25 U.S.C. § 5117 — Indian preference laws applicable to Bu-

Page 696 TITLE 25—INDIANS § 5117 1 See References in Text note below. ice laws, to the various positions maintained, now or hereafter, by the Indian Office, in the ad- ministration of functions or services affecting any Indian tribe. Such qualified Indians shall hereafter have the preference to appointment to vacancies in any such positions. (June 18, 1934, ch. 576, § 12, 48 Stat. 986.) Editorial Notes CODIFICATION Section was formerly classified to section 472 of this title prior to editorial reclassification and renumbering as this section. Statutory Notes and Related Subsidiaries CONVERSION TO CAREER APPOINTMENT Status of Indian appointed to Federal service under excepted appointment to be converted to career ap- pointment in competitive service after three years of continuous service and satisfactory performance, see section 5323(m) of this title. Executive Documents TRANSFER OF FUNCTIONS For transfer of functions of other officers, employees, and agencies of Department of the Interior, with cer- tain exceptions, to Secretary of the Interior, with power to delegate, see Reorg. Plan No. 3 of 1950, §§ 1, 2, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1262, set out in the Appendix to Title 5, Government Organization and Employees. § 5117. Indian preference laws applicable to Bu- reau of Indian Affairs and Indian Health Service positions (a) Establishment of retention categories for pur- poses of reduction-in-force procedures For purposes of applying reduction-in-force procedures under subsection (a) of section 3502 of title 5 with respect to positions within the Bu- reau 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) Reassignment of employees other than to po- sitions in higher grades; authority to make determinations respecting (1) The Indian preference laws shall not apply in the case of any reassignment within the Bu- reau of Indian Affairs or within the Indian Health Service (other than to a position in a higher grade) of an employee not entitled to In- dian preference if it is determined that under the circumstances such reassignment is nec- essary— (A) to assure the health or safety of the em- ployee 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 relation- ship 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, not- withstanding any other provision of law, the Secretary involved may not delegate such au- thority to any individual other than a Deputy Secretary or Assistant Secretary of the respec- tive department. (c) Waiver of applicability in personnel actions; scope, procedures, etc. (1) Notwithstanding any provision of the In- dian 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 ac- cepted a waiver with respect to a personnel ac- tion pursuant to paragraph (1) of this subsection or to section 2011(f) 1 of this title. (d) Placement of non-Indian employees in other Federal positions; assistance of Office of Per- sonnel Management; cooperation of other Federal agencies The Office of Personnel Management shall pro- vide 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) Definitions 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 ac- tion 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 per- sonnel 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 pro- motions 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 Depart- ment of the Interior directly and primarily re- lated to providing services to Indians and in which positions are filled in accordance with the Indian preference laws. (Pub. L. 96–135, § 2, Dec. 5, 1979, 93 Stat. 1057; Pub. L. 96–88, title V, § 509(b), Oct. 17, 1979, 93 Stat. Page 697 TITLE 25—INDIANS § 5119 695; Pub. L. 100–581, title II, § 205, Nov. 1, 1988, 102 Stat. 2940; Pub. L. 101–509, title V, § 529 [title I, § 112(c)], Nov. 5, 1990, 104 Stat. 1427, 1454; Pub. L. 105–362, title VIII, § 801(e), title XIII, § 1302(d), Nov. 10, 1998, 112 Stat. 3288, 3294.) 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 gen- eral 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 Of- fice of Personnel Management shall each submit a re- port to Congress following the close of each fiscal year with respect to the actions which they took in such fis- cal 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 re- spect 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 In- dian preference laws. Such report shall also include in- formation as to the grade levels and occupational clas- sifications of Indian and non-Indian employees in the Bureau of Indian Affairs and the Indian Health Serv- ice.’’ 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 im- mediately 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’’ sub- stituted for ‘‘Secretary of Health, Education, and Wel- fare’’ 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 AMENDMENT Amendment 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. § 5118. Application generally The provisions of this Act shall not apply to any of the Territories, colonies, or insular pos- sessions of the United States, except that sec- tions 9, 10, 11, 12, and 16 [25 U.S.C. 5112, 5113, 5115, 5116, 5123] shall apply to the Territory of Alaska: Provided, That sections 4, 7, 16, 17, and 18 of this Act [25 U.S.C. 5107, 5110, 5123, 5124, 5125] shall not apply to the following-named Indian tribes, the members of such Indian tribes, together with members of other tribes affiliated with such named tribes located in the State of Oklahoma, as follows: Cheyenne, Arapaho, Apache, Coman- che, Kiowa, Caddo, Delaware, Wichita, Osage, Kaw, Otoe, Tonkawa, Pawnee, Ponca, Shawnee, Ottawa, Quapaw, Seneca, Wyandotte, Iowa, Sac and Fox, Kickapoo, Pottawatomi, Cherokee, Chickasaw, Choctaw, Creek, and Seminole. Sec- tion 4 of this Act [25 U.S.C. 5107] shall not apply to the Indians of the Klamath Reservation in Or- egon. (June 18, 1934, ch. 576, § 13, 48 Stat. 986; Pub. L. 101–301, § 3(b), May 24, 1990, 104 Stat. 207.) Editorial Notes REFERENCES IN TEXT This Act, referred to in text, is act June 18, 1934, ch. 576, 48 Stat. 984, popularly known as the Indian Reorga- nization Act, which is classified generally to this chap- ter. For complete classification of this Act to the Code, see Short Title note set out under section 5101 of this title and Tables. CODIFICATION Section was formerly classified to section 473 of this title prior to editorial reclassification and renumbering as this section. AMENDMENTS 1990—Pub. L. 101–301 substituted ‘‘sections 4,’’ for ‘‘sections 2, 4,’’ in proviso. Executive Documents ADMISSION OF ALASKA AS STATE Admission of Alaska into the Union was accom- plished Jan. 3, 1959, on issuance of Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L. 85–508, July 7, 1958, 72 Stat. 339, set out as notes preceding section 21 of Title 48, Territories and Insular Possessions. § 5119. Application to Alaska Sections 5101, 5108, 5110, 5111, 5121, 5124, and 5129 of this title shall after May 1, 1936, apply to the Territory of Alaska: Provided, That groups of Indians in Alaska not recognized prior to May 1, 1936, as bands or tribes, but having a common bond of occupation, or association, or residence within a well-defined neighborhood, community, or rural district, may organize to adopt con- stitutions and bylaws and to receive charters of incorporation and Federal loans under sections 5113, 5123, and 5124 of this title. (May 1, 1936, ch. 254, § 1, 49 Stat. 1250.)