§437. Federal employees contracting or trading with Indians

(a) Except as provided in subsection (b), whoever, being an officer, employee, or agent of the Bureau of Indian Affairs or the Indian Health Service has (other than as a lawful representative of the United States) any interest, in such officer, employee, or agent's name, or in the name of another person where such officer, employee, or agent benefits or appears to benefit from such interest-

(1) in any contract made or under negotiation with any Indian, for the purchase or transportation or delivery of goods or supplies for any Indian, or

(2) in any purchase or sale of any service or real or personal property (or any interest therein) from or to any Indian, or

colludes with any person attempting to obtain any such contract, purchase, or sale, shall be fined under this title ¹ or imprisoned not more than six months or both, and shall be removed from office, notwithstanding any other provision of law concerning termination from Federal employment.

(b)(1) Notwithstanding the provisions of subsection (a) and in accordance with paragraph (2) of this subsection, the President or his designee may prescribe rules and regulations under which any officer, employee, or agent of the Bureau of Indian Affairs or of the Indian Health Service may purchase from or sell to any Indian any service or any real or personal property or any interest therein.

(2) No rule or regulation prescribed pursuant to paragraph (1) of this subsection shall permit any officer, employee, or agent referred to in that paragraph-

(A) to make any purchase from or sale to an Indian of any real or personal property (or any interest therein) for the purpose of commercially selling, reselling, trading, or bartering such property; or

(B) to have any interest in any purchase or sale involving property or funds which are either held in trust by the United States for Indians or which are purchased, sold, utilized, or received in connection with a contract or grant to an Indian from the Bureau of Indian Affairs or the Indian Health Service, if such officer, employee, or agent is employed in the office or installation of such Bureau or Service which recommends, approves, executes, or administers such transaction, grant, or contract on behalf of the United States: Provided, That such officer, employee, or agent may have such an interest if such purchase or sale is approved by the Secretary of the Interior in the case of a Bureau of Indian Affairs officer, employee, or agent, or by the Secretary of Health, Education, and Welfare in the case of an Indian Health Service officer, employee, or agent, or a designee of such Secretary who is not employed at such office or installation: Provided further, That (1) any such designee may not be a relative by blood or marriage of the officer, employee, or agent engaging in such purchase or sale; (2) with respect to purchases or sales by any officer, employee, or agent employed at the reservation, agency, or service unit level, such designee must be employed at not less than one grade level higher than such officer, employee, or agent at the Washington, District of Columbia, central office or at an area office installation other than that with authority over such reservation, agency, or service unit; (3) with respect to purchases or sales by any officer, employee, or agent employed at the area office level, such designee must be employed at not less than one grade level higher than such officer, employee, or agent at the Washington, District of Columbia, central office; and (4) the Secretary must approve purchases or sales by any officer, employee, or agent employed at the Washington, District of Columbia, central office; or

(C) to acquire any interest in property held in trust, or subject to restriction against alienation imposed, by the United States unless the conveyance or granting of such interest in such property is otherwise authorized by law.

(c) Except as provided in subsection (b)(2), nothing contained in this section shall be construed as preventing any officer, employee, or agent of the Bureau of Indian Affairs or the Indian Health Service who is an Indian, of whatever degree of Indian blood, from obtaining or receiving any benefit or benefits made available to Indians generally or to any member of his or her particular tribe, under any Act of Congress, nor to prevent any such officer, employee, or agent who is an Indian from being a member of or receiving benefits by reason of his or her membership in any Indian tribe, corporation, or cooperative association organized by Indians, when authorized under such rules and regulations as the Secretary of the Interior or the Secretary of Health, Education, and Welfare, or their designee shall prescribe.

(d) For purposes of this section, the term "Indian" means any member of an Indian tribe recognized as eligible for the services provided by the Bureau of Indian Affairs who is residing on a Federal Indian Reservation, on land held in trust by the United States for Indians, or on land subject to a restriction against alienation imposed by the United States. The term shall also include any such tribe and any Indian owned or controlled organization located on such a reservation or land.

(e) For purposes of this section, the term "Bureau of Indian Affairs" means the Bureau of Indian Affairs and the Office of the Assistant Secretary for Indian Affairs, both in the Department of the Interior.

(June 25, 1948, ch. 645, 62 Stat. 703 ; June 17, 1980, Pub. L. 96–277, §1, 94 Stat. 544 ; Sept. 13, 1994, Pub. L. 103–322, title XXXIII, §330016(1)(L), 108 Stat. 2147 .)

Historical and Revision Notes

Based on section 87 of title 25, U.S.C., 1940 ed., Indians (June 22, 1874, ch. 389, §10, 18 Stat. 177 ).

To clarify scope of section words "department or agency" were substituted for "of the departments". (See definitions of department and agency in section 6 of this title.)

Word "officer" was inserted to remove all ambiguity as to scope of section.

Words "The violation of any of the provisions of this section shall be a misdemeanor, and" were omitted as unnecessary in view of definition of misdemeanor in section 1 of this title.

The minimum fine clause "less than $500 nor" was omitted to conform to policy followed by codifiers of 1909 Criminal Code.

Changes in phraseology were also made.

Amendments

1994-Subsec. (a). Pub. L. 103–322, which directed the amendment of this section by substituting "fined under this title" for "fined not more than $10,000", was executed by making the substitution for "fined not more than $5,000" in concluding provisions of subsec. (a), to reflect the probable intent of Congress.

1980-Pub. L. 96–277 substituted provisions covering certain Federal employees contracting or trading with Indians for provisions respecting Indian contracts for goods and supplies which prohibited Federal personnel from having any interest, direct or indirect, in Indian contracts for goods and supplies or attempting through collusion to obtain such contracts, punishable by fine not exceeding $5,000, or imprisonment up to six months, or both, and removal from office, covered in subsec. (a) of this section.

Change of Name

Secretary of Health, Education, and Welfare redesignated Secretary of Health and Human Services by Pub. L. 96–88, title V, §509(b), Oct. 17, 1979, 93 Stat. 695 , which is classified to section 3508(b) of Title 20, Education.

Effective Date of 1980 Amendment

Section 4 of Pub. L. 96–277 provided that: "The provisions of this Act [amending this section, repealing sections 68, 68a, 87a, and 441 of Title 25, Indians, and enacting provisions set out as a note under this section] shall take effect sixty days after the date of enactment of this Act [June 17, 1980]."

Validity of Transactions Prior to Effective Date of Pub. L. 96–277

Section 3 of Pub. L. 96–277 provided that: "The Secretary of the Interior may review any transaction, other than one involving the sale of property held in trust or subject to a restriction against alienation imposed by the United States, occurring prior to the effective date of this Act [see Effective Date of 1980 Amendment note set out above] and, if the Secretary finds that such transaction would have been valid had the provisions of this Act [amending this section, repealing sections 68, 68a, 87a, and 441 of Title 25, Indians, and enacting provisions set out as a note under this section] been in effect at the time of such transaction, the Secretary may declare such transaction to be valid, subject to all valid transactions subsequent to such time. The Secretary may issue or execute such documents as may be necessary or desirable to evidence the validity of such a transaction. A declaration of validity of a transaction pursuant to this section shall be conclusive evidence of such validity notwithstanding the provisions of section 437 of title 18, United States Code; section 2078 of the Revised Statutes [section 68 of Title 25]; section 14 of the Act of June 30, 1834 (4 Stat. 738); and section 10 of the Act of June 22, 1874 (18 Stat. 177) [section 87 of Title 25], which may have been in effect at the time of such transaction."

Ex. Ord. No. 12328. Delegation of Functions

Ex. Ord. No. 12328, Oct. 8, 1981, 46 F.R. 50357, as amended by Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617, provided:

By the authority vested in me as President of the United States of America by Section 437(b) of Title 18 of the United States Code (94 Stat. 544; Public Law 96–277), and Section 301 of Title 3 of the United States Code, it is hereby ordered as follows:

Section 1. The functions vested in the President by Section 437(b) of Title 18 of the United States Code (94 Stat. 544; Public Law 96–277) to prescribe rules and regulations under which any officer, employee, or agent of the Bureau of Indian Affairs may purchase from or sell to any Indian any service or any real or personal property or any interest therein, are delegated to the Secretary of the Interior.

Sec. 2. The functions vested in the President by Section 437(b) of Title 18 of the United States Code (94 Stat. 544; Public Law 96–277) to prescribe rules and regulations under which any officer, employee, or agent of the Indian Health Service may purchase from or sell to any Indian any service or any real or personal property or any interest therein, are delegated to the Secretary of Health and Human Services.

Sec. 3. Until rules and regulations are issued pursuant to Sections 1 and 2 of this Order, those rules and regulations previously applicable to Federal employees contracting or trading with Indians are hereby adopted as the rules and regulations of the President pursuant to, and to the extent not inconsistent with, Section 437(b) of Title 18 of the United States Code (25 CFR 140.5 and 141.31).

Ronald Reagan.      

Cross References

Agreements with Indians, see section 71 et seq. of Title 25, Indians.

¹ See 1994 Amendment note below.