Help Me Help You: Why Congress's Attempt to Cover Torts Committed by Indian Tribal Contractors with the FTCA Hurts the Government and the Tribes

Joseph W Gross
2012 Social Science Research Network  
Since the Nixon Administration, the U.S. government has attempted to promote tribal self-determination among Native Americans. Under the Indian Self-Determination Act, the tribes can enter into agreements with the federal government to take over services previously provided to the tribes by the Bureau of Indian Affairs (BIA). By entering into these contracts, the tribes have been able to administer a wide variety of services, including construction and law enforcement, which bring income and
more » ... bring income and employment to Indian country. These contracts do not always run smoothly, however, and sometimes people get injured. Under a series of amendments to the Indian Self-Determination Act, when tribal contractors commit torts, the federal government steps in and defends the tribal contractors under the Federal Tort Claims Act (FTCA) as if they were employees of the government. The government pays out any settlements or judgments from the Judgment Fund. This scenario is a complete departure from the traditional FTCA rule whereby contractors are only treated as government employees in exceedingly limited circumstances. In hastily extending the FTCA to cover tribal contractors, Congress contravened FTCA jurisprudence in theory and in practice. Congress
doi:10.2139/ssrn.2286298 fatcat:fmycsshs2jdwrey4tqjwl7eqdq