B-175149, FEB 21, 1973

B-175149: Feb 21, 1973

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THE CONSTITUTIONALITY OF THE "INDIAN PREFERENCE" STATUTES IN RELATION TO SECTION 717 OF THE EQUAL EMPLOYMENT OPPORTUNITY ACT OF 1972 IS CURRENTLY PENDING BEFORE THE U.S. WHO ARE PROPERLY QUALIFIED FOR THE EXECUTION OF THE DUTIES.". THERE ARE IN ADDITION SECTIONS 44. COMPRISE THE AUTHORITY BY WHICH PREFERENCE IN EMPLOYMENT IS GIVEN TO INDIANS. PROVIDES FOR APPOINTMENT TO VACANCIES AS FOLLOWS: "THE SECRETARY OF THE INTERIOR IS DIRECTED TO ESTABLISH STANDARDS OF HEALTH. SUCH QUALIFIED INDIANS SHALL HEREAFTER HAVE THE PREFERENCE TO APPOINTMENT TO VACANCIES IN ANY SUCH POSITIONS.". WE UNDERSTAND THAT FROM 1934 WHEN SECTION 472 WAS FIRST ENACTED. THE "INDIAN PREFERENCE" WAS REGARDED AS APPLICABLE ONLY TO INITIAL APPOINTMENTS.

B-175149, FEB 21, 1973

CIVILIAN EMPLOYEE - INDIAN PREFERENCE IN HIRING - PENDING LITIGATION DECISION CONCERNING THE PROPRIETY OF APPLYING THE "INDIAN PREFERENCE" TO APPOINTMENTS TO POSITIONS IN THE BUREAU OF INDIAN AFFAIRS (BIA) OTHER THAN INITIAL APPOINTMENTS. WHILE THE APPLICATION OF THE "INDIAN PREFERENCE", PROVIDED AT 25 U.S.C. 472, TO THE FILLING OF ALL VACANCIES, WHETHER BY INITIAL APPOINTMENT OR OTHERWISE, WITHIN BIA HAS BEEN UPHELD IN FREEMAN ET. AL. V. MORTON, C. A. NO. 327-71 (D.D.C. 1972), THE CONSTITUTIONALITY OF THE "INDIAN PREFERENCE" STATUTES IN RELATION TO SECTION 717 OF THE EQUAL EMPLOYMENT OPPORTUNITY ACT OF 1972 IS CURRENTLY PENDING BEFORE THE U.S. DISTRICT COURT OF NEW MEXICO IN THE CASE OF MANCARI V. MORTON, C. A. NO. 9626. ACCORDINGLY, THE COMP. GEN. DECLINES TO EXPRESS AN OPINION ON THIS MATTER UNTIL THE OUTCOME OF LITIGATION IN MANCARI.

TO MR. N. T. WOLKOMIR:

WE REFER TO YOUR LETTER OF NOVEMBER 30, 1972, REGARDING APPLICATION OF THE "INDIAN PREFERENCE" TO APPOINTMENTS TO POSITIONS IN THE BUREAU OF INDIAN AFFAIRS (BIA) OTHER THAN INITIAL APPOINTMENTS.

YOUR LETTER REFERS TO SECTION 45 OF TITLE 25 OF THE U.S.C. AS CONSTITUTING THE AUTHORITY UNDER WHICH THE BIA PREDICATES ITS PRESENT POLICY OF AFFORDING PERSONS OF INDIAN DESCENT A PREFERENCE IN THE FILLING OF ALL VACANCIES. THAT SECTION PROVIDES AS FOLLOWS:

"IN ALL CASES OF THE APPOINTMENT OF INTERPRETERS OR OTHER PERSONS EMPLOYED FOR THE BENEFIT OF INDIANS, A PREFERENCE SHALL BE GIVEN TO PERSONS OF INDIAN DESCENT, IF SUCH CAN BE FOUND, WHO ARE PROPERLY QUALIFIED FOR THE EXECUTION OF THE DUTIES."

THERE ARE IN ADDITION SECTIONS 44, 46 AND 472 OF TITLE 25, WHICH, TOGETHER WITH SECTION 45, COMPRISE THE AUTHORITY BY WHICH PREFERENCE IN EMPLOYMENT IS GIVEN TO INDIANS. SECTION 472, THE SECTION MOST IN POINT, PROVIDES FOR APPOINTMENT TO VACANCIES 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."

WE UNDERSTAND THAT FROM 1934 WHEN SECTION 472 WAS FIRST ENACTED, UNTIL 1971, THE "INDIAN PREFERENCE" WAS REGARDED AS APPLICABLE ONLY TO INITIAL APPOINTMENTS. IN JUNE OF 1972, AFTER A REVIEW OF THE IMPACT OF THE POLICY THERETOFORE APPLIED AND PERTINENT STATUTORY AUTHORITIES, AND WITH THE CONCURRENCE OF THE CIVIL SERVICE COMMISSION, THE BIA EXTENDED APPLICATION OF THE "PREFERENCE" TO THE FILLING OF ALL VACANCIES WITHIN THE BUREAU, WHETHER BY ORIGINAL APPOINTMENT, REINSTATEMENT, OR PROMOTION. THE PERTINENT DIRECTIVE PROVIDES FOR LIMITED EXCEPTIONS TO THE ABOVE-STATED POLICY IN INSTANCES WHERE JUSTIFIED ON THE BASIS OF SUPERIOR QUALIFICATIONS ON THE PART OF A NONPREFERENCE CANDIDATE, ON THE BASIS OF SPECIAL REQUIREMENTS OR SELECTIVE FACTORS IN SPECIFIC POSITIONS OR UPON EXCEPTION GRANTED BY THE COMMISSIONER OF INDIAN AFFAIRS IN THE BEST INTERESTS OF THE BUREAU.

YOU CONTEND THAT THIS EXPANSION IN APPLICATION OF THE "INDIAN PREFERENCE" IS IN CONTRAVENTION OF THE MERIT PRINCIPLE WHICH LIES AT THE HEART OF THE CIVIL SERVICE SYSTEM. IN THIS REGARD YOU STATE:

"WHEN PROMOTIONS AND TRANSFERS ARE MADE ON A RACIAL BASIS THERE IS NO MERIT SYSTEM. NON-INDIAN EMPLOYEES ARE WITHOUT HOPE AND ARE FACED WITH THE ODIOUS CHOICE OF SEEKING EMPLOYMENT ELSEWHERE OR BEING CONSIGNED TO A DEAD-END JOB.

"THE EFFECT OF THIS POLICY IS DISASTROUS TO NON-INDIAN EMPLOYEE MORALE. IT IS A BLOW AIMED AT THE ENTIRE MERIT PRINCIPLE. IT ESTABLISHES A DANGEROUS PRECEDENT AND, IF ALLOWED TO STAND, WILL WEAKEN THE CONFIDENCE OF ALL FEDERAL EMPLOYEES AND THE AMERICAN PUBLIC IN THE GOVERNMENT'S COMMITMENT TO THE MERIT PRINCIPLE AND SOCIAL JUSTICE.

"WE BELIEVE THAT THE INDIAN PREFERENCE LAW, IF STRICTLY CONFINED TO THE AREA OF INITIAL HIRING, CAN BE RECONCILED WITH THE CIVIL RIGHTS ACT AND THE CIVIL SERVICE LAW. WE PREMISE THIS STATEMENT ON THE SPECIAL LEGAL STATUTES THAT INDIANS HAVE ENJOYED. BEYOND THIS POINT WE BELIEVE THAT THERE IS AN IRRECONCILABLE CONFLICT WITH BOTH THE CIVIL SERVICE LAW AND THE CIVIL RIGHTS ACT OF 1972. INDEED, THIS NEW POLICY HAS SERIOUS CONSTITUTIONAL IMPLICATIONS."

THE POINT WHICH YOU RAISE WAS CONSIDERED IN THE CASE OF FREEMAN ET AL. V. MORTON, CIVIL ACTION NO. 327-71, DECIDED DECEMBER 21, 1972, BY THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. THAT DECISION UPHOLDS APPLICATION OF THE "INDIAN PREFERENCE" PROVIDED AT 25 U.S.C. 472 TO THE FILLING OF ALL VACANCIES, WHETHER BY INITIAL APPOINTMENT, PROMOTION OR OTHERWISE, WITHIN BIA, AND HOLDS FURTHER THAT THERE IS NO ADMINISTRATIVE DISCRETION IN IMPLEMENTATION OF THE PREFERENCE POLICY. WE UNDERSTAND THAT THAT DECISION HAS NOT AS YET BEEN APPEALED.

YOUR LETTER ALSO INDICATES DOUBT AS TO THE CONSTITUTIONALITY OF THE "INDIAN PREFERENCE" STATUTES, AS WELL AS TO THEIR LEGALITY IN LIGHT OF SECTION 717 AS ADDED BY THE EQUAL EMPLOYMENT OPPORTUNITY ACT OF 1972. BOTH QUESTIONS HAVE BEEN RAISED IN THE CASE OF MANCARI V. MORTON, CIVIL NO. 9626, NOW PENDING BEFORE THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. IN VIEW OF THE ABOVE, WE MUST DECLINE TO EXPRESS ANY OPINION IN REGARD TO THE MATTER.