Protecting Sovereign Immunity

A Tribal Nation’s Sovereignty is one of their most important possessions and affords them the right to self-govern.  This is no different than any other country or Nation in the world.  A tribe is a nation unto it’s self with it’s own unique culture, customs and laws.  The unique nature of Sovereign Nations existing within the borders of the United States and wishing to co-exist within the State and Federal governments is a delicate balance.  Tribes desire to do business in a way that meets the State and/or Federal requirements of them without losing themselves or their rights in the process.  This requires education, understanding and diligence in selecting the right strategic partners, who’s contractual agreements and advisory services are aligned with your tribes’ needs and rights.

One example of this is found in Workers’ Compensation requirements for tribes at their gaming facilities according to State Gaming Compacts. 

State Gaming Compacts require Tribes to provide a means for taking care of injured workers.  This is done in a variety of ways.  However, the two most common ways are; defaulting to the State Statutory system and limits or setting up a similar tribal system by adopting a Workers’ Compensation Ordinance.

There are many benefits of adopting a Workers’ Compensation Ordinance, such as setting limits of coverage, time lines for claims reporting and types of injuries that are covered.  Also the ability to close claims quickly and therefor save money.  I could go on and on, but for the benefit of this article, I will keep it to the point of Sovereign Immunity.

If your tribe does not have a Workers’ Compensation Ordinance for paying benefits to injured workers in your Gaming operation, you may have a breach of Sovereign Immunity.  Why you ask?  It is simple.  Choice of Law.  You see, by defaulting to the state workers’ compensation system, your tribe has simply forfeited it’s right to self-govern.  You have given the state the right to tell you how to run your business and how to pay your injured workers.  Your employees can be heard in state or local court and a state or local judge can tell you (your insurance carrier) what to pay.  It may not seem to be all that big of a deal in itself, but it is.  Recognition by the federal government as sovereign nations and the right to self-govern is the cornerstone of native America.  It is what defines Indian country.  Many tribes with larger gaming operations understand this reality and have embraced it with open arms.  As a result, they have realized great savings and have preserved their sovereign immunity.

The fix is easy.  If your tribe has not adopted a Workers’ Compensation Ordinance yet, we can provide you with several examples and advise you of important points to consider to ensure the greatest savings.  We can also walk you through the entire process and assist you to completion if necessary.

Just remember, the most important thing is to take action now.  At the very least, even if you chose to parallel the state statutory system structure of limits and time lines, adopt a basic Workers’ Compensation Ordinance.  Be sure that it states that the choice of law is the tribe or tribal court.  Remove your tribe from the jurisdiction of the state and protect your right to self-govern.  Align your tribe with a Strategic Partner that will work to protect your sovereignty.  Titus & Associates Insurance & financial Services has your interest in mind.  (530) 873-0308