GAO

United States General Accounting Office

Report to the Chairman, Committee on

Indian Affairs, U.S. Senate

July 2000 FEDERAL TORT

CLAIMS ACT

Issues Affecting

Coverage for Tribal

Self-Determination

Contracts

GAO/RCED-00-169

Page 1 GAO/RCED-00-169 Indian Tort Claims

Contents

Letter 3

Appendixes Appendix I: Three Provisions Extended FTCA Coverage to

Tribal Contractors 24

Appendix II: The FTCA Claims Process 29

Appendix III: Legal Issues That Have Arisen With the Extension

of FTCA Coverage to Tribal Contractors 30

Appendix IV: Comments From the Department of the Interior 36

Appendix V: Comments From the Department of Health and Human

Services 39

Tables Table 1: Claims Arising From Tribally Contracted Programs

From the Bureau of Indian Affairs and the Indian Health

Service, Fiscal Years 1997-99 9

Figures Figure 1: Claims Arising from Tribally Contracted Programs

From the Bureau of Indian Affairs, by Program Type,

Fiscal Years 1997-99 10

Figure 2: The Five Tribes With the Most Claims for

Bureau-Contracted Programs, Fiscal Years 1997-99 11

Figure 3: Claims Arising from Tribally Contracted Programs

From the Indian Health Service, by Type of Claim,

Fiscal Years 1997-99 12

Figure 4: The Five Indian Health Service Area Offices With the

Most Claims Involving Tribally Contracted Programs,

Fiscal Years 1997-99 13

Figure 5: Chronology of the Three Provisions That Extended FTCA

Coverage to Tribal Contractors. 25

Figure 6: FTCA Coverage Is Not a Perfect Fit for Tribal Contractors 31

Abbreviations

FTCA Federal Tort Claims Act
Page 2 GAO/RCED-00-169 Indian Tort Claims
Page 3 GAO/RCED-00-169 Indian Tort Claims

United States General Accounting Office

Washington, D.C. 20548

Resources, Community, and

Economic Development Division

B-285425 Letr

July 5, 2000

The Honorable Ben Nighthorse Campbell

Chairman, Committee on Indian Affairs

United States Senate

Dear Mr. Chairman:

The Indian Self-Determination and Education Assistance Act was passed in

1975 to encourage tribes to participate in and manage programs that for

years had been administered on their behalf by the departments of the

Interior and of Health and Human Services. The act authorizes tribes to

take over the administration of such programs through contractual

arrangements with the agencies that previously administered them:

Interior’s Bureau of Indian Affairs and Health and Human Services’ Indian

Health Service.1 For the Bureau, the programs that can be contracted by

tribes include law enforcement, education, social services, road

maintenance, and forestry, and for the Health Service, the programs include

mental health, dental care, hospitals, and clinics.

Under the first 15 years of the Self-Determination Act, tribal contractors

generally assumed liability for accidents or torts (civil wrongdoings)

caused by their employees. However, in 1990, the federal government

permanently assumed this liability when the Congress extended Federal

Tort Claims Act (FTCA) coverage to tribal contractors under the SelfDetermination Act. Originally enacted in 1946, FTCA established a process

by which individuals injured by federal employees could seek

compensation from the federal government. As a result of extending this

coverage to tribal contractors, individuals injured by tribal employees may,

under certain circumstances, seek compensation from the federal

government. For example, if while responding to a call for assistance, a

tribal police officer is involved in an automobile accident, the injured

parties may be able to seek compensation from the federal government for

their personal injuries and property damage.

1

Throughout this report, the term “tribes” will refer both to tribes and tribal organizations

eligible to contract programs under the Indian Self-Determination and Education Assistance

Act. Also, the term “contracts” will refer to contracts, grants, self-governance agreements,

cooperative agreements, or annual funding agreements entered into pursuant to the Indian

Self-Determination and Education Assistance Act, as amended.
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To gain an understanding of how this coverage works, you asked us to (1)

describe the process for implementing FTCA coverage for tribal selfdetermination contracts, (2) determine the FTCA claims history for tribal

self-determination contracts for fiscal years 1997 through 1999, and (3)

discuss FTCA coverage issues that are unique to tribal contractors.

Results in Brief Federal regulations implementing FTCA prescribe the process that federal

agencies must follow in resolving claims arising from the negligent or

wrongful acts of federal employees. With the extension of FTCA coverage

to tribal contractors, tribal employees under a self-determination contract

are considered federal employees for the purpose of FTCA coverage.

According to FTCA regulations, claims are subject first to an administrative

review and determination by the federal agency whose actions gave rise to

the claim. At the administrative level, the departments of the Interior and of

Health and Human Services handle these claims. If a claim is not resolved

administratively, a lawsuit may be filed in federal court, where the

Department of Justice would defend it. Administrative and legal

settlements may be paid from agency funds, the U.S. Treasury, or tribes’

private liability insurance if duplicative coverage exists.

Data on FTCA claims involving tribal contractors are not readily available

because neither Interior nor Health and Human Services is required to

track these claims separately from FTCA claims involving federal

employees. However, in response to our request for claims data, these

departments identified 342 claims, filed from fiscal years 1997 through

1999, that arose from programs contracted from the Bureau of Indian

Affairs and the Indian Health Service. At both agencies, these claims

involved a small number of tribes, and the damages claimed totaled about

$700 million. About two-thirds of these claims involved Bureau programs,

most notably law enforcement. The remaining one-third of these claims

involved Health Service programs, of which about one-half involved patient

care activities. Although some of these claims remain open, about 70

percent of the claims (involving about $333 million in claimed damages)

have been brought to closure at a cost of more than $2 million (84 percent

paid by the federal government, 16 percent paid by private insurers). Of the

claims brought to closure, 127 resulted in settlement payments and 108

were denied.

Our review identified a number of issues unique to FTCA coverage for

tribal contractors. On the administrative side, the U.S. government may be

paying more than necessary to resolve claims involving tribal contractors.
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To the extent that tribes use federal funds to purchase private liability

insurance, it is possible that the federal government is paying twice—once

for tribes’ insurance premiums and once to settle tribal FTCA claims. The

potential for duplicative liability coverage exists for tribal contractors

because of tribes’ long-standing practice of carrying private insurance to

cover a wide range of activities, including those subsequently covered

under FTCA. Neither Interior nor Health and Human Services routinely

checks to determine whether tribal contractors have private liability

insurance that could cover these claims. To protect against the government

paying more than necessary to resolve these claims, this report

recommends that the departments routinely check for duplicative liability

insurance. On the legal side, several issues have emerged from recent

lawsuits that illustrate areas for which FTCA coverage is not a perfect fit

for tribal contractors. For example, in some cases, lawsuits involving FTCA

claims have been filed in tribal courts, although federal courts have

exclusive jurisdiction to hear such cases. Cases filed in tribal court can be

problematic because FTCA does not provide the necessary authority to

remove such cases from tribal court to federal court, where they belong.

We provided a draft of this report to the departments of the Interior, Health

and Human Services, and Justice for their review and comment. The

Department of the Interior agreed with our finding that the U.S.

government could potentially pay both for the claims and the liability

insurance to cover them. The Department also highlighted its two main

concerns regarding FTCA coverage for tribal contractors. First, the

incentives to reduce the number of claims are not present for tribal

contractors, and second, from time to time, a tribe, or its employees, has

not cooperated with the Department in resolving a claim. The Department

of Health and Human Services agreed with the facts presented in the report

and with its recommendation. The departments of the Interior and Justice

provided technical clarifications, which we incorporated as appropriate.

Background The Federal Tort Claims Act was enacted in 1946 and provides a limited

waiver of the U.S. government’s sovereign immunity. It specifies the

instances in which individuals injured by the wrongful or negligent acts or

omissions of federal employees can seek restitution and receive

compensation from the federal government through an administrative

process and, ultimately, through the federal courts.

The Indian Self-Determination and Education Assistance Act of 1975

allowed Indian tribes to contract to administer certain federal Indian
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programs. As originally enacted, tribal contractors assumed liability for

torts caused by tribal employees performing official duties. The act

authorized the Secretaries of the Interior and of Health and Human

Services to require that tribal contractors obtain private liability insurance.

People injured by the actions of tribal contractors could file claims against

tribal employees or their tribes.

By the late 1980s, the Congress recognized that some tribes were using

program funds to purchase insurance, which reduced the funds available to

provide direct program services. Thus, the Congress amended the SelfDetermination Act in 1988 and required that beginning in 1990, the

Secretaries of the Interior and of Health and Human Services obtain or

provide liability insurance or equivalent coverage for the tribes. Also in the

late 1980s, the Congress began to enact statutes extending FTCA coverage

to tribal self-determination contracts. In 1990, this coverage was extended

permanently, thus giving injured parties the right to file tort claims against

and recover monetary damages from the U.S. government for injuries or

losses resulting from the negligent actions of tribal employees. See

appendix I for more detail on the three statutory provisions that extended

FTCA coverage to tribal contractors.

Federal Indian programs that tribes can contract under the SelfDetermination Act fall under the jurisdiction of the departments of the

Interior and of Health and Human Services. Within these departments, the

primary agencies responsible for administering Indian programs are the

Bureau of Indian Affairs and the Indian Health Service, which have a

combined annual appropriation that now exceeds $4 billion. Indian tribes

administer about one-half of these programs, or about $2 billion annually.

As of March 2000, there were 556 federally recognized tribes. Agency

officials estimate that nearly all of the federally recognized tribes

administer at least one contract from the Bureau or the Health Service

either directly or as a member of a tribal consortium.

The Bureau and Health Service programs administered by a tribe under the

Self-Determination Act may represent only a portion of that tribe’s total

activities. The other programs tribes operate outside of the SelfDetermination Act may include other federal programs, such as federal

housing assistance for Native Americans under the Department of Housing

and Urban Development, early childhood educational and care programs

under the departments of Education and of Health and Human Services,

and tribal enterprises, such as gaming operations and smokeshops or

convenience stores. These programs have generally not been extended
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FTCA coverage. The tribes themselves are liable for any injuries or

damages caused by these programs, and they may choose to protect

themselves against this liability by purchasing private liability insurance.

FTCA Regulations

Prescribe

Administrative and

Judicial Review of

Claims

The federal regulations implementing FTCA prescribe the process that

federal agencies must follow in resolving claims arising from the negligent

or wrongful acts of federal employees. With the extension of FTCA

coverage to tribal contractors, tribal employees under a self-determination

contract are considered federal employees for the purpose of FTCA

coverage. According to FTCA regulations, claims are subject first to

administrative review and determination by the federal agency whose

actions gave rise to the claim. Claims must include evidence and

information about the actions giving rise to the injury and the injury

sustained, and must be presented in writing to the responsible agency

within 2 years. The claim must also request a specific amount of

compensation. Once a claim has been filed, the agency has 6 months in

which to review the claim before the claimant may file suit in federal court.

The administrative review can result in a claim’s being denied, settled, or

undecided. For a complete diagram of the FTCA claims process, see

appendix II.

Claims arising from Bureau programs are filed with Interior’s Office of the

Solicitor, and claims arising from Indian Health Service programs are filed

with Health and Human Services’ Claims Branch. At Interior, nine solicitor

field offices have been delegated responsibility for handling FTCA claims

for Bureau programs. Although regulations implementing the SelfDetermination Act require that claims be filed with the solicitor’s

headquarters in Washington, D.C., in practice claims are forwarded to the

cognizant solicitor field office. The office responsible for reviewing a claim

depends on the location where the incident occurred. Recently, two

solicitor offices have delegated authority to process certain claims of

$2,500 or less to the local Bureau regional office.

At Health and Human Services, claims are handled centrally at agency

headquarters. All claims must be filed with the Claims Branch in Rockville,

Maryland. The Claims Branch reviews all claims for completeness and

requests additional documentation as necessary. For nonmedical claims of

$10,000 or less, the Claims Branch can issue the initial administrative

determination; those claims over $10,000 are forwarded to the Office of

General Counsel for a determination. A more rigorous review process

exists for medical claims. Each medical claim must undergo three reviews:
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(1) a site review at the facility where the incident occurred; (2) an

independent medical review from an off-site provider(s) in the pertinent

field; and (3) a review by the Public Health Service’s Quality Review Panel.

The recommendations of the Quality Review Panel on the medical merits of

the claim are then returned to the Claims Branch. The Claims Branch can

issue the initial administrative determination for medical claims of $10,000

or less, while claims over this amount are forwarded to the Office of

General Counsel.

The claimant must go through the administrative claims process before

filing suit in federal court. Interior and Health and Human Services can

approve settlements of less than $25,000. The Department of Justice must

approve larger settlements. Settlements of $2,500 or less are paid directly

from agency funds, and larger settlements are paid from the Judgment

Fund in the U.S. Treasury.2 Ultimately, if the claimant is dissatisfied with

the administrative determination, the claimant may file suit in federal

court. The Department of Justice handles lawsuits arising from FTCA

claims. FTCA claims involving tribal contractors may be turned over, or

“tendered,” to private insurers when tribes have private liability insurance

policies that provide coverage for the same incidents covered under FTCA.

Several Hundred

Claims Have Been

Filed Involving Tribal

Self-Determination

Contracts

Data on FTCA claims involving tribal contractors are not readily available

because neither Interior nor Health and Human Services is required to

track these claims separately from FTCA claims involving federal

employees. However, in response to our request for claims data, these

departments identified 342 claims filed from fiscal years 1997 through 1999

for programs contracted by tribes from the Bureau and the Health Service.

These claims involved tribally contracted programs for 76 contractors (60

of the 556 federally recognized tribes and 16 organizations). Total damages

claimed were $706 million (see table 1).

2

The Judgment Fund is a permanent indefinite appropriation available to pay certain

settlements and judgments against the federal government.
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Table 1: Claims Arising From Tribally Contracted Programs From the Bureau of

Indian Affairs and the Indian Health Service, Fiscal Years 1997-99

About two-thirds of the claims involved Bureau programs, most notably

law enforcement. The claims for the Bureau programs involved 46

contractors, and the median claim amount was about $71,000. The

remaining one-third of the claims involved Health Service programs, of

which about one-half involved patient care activities. The claims for the

Health Service programs involved 40 contractors, 10 of which were also

involved with claims at the Bureau, and the median claim amount was $1

million. Although some of these claims remain open, about 70 percent have

been brought to closure, at a cost of about $2 million out of the $333 million

claimed in these cases. Of the claims brought to closure, 127 resulted in

settlement payments and 108 were denied.

Tribal Claims at the Bureau

Result Largely From the

Law Enforcement Programs

of a Few Tribes

At the Bureau, law enforcement programs accounted for the largest

category of claims involving tribal contractors (77 percent) filed during this

period. Bureau and Solicitor officials attribute this statistic to the fact that

law enforcement is a high-risk program. Of the law enforcement claims, the

largest percentage (about 40 percent) involved vehicle accidents, followed

by negligence, excessive force, and false arrests. The next two largest

categories of claims arose from education and roads programs. See figure 1

for a breakdown of tribal claims by the type of Bureau program contracted.

Dollars in millions

Program agency

Number of

claims for

tribally

contracted

programs

Percentage

of total

claims

Amount

claimed

Percentage

of total

amount

Bureau of Indian

Affairs

228 67 $219 31

Indian Health

Service

114 33 487 69

Total 342 100 $706 100
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Page 10 GAO/RCED-00-169 Indian Tort Claims

Figure 1: Claims Arising from Tribally Contracted Programs From the Bureau of

Indian Affairs, by Program Type, Fiscal Years 1997-99

The claims for Bureau programs involved 46 contractors (45 federally

recognized tribes and 1 organization). The largest tribe, and the largest

contractor of Bureau programs—the Navajo Nation—accounted for the

largest percentage (33 percent) of claims arising from tribally contracted

Bureau programs. The Oglala Sioux Tribe of the Pine Ridge Reservation

accounted for about 18 percent of the claims for Bureau-contracted

programs and is the fifth largest tribe, according to the Bureau’s most

recent labor force report. Five tribes accounted for 64 percent of the claims

for Bureau programs, while an additional 41 tribes accounted for the

remainder. See figure 2 for the five tribes with the most claims for Bureaucontracted programs.

‚

2%

Social services

•

•

6%

Roads

• 6%

Education

• 9%

Other/unidentified

77%

• Law enforcement
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Page 11 GAO/RCED-00-169 Indian Tort Claims

Figure 2: The Five Tribes With the Most Claims for Bureau-Contracted Programs,

Fiscal Years 1997-99

At the Bureau, tribal claims ranged from a low of $39 to a high of $50

million, with a median claim amount of about $71,000. Both the low and

high claims involved torts that occurred while a claimant was in custody at

a tribally contracted law enforcement facility. The $39 claim stemmed from

the loss of personal cash while the claimant was in police custody. A partial

award of $23 was paid on this claim, which reflected the official record of

property that was placed in custody. The $50 million claim involved the

wrongful death of an individual while in tribal police custody. This claim

was denied at the administrative level because the Office of the Solicitor

did not have a complete administrative record on which to base a decision.

The tribe refused to provide the necessary information for the

administrative decision. After being denied at the administrative level, the

claimant filed suit in federal court. No court decision has been rendered.

Percentage of Bureau claims (n=228)

0

5

10

15

20

25

30

35

Navajo Nation

Oglala Sioux

Cheyenne

River Sioux

Rosebud Sioux

Salt River

Indian tribe
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Page 12 GAO/RCED-00-169 Indian Tort Claims

Tribal Claims at the Health

Service Result From Patient

Care and Vehicle Accidents

at a Few Tribes

Health and Human Service’s Claims Branch tracks claims by the type of

claim and not by program. At the Health Service, patient care claims

accounted for nearly 45 percent of all claims involving tribal contractors

(51 out of 114 claims) filed during this period. Claims involving vehicle

accidents constituted about 35 percent of the total, and personal injuries,

about 17 percent (see fig. 3).

Figure 3: Claims Arising from Tribally Contracted Programs From the Indian Health

Service, by Type of Claim, Fiscal Years 1997-99

The claims for Health Service programs involved 40 contractors (25

federally recognized tribes and 15 organizations), 10 of which also were

involved in claims for Bureau programs. The 114 Health Service claims

were more evenly distributed among the contractors than the Bureau

claims. The Health Service contractor with the most claims—the Navajo

Nation—had 14 claims, about 12 percent of the total. However, the Health

Service claims data are more meaningful when grouped together by Health

Service area office. Claims involving tribally contracted programs

originating within the jurisdiction of the Health Services’ Alaska Area

Office accounted for about 33 percent of the claims, while claims within

the Phoenix Area Office accounted for over 16 percent (see fig. 4).

3%

Property damage/loss

17%•

•

Personal injury

35% • Vehicle accident

45%

•

Patient care
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Page 13 GAO/RCED-00-169 Indian Tort Claims

Figure 4: The Five Indian Health Service Area Offices With the Most Claims Involving

Tribally Contracted Programs, Fiscal Years 1997-99

At the Health Service, claims from contracted programs ranged from a low

of $75 to a high of $100 million, with a median claim amount of $1 million.

The $75 claim involved damages to a car that was parked adjacent to a

tribally contracted facility. A tribal contract employee was treating a

wooden fence with water sealant when some of the overspray damaged the

finish on the claimant’s car. The $75 claim to remove the spray and to wax

the car was paid in full. The $100 million claim involved an alleged

misdiagnosis that resulted in delayed treatment for breast cancer. This

claim was denied because the evidence failed to establish that the

claimant’s condition was due to an act or omission of the tribal physician.

Percentage of Health Service claims (n=114)

0

5

10

15

20

25

30

35

Alaska

Phoenix

California

Navajo

Oklahoma

Indian Health Service area office
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Page 14 GAO/RCED-00-169 Indian Tort Claims

Status of Claims and

Lawsuits

By the time of our review, the departments of the Interior and of Health and

Human Services had denied 172 of the 342 claims and had awarded

damages on 103; 67 claims were still pending.3 Lawsuits were filed for 84 of

the claims that had been denied or were still pending. Of these lawsuits, 13

had been dismissed, 24 resulted in damage awards, and 47 are still pending.

Although some of the claims and lawsuits remain open, about 70 percent of

claims have been brought to closure at a cost of about $2 million—$1.7

million paid by the federal government and $327,500 paid by private

insurers. According to agency officials, the small, simple claims for minor

incidents, such as a “fender bender,” are generally resolved quickly, while

the large, complex claims may take longer to resolve. Although only $2

million has been paid to date to resolve tribal claims filed from fiscal years

1997 through 1999, this figure will likely increase as the remaining claims

are resolved. In aggregate, the percentage of tribal claims approved and the

amount awarded are comparable with the resolution of other FTCA claims

at Health and Human Services.4

At both agencies combined, only about 10 percent of all federally

recognized tribes (60 out of 556) were involved in FTCA claims from fiscal

years 1997 through 1999. A number of reasons were provided to explain

why so few tribes had claims involving their self-determination programs.

According to agency officials, even though FTCA coverage was extended

about 10 years ago, it is still not well-known or understood by attorneys,

tribes, or potential claimants. Also, to the extent that tribes continue to

carry duplicative private liability insurance, claimants may be referred to

private insurers rather than to the federal government for compensation.

3

The status of the claims filed changes frequently as new administrative determinations are

made, lawsuits are filed, or settlement agreements are reached. The data presented in this

report were collected at various offices between November 1999 and May 2000.

4

A similar comparison was not possible for Interior because of the lack of agencywide data

on the disposition of tort claims.
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FTCA Coverage for

Tribal SelfDetermination

Contracts Presents

Some Unique Issues

Our review identified a number of issues unique to FTCA coverage for

tribal contractors. The U.S. government may be paying more than

necessary to resolve claims involving tribal contractors because, during the

administrative review of these claims, neither Interior nor Health and

Human Services routinely checks to determine whether tribal contractors

have duplicative private liability insurance that could cover these claims.

Although this check is required by the Department of Justice for claims that

go to litigation, and in fact has been done for some claims at the

administrative level, most claims have been resolved without a check for

duplicative insurance. The potential for duplicative liability coverage exists

for tribal contractors because of tribes’ long-standing practice of carrying

private insurance to cover a wide range of activities, including those

subsequently covered under FTCA.

Several unique legal issues have also emerged from recent litigation that

illustrate areas for which FTCA coverage is not a perfect fit for tribal

contractors. For example, under FTCA, federal courts have exclusive

jurisdiction to resolve claims brought under the act, and the act provides

for the removal of such claims from state courts. However, there is no

similar removal authority for such claims filed in tribal courts. In addition,

other legal issues have arisen about whether state law or tribal law should

be used to adjudicate claims, whether tribal law enforcement officers

should be considered federal law enforcement officers, and whether FTCA

coverage has been extended to senior tribal officials, such as tribal council

members.
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The U.S. Government May

Be Paying More Than

Necessary to Resolve

Claims Involving Tribal

Contractors

The U.S. government may be paying more than necessary to resolve claims

involving tribal contractors because, during the administrative review of

these claims, neither Interior nor Health and Human Services routinely

checks to determine whether tribal contractors have duplicative private

liability insurance that could cover these claims. In 1975, when tribes began

contracting to operate federal programs, they also assumed liability for

those programs. Accordingly, many tribes acquired private insurance as

one means to protect themselves against tort claims. The extension of

FTCA coverage to tribal contractors in 1990, however, did not prohibit

tribes from continuing to acquire private insurance and thus created the

potential for duplicative liability coverage. Subsequent amendments to the

Self-Determination Act in 1994 reiterated tribes’ right to obtain private

insurance, thereby perpetuating the risk of duplication. Although

comprehensive liability insurance is no longer needed for tribal selfdetermination programs, tribes still need some private insurance as

protection against claims not covered under FTCA.5

Unless tribes have taken steps to modify their insurance policies to

specifically exclude acts covered under FTCA, they most likely have

liability coverage that duplicates their FTCA coverage. An analysis of 20

private insurance policies, published in February 1998 by the George

Washington University, found that none of these policies specifically

excluded activities covered under FTCA.6 To the extent that tribes use

federal funds to purchase private liability insurance, it is possible that the

federal government is paying twice—for tribes’ insurance premiums and to

settle tribal FTCA claims.

5

Examples of claims not covered under FTCA include those arising from activities outside of

a tribal contractor’s scope of employment, non-self-determination activities, violation of

constitutional rights, subcontractor activities, breach of contract, and workers’

compensation. In 1998, the Congress directed the Secretary of the Interior to conduct a

study of tribes’ insurance (P.L. 105-277, title VII, Oct. 21, 1998). At the time of our review, the

Secretary had not released the results of that study.

6

Assessment of Access to Private Liability Insurance for Tribes and Tribal Organizations

With Self-Determination Contracts/Compacts, The George Washington University Medical

Center, Center for Health Policy Research (Feb. 1998).
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For claims that go to litigation, Justice’s practice is to ascertain whether the

affected tribe has private insurance covering the claim. If so, Justice will

look to private insurers to resolve these claims when it is in the best

interests of the United States. For claims at the administrative level, neither

Interior nor Health and Human Services has policies or procedures in place

that require personnel handling FTCA claims to routinely check for

duplicative insurance. Although staff at Interior’s headquarters told us that

they follow Justice’s practice of checking for duplicative insurance, we

found that only two solicitor offices routinely do so.7 At these two

locations, administrative and/or legal responsibilities for several claims

were turned over to private insurers. Three of these claims have been

resolved and resulted in payments from private insurance companies

totaling about $327,500, or about 30 percent of payments made by these

two offices (3.5 percent at one office and 100 percent at the other). This

amount also represents about 16 percent of all payments made to date for

claims involving tribal contractors from fiscal years 1997 through 1999. At

Health and Human Services, the Claims Branch and the Office of General

Counsel also do not routinely check for duplicative insurance. Some of the

reasons given by Interior and Health and Human Services officials for not

doing cross-checks include the absence of departmental policy, belief that

this responsibility belongs to Justice, and the lack of statutory authority to

pursue private insurers.

Unique Legal Issues Have

Arisen Since FTCA

Coverage Was Extended to

Tribes

Four unique legal issues have emerged from recent litigation of tribal FTCA

claims. These issues illustrate areas for which FTCA coverage is not a

perfect fit for tribal contractors. Two of these issues are currently being

litigated in federal courts around the country. The four legal issues are

discussed briefly below.

• FTCA does not provide statutory authority for removing FTCA cases

filed in tribal courts. Under the act, federal courts have exclusive

jurisdiction to hear cases arising from FTCA claims, and the act provides

statutory authority for removing such cases filed in state courts, yet no

similar removal authority exists for such cases filed in tribal courts.

7

For the remaining seven solicitor offices, four had made payments on claims involving

tribal contractors without routinely checking for duplicative private insurance. However,

one of these four offices handles claims primarily from the Navajo Nation, which is selfinsured. The other three solicitor offices, which received a total of eight claims involving

tribal contractors during fiscal years 1997 through 1999, had not made any payments on

those claims at the time of our review.
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Cases filed in tribal court can be problematic because FTCA does not

provide the necessary authority to remove such cases from tribal court

to federal court, where they belong.

• Legal questions have been raised about whether tribal FTCA claims

should be adjudicated on the basis of tribal law or state law. Under

FTCA, the federal government is liable for the negligent acts of its

employees to the extent that a private person would be liable “in

accordance with the law of the place where the act or omission

occurred.”8 Recent court decisions have differed on whether the law of

the place should be tribal law for those incidents occurring on Indian

land or state law, as the phrase has historically been interpreted.

• Legal arguments have been made recently that tribal law enforcement

officers enforcing tribal laws should not be considered federal law

enforcement officers. Under FTCA, claims for intentional torts, such as

assault, battery, false imprisonment, false arrest, abuse of process, or

malicious prosecution, are barred except for claims against

“investigative or law enforcement officers of the United States

Government.” If tribal law enforcement officers are not considered

federal law enforcement officers, then claims for intentional torts

involving those officers would be barred under FTCA.

• A recent decision by the Department of Justice not to provide FTCA

coverage for tribal council members involved in litigation arising from

the tribe’s law enforcement contract with the Bureau has raised legal

questions about the coverage for indirect tribal employees.

For more details on these four unique legal issues affecting FTCA coverage

for tribal contractors, see appendix III.

Conclusions Given tribes’ historical liability for self-determination programs prior to

1990, their current liability for their non-self-determination programs, and

the complexity and uncertainty of FTCA coverage, it is understandable why

some tribes may choose to have comprehensive private liability insurance

that covers all their programs. The Self-Determination Act allows tribes to

use federal funds to purchase insurance. Even though tribes are allowed to

8

28 U.S.C. 1346(b) and 2672.
B-285425

Page 19 GAO/RCED-00-169 Indian Tort Claims

purchase private insurance that may duplicate their FTCA coverage,

neither the Department of the Interior nor the Department of Health and

Human Services routinely checks to see if this has happened before paying

claims involving tribal contractors. Ideally, the possibility of duplicative

insurance will decrease in the future as tribes become more familiar with

how FTCA coverage works and take steps to amend their private insurance

policies accordingly. However, as long as federal funds continue to be used

by tribes to purchase duplicative insurance, the government should receive

the benefits of those policies.

Recommendation To ensure that the federal government is not paying more than is necessary

to resolve FTCA claims involving tribal contractors, we recommend that

the Secretaries of the Interior and of Health and Human Services direct

their claims processing personnel to determine if duplicative private

liability insurance exists and tender the claims to the private insurers when

it is in the best interests of the United States to do so.

Agency Comments We provided a draft of this report to the departments of the Interior, Health

and Human Services, and Justice for their review and comment. The

Department of the Interior agreed with our report that the U.S. government

could potentially pay both for the claims and the liability insurance to cover

them. The Department also stated that the report should identify two

anomalies created by the fact that the federal government, not the tribes, is

ultimately liable for these claims. First, the incentives to reduce the number

of claims are not present for tribal contractors, and second, from time to

time, a tribe, or its employees, has not cooperated in resolving a claim. With

respect to the first concern, our analysis of the claims arising from Bureaucontracted programs showed that over 75 percent of the tribal contractors

had three claims or fewer over the 3-year period from fiscal year 1997

through 1999. Only five tribal contractors had more than eight claims over

this period (see fig. 2). Some risk management programs could be targeted

to a handful of tribes, but the majority of tribal contractors had only been

involved with one or two claims. With respect to the second concern,

Solicitor and Bureau officials provided us with isolated examples during

our review of situations in which tribal contractors had not cooperated

with the Department in resolving a claim. However, since the Department

does not track these claims, or compile any agencywide information on

problems in resolving these claims, we were unable to determine the extent

of this problem. We agree with the Department that more analysis of these
B-285425

Page 20 GAO/RCED-00-169 Indian Tort Claims

problems and possible solutions to address them are necessary. The

Department of the Interior also provided technical comments, which we

incorporated as appropriate. The Department’s comments are in appendix

IV.

The Department of Health and Human Services agreed with the facts

presented in the report and with its recommendation. The Department also

provided more specific details on the Indian Health Service’s involvement

in the FTCA claims process. The Department’s comments are in appendix

V.

The Department of Justice provided technical clarifications, which we

incorporated as appropriate.

Scope and

Methodology

To assess how the departments of the Interior and of Health and Human

Services have implemented FTCA coverage for tribal contractors, we

interviewed officials from Interior, Health and Human Services, and Justice

and reviewed pertinent legislation, regulations, and departmental guidance

to identify procedures for handling FTCA claims involving tribal

contractors.

For this review, we sought to determine the FTCA tribal claims history for

the Bureau of Indian Affairs and the Indian Health Service for fiscal years

1997 through 1999. Since neither Interior nor Health and Human Services

uniformly tracks FTCA claims involving tribal contractors separately from

FTCA claims involving federal employees, our ability to develop a tribal

claims history required the cooperation of individual agencies and offices

to identify tribal claims processed at those locations. We established

parameters for our claims history and planned our fieldwork on the basis of

preliminary estimates of claims volume and information about the claims

process provided by these agencies and offices.

For the Bureau, we obtained tribal claims data from each of the nine

Interior solicitor offices that handle Bureau claims. These offices operate

autonomously, and the claims data they track and the claims files they

maintain can vary by office. Although we relied on these offices to identify

all tribal claims received between fiscal years 1997 and 1999, we visited five

of these offices to assist with their data collection efforts and to verify the

data. The offices selected for site visits were those whose estimated claim

volumes were the highest.
B-285425

Page 21 GAO/RCED-00-169 Indian Tort Claims

Two solicitor offices began in 1996 to track tribal and nontribal claims

separately. Since these two offices handle high claim volumes, we focused

our data collection efforts on fiscal years 1997 through 1999. Tribal claim

histories for the other seven offices, whose claim volumes are substantially

lower, were determined by reviewing individual FTCA claims files to

determine whether the claims arose from tribally contracted or federally

run programs.

For the Health Service, we obtained claims data from Health and Human

Service’s Claims Branch, headquartered in Rockville, Maryland, and its

Office of General Counsel, headquartered in Washington, D.C. The Claims

Branch and the Office of General Counsel maintain separate systems for

tracking tort claims. Although neither office formally tracks claims

involving tribal contractors, they use informal methods to identify such

claims. We used this information to compile a list of claims involving tribal

contractors received from fiscal years 1997 through 1999. Because of the

lack of available files for the older resolved claims, we did not review the

entire universe of 565 Health Service claims for fiscal years 1997 through

1999 to determine whether all the claims involving tribal contractors had

been identified.

To identify FTCA issues unique to tribal FTCA claims, we interviewed

personnel involved in processing administrative claims and attorneys

involved in defending lawsuits arising from such claims. We asked claims

personnel from the departments of the Interior and of Health and Human

Services whether they routinely check for duplicative private insurance

when processing claims involving tribal contractors. Given the unique legal

issues identified by agency officials, we also reviewed relevant FTCA

claims files, related litigation files, and court decisions.

We conducted our review from October 1999 through June 2000 in

accordance with generally accepted government auditing standards.

We are providing copies of this report to interested congressional

committees, the Honorable Bruce Babbitt, Secretary of the Interior; the

Honorable Donna E. Shalala, Secretary of Health and Human Services; the

Honorable Janet Reno, Attorney General of the United States; and other

interested parties. We will also make copies available to others on request.
B-285425

Page 22 GAO/RCED-00-169 Indian Tort Claims

If you or your staff have any questions about this report, please call me at

(202) 512-3841. Key contributors to this report were Linda Chu, Chet Janik,

and Jeff Malcolm.

Sincerely yours,

Jim Wells

Director, Energy, Resources,

and Science Issues
Page 23 GAO/RCED-00-169 Indian Tort Claims
Page 24 GAO/RCED-00-169 Indian Tort Claims

Appendix I

Three Provisions Extended FTCA Coverage to Apendxies

Tribal Contractors ApendxiI

Since the late 1980s, three separate provisions have been enacted that

extend FTCA coverage to tribal contractors. See figure 5 for a chronology

of the enactment of the three provisions and subsequent amendments.
Appendix I

Three Provisions Extended FTCA Coverage

to Tribal Contractors

Page 25 GAO/RCED-00-169 Indian Tort Claims

Figure 5: Chronology of the Three Provisions That Extended FTCA Coverage to Tribal Contractors.

Date FTCA coverage provisions

The Indian Self-Determination and 

Education Assistance Act

(1) 25 U.S.C. 450f(d)

(2) 25 U.S.C. 450f(note)

(3) 25 U.S.C. 2804(f)

12/22/87

1975

1988

1994

09/27/88

10/23/89

08/18/90

11/05/90

11/29/90

11/11/93

1st amendment to coverage 

for medical-related claims 

(P.L. 100-446, 102 Stat. 1817).

2nd amendment to coverage 

for medical-related claims 

(P.L. 101-644, title II, sec. 

203(b), 104 Stat. 4666).

3rd amendment to coverage 

for medical-related claims 

(P.L. 103-413, title I, sec. 

102(8), 108 Stat. 4253). 

10/25/94

General coverage added for 

1990 (P.L. 101-121, title III, 

sec. 315, 103 Stat. 744). 

General coverage extended 

permanently (P.L. 101-512, title III, 

sec. 314, 104 Stat. 1959-1960).

1st amendment to general 

coverage (P.L. 103-138, title III, 

sec. 308, 107 Stat. 1416).

Special law enforcement 

coverage added (P.L. 101-

379, sec. 5(f), 104 Stat. 476).

Coverage added for medicalrelated claims (P.L. 100-202, 

101 Stat. 1329-246).

1975 originally enacted

The act authorized the Secretaries of Interior and Health, 

Education, and Welfare (now Health and Human Services) 

to require that any tribe requesting to enter into a contract 

pursuant to the act obtain liability insurance.

1988 amendments

Repealed the provisions that the tribes obtain liability 

insurance and added a new section making the Secretaries 

of the Interior and of Health and Human Services 

“responsible for obtaining or providing liability insurance or 

equivalent coverage” for tribal contractors beginning in 1990.

1994 amendments

Provided that tribes could use their contract funds to 

purchase insurance.
Appendix I

Three Provisions Extended FTCA Coverage

to Tribal Contractors

Page 26 GAO/RCED-00-169 Indian Tort Claims

The following text presents the current language of the three provisions.

25 U.S.C. 450f(d)

(d) Tribal organizations and Indian contractors deemed part of Public 

Health Service

For purposes of section 233 of Title 42, with respect to claims by any 

person, initially filed on or after December 22, 1987, whether or not such 

person is an Indian or Alaska Native or is served on a fee basis or under 

other circumstances as permitted by Federal law or regulations for personal 

injury, including death, resulting from the performance prior to, including, or 

after December 22, 1987, of medical, surgical, dental, or related functions, 

including the conduct of clinical studies or investigations, or for purposes of 

section 2679, Title 28, with respect to claims by any such person, on or 

after November 29, 1990, for personal injury, including death, resulting from 

the operation of an emergency motor vehicle, an Indian tribe, a tribal 

organization or Indian contractor carrying out a contract, grant agreement, 

or cooperative agreement under this section or section 450h of this title is 

deemed to be part of the Public Health Service in the Department of Health 

and Human Services while carrying out any such contract or agreement 

and its employees (including those acting on behalf of the organization or 

contractor as provided in section 2671 of Title 28, and including an 

individual who provides health care services pursuant to a personal 

services contract with a tribal organization for the provision of services in 

any facility owned, operated, or constructed under the jurisdiction of the 

Indian Health Service) are deemed employees of the Service while acting 

within the scope of their employment in carrying out the contract or 

agreement: Provided, That such employees shall be deemed to be acting 

within the scope of their employment in carrying out such contract or 

agreement when they are required, by reason of such employment, to 

perform medical, surgical, dental or related functions at a facility other than 

the facility operated pursuant to such contract or agreement, but only if 

such employees are not compensated for the performance of such 

functions by a person or entity other than such Indian tribe, tribal 

organization or Indian contractor.
Appendix I

Three Provisions Extended FTCA Coverage

to Tribal Contractors

Page 27 GAO/RCED-00-169 Indian Tort Claims

25 U.S.C. 450(f) note

Claims Resulting from Performance of Contract, Grant Agreement, or 

Cooperative Agreement; Civil Action Against Tribe, Tribal Organization, etc., Deemed Action Against United States; Reimbursement of 

Treasury for Payment of Claims

With respect to claims resulting from the performance of functions during 

fiscal year 1991 and thereafter, or claims asserted after September 30, 

1990, but resulting from the performance of functions prior to fiscal year 

1991, under a contract, grant agreement, or any other agreement or 

compact authorized by the Indian Self-Determination and Education 

Assistance Act of 1975, as amended (88 Stat. 2203; 25 U.S.C. 450 et seq.) 

or by title V, part B, Tribally Controlled School Grants of the HawkinsStafford Elementary and Secondary School Improvement Amendments of 

1988, as amended, (102 Stat. 385; 25 U.S.C. 2501 et seq.), an Indian tribe, 

tribal organization or Indian contractor is deemed hereafter to be part of the 

Bureau of Indian Affairs in the Department of the Interior or the Indian 

Health Service in the Department of Health and Human Services 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; 

Provided further, That beginning with the fiscal year ending September 30, 

1991, and thereafter, the appropriate Secretary shall request through 

annual appropriations funds sufficient to reimburse the Treasury for any 

claims paid in the prior fiscal year pursuant to the foregoing provisions: 

Provided further, That nothing in this section shall in any way affect the 

provisions of section 102(d) of the Indian Self-Determination and Education 

Assistance Act of 1975, as amended (88 Stat. 2203; 25 U.S.C. 450 et seq.). 
Appendix I

Three Provisions Extended FTCA Coverage

to Tribal Contractors

Page 28 GAO/RCED-00-169 Indian Tort Claims

25 U.S.C. 2804(a) and (f)

(a) Agreement for use of personnel or facilities of Federal, tribal, State, 

or other government agency

The Secretary may enter into an agreement for the use (with or without 

reimbursement) of the personnel or facilities of a Federal, tribal, State, or 

other government agency to aid in the enforcement or carrying out in Indian 

country of a law of either the United States or an Indian tribe that has 

authorized the Secretary to enforce tribal laws. The Secretary may 

authorize a law enforcement officer of such an agency to perform any 

activity the Secretary may authorize under section 2803 of this title.

(f) Status of person as Federal employee

While acting under authority granted by the Secretary under subsection (a) 

of this section, a person who is not otherwise a Federal employee shall be 

considered to be—

(1) an employee of the Department of the Interior only for purposes of—

(A) the provisions of law described in section 3374(c)(2) of title 5, and

(B) sections 111 and 1114 of title 18, and

(2) an eligible officer under subchapter III of chapter 81 of title 5.

5 U.S.C. 3374(c)(2)

(c)(2) is deemed an employee of the agency for the purpose of chapter 73 

of this title, section 203, 205, 207, 208, 209, 602, 603, 606, 607, 643, 654, 

1905, and 1913 of title 18, sections 1343, 1344 and 1349(b) of title 31, and 

the Federal Tort Claims Act and any other Federal tort liability statute;
Page 29 GAO/RCED-00-169 Indian Tort Claims

Appendix II

The FTCA Claims Process ApendxiI

Source: The George Washington University Medical Center, Center for Health Services Research and

Policy.

Reversed Affirmed

Tort claim presented to appropriate federal agency within 2 years after claim accrues (28 U.S.C. §2401(b))

Agency has 6 months to consider claim before suit can be filed (28 U.S.C. §2675)

Agency settlement

(28 U.S.C. §2672) No agency disposition Agency denial

No action

(no suit ever filed)

Within 6 months of date 

of mailing of written 

denial by registered 

or certified mail, 

claimant must either...

Request for 

reconsideration

(1 request permitted)

(28 C.F.R. Part 14)

File suit against U.S.

(28 U.S.C. §2401(b))

Other disposition Trial without a jury

(28 U.S.C. §2402)

Dismissal

Judgment

For U.S. Against 

U.S.

No appeal Appeal Appeal No appeal

Reversed

WHO PAYS?

No action

(no suit ever filed)

Affirmed

Settlement

Duplicative coverage and insurance

company accepts its payment

responsibility: company pays up to

policy limits and U.S. pays balance

Duplication of coverage and 

insurance company refuses to pay: 

U.S. pays and files suit for 

indemnification and/or subrogation

No duplication of

insurance coverage:

U.S. pays

After 6 months from 

presenting claim, claimant 

may consider claim denied 

and file suit against the U.S. 

(28 U.S.C. §2675)

Suit against the U.S. must 

be filed in U.S. district court

(28 U.S.C. §1346(b))

Dept. of Justice 

assigns U.S.

attorney to defend suit

Dept. of Justice either 

answers the complaint 

or tenders defense to 

the insurance carrier
Page 30 GAO/RCED-00-169 Indian Tort Claims

Appendix III

Legal Issues That Have Arisen With the

Extension of FTCA Coverage to Tribal

Contractors ApendxiI

Originally enacted in 1946, the Federal Tort Claims Act (FTCA) was not

designed with the coverage of tribal contractors in mind. The act was

designed to provide coverage for federal employees. The act itself and the

provisions that extended the coverage to tribal contractors do not address

a number of important legal issues specific to tribal contractors. For

example, under FTCA, federal courts have exclusive jurisdiction to resolve

claims brought under the act, and the act provides for removing such

claims from state courts. However, there is no similar removal authority for

such claims filed in tribal courts. In addition, other legal issues have arisen

about whether state law or tribal law should be used as the “law of the

place” to adjudicate claims, whether tribal law enforcement officers should

be considered federal law enforcement officers, and whether FTCA

coverage has been extended to senior tribal officials, such as tribal council

members.

These four legal issues are areas for which FTCA coverage is not a perfect

fit for tribal contractors (see fig. 6).
Appendix III

Legal Issues That Have Arisen With the

Extension of FTCA Coverage to Tribal

Contractors

Page 31 GAO/RCED-00-169 Indian Tort Claims

Figure 6: FTCA Coverage Is Not a Perfect Fit for Tribal Contractors

Two of the four issues—the state law versus tribal law and the

classification of tribal law enforcement officers issues—are currently being

litigated in federal courts around the country. The four legal issues are

discussed in detail below.

No Removal Provision

for Cases Filed in

Tribal Courts

FTCA is the exclusive remedy for the public to pursue claims against the

federal government for the negligent acts of its employees, and federal

courts are the only courts with jurisdiction to hear cases on FTCA claims.

Since federal courts have exclusive jurisdiction to hear FTCA claims

involving federal employees, the act provides statutory authority for

removing any such claims filed in state courts. However, no similar

FTCA

coverage

Classification 

of tribal law 

enforcement 

officers

Coverage for 

indirect tribal 

employees

No removal 

provision for 

cases filed in 

tribal courts

State law 

or tribal law 

as the law 

of the place

Tribal

contractors
Appendix III

Legal Issues That Have Arisen With the

Extension of FTCA Coverage to Tribal

Contractors

Page 32 GAO/RCED-00-169 Indian Tort Claims

statutory authority exists for FTCA cases filed in tribal courts. Federal

employees and tribal contract employees have had FTCA cases brought

against them in tribal courts. Cases filed in tribal court can be problematic

because FTCA does not provide the necessary authority to remove such

cases from tribal court to federal court, where they belong.

Officials from Interior’s Office of the Solicitor and the Department of

Justice stated that having statutory removal authority would make it easier

to deal with these cases when they are filed in tribal courts. Currently, the

federal government has three ways to try to deal with such cases if it

chooses to do so. The first two options are available if the government

learns of the case before a verdict has been entered. First, a letter can be

written to the tribal court asking it to voluntarily dismiss the case.

However, tribal courts are under no obligation to do so. Second, the

government can file a motion in federal court seeking an injunction against

the tribal court ordering it to stop hearing the case. Third, if the

government chooses not to pursue the first two options, or it is

unsuccessful, it may file a motion in federal court seeking to have the tribal

court verdict set aside on the grounds that the tribal court lacked

jurisdiction to hear the case.

State Law or Tribal

Law as the Law of the

Place

Under FTCA, the federal government is liable for the negligent acts of its

employees to the extent that a private person would be liable “in

accordance with the law of the place where the act or omission occurred.”1

Historically, the law of the place has been interpreted to mean the law of

the state where the incident occurred. Legal questions are now being raised

about whether the “law of the place” should be tribal law for incidents that

occur on Indian land.

In June 1999, a judge for the federal district court in New Mexico ruled that

the law of the Pueblo of Acoma should be the controlling “law of the place”

and not New Mexico state law. This case involved a medical malpractice

claim involving an Indian Health Service hospital located within the bounds

of Acoma tribal land. At issue was the medical malpractice cap of $600,000

under New Mexico state law. In ruling that the law of the Pueblo of Acoma

should be the controlling “law of the place,” the judge ruled that the

1

28 U.S.C. 1346(b) and 2672.
Appendix III

Legal Issues That Have Arisen With the

Extension of FTCA Coverage to Tribal

Contractors

Page 33 GAO/RCED-00-169 Indian Tort Claims

plaintiff was not bound by New Mexico’s medical malpractice cap of

$600,000.

The courts have been split on their interpretations of the law of the place.

Other federal judges in New Mexico and Arizona have ruled that “law of the

place” should continue to be interpreted to mean state law. The

Department of Justice’s position is that the law of the place should be state

law. Agency officials are concerned that any movement towards using

tribal law as the controlling law of the place could seriously complicate the

resolution of these claims.

Classification of Tribal

Law Enforcement

Officers

Claims for intentional torts, such as assault, battery, false imprisonment,

false arrest, abuse of process, or malicious prosecution, are barred under

FTCA, except for claims against “investigative or law enforcement officers

of the United States Government.” An investigative or law enforcement

officer is defined in the statute as “any officer of the United States who is

empowered by law to execute searches, to seize evidence, or to make

arrests for violations of Federal law.”2 Legal arguments have been made

recently that tribal law enforcement officers enforcing tribal laws should

not be considered federal law enforcement officers. If tribal law

enforcement officers are not considered federal law enforcement officers,

then claims for intentional torts involving those officers would be barred

under FTCA.

In September 1998, a federal district judge for the Western District of

Washington ruled that tribal police officers for the Suquamish Indian Tribe

were not federal law enforcement officers and dismissed all of the

intentional tort claims against the United States arising from the actions of

those tribal police officers. A similar case is currently being litigated in

Montana, and the Department of Justice is again arguing that the case

should be dismissed because the tribal police officers are not federal law

enforcement officers.

For fiscal years 1997 through 1999, over three-quarters of the FTCA claims

for Bureau programs contracted by tribes were from the law enforcement

program. At least 34 of those claims involved intentional torts. The

remaining were primarily for vehicle accidents. If this interpretation that

2

28 U.S.C. 2680(h)
Appendix III

Legal Issues That Have Arisen With the

Extension of FTCA Coverage to Tribal

Contractors

Page 34 GAO/RCED-00-169 Indian Tort Claims

tribal police officers are not federal law enforcement officers becomes

widely accepted, then a large number of claims against tribal police officers

would be barred.

Coverage for Indirect

Tribal Employees

The 1990 provision that permanently extended FTCA coverage to tribal

contractors does not specifically mention the types of tribal employees

covered by FTCA. For a tribal employee to be covered under FTCA, the

federal government must make a determination that the employee was

performing a function within the scope of his or her employment under a

self-determination contract. Federal funding provided to tribes, and the

tribal employees paid with those funds, can be divided into two

categories—direct and indirect. Direct employees are those who directly

perform a function under a contract, while indirect employees perform

support functions, such as accounting and finance, for multiple programs.

Each direct program pays for its share of administrative costs through an

indirect cost rate. Questions have been raised about FTCA coverage for

these indirect employees, specifically for tribal council members to the

extent that they are sued for entering into a self-determination contract.

In 1999, the Department of Justice declined to provide FTCA coverage for

seven current and former tribal council members of the Omaha Tribe of

Nebraska who were named in two lawsuits for their approval of the tribe’s

law enforcement contract. The two lawsuits were filed in state court and

named 17 different individuals. (One suit named 16, the other 14; they had

13 individuals in common.) Under FTCA, Justice represented 7 of the 16

defendants in the first case, and 5 of the 14 in the second case. In both

cases, Justice represented only the Bureau employees and the tribal law

enforcement employees. Justice declined to provide coverage for the seven

current and former tribal council members and three other indirect tribal

employees because they were not “carrying out” a self-determination

contract.

Under the provision that extended general coverage, FTCA coverage has

been extended to Indian tribes, tribal organizations, or Indian contractors

while they are “carrying out” a self-determination contract. The

Department of Justice has interpreted this language as making a distinction

between carrying out a contract and entering into a contract. According to

Justice, providing coverage for a tribal employee sued for carrying out a

self-determination contract is consistent with the law, while it is not

appropriate to provide coverage for tribal council members being sued for
Appendix III

Legal Issues That Have Arisen With the

Extension of FTCA Coverage to Tribal

Contractors

Page 35 GAO/RCED-00-169 Indian Tort Claims

deciding on behalf of a tribe to enter into a contract with the federal

government (including negotiating the terms of a contract).

In at least one other case, a decision was made to authorize representation

of tribal council members. In November 1997, Justice decided to represent

three current and former tribal council members for the Suquamish Tribe

who were named in litigation involving the tribe’s law enforcement and

tribal justice contracts. Since representation decisions are made by the

Department of Justice on a case-by-case basis, tribes do not always know

which tribal employees are covered and when and it makes it difficult for

them to fully utilize their FTCA coverage.
Page 36 GAO/RCED-00-169 Indian Tort Claims

Appendix IV

Comments From the Department of the

Interior ApendxiIV
Appendix IV

Comments From the Department of the

Interior

Page 37 GAO/RCED-00-169 Indian Tort Claims
Appendix IV

Comments From the Department of the

Interior

Page 38 GAO/RCED-00-169 Indian Tort Claims
Page 39 GAO/RCED-00-169 Indian Tort Claims

Appendix V

Comments From the Department of Health

and Human Services ApendxiV
Appendix V

Comments From the Department of Health

and Human Services

Page 40 GAO/RCED-00-169 Indian Tort Claims
Appendix V

Comments From the Department of Health

and Human Services

(141358) Letr Page 41 GAO/RCED-00-169 Indian Tort Claims
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