Federal Torts Claims Act & Tribal Law

The Federal Tort Claims Act states that torts committed by federal employess may be redressed in federal courts "in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). That means, whenever the act occurs within a State, that the law of the State governs. FDIC v. Meyer, 510 U.S. 471, 478 (1994).

What happens when the act occurred in Indian Country? Say, the Turtle Mountain Reservation in North Dakota and the alleged tortfeasor was an employee of the Indian Health Service. In Lafromboise v. Leavitt, the Eighth Circuit held that the the law of place remains the law of the state. In fact, it isn't even a close question. Several federal courts have been confronted with similar questions and only one, Cheromiah v. United States, a district court case, has ruled that tribal law should apply.

The Lafromboise Court based its decision on three points: (1) the FTCA says "law of the place", not "law of the places", and that the plaintiff's argument would require the court to apply a combination of North Dakota and Turtle Mountain Band law; (2) other federal cases turn on the territorial location, not the jurisdiction; and (3) that Congress never would have agreed to expose federal employees to the law of over 560 Indian tribes.

The first argument seems to be a play on words, dismissible had the plaintiff's case been structured differently. In the case, the plaintiff argued that state law applied, except for the part of the law that required the plaintiff to file a supporting affidavit from a medical expert within three months of filing. If the plaintiff had argued all along that Turtle Mountain Band law applied to the exclusion of state law, then only one law of the place would arguably apply.

The second argument seems to have more oomph, but still leaves something to be desired. The court mentioned a claim arising on a Columbia River dam between Washington and Oregon where both states held concurrent jurisdiction. Because the accident took place on the Washington side, so Washington law applied, even though Oregon arguably had jurisdiction. This appears to be the result of the courts seeking a bright-line rule more than real textual analysis. Where a tribe has a developed tort law statutory and common law jurisprudence, it makes no sense to impose state law into these cases. Moreover, don't the foundations of federal Indian law have some place in this discussion? Applying tribal law over state law doesn't seem to violate the meaning of the Act.

The third argument is most troubling and cynical. The court relied on the notion that the waivers of sovereign immunity are to be strictly construed. One recent case the court cited with Dolan v. United States Postal Service. There are some exceptions to the immunity waiver in the FTCA for postal employees and the Supreme Court construed those exceptions broadly in Dolan. But those exceptions were explicit. There are no exemptions for fedeal employees doing work in Indian Country. One could argue, that since Congress did extend FTCA coverage to some tribal officers and employees, that Congress intended tribal law to apply.

The Lafromboise Court also invoked pragmatic "administrative" concerns. There are over 560 tribes and they might all have, in Justice Souter alleged in his Hicks concurrence, "unusually difficult" law. But the Turtle Mountain Tribal Code of 1976 is not so different than North Dakota law. And a lot of tribal courts follow the laws of the state where they are located and/or the Restatement. Look at Smith v. Salish Kootenai College.