Native Americans and Workers Compensation

If you think the 50 states having 50 different workers compensation statutes is confusing, you will be totally dumbfounded if you try to understand the workers compensation laws of all the Native American tribes. There are approximately two million Native Americans who belong to 562 federally recognized Native American tribes and between 225 and 250 non-recognized tribes. Under federal law, the recognized tribes are afforded a level of sovereignty. The sovereignty provides them immunity from most state regulatory laws including workers compensation, therefore state workers compensation laws do not apply within the Tribal areas recognized by the federal government (with an exception noted in the next paragraph). This allows the Native American tribes to make their own decisions in regards to workers compensation laws.

The recognized Native American tribes have basically taken three approaches to workers compensation. They are:1. The individual tribe has created their own workers compensation commission and has created their own set of workers compensation laws that they abide by.

The non-recognized tribes are not considered separate sovereign governments and are subject to the workers compensation laws of the state where they are located.

When the Native American tribe is the employer or the private employer is a Native American and the work being performed is by Native American employees within the geographical boundaries of their reservation, the Native American tribe has total authority over how workers compensation claims will be handled. Confusion about where state workers’ compensation law applies and where Native American tribal workers’ compensation law applies arises when:

There are no absolute rules that addresses these areas as various states have approached differently the determination of where state sovereignty over workers compensation ends and Native American sovereignty begins. A good guideline for Native American tribes and private employers who are Native American: If there is work to be performed outside of the geographical boundaries of the reservation, as an employer you should obtain state workers’ compensation insurance to protect your business rather than incur the legal cost of untangling whether or not the state workers’ compensation law apply. [Plus, if the legal result is that you are required to have state work comp coverage, you do not want your business to be liable for the cost of the work comp claim(s).]

As non-Native Americans working as employees of Native American tribes or Native American private employers within the geographical boundaries of the reservation can find themselves without worker’s compensation benefits, several states have worked out agreements with the tribes.

When the employer is not a Native American tribe or Native American private individual and is performing business with non-Native American employees within the geographical boundaries of the Tribal reservation, (for instance logging or mining) the employer could be subject to both the state’s workers compensation law and the Tribal workers compensation law. Normally, the employer and the employee would both elect to submit the claim through the state workers compensation system. (WCxKit)

As each recognized Native American tribe can establish its own workers compensation system, elect not to have workers compensation, or elect to be subjected to the state workers compensation statutes, before a non-Native American employer starts performing work on a Native American reservation, the employer should consult with a local attorney. The attorney needs to be knowledgeable of both the Native American tribal laws and the state work comp statutes in order to provide guidance on how to properly insure the business for workers compensation.

This is a comprehensive website for all things Native American. www.bia.gov.