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. This testimony summarizes the July 2000 report, GAO/RCED-00-169.

GAO noted that: (1) 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) is required to track these claims separately from FTCA claims involving federal employees; (2) however, in response to GAO's request for claims data, these departments identified 342 claims, filed from fiscal years 1997 through 1999, that arose from programs contracted from Interior's Bureau of Indian Affairs and HHS' Indian Health Service; (3) total damages claimed were about $700 million; (4) about two-thirds of these claims involved Bureau programs, most notably law enforcement; (5) the remaining one-third involved Health Service programs, of which about one-half involved patient care; (6) these claims involved a small number of tribes, (7) although some of these claims remain open, about 70 percent have been brought to closure at a cost of more than $2 million; (8) of the claims brought to closure, 127 resulted in settlement payments and 108 were denied; (9) GAO's review identified a number of issues unique to FTCA coverage for tribal contractors: (a) on the administrative side, the federal government may be paying more than necessary to resolve claims involving tribal contractors; (b) to the extent that tribes use federal funds to purchase private liability insurance that duplicates their FTCA coverage, it is possible that the federal government is paying twice--once for tribes' insurance premiums and once to settle tribes' FTCA claims; (c) 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 now covered under FTCA; and (d) neither Interior nor HHS routinely checks to determine whether tribal contractors have private liability insurance that could cover these claims; (10) on the legal side, several issues have emerged from recent lawsuits that illustrate area for which FTCA coverage is not a perfect fit for tribal contractors; (11) under FTCA, federal courts have exclusive jurisdiction to resolve claims, and the act provides for the removal of such claims from state courts; (12) however, there is no similar removal authority for such claims filed in tribal courts; and (13) therefore, 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 jurisdiction resides.