As a long-time Tribal attorney who has for years fought racism leveled against Tribes and individuals by various external groups and institutions of state, local and federal agencies, I was shocked to have to confront racist ideals voluntarily incorporated into Tribes’ own workers compensation programs. The scary thing is many don’t even realize it.
Fed up with high premiums and state adjudicatory systems that lacked any cultural sensitivity, beginning in the early 1980s Tribes across the country asserted their sovereign authority and became “self-insured” for their workers compensation programs. Who could blame them? Injured Tribal employees had been plunged into state-run programs that were institutionally disconnected from Tribal governments and cultures. Through no fault of their own, injured Tribal employees had to fend for themselves through a foreign process, and were subjected to hostile medical providers while in a vulnerable state, often in severe pain and heavily medicated.
When Tribes became self-insured the problem was they often lacked the internal infrastructure to assume management of the programs. States had been managing workers compensation programs since around 1911. Never fear, your insurance carrier is here. In rushed the Tribes’ insurance brokers to fill the void. Suddenly and without fanfare, Tribal workers comp programs became privatized.
The sales pitch was sovereignty. “We will help you assert your sovereign rights,” said the carriers. Workers comp insurance policies were developed for “Sovereign Nations,” and premiums were slashed to create the appearance of a better system. Tribes did not realize that the assertion of sovereign rights really only meant the assertion of sovereign immunity to protect the carriers. It is the injured workers who suffered.
Instead of programs that reflect traditional values and culture by demonstrating compassion for injured employees, many Tribes blindly followed advice from their brokers and carriers and adopted systems that imposed foreign values and that ignore basic human rights. Injured workers are thrust into the hands of robotic claims adjusters from the outside who show no sensitivity to employees’ individual needs, all in the name of lower premiums.
In October of 2012, the Oklahoma Supreme Court ruled that an insurance carrier cannot hide behind Tribal sovereign immunity when the Tribe failed to adopt a workers compensation ordinance for injured workers at its casino. In that case the state high court held the carrier could be sued in state courts under state insurance standards designed to protect injured workers because there was no Tribal ordinance. The case was Waltrip v. Osage Million Dollar Elm Casino, and it may be just the beginning.
While that case was being litigated through Oklahoma state courts, Tribes across the country were being asked by their carriers to hurriedly either amend their workers compensation ordinances to protect carriers, or put into place new ordinances drafted by the carriers. In the meantime, horror stories were being exposed through litigation in other Tribal employment cases.
In the Oklahoma case the casino employee was injured on the job and his doctor determined he needed surgery to correct the injury. The carrier unilaterally denied the surgery without a hearing, and the worker brought an action under state law. Similar complaints were arising elsewhere in Indian Country. In many cases the carrier also serves as the third-party administrator to process claims. No one seems to recognize the inherent conflict.
The first Tribal reaction to the Waltrip ruling might be, “Well, let’s just get an ordinance into place.” Yes, but what kind of ordinance? That depends on who Tribes want to protect: their carriers or their workers. Most Tribes are happy delegating that decision to the carriers. Out of sight, out of mind. But have carriers designed any programs that reflect Tribes’ traditions, values and culture? It might be a good time to put your ordinance to that test.
When you read your ordinance do you find any mechanisms that allow for compassion for injured workers? Likely not if it was proposed by carriers or brokers. Most ordinances immediately thrust these vulnerable employees into an adversarial role where they must fend for themselves against a heartless carrier whose only concern is the bottom line.
Does your ordinance provide for traditional remedies, or is treatment tied only to contemporary medicine? Does the ordinance acknowledge the role of family, or establish a network of fellow employees who can help and encourage the worker get back to work? Does the ordinance allow for compassion based on individual circumstances, or does it require a robotic response from outside? Are there mechanisms to help people who are too injured shift to other less physical work or to rehabilitation services that are tied to resources in their own community? What happens to workers who cannot return to work due to their injury? Does the ordinance contain anything that reflects that the employer really cares about the injured worker’s well-being, or is it strictly about the bottom line?
Does your ordinance provide for a full range of due process protections, or is it designed to give your carrier too much control? The ordinance must require a separation between carriers and the administrators. Checks and balances must be imposed to protect workers due process rights.
A regulatory structure can be designed around concepts of compassion and caring without sacrificing the workers compensation fund. Indeed, when the employees know their employer cares and will be monitoring their recovery to get them back on their feet, they will be motivated to return to work and fraudulent claims will diminish.
Protection of workers is a true attribute of Tribal sovereignty that federal law is designed to preserve. It is too important to leave to outside carriers who have no knowledge of traditional values and no concern for individual suffering.
Dave Lundgren is a sole practitioner of federal Indian law in Eastern Washington, and would welcome the opportunity to review any Tribal Workers Compensation ordinance that reflects Tribal values.