Student Note Criticizing Federal Tort Claims Act Coverage of Tribal Contractors

Well, the anti-Indian bug has hit law students! :)

This student note, Help Me Help You: Why Congress’s Attempt To Cover Torts Committed by Indian Tribal Contractors with the FTCA Hurts the Government and the Tribes (PDF), is published in the American University Law Review.

The abstract:

Since the Nixon Administration, the U.S. government has attempted to promote tribal self-determination among Native Americans.  Under the Indian Self-Determination Act, the tribes can enter into agreements with the federal government to take over services previously provided to the tribes by the Bureau of Indian Affairs (BIA).  By entering into these contracts, the tribes have been able to administer a wide variety of services, including construction and law enforcement, which bring income and employment to Indian country.  These contracts do not always run smoothly, however, and sometimes people get injured.  Under a series of amendments to the Indian Self-Determination Act, when tribal contractors commit torts, the federal government steps in and defends the tribal contractors under the Federal Tort Claims Act (FTCA) as if they were employees of the government.  The government pays out any settlements or judgments from the Judgment Fund.  This scenario is a complete departure from the traditional FTCA rule whereby contractors are only treated as government employees in exceedingly limited circumstances.

In hastily extending the FTCA to cover tribal contractors, Congress contravened FTCA jurisprudence in theory and in practice.  Congress intended to help the tribes avoid having to buy costly insurance by directly assuming liability under the FTCA.  While perhaps well-intentioned, the result is a system of perverse incentives and a string of inconsistent decisions.  Courts struggle to apply the FTCA’s waiver of the federal government’s sovereign immunity to the tribes, which remain separate sovereigns that retain some of their own sovereign immunity.  The arrangement also creates problems in determining whether tribal contractors are within the scope of their employment and undertaking discretionary functions.  Furthermore, the statutory scheme creates the potential for tribal law to govern the United States’ tort liability and may have inadvertently created a loophole for the intentional torts of tribal law enforcement officers.  The end result of this untenable situation is that savvy tribes recognize the unpredictability of the FTCA protection and purchase private insurance anyway, sometimes with federal contract support funds.  This is the exact result Congress hoped to avoid.

Congress should end the experiment of extending the FTCA to cover tribal contractors and replace it with subsidized private insurance.  This new arrangement would simplify the process for potential claimants and keep the government from having to pay the duplicative costs of insurance and judgments.

I don’t know much about this, but I thought Congress covered the tribes because the tribes were stepping into the shoes of federal service providers. As such, I’m not sure I’m persuaded that ISDEAA contracts should be molded to fit “FTCA jurisprudence … theory and … practice.” But I can’t argue much with the conclusion that there are a lot of unpredictable cases.

The tribes have been winning big on contract support costs cases lately. So if this proposal gets legs and runs, will that increase tribal indirect costs even more?

This entry was posted in Author: Matthew L.M. Fletcher, Scholarship and tagged , , . Bookmark the permalink.

4 Responses to Student Note Criticizing Federal Tort Claims Act Coverage of Tribal Contractors

  1. Dick Monkman says:

    Yes on your question at the end of your note.

    And, as someone involved in Tribal ISDEAA contractors’ FTCA claims on a routine basis, the costs of defense and costs of settlements are quantum levels below the costs that would be incurred in the normal tort system. The FTCA actually works quite well.

    Richard Monkman Sonosky Chambers Juneau

    Sent from my iPhone

  2. Tim Heise says:

    We pro-native law students better start publishing. :)
    UND School of Law

  3. Jay Daniels says:

    I agree that P.L. 93-638 is the best venue for contracting by tribes. I wrote an article at http://roundhousetalk.com/2013/01/better-save-some-of-your-cobell-tribal-trust-and-keepseagle-settlement-money/ and mostly addressed this issue. I was an Awarding Official for P.L. 93-638 Contracts/Grants and the recent cases are long overdue in fairness. What isn’t fair is that the federal government, although acknowledging the liability for paying tribes what was agreed to in the contract, isn’t coughing up additional funding to cover these costs. But rather, BIA will have to absorb these 100% contract support funds (CSF), or indirect costs, amounts from within their existing funding level. That means that present non-contracted BIA programs will have to offset these costs causing reduced funding and staffing. Tribes that contract/compact/self-govern all BIA services for their tribe will gain, but those that assume only a portion of the programs will see the remaining programs provided to them diminished at the local level. It’s a no win situation unless Congress appropriates additional funding to cover contract support funds (CSF). It’s a win, but it’s still a loss.

  4. Phil says:

    The author provides some very good points and cites several examples to support his case. The self determination act says that the govt. is supposed to pay the cost of insurance after factoring in the FTCA. (25 USC 450f (c) ) If the FTCA isn’t working then it should be eliminated. I would think the govt should pay a negotiated amount; pick a number 50%, 75% and the remainder should be up to the tribe. This way the tribe has an incentive to reduce its premiums whereas now their is no incentive. This should be acceptable to tribes because they could eliminate duplications in coverage and should end up saving money.

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