Federal Tort Claims Act

Under the Indian Self-Determination and Educational Assistance Act of 1975, tribal employees participate in and manage programs through contractual arrangements with the Bureau of Indian Affairs and the Indian Health Services. In 1990, through the Federal Tort Claims Act (FTCA), the federal government permanently assumed the liability for accidents or torts caused by tribal contractors. Data on FTCA claims involving tribal contractors are not readily available because neither the Department of the Interior nor the Department of Health and Human Services (HHS) requires tracking such claims. However, the two agencies did provide GAO with data on 342 claims with total damages of $700 million. About two-thirds of the claims involved Bureau programs and one-third involved Health Service programs. The U.S. government may be paying more than necessary to resolve claims involving tribal contractors because the tribes use federal funds to buy private liability insurance; thus the government is paying twice. Neither Interior nor HHS checks to see whether tribal contractors have private liability insurance that could cover their claims. According to Interior, incentives to reduce the number of claims are not present and, from time to time, tribal contractors have not cooperated with Interior in resolving a claim. Sometimes, FTCA coverage is not a perfect fit for tribal contractors. When claims are filed in tribal courts, FTCA has no provision to remove the cases to federal court, where they belong. GAO summarized this report in testimony before Congress; see: Federal Tort Claims Act: Claims History and Issues Affecting Coverage for Tribal Self-Determination Contracts, by Barry T. Hill, Associate Director for Energy, Resources, and Science Issues, before the Senate Committee on Indian Affairs. GAO/T-RCED-00-234, July 12 (13 pages).

GAO noted that: (1) 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; (2) 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; (3) 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; (4) at the administrative level, the Departments of the Interior and of Health and Human Services (HHS) handle these claims; (5) if a claim is not resolved administratively, a lawsuit may be filed in federal court, where the Department of Justice would defend it; (6) in response to GAO's request for claims data, Interior and HHS identified 342 claims, filed from FY 1997 through FY 1999, that arose from programs contracted from the Bureau of Indian Affairs and the Indian Health Service; (7) at both agencies, these claims involved a small number of tribes, and the damages claimed totalled about $700 million; (8) about two-thirds of these claims involved Bureau programs, most notably law enforcement; (9) the remaining one-third of these claims involved Health Service programs, of which about one-half involved patient care activities; (10) although some of these claims remain open, about 70 percent of the claims have been brought to closure at a cost of more than $2 million; (11) GAO's review identified a number of issues unique to FTCA coverage for tribal contractors; (12) on the administrative side, the U.S. government may be paying more than necessary to resolve claims involving tribal contractors; (13) 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; (14) 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; (15) neither Interior nor HHS routinely checks to determine whether tribal contractors have private liability insurance that could cover these claims; and (16) on the legal side, lawsuits involving FTCA claims have been filed in tribal courts, although federal courts have exclusive jurisdiction to hear such cases.

Recommendations

Our recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.

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