Judge says woman must be paid damages based on 1868 Sioux treaty

April 29, 2009

Judge says woman must be paid damages based on 1868 Sioux treaty

Matthew Gruchow
mgruchow@argusleader.com

A Native American woman from Rapid City has won a historic ruling in federal court based on a century-old treaty between the U.S. government and the Oglala Sioux Tribe after she was sexually assaulted by a military recruiter.

The U.S. government will have to pay Lavetta Elk, formerly of Rapid City, nearly $600,000 in damages after she was sexually assaulted by Army recruiter Staff Sgt. Joseph Kopf in his car January 2003, according to court documents. Judge Francis Allegra based the ruling on a “bad men” provision in the April 29, 1868 treaty between the government and the Oglala Sioux Tribe.

That provision of the Fort Laramie Treaty “provides that if ‘bad men’ among the whites commit ‘any wrong’ upon the person or property of any Sioux, the United States will reimburse the injured person for the loss sustained,” according to court documents filed Wednesday.

The judgement against the U.S. government based on the treaty is unprecedented, said Adam Horowitz, Elk’s Miami-based lawyer. It also is a marked change in interpretation of Indian treaties which have historically been construed negatively, he said.

“Never before has this treaty been used to bring such a claim,” Horowitz said. “It creates precedent for Native Americans who belong to tribes with treaties like this in effect.”

Elk, who was 19-years-old at the time of the assault, now is married and lives with her family in California. She could not be reached for comment.

Read more in Thursday's Argus Leader.

ASU's New Indian Legal Research Portal

ASU Law Library's new Indian Law Research Portal is at http://www.law.asu.edu/indianlawportal
The purpose of the portal is to provide subject materials that support the curriculum of the ASU College of Law Indian Legal Program. It is hoped that the portal will also benefit the Indian legal community by providing links to comprehensive, authoritative, free materials for their use. ASU subscription materials are available for use in the library. ASU Librarians have selected the best resources for you from the thousands available.The portal links to electronic and print resources and brings together in one place many legal and interdisciplinary resources that the University purchases for its students and faculty, including databases, indexes, full text electronic journals, authoritative websites, and print resources. The portal also provides some unique resources created specifically for American Indian law researchers, including a chart on Arizona Tribal Law Sources, compiled legislative histories for selected important laws related to Native Americans, and an historical timeline that links to primary legal documents
If you need assistance in using the portal, check out our guide on How to Use the Indian Law Portal (it is also available as a presentation) or Ask a Librarian for further assistance.

A Congressional Remedy for Oliphant?

A Congressional Remedy for Oliphant?

Thirty years ago the Supreme Court ruled in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978) essentially that Native Nations had no jurisdiction over non-Indians who committed crimes on tribal land. Justice Rehnquist wrote the majority opinion which held that Indian tribal courts do not have inherent criminal jurisdiction to try and to punish non-Indians, and hence may not assume such jurisdiction unless specifically authorized to do so by Congress.

This decision arguably left a jurisdictional gap that in many cases has not been adequately filled. Yesterday, the Senate Committee on Indian Affairs held hearings on a bill designed to give Native American courts and law enforcement broader authority to combat violent and sex-related crimes. Senator Byron Dorgan (D-ND) and 12 co-sponsors introduced the Tribal Law and Order Act on Wednesday. Joining Dorgan as co-sponsors to this legislation are Senators Murkowski, Biden, Domenici, Baucus, Bingaman, Lieberman, Kyl, Johnson, Smith, Cantwell, Thune, Tester.

If passed, the bill would give American Indian courts authority to impose stricter sentences, expand the courts' jurisdiction to cover more non-Indian suspects, and provide for additional law enforcement training and federal cooperation in addressing the crimes.In a prepared statement for the hearing, National American Indian Court Judges Association Vice President Roman Duran commented:

"Tribal courts agonize over the very same issues state and federal courts confront in the criminal context, such as, assault and battery, predatory crimes, hate crimes, child sexual abuse, alcohol and substance abuse, gang violence, violence against women, and now methamphetamine along with the social ills that are left in its wake. These courts, however, while striving to address these complex issues with far fewer financial resources than their federal and state counterparts must also 'strive to respond competently and creatively to federal and state pressures coming from the outside, and to cultural values and imperatives from within.' ... Judicial training that addresses the present imperatives posed by the public safety crisis in Indian Country, while also being culturally sensitive, is essential for tribal courts to be effective in deterring crime in their communities."

Jurisdictional Variation in American Indian Criminal Justice: An Argument for Stronger Understanding and Better Methods

Amnesty International Report: MAZE OF INJUSTICE - The failure to protect Indigenous women from sexual violence in the USA