The Office of General Counsel issued the following opinion on February 2, 2001 representing the position of the New York State Insurance Department.
Re: Jurisdiction of the Insurance Department over Life Insurance Policies Issued to an Native American Tribe
Do the requirements of N. Y. Ins. Law § 3201(b)(1) (McKinney 2000) apply to a group life insurance policy issued to an Indian Nation at its reservation within New Yorks boundaries where some individual certificate holders live on the reservation and others do not?
Yes. Although delivery of the group policy to the group policyholder on the reservation would not itself trigger the requirements of N. Y. Ins. Law § 3201(b)(1) (McKinney 2000), the delivery of the individual certificates to certificate holders located outside of the reservation who are residents of New York, mandates compliance with this section.
An insurer was considering writing a group life insurance policy for an Indian Nation whose reservation is in New York State. The policy would be delivered to the reservation. The certificate holders covered under the policy reside both on the reservation, outside the reservation in New York, outside the state and abroad.
N. Y. Ins. Law § 3201(b)(1) (McKinney 2000) provides in pertinent part:
No policy form shall be delivered or issued for delivery in this state unless it has been filed with and approved by the superintendent as conforming with the requirements of this Chapter and not inconsistent with law. A group life insurance certificate shall be deemed to have been delivered in this state, regardless of the place of actual delivery, unless the insured group is of the type described in:
Although not ascertainable from the facts provided, it was assumed that the Indian Nation is a permissive group under the statute and that the exceptions to the above stated rule are not applicable.
Indian reservations in New York are considered to be separate and apart from surrounding communities, and New York itself. See N. Y. Indian Law §§ 7, 8 (McKinney 2001); 1987 N. Y. Op. Atty. Gen. 68; 25 U.S.C.A. § 233 (West 1983). Land on the reservation is not subject to state or local real property taxes and an Indian Nation has the right to self-government and exclusive jurisdiction over its internal affairs between tribe members on the reservation. See Bowen v. Doyle, 880 F. Supp. 99 (W.D. N. Y. 1995). Indian activities on Indian lands are under the jurisdiction of the United States for most purposes. See 1978 N. Y. Op. Atty. Gen. 54. Indian reservations are not considered municipalities within the state unless expressly included in the law for certain purposes. See N. Y. Exec. Law § 412(3) (McKinney 1996), N. Y. Gen. Mun. Law § 854(3) (McKinney 2001). Accordingly, it appears that delivery of the group life insurance policy to the tribes governing authority on the reservation does not constitute delivery of the policy in New York.
However, pursuant to 8 U.S.C.A. § 1401(b), (West 1999), Native Americans are both nationals and citizens of the United States at birth. As United States citizens, Native Americans are also citizens of the states in which they reside. See Deere v. New York, 22 F.2d 851 (N.D. N.Y. 1927), affd. Deere v. St. Lawrence River Power Co., 32 F.2d 550 (2nd Cir. 1929), as cited in 1991 N. Y. Op. Atty. Gen. 21. Absent express federal law to the contrary, Native Americans going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the state. Mescalero Apache Tribe v. Jones, 411 U. S. 145 (1973). It does not appear that there is an express federal law that would abrogate the insurers obligation to obtain the Superintendents approval for certificates of group life insurance which will be delivered to Native Americans who are not living on the reservation, but who are residents of New York State.
Consequently, although delivery of the group life insurance policy to the group policyholder on the reservation does not trigger the approval requirements contained in N. Y. Ins. Law § 3201(b)(1) (McKinney 2000), delivery of the certificates to members of the group who are not living on the reservation but are living in New York State constitutes delivery to residents of New York and does, in fact, trigger N. Y. Ins. Law § 3201(b)(1) (McKinney 2000). Accordingly, the individual certificates must be filed for approval.
If you have any questions, please call me at (212) 480-5250.
For further information you may contact Supervising Attorney Joan Siegel at the New York City Office.