Coverage Issues Under the Indian Self-Determination Act ( 1998 )

Coverage Issues Under the Indian Self-Determination Act
The 1990 am endm ent to the Indian Self-D eterm ination and E ducation Assistance Act of 1975 covers
only those torts for which the Federal T ort C laim s A ct w aives the sovereign im m unity o f the
U nited States.
The 1990 am endm ent does not authorize o r otherw ise address representation o f tribes o r tribal
em ployees who are sued in their individual capacities for constitutional torts
April 22, 1998
M e m o r a n d u m O p in io n for th e A s s is t a n t A t t o r n e y G e n e r a l
C iv il D iv is io n
This memorandum responds to the request of the Torts Branch for our opinion
regarding the scope of the 1990 amendment to the Indian Self-Determination and
Education Assistance Act of 1975. Specifically, we have been asked (1) whether
actions other than common law torts are covered by the 1990 amendment to the
Act, and (2) whether the 1990 amendment authorizes representation of tribes or
tribal employees sued in their individual capacities for constitutional torts.
For the reasons explained below, we conclude that the 1990 amendment to the
Act covers only those torts for which the Federal Tort Claims Act waives the
sovereign immunity of the United States. We further conclude that the 1990
amendment does not authorize or otherwise address representation of tribes or
tribal employees who are sued in their individual capacities for constitutional torts.
I. Background
The Indian Self-Determination and Education Assistance Act, Pub. L. No. 93-
638, 88 Stat. 2203 (“ ISDA” or “ Act” ), was enacted in 1975 to further the goal
of Indian self-determination by assuring maximum Indian participation in the
management of federal programs and services for Indians. See 25 U.S.C. §§450,
450a (1994). The Act provides that tribes may enter into “ self-determination con­
tracts” with the Secretary of the Interior and the Secretary of Health and Human
Services ( “ HHS” ) to administer-programs or services that otherwise, would have
been administered by the federal government. See 25 U.S.C.§450f(a) (1994). Such
programs include education, medical services, construction, and law enforcement.
In carrying out self-determination contracts under the ISDA, tribes were faced
with substantial, and apparently unanticipated, indirect costs, such as the cost of
liability insurance (particularly medical malpractice insurance). As a result, the
funds originally earmarked for these programs were viewed by tribes, and recog­
nized by Congress, to be inadequate. See S. Rep. No. 100-274, at 9, 26 (1987).
To address this problem, Congress amended the ISDA in two ways in 1987 and
1988. First, it provided that for “ personal injury” claims arising from the perform­
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ance of medical functions under self-determination contracts, tribes and tribal con­
tractors would be deemed part o f the Public Health Service in the Department
of Health and Human Services, thus making the Federal Tort Claims Act
(“ FTCA” ) applicable to that class of claims. Pub. L. No. 100-202, 101 Stat.
1329, 1329-246 (1987) (codified as amended at 25 U.S.C. §450f(d) (1994)).
Second, Congress amended the ISDA to require the federal government to obtain
liability insurance for Indian tribes, tribal organizations, and tribal contractors car­
rying out self-determination contracts. See Pub. L. No. 100-472, § 201(c)(1), 102
Stat. 2285, 2289 (1988) (codified at 25 U.S.C. §450f(c)(l) (1994)). In 1989 and
1990, Congress enacted, and then reenacted on a permanent basis, the provision
at issue here, providing that “ any civil action or proceeding” against “ any tribe,
tribal organization, Indian contractor or tribal employee” involving claims
resulting from the performance of self-determination contract functions “ shall be
deemed to be an action against the United States” and “ be afforded the full
protection and coverage of the Federal Tort Claims Act.” Pub. L. No. 101-121,
§315, 103 Stat. 701, 744 (1989); Pub. L. No. 101-512, tit. Ill, §314, 104 Stat.
1915, 1959-60 (1990).
II. Actions Covered by the 1990 Amendment
The ISDA, as amended, provides in pertinent part:
With respect to claims resulting from the performance of functions
. . . under a contract, grant agreement, or any other agreement or
compact authorized by the [ISDA] . . ., an Indian tribe, tribal
organization or Indian contractor is deemed hereafter to be part of
the Bureau of Indian Affairs in the Department of the Interior or
the Indian Health Service in the Department of Health and Human
Services while carrying out any such contract or agreement and
its employees are deemed employees of the Bureau or Service while
acting within the scope of their employment in carrying out the
contract or agreement: P rovided , That after September 30, 1990,
any civil action or proceeding involving such claims brought here­
after against any tribe, tribal organization, Indian contractor or tribal
employee covered by this provision shall be deemed to be an action
against the United States and will be defended by the Attorney Gen­
eral and be afforded the full protection and coverage of the Federal
Tort Claims A c t . . . .
25 U.S.C. § 450f note (1994).1
■Pub L No 101-512, til III, §314, 104 Stat. 1915, 1959-60 (1990), as amended by Pub L No 103-138,
tit. Ill, § 308, 107 Stat. 1416 (1993).
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Coverage Issues Under the Indian Self-Determination Act
The first question to be addressed is whether the amendment’s phrase “ any
civil action or proceeding involving such claims” refers only to common law
tort actions or, instead, to a broader class of civil actions.2 If it refers to all civil
actions arising from the performance of ISDA functions by tribal entities, then
any such action— including a contract action or a constitutional tort action— will
be “ deemed” an action against the United States and defended by the Attorney
General under the amendment’s proviso. If, on the other hand, the phrase refers
only to common law tort actions, then the 1990 amendment has no effect on
contract and other actions brought against tribal entities carrying out ISDA con­
tracts.
A. The Statutory Language
“ Interpretation of a statute must begin with the statute’s language.” M allard
v. United States District Court, 490 U.S. 296, 300 (1989). At first blush, the lan­
guage of the amendment appears to provide for broad coverage of civil actions.
In particular, the proviso’s language that “ any civil action or proceeding . . .
shall be deemed to be an action against the United States” seems literally to
call for substitution of the United States in any civil action, whether based on
state, federal, or tribal law, and whether based on contract, tort, or statute.
Other language in the amendment, however, arguably suggests a more limited
scope of coverage. In particular, the phrase “ any civil action or proceeding” must
be read in conjunction with the phrase “ full protection and coverage of the Federal
Tort Claims Act.” See King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991)
(stating the “ cardinal rule” that a “ statute is to be read as a whole” ). Providing
that a “ civil action” be “ afforded the full protection and coverage of the Federal
Tort Claims Act” presumably suggests that the FTCA, 28 U.S.C. §§ 1346(b),
2671-2680, (1994 & Supp. Ill 1997), has some operative effect in allowing an
action that would not otherwise be maintainable. The FTCA, however, waives
the sovereign immunity of the United States only for certain tort claims under
state law.3 It does not address contract actions or any actions based on federal
law. The statutory reference to FTCA “ protection and coverage” therefore would
seem to be meaningless to the extent that the statute covers contract actions and
2 There are a number of possibilities as to what the class o f covered civil actions could encompass. It might
include (1) any action that is civil in nature, regardless of the type of claim or source of law, (2) any tort action,
including constitutional tort actions, or (3) tort actions that are covered by the FTCA (essentially common law tort
actions)
3 This category includes (with certain exceptions set forth in 28 U.S.C.§2680):
claims against the United States, for money damages, . . . for injury or loss of property, or personal injury
or death caused by the negligent or wrongful act or omission of any employee of the Government while
acting within the scope o f his office or employment, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the law of (he place where the act
or omission occurred
28 U S C . § 1346(b)(1) (Supp III 1997) The phrase “ law o f the place” has been interpreted to mean “ law of
the State ” Federal Deposit Ins Corp v Meyer, 510 U.S 471, 478 (1994).
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Opinions o f the Office o f Legal Counsel in Volume 22
actions under federal law. See 2A Norman J. Singer, Sutherland Statutory
Construction §46.06, at 119 (5th ed. 1992) (statute should be construed to give
meaning and effect to each term).
These interpretive issues support a conclusion that the statutory language is
ambiguous. Accordingly, we turn next to the legislative history of the 1990
amendment to ascertain the intention of Congress. See, e.g., Toibb v. Radloff, 501
U.S. 157, 162 (1991) (legislative history should be consulted if statutory language
is ambiguous).4
B. Legislative History
Although the legislative history of the 1990 amendment itself is relatively
sparse, the history of the series of amendments leading up to the 1990 amendment
is instructive. See Bailey v. United States, 516 U.S. 137, 147-48 (1995) (exam­
ining amendment history to interpret statutory language). As noted above, the
amendment grew out o f the crisis faced by tribes in meeting the high costs of
liability insurance, particularly medical malpractice insurance, in carrying out
ISDA contracts. See S. Rep. No. 100-274, at 9, 26. Thus, Congress in 1987 pro­
vided that, for “ personal injury” claims arising from the performance of medical
functions under ISDA contracts, tribes and tribal contractors would be deemed
federal government entities, making the FTCA applicable.5 It is fairly clear from
the language ( “ personal injury” ) and legislative history of the 1987 amendment
that it was intended to cover only tort claims cognizable under the FTCA.6 It
4 O f the few reported decisions making reference to the 1990 ISDA amendment, none has squarely addressed
the scope o f civil actions covered by it Dicta in tw o decisions, however, lend some support to an interpretation
o f the amendment as covering only tort claims cognizable under the FTCA See Val-U Const Co v United States,
905 F Supp 728, 732 ( D S D 1995) (noting that classification o f claim as “ contract” or “ negligence” claim is
threshold issue in suit involving tribe's ISDA functions “ because the FTCA waives sovereign immunity only for
negligence claim s” ), FG S Constructors, Inc v Carlow, 823 F Supp. 1508, 1515 (D S D 1993) ( “ Pub. L No
101-512, §314 extends the C ourt’s jurisdiction u n d er the FTCA to acts of Indian contractors taken in furtherance
o f contracts under the 1SDEAA” ) (emphasis added), see also FGS Constructors, Inc. v. Carlow, 64 F 3d 1230,
1254 (8th C ir 1995) ( “ The ISDEAA limits the application o f FTCA coverage to tort ‘claims resulting from the
performance o f functions . . under a contract, grant agreement, or cooperative agreement authonzed by the
[ISD EA A ]’.” ) (citing § 314 o f Pub L. No. 101-512).
5The 1987 amendment to the ISDA provided
lW ]ith respect to claims for personal injury, including death, resulting from the performance of medical,
surgical, dental, o r related functions, . . a tribal organization o r Indian contractor carrying out a contract,
grant agreement, o r cooperative agreement under [the ISDA] is deemed to be part of the Public Health
Service in the Department o f Health and Human Services while carrying out any such contract or agreement
and its employees . . are deem ed employees o f the Service while acting within the scope o f their employ­
ment in carrying out the contract o r agreement
Pub L No. 100-202, 101 Stat at 1329-246 (codified as amended at 25 U S .C §450f(d))
6See, e g ., S. Rep. No 100-274, at 26 (amendment “ provides that, for purposes of the Federal Tort Claims
Act, em ployees o f Indian tnbes carrying out self-determination contracts are considered to be employees of the
Federal G overnm ent” ), id. al 27 ( “ The Committee amendment is not intended to expand the liability of the Federal
G overnment to include claims for violation of statutory obligations not otherwise required of tnbes *’), id at 27-
28 (“ The amendment to the Act will not increase th e Federal governm ent’s exposure under the Federal Tort Claims
Act On the contrary, the amendment will only m aintain such exposure at the same level that was associated with
the operation o f direct health care service programs by the Federal government prior to the enactment of the
[ISDA] ” )
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Coverage Issues Under the Indian Self-Determination Act
is also noteworthy that one version of a related bill in the Senate included a provi­
sion that would have made the FTCA applicable to all functions performed by
tribes under ISDA contracts— i.e., precisely what the 1990 amendment would pro­
vide if narrowly construed.7 Congress also responded to the insurance-costs
problem by providing in 1988 that the federal government would provide liability
insurance for ISDA-contracting tribes. See Pub. L. No. 100-472, § 201(c)(1), 102
Stat. at 2289 (codified at 25 U.S.C. §450f(c)(l)).8
The following year, Congress enacted an amendment containing the language
at issue here, with the limitation that it applied to the performance of functions
“ during fiscal year 1990 only.” Pub. L. No. 101-121, §315, 103 Stat. at 744.
The conference report explained:
With regard to the liability insurance issue, as a temporary measure,
the managers have included language in Title III of the Act
extending coverage under the Federal Tort Claims Act to tribal con­
tractors of both the Bureau [of Indian Affairs] [“ BLA” ] and the
Indian Health Service [“ IHS” ]. In the interim, the managers expect
the Bureau to work with the Indian Health Service and the Double
Eagle, Inc. risk management group . . . and to provide a joint
report to the Committee by February 1, 1990 identifying the costs
and benefits of various liability coverage alternatives.
H.R. Conf. Rep. No. 101-264, at 33 (1989) (emphasis added); see also id. at
80 (amendment “ expands the coverage of the Federal Tort Claims Act to the
Bureau of Indian Affairs and the Indian Health Service for Indian contractors” ).
Finally in 1990 Congress made the amendment permanent by enacting section
314, title III, of Pub. L. No. 101-512, an appropriations act. It appears to have
7 This provision stated
For purposes o f chapter 171 and 1346 o f title 28, United States Code [i e , the FTCA], a tnbal organization
carrying out a contract, grant agreement, or cooperative agreement under [the ISDA] shall be deemed
to be a Federal Agency while carrying out such contract or agreement and its employees . . . are deemed
employees of the United States while acting within the scope of their employment in carrying out the
contract or agreement.
S Rep. No 100-274, at 72, see also 134 Cong. Rec. 12,856 (1988) The provision was removed from the bill
on the floor of the Senate, without debate, in favor of retention o f the more limited medical function provision
See id at 12,860 (1988) The import o f the above-quoted provision for purposes of construing the 1990 amendment
is not entirely clear. On the one hand, it reveals that Congress, at least in 1987 and 1988, was contemplating coverage
of tnbes only for FTCA-covered tort claims. On the other hand, it suggests that Congress knew how to provide
for such a limited scope of coverage with clarity in 1988, but arguably failed to do so in the 1990 amendment.
8 This provision states.
Beginning in 1990, the Secretary shall be responsible for obtaining or providing liability insurance or
equivalent coverage, on the most cost-effective basis, for Indian tnbes, tribal organizations, and tnbal con­
tractors carrying out contracts, grant agreements and cooperative agreements pursuant to this Act. In
obtaining or providing such coverage, the Secretary shall take into consideration the extent to which liability
under such contracts or agreements are |sicj covered by the Federal Tort Claims Act
The final sentence, although somewhat cryptic, reveals Congress’s awareness that FTCA coverage was being consid­
ered and that such coverage was also related to the insurance-costs problem
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done so in response to BIA’s and IHS’s failure to issue the requested report.
As the House report explained:
The Committee has included language to make the extension o f
Federal Tort Claims protection to tribal P.L. 93-638 [ISDA] con­
tractors permanent. It is unfortunate that the Department did not
respond in a timely manner to the Committee’s direction last year
to undertake a study to show if other means of meeting the legal
requirement for the Secretary to provide liability coverage for tribal
contractors would be preferable. However, since the Department
delayed taking action to respond to this directive, the Committee
has no choice but to provide the required liability coverage on a
permanent basis by extending the Federal Tort Claims Act cov­
erage.
H.R. Rep. No. 101-789, at 72 (1990) (emphasis added); see also id. at 133
(amendment “ make[s] permanent the extension of Federal Tort Claims protection
to tribal contractors” ). These references suggest that the committee’s focus was
on the extension of coverage specifically under the FTCA.
Although the validity of presidential signing statements as legislative history
is controversial, see The Legal Significance o f Presidential Signing Statements,
17 Op. O.L.C. 131, 135-37 (1993), we note that President Bush apparently inter­
preted the 1990 amendment narrowly. In noting his objection to the amendment,
the President stated:
The Act provides that Indian Tribes, tribal organizations, and Indian
contractors and their employees shall be considered employees of
the United States with respect to claims arising from contracts,
grants, and cooperative agreements authorized by the [ISDA] . . . .
The effect o f this provision would be to make the United States
perm anently liable fo r the torts o f Indian Tribes, tribal organiza­
tions, and contractors. This provision is fundamentally flawed
because the United States does not control and supervise the day-
to-day operations of the tribes, tribal organizations, and contractors.
2 Pub. Papers o f George Bush 1558, 1559 (1990), reprinted in 1990 U.S.C.C.A.N.
3283-4, 3283-5 (Nov. 5, 1990) (emphasis added). The President’s language sug­
gests that he read the amendment to cover only tort claims. Presumably his objec­
tion would have been even stronger had he construed it to make the federal
government liable for contract and other claims as well.
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Coverage Issues Under the Indian Self-Determination Act
The one conclusion that emerges clearly from the legislative context and history
is that Congress’s focus was on extending FTCA coverage to ISDA-contracting
tribes and tribal organizations (apparently in lieu of liability insurance). Testimony
and statements made during hearings held in 1987, 1988, and 1990 similarly
reflect an exclusive focus on extending FTCA coverage.9 There is no indication
in the legislative history (of either the 1990 amendment or its precursers) that
Congress contemplated indemnification of tribes for contract claims or any other
claims outside the scope of the FTCA (such as claims under federal law). The
1990 amendment grew out of an earlier provision (the medical-claim provision)
that covers only FTCA torts. It followed Congress’s consideration of a similar
provision that clearly would have extended coverage only to FTCA torts. In the
context of this history, the absence of any indication that Congress meant to extend
coverage beyond the FTCA sphere is noteworthy. The legislative history therefore
supports a narrow construction of the 1990 amendment as encompassing only
claims that are cognizable under the FTCA.10 See Bob Jones Univ. v. United
States, 461 U.S. 574, 586 (1983) (“ a court should go beyond the literal language
of a statute if reliance on that language would defeat the plain purpose of the
statute” ); Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 608 (1979)
(“ As in all cases of statutory construction, our task is to interpret the words of
the[] statutef] in light of the purposes Congress sought to serve.” ).
9 See, e g .. D epartm ent o f th e Interior a n d Related A gencies A ppropriations f o r 1991 H ea rin g s B efore the
Subcom m on the D ept, o f the In te rio r o f the H ouse Com m, on A ppropriations, 101 si Cong 1038 (1990) (statement
of Eddie F. Brown, Asst Secy, for Indian Affairs) (addressing language “ to continue coverage of tribal contractors
under the Federal Tort Claims A ct” ), id al 846 (letter o f John Jemewouk, Chairman, Alaska Native Health Board.
In c ) (discussing “ wisdom (financially and policy-wise) o f using the FTCA in lieu of insurance” ), In d ia n Self-
D eterm ination a n d Education A ssista n ce A c t A m endm ents o f 1987: H earing on S 1703 B efore the S en a te S elect
Comm, on Indian A ffairs, 100th Cong 25-26 (1987) (statement of Lionel John, Executive Director, United South
and Eastern Tribes) (discussing “ the issue o f the tort claims coverage” and “ affording] the tnbes the ability to
get the ion coverage that the Federal Government, in fact, enjoys in similar situations” ), Indian S elf-D eterm ination
a n d Education A ssistant Act, P ublic L aw 9 3 -6 3 8 ' H earing B efore the Senate S elect Com m on Indian A ffa irs, 100th
Cong 34 (1987) (Sen Inouye, Chairman) (asking the extent to which indirect costs could be rcduced “ if tnbes
were afforded the same protection from ion liability Federal agencies enjoy under the Federal Tort Claims Act” ),
id. at 152 (statement o f Sonosky, Chambers & Sachse on behalf of several tribes and tnbal organizations) ( “ We
also ask the Committee to consider extending FTCA coverage to the employees who work under 638 contracts
with the BIA ” ).
l0Therc is some legislative precedent for extending FTCA coverage to claims brought against entities that are
not.part of the federal government In. 1976_in response_to an analogous insurance ensis faced by manufacturers
of the swine flu vaccine, Congress provided that “ personal injury” claims based on the vaccine “ will be asserted
directly against the United States under (the FTCA1” W olfe v M errill N a i'l L a b s . Inc., 433 F Supp 231, 234
(M D Tenn 1977) (quoting Swine Flu Act, Pub L No 94-380, 90 Stat 1113 (1976)) Similarly, Congress has
extended FTCA coverage to contractors carrying out atomic weapons testing See 42 U.S C § 2 2 12(b)( I) (1994)
( “ The remedy against the United States provided by |the FTCA1 for injury, loss of property, personal injury,
or death shall apply to any civil action for injury, loss o f property, personal injury, or death due to exposure to
radiation based on acts or omissions by a contractor in carrying out an atomic weapons testing program under a
contract with the United States ” ) Although none of the few decisions under these provisions addresses whether
they encompass only torts that arc cognizable under the FTCA, at least one coun appears to have assumed that
the latter provision is limited at least to tort claims. See H am m ond v. U nited S la tes , 786 F 2d 8, 12-13 (1st Cir
1986) ( “ This is not the first time Congress has substituted the government as defendant in a certain category of
to rt suits and relegated plaintiffs to an FTCA remedy.” ) (emphasis added), id al 14 ( “ l( was neither arbitrary
nor irrational for Congress to change the law so as to place putalive plaintiffs in the same position as any other
party suing the United States in tort ” ) (emphasis added)
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Opinions of the Office o f Legal Counsel in Volume 22
C. Implications of Alternative Interpretations of the 1990 Amendment
In determining what Congress likely intended as to the scope of the 1990
amendment, it is also instructive to consider the implications and reasonableness
of its various possible interpretations. See American Tobacco Co. v. Patterson ,
456 U.S. 63, 71 (1982) ( “ Statutes should be interpreted to avoid untenable distinc­
tions and unreasonable results whenever possible.” ).
1. Coverage of Contract Claims
A broad reading of the amendment would encompass not only tort claims, but
also contract claims. If a tribe o r tribal employee were sued on the basis of an
alleged contract entered into while carrying out ISDA functions, and if the phrase
“ any civil action or proceeding” in the 1990 amendment included such a claim,
then it would be “ deemed to be an action against the United States” and the
United States would be the necessary defendant. For any contract claim in excess
of $10,000, exclusive jurisdiction would lie in the Court of Federal Claims. See
28 U.S.C. § 1346(a) (1994); 28 U.S.C.A. § 1491 (1994 & West Supp. 1997). As
a consequence, a plaintiff would be required to file suit in the Court of Federal
Claims in the first instance (or an action filed in a district court could be trans­
ferred under 28 U.S.C. § 1631 (1994)), and the United States would defend the
claim like any such claim against the federal government. This reading gives rise
to a somewhat cumbersome procedure for adjudicating contract claims involving
tribal entities— requiring all such claims to be adjudicated in a specialized court
in Washington, D.C. rather than locally—and it seems unlikely that Congress
intended such a consequence in the absence of any specific legislative evidence
that it did.
In addition, a structural anomaly regarding contractors potentially would follow
from this broad construction of the amendment. Where a tribe hired a contractor
to carry out ISDA functions (as many tribes do), any contract claim that the con­
tractor might have against the tribe apparently would have to be against the United
States. But because the 1990 amendment covers “ tribal contractors” carrying out
ISDA contracts as well as tribes, a subcontractor’s breach-of-contract claim against
the contractor, at least arguably, also would be deemed an action against the
United States.11 Thus, the contractor would be acting in the role of a government
entity vis-a-vis the subcontractor, while acting as a private entity— and one poten­
tially adverse to the government— vis-a-vis the tribe.
11 Compare FGS Constructors. Inc. v Carlow, 64 F.3d 1230, 1234—35 (8th C ir 1995) (holding that the term
“ Indian contractor” in the 1990 amendment is limited to “ iribe-relaied organizations” and does not include private
entities), with 2 Pub. Papers o f George Bush 1558, 1559 (1990), reprinted in 1990 U S .C C A.N 3283-4, 3283-
5 (Nov. 5, 1990) (1990 amendment makes the United Stales liable for torts of “ Tnbes, tnbal organizations, and
contractors” ).
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Coverage Issues Under the Indian Self-Determination Act
These interpretive consequences, combined with (1) the difficulty of squaring
contract claims with the statute’s FTCA language and (2) the lack of any sugges­
tion in the legislative history that Congress intended to cover contract claims,
make this broad reading less reasonable than a reading that excludes contract
claims.
Finally, regulations promulgated by the Departments of HHS and the Interior
interpret the 1990 amendment to apply only to “ tort claims arising from the
performance of self-determination contracts under the authority of the [ISDA].”
25 C.F.R. §900.205 (1997) (emphasis added).
2. Coverage of Non-FTCA Tort Claims
If contract claims are not within the scope of the 1990 amendment, the next
question is which tort (or tort-like) claims are within its scope. The provision
could extend broadly to constitutional tort claims and other federal claims that
are outside the scope of the FTCA (such as Title VII of the Civil Rights Act
of 1964). On the other hand, it could be limited to “ common law torts” —or
more precisely, only those torts that are cognizable under the FTCA. It should
be noted in this regard that, although it is often stated that the FTCA covers
“ common law torts,” courts have held that liability under the FTCA is determined
by state statutory as well as common law.12
If the amendment is construed to cover constitutional tort (or “ B ivens ” )
claims,13 then such an action against a “ tribal employee” acting within the scope
of employment in carrying out an ISDA contract would be “ deemed to be an
action against the United States.” The FTCA, however, does not waive the sov­
ereign immunity of the United States for constitutional tort claims. Federal
Deposit Ins. Corp. v. M eyer , 510 U.S. at 478. Therefore, a Bivens plaintiff would
have no recourse against the United States— unless the 1990 amendment itself
were a waiver of sovereign immunity. Waivers of the federal government’s immu­
nity, however, must be “ unequivocally expressed” and “ construed strictly in
favor of the sovereign.” United States v. Nordic Village, Inc., 503 U.S. 30, 33,
34 (1992) (citations and internal quotation marks omitted). The 1990 amendment
cannot plausibly be described as an “ unequivocal” expression of Congress’s
intent to waive the government’s immunity for constitutional tort claims. Thus,
the United States would have an absolute immunity defense to a Bivens claim
12 See Richards v United States, 369 U.S 1, 6 -7 (1962) (referring to “ principles of law developed in the common
law and refined by statute and judicial decision in the various States” ); Jones v. United States, 773 F 2 d 1002,
1003 (9th O r 1985) (state “ statutory and decisional law governs the determination of the United States’ liability
under the FTCA” ), Waters v. United States, 812 F Supp 166, 169 (N D. Cal 1993) (FTCA covers claim under
state civil nghts statute). It is clear, in any event, that constitutional tort claims and other claims based on federal
law are not within the FTCA’s waiver of sovereign immunity See Federal Deposit Ins. Corp v Meyer, 510 U.S.
471,478 (1994)
]3 See Bivens v. Six Unknown Nam ed Agents o f Fed Bureau o f Narcotics, 403 U S. 388, 397 (1971) (recognizing
cause of action against federal employees in their individual capacities for violations of constitutional nghts)
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brought under the 1990 amendment. Moreover, the amendment’s language evi­
dently would immunize the tribal employee from Bivens liability, a result that
is anomalous given that federal employees generally are not so immunized.14 As
a result, a Bivens plaintiff would be without a remedy.15 Such a result seems
unlikely to have been an intended consequence of the 1990 amendment.
A broad construction of the 1990 amendment similarly might result in elimi­
nation of a constitutional remedy under the Indian Civil Rights Act (“ ICRA” ),
25 U.S.C. §§ 1301-1303 (1994), which provides that tribes “ exercising powers
of self-government” shall respect certain constitutional rights. 25 U.S.C. § 1302.
Although the Supreme Court has held that remedies under the ICRA must be
pursued in tribal court, Santa C lara Pueblo v. Martinez, 436 U.S. 49, 65—66
(1978), a tribe or tribal entity sued for conduct performed under an ISDA contract
could reasonably argue that the 1990 amendment, if interpreted to cover “ constitu­
tional torts,” immunizes it from liability under the ICRA based on such conduct
because the action must be “ deemed to be an action against the United States.”
These implications of a broad construction o f the 1990 amendment lend further
support to the conclusion that it extends only to tort claims that are actionable
under the FTCA.16
III. Representation of Tribes or Tribal Employees Sued for Constitutional
Torts
The second question we have been asked is whether the 1990 amendment
authorizes representation of tribes or tribal employees sued in their individual
capacities for constitutional torts. Because of the amendment’s “ deemed to be
14 The FTCA expressly removes constitutional claims from the class of claims for which the remedy against the
United States is exclusive. See 28 U.S C § 2679(b)(2)(A).
15 It should be noted that it is not entirely clear whether a constitutional tort action against a tnbal employee
(or an em ployee o f a private contractor) carrying out an ISDA contract would be authonzed under Bivens and its
progeny in the first place The courts of appeals are divided on the question whether a Bivens claim may be brought
against individuals who are not federal officers o r employees, and the Supreme Court has not addressed the question
Most courts that have resolved the issue have held that Bivens claims may be brought against nonfederal defendants
engaged in federal action (or acting under color o f federal law) See Vector Research, Inc. v Howard & Howard
Attorneys P .C , 76 F.3d 692, 698-99 (6th Cir. 1996); F.E Trotter, Inc v Watkins, 869 F 2 d 1312, 1318 n 3 (9th
Cir. 1989) (citing cases); D eVargas v Mason & Hanger-Silas M ason C o, 844 F.2d 714, 720 n.5 (10th Cir 1988)
(citing cases), c f West v Atkins, 487 US. 42, 54 (1988) (contractor physician acts under color of state law for
purposes o f 42 U.S C. § 1983 when treating state inmate).
16 An additional principle that is potentially relevant in this context is the canon of statutory construction that
“ statutes are to be construed liberally in favor o f the Indians, with ambiguous provisions interpreted to their benefit ”
M ontana v. Blackfeel Tribe o f Indians, 471 U S 759, 766 (1985) A broad construction of the 1990 amendment
encom passing claims other than FTCA tort claims would appear to benefit tnbes and tnbal employees by providing
immunization for constitutional tort and possibly contract and other claims as well as common law tort claims
It is not at all clear, however, that this result is the one “ in favor o f the Indians " Many of the plaintiffs in these
cases presumably are themselves Indians, and therefore immunizing tribes may not benefit Indians overall, particularly
to the extent that remedies under the Constitution and the Indian Civil Rights Act are vitiated entirely. C f Northern
Cheyenne Tribe v Hollowbreast, 425 U S 649, 655 n 7 (1976) (canon has no application where “ the contesting
parties are an Indian tribe and a class of individuals consisting pnm anly of tribal members” ) Even if this canon
applied, it w ould not overcome the evidence o f legislative history and other United States v Thompson, 941 F.2d
1074, 1077-78 (10th Cir. 1991) (canon of construction in favor o f Indians is applied when intent of Congress remains
unclear after consideration o f statutory language and legislative history), cert denied, 503 U.S 984 (1992).
74
Coverage Issues Under the Indian Self-Determination Act
an action against the United States” clause, the question of providing representa­
tion for tribes or tribal employees would arise only if the United States were
not substituted in a constitutional tort action. We have concluded above that the
amendment’s language “ any civil action or proceeding involving such claims”
encompasses only tort claims that are cognizable under the FTCA, a category
that does not include constitutional tort claims. Thus, the proviso’s phrase “ will
be defended by the Attorney General” does not apply to constitutional tort claims
and does not authorize representation with respect to such claims.
The only other language in the 1990 amendment that could arguably authorize
such representation is the first portion of the provision, which states that “ [w]ith
respect to claims resulting from the performance of functions” under an ISDA
contract, tribes are deemed to be part of the federal government and tribal
employees are deemed employees of the government “ while acting within the
scope of their employment in carrying out the contract or agreement.” This ref­
erence to “ claims,” however, must be read in pari materia with the amendment’s
subsequent proviso, to make sense of both the statute’s structure and the legislative
history and purpose. See Erlenbaugh v. United States, 409 U.S. 239, 243 (1972).
Thus, the phrase “ claims resulting from the performance of functions” is limited
to tort claims that are actionable under the FTCA and does not refer to constitu­
tional tort claims. Accordingly, the 1990 amendment does not authorize, or other­
wise address, representation of tribes or tribal employees sued in their individual
capacities for constitutional torts.17
IV. Conclusion
For the foregoing reasons, we conclude that the 1990 amendment to the Indian
Self-Determination and Education Assistance Act (1) does not cover actions
involving claims other than tort claims that are actionable under the Federal Tort
Claims Act, and (2) does not authorize representation of tribes or tribal employees
sued in their individual capacities for constitutional torts.
DAWN E. JOHNSEN
Acting Assistant Attorney General
Office o f Legal Counsel
i7We do not address whether federal representation of a tnbe or a tnbal employee sued for a constitutional tort
may be authonzed by any other statute, such as 28 U S.C §517 (1994) (allowing the Attorney General to send
an officer of the Department o f Justice “ to attend to the interests of the United States in a suit pending in a court
of the United States, or in a court o f a State” )
75