Chapter 3 - Indian Preference

Title	Section
Introduction	7-3.1
Purpose	7-3.1A
Policy	7-3.1B
Authority	7-3.1C
Eligibility	7-3.1D
Definition of Indian	7-3.1E
Guidelines for Interpretation of Indian	7-3.1F
Responsibilities	7-3.2
Managers and Supervisors	7-3.2A
Area Directors	7-3.2B
Equal Employment Opportunity Officers	7-3.2C
Human Resource Officers	7-3.2D
Verification of Indian Preference	7-3.3
Certification of Form BIA-4432	7-3.3A
Prior Indian Preference	7-3.3B
Exceptions to Indian Preference	7-3.4
Conditions for Exceptions	7-3.4A
Exceptions	7-3.4B
Situational Exceptions	7-3.4C
Reduction-in-Force	7-3.5
Competitive and Excepted Service Registers	7-3.5A
HHS Personnel Instruction 351-1	7-3.5B
Non-Indian	7-3.5C
Indian Preference vs. Veteran's Preference	7-3.6
Complaint Process	7-3.7
Indian Health Service Employees	7-3.7A
Non-HHS Applicants	7-3.7B
Employees and Non-Federal Applicants	7-3.7C

7-3.1  INTRODUCTION

1. Purpose.  This chapter revises the Indian Health Service (IHS) policy and procedures for granting Indian preference to certain persons of Indian descent when appointments are made to vacant positions within the IHS.
2. Policy.  The policy of the IHS is to provide absolute preference to qualified Indian applicants and employees who are suitable for Federal employment in filling vacancies within the IHS.

   Part 7, Chapter 3, “Indian Preference,” Indian Health Manual (IHM), must be used in conjunction with Part 7, Chapter 1, “Excepted Service Examining Plan,” IHM, and Part 7, Chapter 2, “Merit Promotion Plan,rldquo; IHM.

   1. Indian preference requirements apply no matter how the vacancy arises, whether the position is newly created, or if the position was previously encumbered, without regard to the previous incumbent's status in competitive service, excepted service, Senior Executive Service (SES), or the United States Public Health Service (USPHS) Commissioned Corps.
   2. Indian preference requirements apply to all actions involved in filling a vacancy, which include initial hiring, reassignment, transfer, competitive promotion, reappointment, or reinstatement.  This is true regardless of whether the vacancy, is in the competitive service, excepted service, the USPHS Commissioned Corps, SES, or whether it is filled under a special appointing authority that applies to experts or consultants, students, or people with disabilities.
   3. Exceptions to Indian preference requirements are provided in Part 7, Chapter 3, Section 4B.  The section also includes descriptions of situations in which there is no requirement to provide Indian preference and when Indian preference does not apply or may be waived.  Part 7, Chapter 1, “Excepted Service Examining Plan,” IHM, and Part 7, Chapter 2, “Merit Promotion Plan,” IHM, describe situations when positions must be announced to meet Indian preference requirements and/or merit promotion requirements as well as situations when this requirement does not apply.
3. Authority.
   1. Title 25 United States Code (U.S.C.) §472, §472a, and §479.
   2. Title 42 Code of Federal Regulations (CFR) Part 136, Subpart E.
4. Eligibility.  Eligibility for Indian preference is extended to those individuals who can meet the following criteria.
   1. Is an Indian as defined by the Secretary of the Department of the Interior (DOI) as evidenced by Bureau of Indian Affairs (BIA) certification.
   2. Is qualified for the vacant position.
   3. Is suitable for Federal employment.
   4. Persons who established preference in a previous appointment and who were employed by the IHS or the BIA as of February 16, 1978, will continue to be preference eligibles as long as they are continuously employed by the IHS and/or the BIA, even if they do not meet the definition in 7-3.1E(3) below.
5. Definition of Indian.  For purposes of making appointments to vacancies in all positions in the IHS, "Indian" means persons of Indian descent who are:
   1. Members of any recognized Indian Tribe now under Federal jurisdiction.
   2. 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 of Tribes indigenous to the United States (as determined by each individual Tribe).
   4. Eskimos and other aboriginal people of Alaska.
   5. Persons of at least one quarter degree Indian ancestry of the Osage Tribe of Indians, whose rolls were closed by an Act of Congress (See 7-3.1F(5).)
6. Guidelines for Interpretation of Indian.
   1. “Members of any recognized Indian Tribe now under Federal jurisdiction...” are those persons officially enrolled in accordance with such Tribes' constitutional membership criteria.
   2. Applicants applying as “Descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation” shall meet all three of the following criteria:
      1. Be descended from a member of any recognized Tribe now under Federal jurisdiction; and,
      2. Have been born on or before June 1, 1934; and
      3. Have been residing within the present boundaries of any Indian reservation on June 1, 1934.
   3. The requirement of one half or more Indian blood applies to persons whose ancestry is from a Federally Recognized Tribe(s) and/or whose ancestry is from certain non-Federally Recognized Tribes as determined by the BIA.
   4. Eskimos and other aboriginal people of Alaska are as defined in the Alaska Native Claims Act of December 18, 1971 (Title 43 U.S.C. Chapter 33, §1601 and Title 43 U.S.C. Chapter 33 §1602(b)):  “Native” means a citizen of the United States who is a person of one-fourth degree or more Alaska Indian (including Tsimshian Indians not enrolled in the Metlakatla Indian Community) Eskimo, or Aleut blood, or combination thereof.  The term includes any Native as so defined either or both of whose adoptive parents are not Natives.  It also includes, in the absence of proof of a minimum blood quantum, any citizen of the United States who is regarded as an Alaska Native by the Native village or Native group of which he claims to be a member and whose father or mother is (or, if deceased, was) regarded as Native by any village or group.  Any decision of the Secretary (Department of the Interior) regarding eligibility for enrollment shall be final.
   5. The stated criterion will apply to the Osage Tribe of Oklahoma whose rolls were closed by an Act of Congress.  Many such persons have received preference based on the one quarter degree standard.  In order that they are not now deprived of that eligibility and made to meet the one half degree standard, the quarter degree standard will apply until the Tribe formally organizes and establishes membership standards.

7-3.2  RESPONSIBILITIES

In May 2005, the IHS Director consolidated the IHS human resource (HR) functions/offices into the following five regional HR offices: Navajo, Northern Plains, Southeast, Southwest, and Western.  The DHR, Office of Management Services, provides oversight and direction to the five offices.  (This structure was published in the October 17, 2005, Federal Register.)

1. Managers and Supervisors.  Managers and supervisors are responsible for ensuring that the spirit and the letter of this chapter are met.
2. Area Directors or Office Directors.  In addition to the responsibility identified in item (A) above, the Area Director or the Office Director is responsible for assuring that no civil service personnel action or USPHS Commissioned Corps action is effected in the organization under their direction that is inconsistent with this chapter.
3. Equal Employment Opportunity Officers.  Equal Employment Opportunity Officers are responsible for assisting in the identification and recruitment of Indian candidates and for advising managers and supervisors on the principles and programs of equal employment opportunity as applied in the IHS.  These principles prohibit employment discrimination based on race, color, religion, sex, national origin, mental or physical disability, marital status, age, sexual orientation, reprisal, or membership or non-membership in any employee organization.
4. Human Resources Officers.  Human Resources Officers are responsible for assuring that no civil service personnel actions are effected that are inconsistent with the requirements specified in this chapter; providing managers and supervisors with the guidance and technical assistance necessary to implement these provisions; and providing information on the interpretation and application of Indian preference.  Human Resources Officers must ensure that all candidates for Agency employment (including USPHS Commissioned Corps Officers) are advised, in vacancy announcements, of the requirement of Indian preference in filling vacancies in the IHS.

7-3.3  VERIFICATION OF INDIAN PREFERENCE

1. Certification of Form BIA-4432.  The Department of the Interior (DOI), Bureau of Indian Affairs (BIA), determines when an individual meets the definition of an Indian.  Upon request, the BIA Superintendent of the individual's home agency or the duly authorized Tribal official so designated by the Tribal Government of each of the respective Tribes (through a resolution with the DOI, BIA) will provide a written certification of Indian descent.  Form BIA-4432, “Verification of Indian Preference for Employment in the Bureau of Indian Affairs and the Indian Health Service,” is to be used when requesting certification from the BIA.  The form may be obtained from the DOI, BIA, or your local Tribal office.  Except as provided below, to be considered a “preference” eligible, an applicant claiming Indian preference must submit, with the employment application, a copy of a properly completed and signed form BIA-4432 certifying that he/she is an Indian as defined in this chapter.

   The staff at each Human Resources Office (HRO) are responsible for verifying that the information submitted by the candidates meets the criteria specified in this chapter.  The BIA certification must be made a permanent part of the individual's Official Personnel Folder (OPF).  If it is determined that the form BIA-4432 is invalid due to improper authorization, e.g., signed by an unauthorized Tribal official or is missing the Tribal official's signature, the staff of the HRO may contact the applicant and allow a specified time limit (e.g., between 1 to 3 days) to submit a properly authorized document.

   A current IHS employee who applies for any position within the IHS must submit valid/acceptable proof of Indian preference (as identified above) even if the documentation is on file in their OPF.

   Indian Preference will not be granted unless the form BIA-4432 is attached to the application.

2. Prior Indian Preference.  In the past, Indian preference documentation by current IHS staff was verified by using the Public Health Service form 2411, “Certificate of Indian Preference,” when Tribal rolls were available.  When Tribal rolls were not available, a signed statement by the employee showing his or her percentage of Indian ancestry and the Tribe to which he or she belonged, together with certification by an HR official that the individual submitted sufficient proof of entitlement to Indian preference was accepted.  Employees who were employed by the IHS on or before February 16, 1978, (effective date of IHS regulation on Indian preference), and who received preference according to the rules and procedures in effect at the time preference was granted, will continue to be a preference eligible as long as they are continuously employed in positions subject to preference requirements.

7-3.4  EXCEPTIONS TO INDIAN PREFERENCE

1. Conditions for Exceptions.  The IHS policy is to provide absolute preference to qualified Indian applicants and employees who are suitable for Federal employment in filling vacancies within the IHS.
2. Exceptions.  Indian preference is not required when:
   1. a vacancy does not exist,
   2. the requirements for Indian preference can be waived, or
   3. other laws require the filling of a vacancy without regard to Indian preference, e.g., Public Law (P.L.) 94-437, “Indian Health Care Improvement Act (IHCIA).”
3. Situational Exceptions.  Indian preference does not apply in the following situations because they meet one of the conditions listed in "B" above:
   1. When the incumbent of a position receives a career promotion as specified in Title 5 CFR, Part 335, and any implementing instructions within the Department of Health and Human Services (HHS), including Part 7, Chapter 2, “Merit Promotion Plan,” IHM.
   2. When the incumbent of a position is promoted without a significant change in duties and responsibilities (i.e., correction of a classification error or issuance of a new classification standard).
   3. When an employee serving on a temporary promotion is returned to the position from which promoted.
   4. When an employee is reassigned because of the addition, deletion, or modification of duties and responsibilities of the employee's position, provided such changes constitute a redescription of an encumbered position rather than the filling of a vacancy.  The resulting description is considered a redescription, if the employee continues to perform the same basic function with the former duties being absorbed into the redescribed position.
   5. When an employee is promoted as the result of additional duties only if he or she continues to perform the same basic functions of the position and the duties of the former position are absorbed into the new position.  (See Part 7, Chapter 2, Section 4, IHM, for a more complete discussion of this situation that is often referred to as “Accretion of Duties.”)
   6. When an employee is changed from employment in the civil service to employment in the USPHS Commissioned Corps and continues to perform the same basic function of the position, i.e., carries out the same duties and responsibilities.

      NOTE:  All USPHS Commissioned Corps Officers who wish to enter into the competitive service, and do not have any civil service status, must compete for positions through the competitive process.

   7. When an employee returns to his or her IHS position of record from a time-limited detail, long-term training, furlough, or leave without pay.
   8. When, through application of civil service reduction-in-force (RIF) or USPHS Commissioned Corps reduction-in-strength procedures, one employee displaces another.
   9. When a USPHS Commissioned Corps Officer is promoted in the position that he or she occupies.
   10. When an employee's pay is adjusted because of a change in tour or duty (e.g., part-time to full-time, or vice versa) in the same position.  Such changes must, of course, be for sound management purposes and not to circumvent the spirit or the letter of Indian preference requirements.
   11. When an employee is demoted under Title 5 U.S.C. Part III, §4303, or Title 5 U.S.C. Part III, Subpart F, Chapter 75 Subchapter II.
   12. When an employee fails to satisfactorily complete a probationary period as a supervisor or manager and is consequently demoted or reassigned to a non-supervisory or non-managerial position under Title 5 U.S.C. Part III, §3321(b)(2).
   13. When an employee is removed from the SES under Title 5 U.S.C. Part III, §3592.
   14. When a non-Indian preference employee is restored to his or her position based on IHS cancellation of a personnel action, such as a removal or a decision from a third party, such as the Equal Employment Opportunity Commission (EEOC), Merit Systems Protection Board (MSPB).  Federal Labor Regulations Authority, or other such body.  In most, but not all cases, a placement action of an employee directed by the Office of Personnel Management (OPM), the MSPB, and/or the EEOC, and/or other third parties, may be effected without regard to Indian preference or merit promotion procedures.  These circumstances must be handled on a case by case basis.  If a third party decision simply cancels an action such as removal and returns an employee to his or her former position, that action may be affected. However, if a third party directs the movement of an employee into a new position without regard to Indian preference and/or merit promotion, the staff of the HRO should determine whether the decision should be appealed.

       Settlement agreements never provide an authority to violate Indian preference, and only in rare cases may they be implemented as exceptions to merit promotion procedures.  A settlement agreement which simply cancels an action such as a removal and restores an employee to his or her former position without any change does not violate Indian preference and/or merit promotion requirements.

   15. When an employee is on an authorized detail.  Detail assignments must be for sound management reasons and not to circumvent Indian preference requirements.  (See the Part 7, Chapter 2, “Merit Promotion Plan,” IHM, for requirements related to personnel details.)
   16. When an employee is exercising restoration rights following military service (See the Uniformed Services Employment and Reemployment Rights Act and CFR Title 5,Chapter I, Subchapter B, Part 353.)
   17. When an employee is exercising restoration rights following full recovery from an on the job injury within 1 year (Title 5 U.S.C. Part III, §8151 and Title 5 CFR, Chapter 1, Subchapter B, Part 353 of OPM regulations).
   18. When an employee is exercising statutory reemployment rights (e.g., under the Foreign Assistance Act) to the IHS position previously held or a position of the same rank, grade, and salary.
   19. A temporary appointment not to exceed 30 days to meet documented emergency needs and one 30 day extension. (Title 5 CFR, Chapter 1, Part 316.)
   20. The reassignment of a non-Indian preference eligible under the specific circumstances prescribed in P.L. 96-135 the “Annual Report to Congress, Indian Civil Service Retirement Act,” (to assure the health and safety of employees in the course of a RIF, or because an employee's working relationship with a Tribe has so deteriorated that the employee cannot provide effective service to the Tribe or the Federal Government) and with the prior approval of the Secretary, HHS, or Assistant Secretary for Health (ASH).  (Waiver requests may be submitted by the Tribe or the IHS, to the Director, IHS, through the Director, DHR.)
   21. The filling of a position with a non-Indian preference eligible if each Tribal organization effected grants a waiver, in writing, of the Indian preference requirement for the particular action in accordance with P.L. 96-135, §2(c).  In this case, the ASH approval is not required.
   22. The filling of a position in accordance with Title 5, CFR Part 352, Subpart G, concerning reemployment rights of former IHS employees after service in Tribal organizations as specified in the Indian Self-Determination and Education Assistance Act, P.L. 93-638, as amended.
   23. When placement is necessary so that an IHCIA, P.L. 94-437 scholarship recipient can satisfy his or her service obligation.

7-3.5  REDUCTION-IN-FORCE

1. Competitive and Excepted Service Registers.  Public Law 96-135, the “Annual Report to Congress on the Indian Civil Retirement Act,” (reassignment of non-Indians within the IHS), requires that competitive and excepted service registers in the IHS be combined in the event of a RIF and that employees entitled to Indian preference will be retained in preference to other employees within the same subgroup.
2. HHS Personnel Instruction 351-1.  Reduction-in-force procedures are applied as described in HHS Personnel Instruction 351-1.
3. Non-Indian.  A non-Indian may not be assigned to a vacant position during a RIF without prior approval of the Secretary, HHS (or his or her designee), as provided by P.L. 96-135.

7-3.6  INDIAN PREFERENCE vs. VETERAN'S PREFERENCE

In an opinion by the Solicitor General to the DOI, dated June 4, 1954 (M-36205), it was determined that the appointments made under Indian preference take precedence over the provisions of Section 3 of the Veterans' Preference Act of 1944 (5 U.S.C. 2108).  In accordance with this opinion, and on the advice of the HHS Office of General Counsel, it is the policy of the IHS, with respect to appointments in the excepted service, that once Indian preference requirements are met, Veterans' preference will be applied as set forth in Title 5 CFR, §302 and HHS Personnel Instruction 302-1.  (See 7-1 IHM.)

7-3.7  COMPLAINT PROCESS

1. Indian Health Service Employees.
   1. If an IHS employee has a complaint about the application of Indian preference and the matter cannot be resolved on an informal basis, the employee may file a grievance in accordance with applicable grievance procedures.
   2. A USPHS Commissioned Corps Officer may file a grievance under Commissioned Corps Personnel Manual Issuance, Subchapter CC 26.1, Instruction 5.
2. Non-HHS Applicants.  When an applicant from outside HHS has a complaint about the application of Indian preference and the matter cannot be resolved on an informal basis with the assistance of the staff of the HRO, the applicant may request a formal review.  The request for a formal review must be received within 30 days of the event or notification of the event (if later).
   1. Headquarters.  The request for review must be in writing and addressed to the Director, DHR.  The Director, DHR, will make an appropriate inquiry to resolve the issues and provide a final written decision to the complainant within 15 workdays of receiving the formal complaint.  There is no further right of review.
   2. Area Office.  When the request for a formal review involves a matter in other organizational components of the IHS.  The request for review must be in writing and addressed to the Director, DHR.  The IHS official in charge of the organizational component's HRO will make an appropriate inquiry to resolve the issues and provide a final written decision to the complainant within 15 workdays of receiving the formal complaint.  There is no further right of review.
3. Employees and Non-Federal Applicants.  Civil service employees and outside applicants who believe that a decision about Indian preference improperly involved other consideration of employment discrimination based on race, color, religion, sex, national origin, mental or physical disability, marital status, age, sexual orientation, reprisal, or membership or non-membership in any employee organization may file a complaint of discrimination under Title 29, CFR, Part 1614 as implemented by the HHS and the IHS.