How does the ADA apply to Tribal Nations and what resources are available within Region 8?

Prepared for the Rocky Mountain ADA Center. Colorado Springs, CO by Joshua Thornton, JD/MPA, expected May 2020, University of Montana School of Law, Jill Bezyak, PhD, University of Northern Colorado, and Martin E. Blair, PhD. Rural Institute for Inclusive Communities, University of Montana.

Executive Summary

Native Americans have the highest rate of disability among all American ethnicities and racial groups. Practical considerations, as well as differing cultural viewpoints on disability, complicate this problem. Non-tribal members that guide and develop tribal disability policies should identify key tribal leaders, pursue tribal authorization, and utilize tribal member focus groups to highlight local disability needs.

Tribal sovereignty renders the Americans with Disabilities Act of 1990 (“ADA”) largely inapplicable to Tribal Nations. Under Title I, Tribal governments are specifically excluded as an employer. However, private employers operating within reservations are not excluded as employers. Additionally, employment and Indian law experts generally agree that Title II is not applicable. Finally, Title III is applicable, but private individuals may not bring suit against Tribal Nations unless the Tribe has expressly waived their sovereign immunity.

Even though the ADA is generally inapplicable, other disability legislation and resources exist for tribal members, such as the Individuals with Educational Disabilities Act (“IDEA”) and Every Student Succeeds Act (“ESSA”). The report appendices included here contain disability resources available within individual Tribes located in Region 8 of the Rocky Mountain region, national Native American disability organizations, federal disability agencies, and national disability organizations.

Tribal Barriers to Disability Services

Tribal Nations have the highest rate of disability among all American ethnicities and racial classifications1 . Approximately 3 in 10 American Indians or Alaskan Natives have a disability, while 1 in 4 African-Americans and 1 in 5 Caucasian Americans are reported to have disabilities.

Tribal and Western cultures do not necessarily align on the concept of disability. The ADA defines “disability” as a recorded physical or mental impairment that substantially limits major life activities by an individual regarded as having that impairment2 . On the other hand, tribes treat life, health, wellness, and disability in differing ways, with many tribes accepting and tolerating the disabling characteristics of an individual3 .

Practical considerations negatively affect tribal members with disabilities: disjointed coordination among federal and tribal agencies; limited knowledge or understanding of tribal communities; limited enforcement of laws protecting people with disabilities on tribal lands; and limited local tribal planning to protect and support people with disabilities4 . More specifically, transportation is hindered by general remoteness, limited public transportation services, lack of accessibility, and lack of licensed drivers5 . Likewise, housing and facility services are frustrated by building and modification costs, limited program funding, administrative backlog for grants and protocol, and limited awareness of universal design feasibility6 .

For future policy formulation, this resource recommends the Tribal Disability Actualization Process, endorsed by the National Congress of American Indians in 1994, which considers disability legislation and policy formulation7 . The process identifies key tribal leadership, pursues tribal authorization, holds Tribal member focus groups to develop disability legislation, and helps guide the development and implementation of disability policies within Tribal Nations.

Legal Background

Americans with Disabilities Act

Federal law recognizes tribal sovereignty and immunity to encourage self-sufficiency and economic development8 . Tribal Nations are, for the most part, largely exempt from the ADA. On the other hand, the Oglala Sioux Tribe of South Dakota, for example, passed the ADA as written in 1994.9 Oglala Sioux Tribe is not bound in a similar fashion as states and local governments. Instead, the tribal government implements and enforces the ADA independently like the federal government.

Under Title I, “covered entities” cannot discriminate against workers with disabilities in employment.10 Indian Tribes are explicitly excluded from the definition of “employers.”11 Title I does not exclude private employers located within Indian Country. The ADA requires Title I complaints to be filed with the Equal Employment Opportunity Commission. Varying between individual tribes, tribal law may permit legal remedies for disability discrimination in tribal governments. Tribal members should consult tribal laws of their individual tribe on whether legal remedies for disability discrimination are available.

Title II prohibits disability discrimination in public services.12 The term “public entity” means any State or local government; and any department, agency, special purpose district, or other instrumentality of a State(s) or local government.13 Tribal governments are not specifically mentioned, and employment and Indian law experts agree that it is doubtful Title II is applicable to Tribal Nations.14

Title III requires public accommodations to be accessible to individuals with disabilities.15 Certain private entities (e.g., places of lodging, restaurants, places of entertainment, public gatherings, etc.) are considered public accommodations if they affect interstate commerce.16

In Florida Paraplegic Ass’n v. Miccosukee Tribe of Indians,17 the 11^th Circuit Court of Appeals held that Title III applies to Tribal Nations.18 In Miccosukee, two disability associations brought suit alleging a Tribal owned restaurant and entertainment facility failed to be accessible as a public accommodation to people with disabilities.19 The court reiterated that generally applicable laws apply to all persons, including Indians and their property interests.20 It is further understood that generally applicable laws do not apply to Tribal Nations if their application would 1) abrogate rights guaranteed under an Indian Treaty, 2) interfere with purely intramural matters touching exclusive rights of self-government, or 3) contradict Congressional intent.21 In Miccosukee, Title III was applicable because no treaty was relevant to the case, the Miccosukee owned business did not fall under “exclusive rights of self-government” because they were operating in interstate commerce, and evidence showed Congress intended for Title III to be generally applicable.22 Miccosukee, the leading case on ADA’s applicability to Tribal Nations has been positively cited by circuit courts within the region of Rocky Mountain ADA Center.23

However, Tribal Nations are immune to private Title III suits.24 Tribal Nations are subject to suits if the tribe waived sovereign immunity or Congress expressly abrogates it.25 This is a result of conflicting public policy priorities between tribal sovereignty and civil rights guaranteed to all people with disabilities. A law can be applicable, like Title III here, yet have no means available for enforcing remedies.26 Currently, the only remedy available would be for the United States Attorney General to compel tribal compliance.27

Individuals with Educational Disabilities Act28

IDEA makes available free public education to eligible children with disabilities, and IDEA governs how states and public agencies provide early intervention, special education, and related services to children. IDEA authorizes formula grants to states to support special education and early intervention services, as well as discretionary grants to state educational agencies, higher education institutions, and non-profit organizations to support such things as research, technical assistance, and information centers.

Every Student Succeeds Act29

ESSA benefits tribes by: requiring states to consult with tribes in developing state plans for grants; requiring states to intervene in the least-well performing schools, which is significant for schools with high Native populations; requiring only 1% of students to be given alternative achievement tests, which is significant due to an overrepresentation of Native youths in special education; allowing the Bureau of Indian Education to apply for discretionary funding, which was originally only available to states; and increasing community involvement.30

Rehabilitation Act of 197331

The Rehabilitation Act prohibits disability discrimination in programs operated by federal agencies, such as federal employment or receiving federal funds. Employment discrimination follows the same standards as Title I of the ADA. Section 121 of the Rehabilitation Act authorizes tribal grants for vocational rehabilitation services.

Appendix

To view the appendix to view a non-exhaustive list of disability services offered by various tribes, organized by State, download the full report attached to this article.

• 1Centers for Disease Control and Prevention, Adults with Disabilities: Ethnicity and Race (August 9, 2018), https://perma.cc/2768-G8EE.
• 242 U.S.C. § 12102(1) (2019).
• 3Kathy Dwyer, LaDonna Fowler, et. al., Community Development by American Indian Tribes: Five Case Studies of Establishing Policy for Tribal Members with Disabilities 196, 200, Journal of the Community Development Society (Vol 31, No. 2 2000).
• 4National Council on Disability, People with Disabilities on Tribal Lands: Education, Health Care, Vocational Rehabilitation, and Independent Living 1, 7-8 (August 1, 2003).
• 5National Council on Disability, Understanding Disabilities In American Indian & Alaska Native Communities: Toolkit Guide, 111 (August 1, 2003).
• 6Id., at 93.
• 7Dwyer, supra note 3, at 197.
• 8Oklahoma Tax Comm’n v. Potawatomi Tribe, 498 U.S. 505, 510–11 (1991).
• 9Ordinance No. 94-07 of the Oglala Sioux Tribal Council of the Oglala Sioux Tribe (Aug. 23, 1994).
• 1042 U.S.C. § 12112(a).
• 1142 U.S.C. § 12111(5)(B)(i); Charland v. Little Six Inc., 198 F.3d 249 (8th Cir. 1999) (alleged disability discrimination against tribal owned casino dismissed due to lack of subject matter jurisdiction).
• 1242 U.S.C. § 12132.
• 1342 U.S.C. § 12131(1)(a)-(b).
• 14Gregory S. Arnold, Employment Law in Indian Country: Finding the Private-Action Jurisdictional Hook is Not Easy, The Federal Lawyer 4 (April 2015), https://perma.cc/R7UY-H7QU. However, Olmstead v. L.C., 527 U.S. 581 (1999) held that states must help to provide the least most restrictive services, such as home- or community-based care, for people with disabilities. The tribal application is unclear.
• 1542 U.S.C. § 12182.
• 1642 U.S.C. § 12181(7).
• 17166 F.3d 1126 (11th Cir. 1999).
• 18Miccosukee, at 1129–30.
• 19Miccosukee, at 1127.
• 20Federal Power Comm’n v. Tuscarora Indian Nation, 362 US 99, 120 (1960).
• 21Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir. 1985).
• 22Miccosukee, at 1129-30.
• 23United States v. Santee Sioux Tribe, 254 F.3d 728, 737 (8th Cir. 2001); Solis v. Matheson, 563 F.3d 425, 433 (9th Cir. 2009); NLRB v. Pueblo of San Juan, 276 F.3d 1186, 1199 (10th Cir. 2002).
• 24Miccosukee, at 1134.
• 25Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978).
• 26Kiowa Tribe v. Manufacturing Technologies, Inc., 523 U.S. 751, 755 (1998); see generally Marbury v. Madison, 5 U.S. 137 (1803).
• 27Miccosukee, at 1134–35.
• 2820 U.S.C. § 1400 et seq.
• 2920 U.S.C. § 1001 et seq.
• 30See Tanya H. Lee, 9 Ways the New Education Law Is a Win for Indian Country, Indian Country Today (Feb. 1, 2016), https://perma.cc/6BSE-BRT4; Erin Haynes, ESSA and Native American, Alaska Native, and Native Hawai’ian Students, American Institutes for Research (Apr. 13, 2016), https://perma.cc/ESA5-58A9.
• 3129 U.S.C. § 701 et seq.