Attorney General: Jessie M. Frankl, Workers' Compensation Commission, 1997-018 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General Richard Blumenthal

December 19, 1997

Jessie M. Frankl
Workers' Compensation Commission
231 Oak Street
Hartford, CT 06106

Dear Commissioner Frankl:

You have asked this Office for an opinion regarding the right of the Mashantucket Pequot Tribe ("Tribe") to establish its own workers' compensation code and Commission. You state that the Tribe has enacted the Mashantucket Pequot Tribal Workers' Compensation Code ("Tribal Code"), effective July 1, 1997, which provides that any accident or personal injury arising out of and in the course of employment with the Tribe, which has a date of injury after the effective date, will be governed solely by the Tribal Code.

Specifically, you have asked the following questions:

1. Does the Mashantucket Pequot Tribal Council have the right to establish their own workers' compensation code and commission for employees on the reservation if these employees are not tribal members?

2. Do these employees still have the right to utilize Chapter 568 of the Connecticut General Statutes, which is the Workers' Compensation Act?

3. Although the tribe has indicated that this newly enacted Mashantucket Pequot Workers' Compensation Commission and Code only applies to accidents or injuries that occur after July 1, 1997, would the tribe be permitted to take over existing cases that are presently pending in the State of Connecticut Workers' Compensation Commission?

4. Does an employee injured prior to or subsequent to July 1, 1997, still have the right to pursue a discrimination case pursuant to  31-290a of the Connecticut General Statutes?

We conclude that the Tribe does have the authority, under federal law, to establish its own workers' compensation code and commission governing work-related injuries involving the Tribe's employees occurring on the reservation. The Tribe's employees do not have any enforceable rights against the Tribe under Chapter 568 of the Connecticut General Statutes without tribal consent. Additionally, the application of the Tribe's code to pending matters, which you have indicated is not contemplated, might be permissible where the employer is the Tribe. Finally, an employee may pursue a  31-290a discrimination claim only if there has been a clear and unequivocal waiver of sovereign immunity for claims arising from injuries occurring prior to July 1, 1997.

The Tribe is a federally recognized Indian tribe. 25 U.S.C.  1758. Under federal law, federally recognized Indian tribes are afforded some level of sovereignty, including immunity from many state regulatory laws, and from civil suit without their consent. As we explained in a prior opinion:

There is no "rigid rule" to resolve an issue as to whether a state civil regulatory law applies on a reservation. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S.Ct. 2578, 2583 (1980). Absent an express statement by Congress on a particular issue, a state's power to assert its civil regulatory laws . . . on a federal reservation, turns on whether state law in that area is preempted by the operation of federal law. New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 103 S.Ct. 2378, 2386 (1983).

To determine whether a state law is preempted, the United States Supreme Court has applied a balancing test in which courts must analyze each question on a case by case basis and weigh the competing interests of the state, the tribes and the federal government. Accordingly, a state law on a reservation will be "preempted by the operation of federal law if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of State authority." Id.

1995 Conn. Op. Atty Gen. August 24, 1995.

Congress has authorized the states to apply their workers' compensation laws to lands owned or held by the United States. 40 U.S.C.  290 provides:

Whatsoever constituted authority of each of the several States is charged with the enforcement of and requiring compliance with the State workman's compensation laws of said States and with the enforcement of and requiring compliance with the orders, decisions, and awards of said constituted authority of said States shall have the power and authority to apply such laws to all lands and premises owned or held by the United States of America by deed or act of cession by purchase or otherwise, which is within the exterior boundaries of any state, and to all projects, buildings constructions, improvements and property belonging to the United States of America, which is within the exterior boundaries of any State, in the same way and to the same extent as if said premises were under the exclusive jurisdiction of the State within whose exterior boundaries such place may be.

While Section 290 specifically permits the states to apply their workers' compensation laws to federal enclaves and territories, courts which have considered the issue of whether this statute applies to tribal employers on federal Indian reservations have concluded that it does not. These courts have determined that in enacting 40 U.S.C.  290, Congress did not intend to abrogate tribal sovereign immunity from suit and therefore it may not be applied to tribal employers' reservation businesses without a tribe's consent.1 White Mountain Apache Tribe v. Industrial Commission of Arizona, 144 Ariz. 129, 696 P.2d 223 (Ariz. Ct. App., 1985); Swatzell v. Industrial Commission of Arizona, 277 P.2d 244 (S.Ct. Ariz. 1954), (petitioner was a non-Indian employee); Tibbetts v. Leech Lake Reservation Business Committee, 397 N.W.2d 883 (S.Ct. Minn. 1986).2 The Tribe has sovereign immunity from suit and cannot be sued for civil damages without its consent or a congressional waiver of sovereign immunity. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S. Ct. 1670, 1677, 56 L.Ed.2d 106 (1978); Cohen, Felix S., Handbook of Federal Indian Law at p. 324 (1982 Ed.). A waiver of tribal sovereign immunity cannot be implied, but must be unequivocally expressed either by the tribe itself or by Congress. Santa Clara Pueblo v. Martinez, supra, 436 U.S. at 59, 98 S.Ct. at 1677; see also, White Mountain Apache Tribe v. Industrial Commission of Arizona, 144 Ariz. 129, 134, 696 P.2nd. 223, 228 (Ariz. Ct. App., 1985).

In enacting its own Tribal Code and Commission and notifying you that it will no longer participate in the State system, the Tribe has clearly withdrawn its prior consent to state jurisdiction. Accordingly, since the Tribe has its own Code and Commission, we conclude that the State may not enforce its workers' compensation laws against the Tribe, and that the Tribe may utilize its own workers' compensation code applicable to injuries involving its employees which occur on the reservation.3

With respect to cases already in the system, which the Tribe previously consented to, it is arguable that as to these cases the Tribe has waived its immunity from suit. If the Tribe at some later date decides to remove pre-July 1, 1997 cases from the state system, the issue would be whether its previous participation in the state system constituted an "unequivocal consent" to waive its sovereign immunity from suit. We cannot predict with certainty what the outcome of such a position would be, if challenged.

With respect to the right to pursue a discrimination case pursuant to 31-290a, where the injury occurred prior to July 1, 1997, the answer would again depend on whether the Tribe has unequivocally waived its sovereign immunity from suit as to these claims. For injuries which occur on or after July 1, 1997, a discrimination claim would be governed by the Tribal Code.

Very truly yours,


J. Sarah Posner
Assistant Attorney General



1 Courts have, however, applied 40 U.S.C.  290 to nontribal employers on federal Indian reservations that were not tribal enterprises. Begay v. Kerr-McGee Corp., 682 F.2d 1311 (9th Cir. 1982); Johnson v. Kerr-McGee Industries, Inc., 129 Ariz. 393, 631 P.2d 548 (1981); State of Idaho, ex rel. Industrial Commission v. Indian Country Enterprises, 944 P.2d 117 (Idaho Supreme Ct. 1987.)

2 The Tibbetts decision also concludes that the special compensation fund, analogous to Connecticut's Second Injury Fund, was not liable under the uninsured employer statute, because there was no jurisdiction over the employer.

3 We do not address the issue of whether the State's interests would outweigh the interest which the Tribe has in preserving its sovereign immunity if the Tribe were to abolish its code and commission.

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