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ERISA regulation of Indian Tribal welfare benefit plans.


Guest Dennis Murphy
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Guest Dennis Murphy

Are welfare benefit plans sponsored by Indian tribes exempt from regulation by ERISA the same as "governmental plans"? Or do they have to file Form 5500?

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Just a stab at this (I'm at home and away from my resources) but I thought Tribal govts were a type of sovereign govt unto themselves. Not sure how this is addressed in ERISA but I'd sure like to see a legal discussion on this if they are indeed covered under ERISA.

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Guest Dennis Murphy

I just located a law review commentary "ERISA and Indian Tribes: Alternative Approaches for Respecting Tribal Sovereignty" (2000 Wis. L. Rev. 1291) which indicates that ERISA is silent with respect to whether it applies to Indian tribes or tribal employers. However, the Seventh and Ninth Circuits have addressed whether ERISA applies to Indian tribal employers and both Circuits have held that ERISA applies. However, the law review commentary goes on to suggest that the decisions are wrongly decided.

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No holding coming out of the Ninth Circuit surprises me. As usual, I don't agree with it. If ERISA doesn't apply to foreign (non-US) health plans, I see no reason why it should apply to Tribal plans. It is my understanding that they are sovereign nations. Isn't that why they can operate gambling institutions in spite of state law? Of course, the US govt did step in on a murder case in Florida despite the tribal govt claim of sovereignty. This is just my opinion--I like the idea it would not apply based on sovereign immunity, not exemption as a govt plan.

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  • 1 month later...

You might also want to check out this link for a discussion of the extent to which a Native American tribe's plan is or is not subject to ERISA:

http://www.benefitslink.com/boards/index.php?showtopic=2265

Employee benefits legal resource site

The opinions of my postings are my own and do not necessarily represent my law firm's position, strategies, or opinions. The contents of my postings are offered for informational purposes only and should not be construed as legal advice. A visit to this board or an exchange of information through this board does not create an attorney-client relationship. You should consult directly with an attorney for individual advice regarding your particular situation. I am not your lawyer under any circumstances.

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