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S.D. case may allow claims against U.S.

By Bill Donovan
Special to the Times

WINDOW ROCK, May 7, 2009

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A court victory by a Native American woman from Wounded Knee, S.D., may pave the way for Navajos who have been injured by federal government officials to get compensation.

The woman, Lavetta Elk, received a judgment from a federal judge requiring the federal government to pay her $600,000 after she was sexually assaulted by an Army recruiter in his car in January 2003.

Judge Francis Allegra based his ruling on a "bad man" provision in the April 28, 1868, treaty between the government and the Oglala Sioux Tribe.

That provision provides that if "bad men" among the whites commit "any wrong" upon the person or property of any Sioux, the federal government will reimburse the injured person.

This marks the first time that a federal court has made such a ruling.

James Zion, a former general counsel for the Navajo Nation's judicial branch, said the Sioux case is a "replay of Tsosie vs. U.S."

This is a case that goes back about 30 years when a Navajo argued that he was assaulted by an Indian Health Service worker.

That case was based on the "bad man" clause in the 1868 treaty between the federal government and the Navajos that also promised to compensate Navajos for crimes committed against them by non-Natives.

The clause in the Navajo treaty reads: "If bad men among the whites or among other people subject to the authority of the United States shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the agent and forwarded to the Commissioner of Indian Affairs at Washington city, proceed at once to cause the offender to be arrested and punished according to the laws of the United States and also to reimburse the injured persons for the loss sustained."

The Tsosie case made it to the U.S. Court of Claims, said Zion, where it was thrown out as not having any validity.

But Zion said a lot of attorneys who handle cases in Indian Country will be watching to see what happens in the Sioux case because it may signify a change in the government's approach to these kinds of cases.

What's also interesting in the Sioux case is that the judge went beyond just actual damages and imposed punitive damages as well.

Court records said that Elk was 19 when she decided to become the first member of her family to join the military. She went to the recruiting station that was manned by Staff Sgt. Joseph Kopf.

According to court records, Kopf told her in August 2002 that he had to measure and weigh her as part of her application process. This was supposed to take place in his hotel room but Elk said that instead of doing what he said, he started trying to kiss her.

She immediately left but the following January Kopf showed up unannounced at her home saying that she had to go through the physical again because her paperwork had been lost.

Elk, who is now married and lives in California, said in the court papers that Kopf then drove her to a remote part of the reservation and began to fondle and caress her. She resisted and finally managed to get away, reporting the assault to Army officials a couple of days later.

Kopf was never arrested or court-martialed but he was demoted to sergeant and removed from his recruiting post, according to court records.

The Elk case shows, said Zion, that the secretary of the Interior has a clear obligation to protect tribal members from "bad men."

This is interesting, he said, because the U.S. Supreme Court recently decided a case involving the Navajo Nation and the Interior Department on the same issue.

The Navajo Nation tried to get the Supreme Court to agree that the Interior Department had an obligation to protect the tribe from entering into a bad agreement with Peabody Coal Company but the court said the Navajos were unable to come up with a statute that placed this obligation on the Interior secretary.

But what about cases, such as the recent one where a non-Native basically swindled the Navajo Nation into providing his company - BCDS - more than $2 million in loans which were never recovered?

That's a different situation, Zion said, adding that the federal government should not be responsible for the failure of the Navajo Nation to do a thorough background check on the individual.

The question now is what will happen to the case.

Frank Pommersheim, a law professor at the University of South Dakota, told reporters that the federal government may just "pay the judgment and be done with it" because of fears that if it is appealed to the Supreme Court, a ruling upholding the decision may throw open the gates for other tribal members to file claims against the federal government.

Stories in the media about the case have pointed out that all Natives are not eligible for federal compensation because it would only affect those tribes, like the Sioux and the Navajo, who have the "bad man" clause in their treaties.

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