American University Law Review

American University Law Review Article on Tribal Sovereign Immunity

Matthew L.M. Fletcher1 Comment

Here. By Bill Wood.

In its latest pronouncement on the subject, the Supreme Court suggested in Kiowa Tribe of Oklahoma v. Manufacturing Technologies that tribal sovereign immunity is an accidental doctrine that developed with little analysis or reasoning. The Court, however, overlooked important history, context, and (some of its own) precedent which shows that the doctrine arose quite intentionally through relationships negotiated across centuries between the United States and the Indian nations involved in the foundational tribal immunity cases. Indeed, the doctrine’s origins and the principles underlying it date back as far as those for the federal, state, and foreign governments’ immunities, and, historically, the reasoning and justifications for these doctrines are the same. Although the Kiowa Court upheld tribal immunity, it did so grudgingly and only after disparaging its own precedent, misconstruing the doctrine’s origins, questioning whether to perpetuate it, and inviting Congress to abrogate it. In the wake of Kiowa, other courts have seized upon the Supreme Court’s marginalization of tribal immunity to limit the doctrine’s scope in cases where they do the job Kiowa said was for Congress and weigh the competing policy interests at stake. Perhaps unsurprisingly, these courts use Kiowa’s discrediting of tribal sovereign immunity’s legitimacy to tip the balance against tribal immunity. This article tells the real story of tribal sovereign immunity, providing doctrinal perspective and historical clarity in order to correct the misunderstandings about tribal immunity’s origins, development, and purposes.

Student Note Criticizing Federal Tort Claims Act Coverage of Tribal Contractors

Matthew L.M. Fletcher4 Comments

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?