By Joseph W. Gross | 62 Am. U. L. Rev. 383 (2012)

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.