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Joseph W. Gross

Abstracted from: Joseph W. Gross, 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 , 62 American University Law Review 383 (December, 2012)



      In 2007, Mildred Garcia pulled her car off the road in rural Arizona to take a rest when a patrol car driven by a tribal police officer from the Navajo Nation Department of Public Safety swerved off the road and slammed into her car. Ms. Garcia had to be extracted from the wreckage using the “jaws of life” and suffered severe trauma, including injuries to her spine. The tribal officer, clad in shorts and a t-shirt, had consumed an 18-pack of beer and a quart of rum prior to blacking out and crashing his cruiser into Ms. Garcia's car. Smelling strongly of alcohol, the officer eventually admitted to being under the influence. The tort victim and her family brought a lawsuit, but rather than suing the officer or the tribe, the family sued the United States.

      Although the United States had no involvement in the tribal officer's hiring, training, or supervision, a federal district court in Arizona found the officer to be acting as a federal employee within the scope of his employment because of a series of laws governing tribal contracting with the United States. As a result, the court denied the United States' motion for summary judgment in several key parts, and the federal government agreed to pay a hefty settlement. Potential payouts like this, encouraged through federal legislation defining the tribal contractor relationship, come at a time when lawmakers clamor to cut government spending deemed wasteful and excessive.

      Since the 1970s, the United States' policy towards the Indian tribes has been to encourage self-government by allowing the tribes to take over programs formerly administered by the Bureau of Indian Affairs (BIA) through the Indian Self-Determination and Education Assistance Act (Self-Determination On reservations and tribal lands across the country, the tribes have been taking advantage of this policy, contracting to take over programs such as local law enforcement previously provided to the tribes by the government. The transition to self-determination, however, has not been seamless.

      Major issues arise when tribal contractors commit torts while carrying out these contracts. Instead of carrying insurance like most government contractors, Congress created a legal fiction whereby tribal contractors are deemed to be employees of the federal government covered by the Federal Tort Claims Act (FTCA), which provides a limited waiver of the United States' sovereign immunity. That means the United States can be held liable for judgments against tribal contractors even though it has little-to-no involvement in their hiring or supervision. This arrangement can leave the United States financially responsible even when tribal contractors, like the officer who hit Ms. Garcia, commit blatant abuses.

      Some courts have recognized the problem of holding the United States responsible for tribal contractors over whom it has little control and have drawn fine lines to protect the United States from liability in certain situations involving law enforcement. Although these decisions are friendlier to the public fisc, the tort victims lose the recourse they would have had if the tortfeasor worked for the U.S. government directly instead of pursuant to a tribal contract. The resulting uncertainty from these decisions undercuts Congress's decision to extend FTCA protection to the tribes.

      This Comment examines the purposes and history of the FTCA as well as the laws, like the Self-Determination Act, that govern tribal contracting and proposals for reform. This Comment then argues that extending the FTCA to cover torts committed by Self-Determination Act contractors contravenes the purpose of the FTCA. The analysis proceeds by addressing specific provisions relating to sovereign immunity, scope of employment, contractors, law enforcement, and choice of law. Part I describes the historic development of the laws governing tribal contracting and the extension of the FTCA to cover Indian contractors. Part II argues that using the FTCA to cover Indian contractors is a poor fit and that the results undermine Congress's reasons for doing so. Part III recommends that Congress replace FTCA coverage with financial assistance to the tribes to obtain private insurance.

* * *

      Using the FTCA to cover torts committed by tribal contractors contravenes the FTCA both in theory and in practice. Congress extended the FTCA to cover tribal contractors to try to facilitate more contracting, but it failed to consider the far-reaching implications of the extension.

      Applying a waiver of the United States' sovereign immunity to tribal sovereigns convolutes the logic behind FTCA jurisprudence in numerous areas. It muddies the application of the FTCA's discretionary function protection. Courts have struggled to determine the extent to which the tribes can exercise the discretion that is usually reserved only for federal employees and expressly withheld from contractors. Furthermore, applying the FTCA to tribal contractors makes it hard to determine when employees are to be considered within the scope of their employment, a key determination in evaluating FTCA liability. The system breaks down even further with tribal law enforcement officers, which is one of the main areas for which the tribes enter into Self-Determination Act contracts. Here, a loophole bars government liability for tribal contractor actions where the victim could otherwise proceed if the tortious officer worked directly for the government. These cases also raise choice-of-law issues, leading to the possibility that courts could apply tribal law rather than federal law. Courts may, however, have trouble accurately discerning tribal law, and applying another nation's laws is inconsistent with the FTCA's rule against applying the laws of foreign nations.

      Although Congress sought to simplify liability coverage for tribal contractors by extending the FTCA, in practice, the current statutory scheme has only created more confusion. Courts have produced inconsistent and bizarre results, causing uncertainty over coverage. As a result, savvy tribes with many Self-Determination Act contracts often decide to play it safe and opt to purchase private liability insurance that is duplicative of whatever coverage the FTCA provides. Congress's “solution” not only fails to solve or mitigate the problem for the tribes, but it also causes the government to incur the extra cost of defending related cases.

      Congress should abandon its experiment of using the FTCA to cover tribal contractors and should instead help the tribes purchase private insurance to protect them from liability incurred while carrying out Self-Determination Act contracts. Doing so would not downgrade the tribes' sovereign status. Instead, helping the tribes purchase private insurance would empower the tribes to take a more active role in self-governance. As the tribes undertake more Self-Determination functions, they must take on increased responsibility if they hope to achieve true self-determination.

. Senior Articles Editor, American University Law Review, Volume 62; J.D. Candidate, May 2013, American University Washington College of Law.