carry out the provisions of sub- section (e)(1) of section 105 of the act [25 U.S.C. 5323(e)(1)] pertains to section 8151 of title 5 of the United States Code, and to protect and assure any other civil service employment rights which it finds ap- propriate. SEC. 2. The Office of Personnel Management shall, after consultation with the Department of the Interior and the Department of Health and Human Services, issue regulations, as it deems appropriate, providing for the establishment, granting, and exercise of reemploy- ment rights for employees who leave Federal employ- ment for employment by an Indian tribal organization under provisions of the act. SEC. 3. The Secretary of Labor is hereby designated and empowered to exercise, without approval, ratifica- tion, or other action by the President, the authority vested in the President by section 105(i) of the act [25 U.S.C. 5323(i)] to issue regulations necessary to carry out the provisions of section 105(e)(1) of the act [25 U.S.C. 5323(e)(1)], except as provided in section 1 of this order. § 5324. Contract or grant provisions and adminis- tration (a) Applicability of Federal contracting laws and regulations; waiver of requirements (1) Notwithstanding any other provision of law, subject to paragraph (3), the contracts and cooperative agreements entered into with tribal organizations pursuant to section 5321 of this title shall not be subject to Federal contracting or cooperative agreement laws (including any regulations), except to the extent that such laws expressly apply to Indian tribes. (2) Program standards applicable to a non- construction self-determination contract shall be set forth in the contract proposal and the final contract of the tribe or tribal organization. (3)(A) With respect to a construction contract (or a subcontract of such a construction con- tract), the provisions of division B (except sec- tions 1123, 2303, 2304, and 2313) of subtitle I of title 41 and the regulations relating to acquisi- tions promulgated under division B (except sec- tions 1123, 2303, 2304, and 2313) of subtitle I of title 41 shall apply only to the extent that the application of such provision 1 to the construc- tion contract (or subcontract) is— (i) necessary to ensure that the contract may be carried out in a satisfactory manner; (ii) directly related to the construction ac- tivity; and (iii) not inconsistent with this chapter. (B) A list of the Federal requirements that meet the requirements of clauses (i) through (iii) of subparagraph (A) shall be included in an attachment to the contract pursuant to negotia- tions between the Secretary and the tribal orga- nization. (C)(i) Except as provided in subparagraph (B), no Federal law listed in clause (ii) or any other provision of Federal law (including an Executive order) relating to acquisition by the Federal