tribal organizations shared limited pricing information with us.

The next phase of the study consisted of three multi-day site visits to tribes and tribal

organizations. In preparation for the site visits, researchers developed selection criteria and further refined key questions that had originally been used in the initial telephone interviews. Researchers used four criteria to select the site visit participants: (1) the willingness of the tribe or tribal organization to take part in the site visits; (2) the extent of their knowledge and experience with the FTCA and private liability insurance;2 (3) their proximity to one another;3 and (4) the amount of P.L. 93-638 funding they received.*

The three areas selected for site visits were the southwestern United States (New Mexico and Arizona), northern Wisconsin, and the Pacific Northwest (Alaska and Washington State). A total of twelve tribes and tribal organizations participated in the site visits. The site visits also included meetings with six insurance brokers (three of whom represented one company that had developed a special insurance product for tribes and tribal entities), and one insurance company. While conducting the on-site interviews, we gathered names of other brokers and insurance companies active with tribes and tribal entities and followed up on these leads. We conducted

2 We selected participants for the site visits that represented a wide range of knowledge and experience with the FTCA and private liability insurance.

3A map was prepared showing the geographic locations of each of the potential study participants. To make the most efficient use of travel time and our travel budget, we focused on the areas in which potential participants were most concentrated. In evaluating which of these areas of concentration to visit, we attempted to include geographically diverse regions of the country.

*We attempted to visit tribes and tribal organizations with a sufficiently large share of P.L. 93-638 funding so that the existence of FTCA coverage might have a meaningful impact on their private insurance premiums.

in-depth telephone interviews with three additional brokers. We also contacted three nationwide insurers that currently sell liability coverage to tribes and tribal organizations. One was eventually interviewed after a substantial delay in responding to our requests; another referred us to one of its subsidiaries which failed to respond to our repeated inquiries; and a third refused to talk with us directly, but referred us to its internal department of governmental affairs and media at the home office for information (which we decided not to pursue because, in our judgment, it was unlikely that pursuing this process would lead to contact with someone knowledgeable about these issues within the company in a timely fashion).

In addition, researchers also received information about two insurance companies that had been established as "captive" insurance companies because of the lack of interest on the part of existing insurance companies in writing tribal coverage. In one instance, the captive insurance company was set up by a brokerage firm; in the other, it was a joint venture between brokers, consultants, and a reinsurer. In each case, the captive insurer was established solely to underwrite tribal coverage.

Ultimately, we were successful in interviewing (either on-site or by telephone) representatives of one nationwide insurance company, two tribally chartered insurance companies, and one reinsurer, bringing the study's interview total to nine brokers and four insurance companies. To facilitate our discussion with tribes, brokers and insurers, we prepared a background paper on the history of tribal coverage under the FTCA. This paper was included

" Generally "captive" insurance companies are closely-held (i.e., owned by a small group of people) subsidiaries of an existing entity. A captive insurance company is typically created to provide insurance for an enterprise or a group of enterprises that have difficulty securing commercial insurance in the marketplace from existing insurance companies.

in our final report.

A tribal consultation meeting was held on April 23, 1997, attended by all members of the TAC, representatives from four tribes, and a Washington, D.C. lawyer with numerous tribal clients. At this meeting, the research group presented preliminary findings and recommendations from our site visits and conducted a group discussion. The discussion generated a number of useful comments and suggestions which were incorporated into the report.

Finally, we developed a handbook for tribes and tribal organizations. The handbook describes in layperson's terms the liability coverage available under the FTCA, the potential need for private liability insurance to supplement FTCA coverage, and strategies to help tribes reduce private insurance costs. The handbook was included in our final report.

Our Findings

The principal findings of the study are as follows:

1.

2.

The immunity from tort liability provided by the FTCA can be very beneficial for tribes and tribal organizations involved in P.L. 93-638 activities. Working with knowledgeable brokers, some tribes and tribal organizations report that they have been able to reduce their private liability insurance premiums substantially and, in some cases, completely drop certain types of coverage (e.g., medical malpractice) because of the FTCA.

Some tribes and tribal organizations involved in P.L. 93-638 contracting, however, may not have fully realized the benefits of the FTCA, because of the uncertainty, confusion, and lack of understanding among tribes, brokers, and insurance companies as to what activities are covered by the FTCA, when private sector coverage is unnecessary or duplicative, or how a FTCA claim proceeds through the system. This problem persists despite the publication of regulations under Title I of the Indian Self-Determination and Education Assistance Act Amendments (“1996 Regulations”), issued in June, 1996, which contain useful information about the FTCA for P.L. 93-638 contractors and compactors.

3.

4.

5.

6.

The difficulty that tribes and tribal organizations have in determining what private coverage they need to supplement their FTCA immunity may be compounded by what they describe as inconsistencies in how Federal personnel determine that particular claims are covered under the FTCA. Tribes, tribal organizations, and brokers report that there does not appear to be a uniformly applicable framework for coverage or a precedent-based decision-making system the results of which are available publicly. It is, therefore, hard for tribes, tribal organizations and insurers to judge the types of claims that might be covered under the FTCA and even harder to evaluate the extent to which private liability insurance is necessary or duplicative. This appears to be more of a problem with non-medical claims.

Notwithstanding the perception of self-determination contractors and brokers that there is no way to predict when the FTCA will apply to a particular tort claim because this decision requires a case-by-case analysis, a general framework for analysis of the FTCA's applicability to tort claims involving P.L. 93-638 contractors and their employees can be constructed that provides some assistance in assessing the likelihood that private liability insurance may be needed.

Tribes and tribal organizations report that the lines of communication between themselves and the Federal agencies involved in FTCA decision-making need to be improved. Tribes and tribal organizations report difficulties in determining a claim's status and resolution and receiving timely responses to tribal inquiries as to whether a claim will be covered or not by the FTCA.

Many insurance companies are unfamiliar with the FTCA and its applicability to self-determination contractors. Other insurers are uncertain about the reach of the FTCA and the process for filing an FTCA claim. As a result, some insurers may misconstrue, underestimate, or disregard the value of the FTCA in designing private liability insurance coverage for tribes and tribal organizations and in determining premiums to be charged for that insurance coverage. Because the level of sophistication about tribal tort immunity through the FTCA varies substantially, the number of insurers willing to write tribal coverage, while growing, is still relatively small. This is surprising in that insurers routinely sell coverage to state and local governmental entities that have basic grants of immunity under statutes that are similar to the FTCA and therefore would have the same need as tribes for only supplementary private insurance coverage.

Our Recommendations

The principal recommendations of the study are as follows:

1.

A clearinghouse could be created through which tribes and tribal organizations

2.

3.

4.

5.

could share information about their experiences with the purchase of private liability insurance. In addition, to facilitate networking among tribes, a web page could be created. The web page could include general information on the FTCA and list the designated regional contact people within the responsible agencies who can be contacted for more specific assistance.

The Secretaries of Health and Human Services and the Interior, in conjunction with the Department of Justice, could conduct informational meetings in various regions to acquaint tribes, tribal organizations, brokers, and insurance companies with the basic principles of immunity from tort liability provided for selfdetermination contractors under the FTCA. The purpose of these meetings would be: (a) to assist tribal self-determination contractors to better understand the immunity from tort liability provided under the FTCA in order to improve their ability to purchase non-duplicative private liability insurance; and (b) to assist brokers and insurance companies to develop appropriate insurance products.

Informational materials could be developed for distribution to P.L. 93-638 contractors. These materials should be written in clear and understandable layperson's language. They would generally describe the immunity provided to self-determination contractors under the FTCA and identify (to the extent possible) the types of activities that may not be protected so as to assist tribes in understanding the extent to which they may need supplemental private liability insurance. These materials could be used by the tribes to share with brokers and representatives of insurance companies who are unfamiliar with the FTCA. The Handbook for Tribes on How to Reduce Private Liability Insurance Costs (which is part of this report) and the 1996 Regulations could serve as starting points. To maximize the usefulness of these materials for tribes in their negotiations with insurance companies, any guidance should be issued by the Federal government, since privately issued materials on the FTCA may be perceived as less authoritative.

Principles for determining more clearly when private liability insurance duplicates tribal FTCA immunity could be developed and communicated to all P.L. 93-638 contractors and compactors. In addition, examples of insurance contract language that does not duplicate the FTCA could be identified and shared with and among tribes, tribal organizations, brokers, insurance companies, and the Federal government.

If they have not yet done so, tribes and other P.L. 93-638 contractors and compactors should designate a tribal tort claims liaison with the Federal agencies for purposes of the FTCA, as the 1996 Regulations instruct. Similarly, the agencies should provide the tribal contractors with a list of key regional contact persons who can act as resources for the tribal contractors on FTCA matters.