The Interior and Related Agencies Appropriations Act of 1989, Pub. L. No. 100-446, continued this trend toward broadening FTCA immunity for tribal contractors by specifically authorizing certain claims involving medical-related services initially filed on or after December 22, 1987 to be brought by any person who was injured through the negligent or wrongful act or omission of a P.L. 93-638 contractor or grantee. The right to pursue such claims was granted irrespective of whether the claimant was an Indian or whether the person was served on a fee basis. Further, Pub. L. No. 100-446 provided in pertinent part:

That such employees shall be deemed to be acting within the scope of their
employment in carrying out such contract or agreement when they are required, by
reason of such employment to perform medical, surgical, dental or related
functions at a facility other than the facility operated pursuant to such contract or
agreement, but only if such employees are not compensated for the performance of
such functions by a person or entity other than such Indian tribe, tribal organization
or Indian contractor.... 29

Thus, Pub. L. No. 100-202 in combination with Pub. L. No. 100-446 extended coverage under the FTCA to include medical-related claims brought by any person alleging personal injury, including death, against Indian tribes, tribal organizations, or Indian contractors carrying out contracts, grants, or cooperative agreements pursuant to sections 102 or 103 of P.L. 93-638. However, personal injuries and property damage resulting from other torts, such as those resulting from automobile accidents or slips and falls were not covered under the FTCA.

Finally, the Indian Self-Determination and Education Assistance Act Amendments of 1988 eliminated the requirement that tribes and tribal organizations contracting under P.L. 93638 obtain adequate liability insurance. Instead, the P.L. 93-638 Amendments of 1988 required that beginning in 1990, the Secretaries of the HHS and the DOI obtain or provide liability insurance for Indian tribes, tribal organizations, and contractors carrying out P.L. 93-638 contracts or grants. In addition, the Indian Health Care Amendments of 1988" established the

2P.L. 100-446, 102 Stat. 1774 (Sept. 27, 1988).

P.L. 100-472, 102 Stat. 2288 (Oct. 5, 1988).

(IHS) as an agency of the PHS department of HHS. Thus, employees of tribal entities were brought within the realm of Federal government employees.

Congress facilitated the ability of the Secretaries to carry out the requirements of the P.L. 93-638 Amendments on a temporary basis in the Department of the Interior and Related Agencies Appropriations Act of 19903 (P.L. No. 101-121). P.L. 101-121 provided that employees of Indian tribes carrying out a P.L. 93-638 contract or grant agreement were to be treated as employees of the Federal government and thus provided tort immunity under the FTCA, but only for fiscal year 1990." The measure was rounded out by an annual appropriation in the Department of the Interior and Related Agencies Appropriations Act of 1991, P.L. No. 101-512, which deemed "an Indian tribe, tribal organization or Indian contractor... to be a part of the [BIA] in the [DOI] or the [IHS] in the department of the [HHS] while carrying out the [P.L. 93-638] contract or agreement." Thus, liability coverage under the FTCA was extended to all tribal employees carrying out activities provided for in a contract or compact under P.L. 93638.

35

The Indian Self-Determination Act Amendments of 1994, through section 102(8), extended FTCA coverage to individuals providing health care services "pursuant to a personal services contract with a tribal organization for the provision of services in any facility owned, operated, or constructed under the jurisdiction of the Indian Health Service."37

2.

FTCA Coverage for Non-Medical-Related Claims

As noted above, the P.L. 93-638 Amendments of 1988 first called for the Secretaries to obtain or provide liability insurance or its equivalent for tribes and their contractors, regardless of whether the insurance related to medical or non-medical activities. It was Pub. L. No. 101-512

36P.L. 103-413, 108 Stat. 4250 (Oct. 25, 1994)(codified as amended at 25 U.S.C. §450).

that finally allowed FTCA coverage to be extended to all P.L. 93-638 tribes, tribal organizations and contractors for both general liability claims and claims for medical-related services.

P.L. 101-512 provided FTCA coverage to tribes, tribal organizations and their employees for claims filed against them while "carrying out" a P.L. 93-638 contract or agreement, including the Hawkins-Stafford grant program which supports Indian tribal schools.38 The relevant provision of the Pub. L. No. 101-512 is as follows:

With respect to claims resulting from the performance of functions during fiscal
year 1991 and thereafter, or claims asserted after September 20, 1990, but
resulting from the performance of functions prior to fiscal year 1991, under a
contract, grant agreement, or cooperative agreement authorized by the Indian Self-
Determination and Education Assistance Act of 1975, as amended, ... or by title
V, part B, Tribally Controlled School Grants of the Hawkins-Stafford Elementary
and Secondary School Improvement Amendments of 1988, as amended,... an
Indian tribe, tribal organization or Indian contractor is deemed hereafter to be part
of the Bureau of Indian Affairs... or the Indian Health Service... 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: Provided, that after September 30, 1990,
any civil action or proceeding involving such claims brought hereafter 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 General and be afforded the full protection and coverage
of the Federal Tort Claims Act....39

Also, the ISDEAA Amendments of 1990 brought claims against P.L. 93-638 contractors for personal injury, including death, resulting from the operation of an emergency motor vehicle within the ambit of the FTCA."0

IV. Limitations of the FTCA

Having examined the gradual inclusion of tribal self-determination activities under the FTCA, it is useful now to note briefly the inherent operational limitations of the FTCA itself and

38P.L. 101-512, 104 Stat. 1915, 1959 (Nov. 5, 1990).

40P.L. 101-644, 104 Stat. 4665, 4666 (Nov. 29,1990).

to further examine how the inherent nature of self-determination activities may exacerbate those limitations.

When the Federal government agreed to waive its immunity from liability for acts of its agents, it did not intend to create an unmitigated attack upon itself by all would-be claimants. Hence, the FTCA necessarily built in certain limitations dictating circumstances under which the government would not be held liable for personal injuries resulting from acts of its employees or from the conduct of its activities. Section 2680 of Title 28 delineates these limitations, certain of which, because of their bearing upon self-determination activities, are discussed below.

1.

Claims Based Upon The Enforcement of Statutes and Regulations

The government cannot be challenged as to the constitutionality or legality of a statute or regulation. Subsection 2680(a) of Title 28 expresses this affirmatively. The FTCA provides in pertinent part a bar to “[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation...." * Additionally, the exception based upon the enforcement of a statute or regulation applies "whether or not such statute or regulation is valid."42

Despite the attempt of Congress to establish an objective standard, cases do arise on this issue. Typically, these actions test whether the action is against the constitutionality of a regulation or the manner in which the regulation is enforced. It is clear that certain discrepancies exist in this area, even when strictly trying to interpret just the FTCA.

The second arm subsection 2680(a) of Title 28 denies claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the government, whether or not the discretion involved

4128 U.S.C. §2680(a). 421d.

abuse."43

As a general rule, the discretionary function exception to FTCA coverage is given the most attention of all the expressly barred claims.

The Supreme Court first examined the issue of the discretionary function exception in the landmark case, Dalehite v. United States, 346 U.S. 15 (1953). In Dalehite, the Court stated that "[o]ne need only read §2680 in its entirety to conclude that Congress exercised care to protect the Government from claims, however negligently caused, that affected governmental functions." The Dalehite Court issued a set of guidelines for the discretionary function exception as a bar to FTCA claims. First, "[n]ot only agencies of government are covered but all employees exercising discretion. Second, the discretionary function exception "includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing [protocols]." 46 Third, "where there is room for policy judgment and decision there is discretion. And fourth, the discretionary function exception covers the actions of "subordinates carrying out the operations of the government in accordance with official directions...."

48

1947

In United States v. Berkovitz, 486 U.S. 531 (1988), the Supreme Court, expounding on the Dalehite decision, announced a two-step test to determine whether the discretionary function exception applies to a particular set of circumstances. First, "a court must first consider whether the action is a matter of choice for the acting employee.' 49 The discretionary action exception does not apply if a Federal statute, regulation, policy, or other directive specifies the course of action that a Federal employee must follow and leaves no alternative but to adhere to the directive.50 Second, the action must be one that the discretionary function was designed to