Tort Claims and Tribal Self-Governance Agreements: Best Practices

1. Tort Claims and Tribal Self-Governance Agreements: Best Practices Presented by Michael Willis 2010 Tribal Self-Governance Annual Conference May 5, 2010

2. Topics Be Prepared Know the scope of FTCA protection and its limitations Negotiate appropriate supplemental/gap insurance policies Designate tort claim liaison Develop incident report procedures Respond Effectively Provide timely notification Cooperate with and assist federal agency

3. Scope of FTCA Protection Extends to Tribes and tribal organizations and their employees WhiIe performing programs, functions, services and activities (PFSAs) Pursuant to Indian Self-Determination and Education Assistance Act (ISDEAA) Agreements

4. Significance Any lawsuit or claim brought against any tribe, tribal organization, or tribal employee "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...".

5. Intent • The ISDEAA required the United States to make funding available • At levels “not less than the appropriate Secretary would have otherwise provided for the operation of the programs… covered by the contract.” • Yet, programs operated by the federal government through its own agencies did not require funding for insurance since the government self-insures • FTCA extension: intended to allocate cost of insurance to the United States not tribes

6. The FTCA • Limited waiver of the United States’ sovereign immunity • Consent to suit for money damages • for injury or loss of property • Caused by the negligent or wrongful act or omission of any employee of the federal government acting within the scope of employment • If a private person, under the same circumstances would have been liable

7. FTCA Extension to ISDEAA/Tribal Self-Governance • Set forth in Regulations (25 C.F.R. Part 1000, Subpart L – 1000.270 – 1000.283) • Reflects statutory terms and case law • Identifies certain claims that are expressly barred (intentional torts) • Clarifies applicability is to tort claims only • Prohibits punitive damages and remedies not permitted under state law

8. FTCA Extension to ISDEAA/Tribal Self-Governance • Subpart L of Regulations (continued) • Sets forth two year claim deadline • Requires exhaustive of agency process before lawsuit in federal court (Agency has six months to render a decision) • Explains FTCA applies even if not referenced in AFA • Outlines Tribal notification and cooperation requirements • Clarifies several specific coverage issues, e.g., • Covers permanent, temporary and volunteer workers • Covers employees paid by funds other than DOI program funds

9. The Duplicative Coverage Dilemma • DOJ policy: • Will refuse to defend FTCA claims when there is a private insurance policy that DOJ believes duplicates the coverage provided by the FTCA • Yet the FTCA does not cover all risks associated with tribal activities • The FTCA extends ONLY to activities performed under an ISDEAA agreement • The tribe’s other activities (economic development, gaming, etc.) are not FTCA protected • Even under ISDEAA agreements, limitations in the FTCA itself may lead DOJ to deny FTCA coverage • Thus, most ISDEAA tribal entities obtain some type of private insurance to supplement the protection they receive for their ISDEAA activities by the FTCA.

10. Negotiating Appropriate Insurance • Starting points: • Sovereign status as Tribe • Performing Federal functions under ISDEAA agreements (FTCA-protected) • Duplicative coverage issue (in interest of tribe and insurer to be clear) • FTCA and other tribal endorsements have been developed over past years

11. Negotiating Appropriate Insurance • Key considerations • FTCA gap/supplemental insurance (endorsement) • Premium discount in recognition of FTCA protection • United States is not an insured of the policy • Defense costs paid by insurer (unless/until FTCA certified) • Tribe’s right to counsel of its choice • Immunity waivers • Dispute resolution

12. Implement Effective Tribal Policies • Designate Tort Claim Liaison • Establish incident report procedures and forms • Subpart L Regulations identify the information you must collect: Incident report procedures should track these provisions • Establish relationship with legal counsel

13. Respond Effectively • Gather incident report information ASAP • Engage/consult legal counsel • Provide timely notification • BIA/DOJ • Insurer • “Cooperate and Assist” • Do the Agency’s work for it • Promptly comply with requests

14. Questions/Comments? • Michael Willis or Geoff Strommer • Hobbs, Straus, Dean & Walker, LLP • mwillis@hobbsstraus.com • gstrommer@hobbsstraus.com • 202-822-8282 or 503-242-1745