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Indian employees to lose preference under Bush plan
Tuesday, November 4, 2003

Several dozen positions will lose their Indian preference status under a Bush administration consolidation, according to a new legal memo from the Department of Interior.

Special Trustee Ross Swimmer is considering transferring the unit that performs appraisals of Indian land to a new department-wide entity. He has been asking tribes to comment on the proposal.

A key issue is whether Indian preference, which calls for the recruiting and hiring of qualified American Indians and Alaska Natives, will still apply. The policy has been law since 1934 and has turned the Bureau of Indian Affairs from a nearly all-white organization to nearly all-Indian.

But as many as 67 Indian employees will no longer fall under the policy if the consolidation effort advances. In an October 23 memo, a Department of Interior attorney concluded that "preference would not apply" once the employees move to the new office.

Swimmer currently oversees the Office of Appraisal Services (OAS), which assigns values to trust lands owned by tribes and individual Indians. OAS used to be under the authority of the BIA but the Bush administration, in early 2002, stripped the BIA of the function amid concerns over the lack of independence of the appraisers. Swimmer did not initiate the transfer.

The transfer did not affect Indian preference because OAS was transferred intact, according to the memo from associate solicitor Hugo Teufel III. A shift within OST did not affect preference either, he added.

But the consolidation to a new departmental office is different, Teufel wrote. The office will be responsible for Indian and non-Indian lands, and the Indian appraisers will take on new duties, he said.

"On two prior occasions, the transfer of the OAS unit to a new unit constituted an intact transfer of the unit and its function, resulting in the continued application of Indian preference," he wrote. "But in this case . . . the functions of the positions would change."

Indian preference isn't the only sticking point under the consolidation. Since money for OAS comes from tribal priority allocation (TPA) funds, tribes are worried about the impact of losing this critical resource. The 2004 budget includes nearly $11 million for OAS.

Tribal leaders are still upset that former BIA assistant secretary Neal McCaleb gave up the appraisal function without consulting them. "It didn't make any sense to me to move it out of the BIA in the first place," said Clifford Lyle Marshall, the chairman of the Hoopa Valley Tribe of California, in an interview.

Marshall said the consolidation poses a real threat to economic development of Indian lands. "Appraisals are required for anything that we do with tribal property," he said. "Taking it out of the bureau . . . makes it extremely difficult for us to put housing on our reservations, put in infrastructure for water systems and power and lease property."

Tribes with self-governance and self-determination agreements also face unique challenges. It's harder to negotiate compacts and contracts with OST and nearly impossible to do so with other Interior agencies, according to tribal leaders. Moving appraisals to a department unit will complicate their efforts to take greater control of their affairs.

Finally, there is concern about the disparate appraisals of individually-held Indian lands. A recent court report from the special master in the Indian trust fund found that Navajo landowners in New Mexico failed to receive fair market value for use of their land. Private and even tribal owners received up to 20 times more based on appraisals from OAS.

Last week, Swimmer wrapped up a round of meetings on the appraisal consolidation. Tribal leaders complained they have not been properly informed about the changes. At the same time, the BIA was holding meetings about the ongoing reorganization.

Written comments on the consolidation are being accepted by the Office of Special Trustee until December 1. Swimmer extended a deadline published in an earlier Federal Register notice.

Relevant Documents:
Indian Preference Memo (October 23, 2003) | Federal Register: Tribal Consultation on Participation by the Office of the Special Trustee for American Indians in the Department of the Interior Consolidation of Agency Appraisal Functions (September 17, 2003)

Special Master Report:
SITE VISIT REPORT OF THE SPECIAL MASTER TO THE OFFICE OF APPRAISAL SERVICES IN GALLUP, NEW MEXICO AND THE BUREAU OF INDIAN AFFAIRS NAVAJO REALTY OFFICE IN WINDOW ROCK, ARIZONA (August 20, 2003)

Relevant Links:
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Office of Special Trustee - http://www.ost.doi.gov