1 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA Limiting Tribal Liability in the Transportation Context September 22-25, 2014 National Tribal Transportation Conference Anchorage, Alaska Presented by: Steve Osborne

2 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA Overview Sovereign Immunity of Tribal Organizations The Indian Self-Determination and Education Assistance Act (ISDEAA) and the Federal Tort Claims Act (FTCA) State Demands for Waivers of Tribal Sovereign Immunity in Transportation Context A Workaround: Facilitating Tribal Access to Federal Funds Apportioned to States

3 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA Sovereign Immunity of Tribal Organizations What entities possess sovereign immunity? Tribes? Yes. Subdivisions of Tribal Government? Yes (“arms of the Tribe”). Tribal corporations and consortia? Maybe; maybe not.

4 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA Factors Courts Employ in Sovereign Immunity Analysis Wholly owned by tribe(s)? Furthers governmental objectives, or “purely commercial” ones? Controlled by tribe(s)? Governing documents show tribal intent to endow with immunity? Organized under state or tribal law? Financial relationship? Others?

5 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA The ISDEAA and the FTCA TEA-21 clarified that tribes may contract IRR Program activities pursuant to the ISDEAA. Most Tribal Transportation Program (TTP) functions currently administered by tribes under the ISDEAA.

6 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA The ISDEAA and the FTCA FTCA waives sovereign immunity of U.S. for suits arising from negligent or wrongful acts of U.S. employees. In ISDEAA, tribes step into shoes of U.S. FTCA protects tribes and employees from liability for activities within the scope of ISDEAA agreements. If FTCA applies, U.S. steps in to defend suit.

7 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA The ISDEAA and the FTCA SAFETEA-LU and MAP-21: FHWA-Tribal agreements “in accordance with the [ISDEAA].” BIA “Program Agreement” is “authorized by the [ISDEAA] for purposes of Federal Tort Claims Act coverage.”

8 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA State Demands for Waivers of Tribal Sovereign Immunity State often conditions receipt of grant on waiver of tribal sovereign immunity. Many contexts: health, education Transportation –Alaska road maintenance example –Construction projects Try to limit by project, by entity (Transportation Dept. only), and by resources (project funds) But limiting waiver is difficult.

9 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA Facilitating Tribal Access to Federal Funds Apportioned to States Section 132 Contracts (23 U.S.C. § 132). –FHWA distributes funds to State for which Tribe qualifies; –BIA enters contract with State to accept funds and transfer them to Tribe; –Tribe performs project which is on Transportation Improvement Program of both State and Tribe. –DOT has, to date, determined that it is not authorized to enter into agreements under Section 132 in the same manner.

10 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA Facilitating Tribal Access to Federal Funds Apportioned to States 23 U.S.C. § 202(a)(9): Tribal Transportation Program— Use of Funds. “(9) Cooperation.— (A) In general.— The cooperation of States, counties, or other local subdivisions may be accepted in construction and improvement. (B) Funds received.— Any funds received from a State, county, or local subdivision shall be credited to appropriations available for the tribal transportation program.”

11 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA Facilitating Tribal Access to Federal Funds Apportioned to States Reauthorization: Opportunity to expand and clarify authority; draft tribal proposals contain express provision on this topic. DOT Tribal Self-Governance Act Legislation: Would explicitly extend ISDEAA to DOT and expressly authorize inclusion of federal funds apportioned to states.

12 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA Discussion Questions/Comments? Thank you. Steve Osborne Hobbs Straus Dean & Walker, LLP