It is common knowledge in Indian Country that the U.S. Department of Justice must conduct certain litigation for the benefit of Indian Country, vis-à-vis the federal government, trustee for the protection of the resources and rights of federally-recognized Indian tribes and tribal members. But, it is much less known that the Department of Justice may be obligated to defend a tribe and its officials and employees from the everyday slip-and-fall case.

Tribal governments, misperceived as corporate entities with deep pockets – to the tune of $19 billion in annual gaming revenues – are an increasingly popular target for tort claimants and personal injury lawyers. With each frivolous claim filed, tribal leaders and lawyers are forced to expend an inordinate amount of time and money to carefully defend the attack on the tribe and its public treasury, so as to avoid the next judicial decision to erode the inherent sovereignty of all tribes.

The Federal Tort Claims Act (FTCA), 28 U.S.C. 2671, et seq., is a legal shield that some tribes can use when faced with particular personal injury claims, to protect tribal resources and rights of self-governance. To qualify for FTCA protection, the tort claim must arise from conduct in furtherance of a "638" contract with the federal government. See Indian Self-Determination Education Assistance Act (ISDEAA), 25 U.S.C. 450f(d). This article discusses the applicability of the FTCA to the activities of the 200-plus self-governance tribes.1

A. The FTCA & ISDEAA

The FTCA operates as a limited waiver of the United States’ sovereign immunity, allowing a person injured by a federal employee to seek tort damages against the federal government. Smith v. Supreme Court of United States, 499 U.S. 160 (U.S. 1991). Specifically, FTCA waives sovereign immunity for claims against the U.S. for:

money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment if a private person . . . would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. 1346(b).

A claimant’s remedy against the federal government under the FTCA, which must be sought within two years of his or her injury, is "exclusive of any other civil action or proceeding for money damages." 28 U.S.C. 2401(b), 2679(b)(1); 25 C.F.R. 204.

Under a self-governance agreement – commonly known as a "638" contract given the enactment of the ISDEAA as Public Law 93-638 – BIA or IHS supplies funding to a tribe or tribal organization, allowing that tribal entity to conduct and administer a program or service that the federal government would otherwise provide the tribe directly. 25 U.S.C. 450f, b(j); FGS Constructors, Inc. v. Carlow, 64 F.3d 1230, 1234-35 (8th Cir. 1996). A 1990 amendment to the ISDEAA provides in pertinent part:

With respect to claims resulting from the performance of functions . . . under a contract, grant agreement, or cooperative agreement authorized by the Indian Self-Determination and Education Assistance Act . . . an Indian tribe, tribal organization or Indian contractor is deemed hereafter to be part of the [BIA] or [IHS] while carrying out any such contract or agreement and its employees are deemed employees of the Bureau or Service while acting within the scope of their employment in carrying out the contract or agreement: Provided, that after September 30, 1990, any civil action or proceeding involving such claims brought hereafter against any tribe, tribal organization, Indian contractor or tribal employee covered by this provision shall be deemed to be an action against the United States and will be defended by the Attorney General and be afforded the full protection and coverage of the Federal Tort Claims Act . . . 25 U.S.C. 450f notes (emphasis added).

Taken together, the ISDEAA and FTCA provide coverage for claims resulting from negligent or wrongful, perhaps even intentional, acts or omissions arising from a tribal employee’s performance of functions pursuant to a self-governance contract. FGS Constructors, 64 F.3d at 1235; Waters v. U.S., 812 F. Supp. 166, 169 (N.D. Cal. 1993) ("FTCA would cover [tribal] torts which are both intentional and statutory.").2

By way of example, federal courts have affirmed the applicability of the FTCA to tortious acts arising out of the following tribal self-governance programs: health care clinics and human service programs, including alcohol and drug abuse prevention;3 schools and early learning centers;4 law enforcement;5 and, general contractor construction work.6 However, tribal housing authority activities, which flow from contracts with the Department of Housing and Urban Development – not with BIA or IHS – are likely not afforded FTCA protection.7 As of the year 2000, FTCA claims against BIA most frequently arose from tribal law enforcement activities (77%), education programs (6%) and road maintenance (6%), while claims against IHS most often concerned patient care (45%), motor vehicle accidents (35%) and personal injuries such as slip-and-falls (17%).8 Such case-law and statistics demonstrate the breadth of the FTCA’s protection for torts arising from tribal self-governmental activities.

B. Procedural FTCA Coverage

Upon receipt of a tort claim that might be covered by the FTCA, a self-governance tribe must "immediately" notify BIA and/or IHS of the claim. 28 U.S.C. 2679(c); 25 C.F.R. 900.188(b). In particular, the tribe need forward any claim that pertains to activities conducted pursuant to a BIA 638 contract to the Assistant Solicitor, Procurement & Patents, Office of the Solicitor, Department of Interior, Room 6511, 1849 C Street NW, Washington, DC 20240. 25 C.F.R. 900.207-.209. Any claim arising from a self-governance agreement with IHS should be forwarded to the Chief, PHS Branch, Room 18-20, Parklawn Building, 5600 Fishers Lane, Rockville, MD 20857. 25 C.F.R. 900.201.9

Within six months of having received the claim, the federal government must process the claim and certify whether or not it falls within the ambit of the FTCA. 28 U.S.C. 2679(d); 25 C.F.R. 900.185. However, counsel for the BIA/IHS typically fail to respond within that time period.10 If BIA and/or IHS do not respond within six months, the claimant can initiate suit against the federal government.

If ultimately the federal government determines that the claim/suit arose from tribal conduct in furtherance of a self-governance contract and the tribal employee acted within the scope of his or her employment, the U.S. Attorney, through power delegated from the U.S. Attorney General (28 C.F.R. 15.3), should certify the matter as a FTCA claim. 28 U.S.C. 2679(d); Walker, supra; Big Crow v. Rattling Leaf, 296 F. Supp. 2d 1067 (D. S.D. 2004) ("Common sense" dictates whether a tribal employee acted within the scope of his or her employment for FTCA purposes). If the U.S. Attorney certifies the claim/suit, the U.S. will be substituted for the tribe as the defendant. Id. Should the U.S. Attorney decline to certify the claim/suit, the tribe can petition its local federal district court to certify the matter as an FTCA claim and substitute the U.S. as defendant. 28 U.S.C. 2679(d)(3); Walker, Allender, supra.

The FTCA grants exclusive jurisdiction to the federal district court for tort claims against the U.S. 28 U.S.C. 1346(b)(1); Allender, supra. If a claimant sues the tribe in state court, the matter would be removed to federal court upon the U.S. Attorney’s certification. 28 U.S.C. 2679(d)(2); Walker, supra. While the FTCA is silent as to removal from tribal court, the tribal court might nonetheless authorize removal, following 28 U.S.C. 2679(d)(2) as persuasive authority, and stay the proceeding until such time as the U.S. Attorney certifies the claim (at which time a dismissal of the tribal court adjudication might be appropriate). See, e.g., Puyallup Tribal Tort Claims Act, Section 4.02A.070(2).

In the end, any settlement or judgment obtained from the federal government by the tort claimant would be paid with federal – not tribal or tribal insurance – monies, leaving tribal leaders and lawyers to devote their wisdom and energy, and the tribe’s resources towards the provision of essential self-governmental services. Indeed, the FTCA acts as both a sword and shield in the advancement of Indian sovereignty.

Footnotes

1 See also the very practical series of questions and answers published on this topic in the Code of Federal Regulations, at 25 C.F.R. 900.180, et seq.

2 However, wrongful or intentional conduct on the part of tribal police officers might be exempt from the FTCA. Compare 28 U.S.C. 2680(h), with Locke v. U.S., 215 F. Supp. 2d 1033) (D. S.D. 2002).

3 See Walker v. Chugachmiut, 46 Fed. Appx. 421 (9th Cir. 2002); State Farm Mut. Auto. Ins. Co. v. Swan, 2002 WL 31973731 (D. Or. 2002); Waters, supra (each involving tribal health clinics); Buchanan v. U.S. Dept. of Health & Human Services, 177 F. Supp. 2d 1005 (N.D. Cal. 2001) (tribal drug and alcohol abuse program); U.S. v. CNA Financial Corp., 168 F. Supp. 2d. 1125 (D. Alaska 2001) (tribal alcohol abuse facility); Wooten v. Hudson, 71 F. Supp. 2d 1149 (E. D. Okla. 1999) (IHS hospital employee acting under a self-governance contract).

4 Cf. Wide Ruins Community School v. Stago, 2003 U.S. Dist. LEXIS 16147 (D. Ariz. 20003).

5 See U.S. v. Schrader, 10 F.3d 1345 (8th Cir. 1993); Allender v. Scott, No. CIV-04-0835 BB/RLP, Memorandum Opinion (D. N.M. Jan. 27, 2005); Locke, supra; cf. Hopland Band of Pomo Indians v. Norton, 324 F. Supp. 2d 1067 (N.D. Cal. 2004); see also Gabriel S. Galanda, "Shielding Tribal Police from Attack: Soliciting Civil Legal Protection Under the Federal Tort Claims Act," Indian Gaming, July 2005.

6 See Val-U Const. Co. of South Dakota, Inc., v. U.S., 905 F. Supp. 728 (D. S.D. 1995).

7 George Comes Flying v. U.S., 830 F. Supp. 529 (D. S.D. 1993).

8 See U.S. General Accounting Office Report to the Chairman, Committee on Indian Affairs, U.S. Senate, " Federal Tort Claims Act: Issues Affecting Coverage for Tribal Self-Determination Contracts," July 2000.

9 If a claimant sues the tribe without first filing a tort claim, any BIA notification should likewise be made to the Assistant Solicitor, although IHS need receive notice of the suit through the Chief, Litigation Branch, Business and Administrative Law Division, Office of General Counsel, Department of Health & Human Services, 330 Independence Avenue SW, Room 5362, Washington, DC 20201. Id.; 25 C.F.R. 900.203.

10 See Daniel W. Hester, "The Scope of Federal Tort Claims Act Coverage to Tribes Operating Under the Indian Self-Determination Act," May 10, 2005 (on file with author).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.