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					             Tort Claims and Tribal Self-
              Governance Agreements:
                    Best Practices
                                  Presented by Michael Willis
                   2010 Tribal Self-Governance Annual
                               Conference

                                              May 5, 2010



HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA
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                                            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


HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA
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          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


HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA
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                                   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...".



HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA
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                                              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
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA
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                                       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
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA
                                                                     6
  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
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA
                                                                     7
  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

HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA
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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.


HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA
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  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
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA
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  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

HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA
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 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

HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA
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                        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
HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA
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                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

HOBBS STRAUS DEAN & WALKER, LLP
WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA
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