Media statement sent from COLT and NIWRC
Portland, OR: On July 24, 2024, the Ninth Circuit Court of Appeals reversed the lower court’s decision in L.B. v. United States, stating that the lower court was wrong to grant summary judgment in the federal government’s favor and dismiss L.B.’s lawsuit under the Federal Tort Claims Act (FTCA). L.B.’s claims against the federal government stem from a sexual assault committed by a law officer from the Bureau of Indian Affairs (BIA) who raped her in her home after responding to her call for help. L.B. filed a claim under the FTCA against the Department of the Interior (DOI) and BIA, seeking damages for her pain and suffering resulting from the sexual assault. In August of 2023, District Court Judge Susan Watters dismissed L.B.’s lawsuit, claiming that Officer Bullcoming had raped L.B. to serve his own interests, not the federal government’s and therefore the federal government could not be held liable for the actions of its law officer. The Coalition of Large Tribes (COLT) and the National Indigenous Women’s Resource Center (NIWRC) filed a joint-amicus brief in support of L.B. and her appeal before the Ninth Circuit.
“The Ninth Circuit’s decision sends the case back to the District Court and restores L.B.’s right to have
her day in court,” states Shoney Blake, attorney for the NIWRC. “The federal government should not be
able to escape liability for the actions of its on-duty law officer, and the appellate court’s decision
incentivizes the DOI and BIA to ensure their officers do not victimize the very people they are called to
protect.”
“We filed an amicus brief in this case because the rates of violence against our women on tribal lands is extraordinarily high,” explains Marvin Weatherwax, Chairman of COLT. “When federal law enforcement responds to our calls for help by sexually assaulting our women, that just means our women and our families will stop calling law enforcement for help. And they have. The system is broken, and the only way the federal government can fix it is to start taking responsibility for the actions of their own officers.”
Marvin Weatherwax, Chairman of COLT
“This case goes to the heart of the Missing and Murdered Indigenous Women and Girls crisis,” states Lucy Simpson, Executive Director of the NIWRC. “Until there are consequences for federal agencies whose agents sexually assault and abuse our women, our women will not be able to call law enforcement agencies for help. This simply perpetuates the cycle of violence.”
“We are shocked and appalled that Department of Justice, under Attorney General Merrick Garland’s leadership, continues to fight L.B. in her pursuit of justice,” states Mary Kathryn Nagle, attorney for the NIWRC.
“The Biden Administration has made very clear they care about ending violence against Native women. But at the oral argument before the Ninth Circuit, Assistant United States Attorney Randy Tanner argued that the DOI and BIA cannot be held liable for the sexual assault committed by its on-duty law officer because the officer had a ‘crush on the victim. This line of argument is appalling and reflects a deep-seated problem within Attorney General Garland’s DOJ. Being physically attracted to someone is not a license to rape, and the reversal of the case before the Ninth Circuit now gives the Biden Administration the opportunity to finally do the right thing and simply agree to compensate L.B. for the horrific trauma she has suffered.”
Both COLT and the NIWRC call on the United States, specifically the DOI and the BIA, to settle this case once and for all. The only correct response is for the United States to accept responsibility for the actions of its law officer, apologize, and compensate L.B. for her extreme losses. We hope the Biden Administration does the right thing. Indian Country is watching.
Media Contacts:
- COLT Chairman Marvin Weatherwax – (406) 845-5477, mweatherwax@blackfeetnation.com
- COLT Vice Chairman Tracy Ching King – (406) 680-7029, ching49mazaska@yahoo.com
- COLT Executive Director OJ Semans – (605) 828-1422, tateota@hotmail.com
- NIWRC – media@niwrc.org
Additional Media Shares:
Daily Montanan: 9th Circuit sends BIA case back, reverses judgment, orders new federal judge to be assigned
Law360: Ninth Circ. Vacates, Remands BIA Sexual Misconduct Dispute
By Crystal Owens · Listen to article
Law360 (July 25, 2024, 9:22 PM EDT) — The Ninth Circuit vacated and remanded a lower court’s ruling that the Bureau of Indian Affairs isn’t liable for the actions of one of its officers who sexually assaulted a Northern Cheyenne woman, saying conflicting statements create a factual dispute regarding whether the officer was acting within the scope of his employment.
The three-judge panel, in a Wednesday memorandum, remanded the litigation with instructions that it also be assigned to a new judge.
At issue in the case is the credibility of former BIA Officer Dana Bullcoming in light of his deposition testimony, which recanted his plea statements admitting to sexual coercion.
“This circumstance would place the district court judge in the untenable position of ruling on her prior credibility determinations of two conflicting statements from Officer Bullcoming. Therefore, we deem it prudent to reassign this case to a different judge,” the panel said in the memorandum.
According to an order on Thursday, the case is reassigned to U.S. Circuit Judge Donald W. Molloy.
In November, the woman — identified in court records as L.B. — asked the Ninth Circuit to overturn U.S. District Judge Susan P. Watters’ Aug. 8 ruling that the federal government can’t be held responsible for Bullcoming’s actions, saying the determination makes it impossible for victims like herself to prevail.
Judge Watters’ summary judgment order in favor of the federal government found that the 2015 assault arose out of Bullcoming’s employment but that he must have been subjectively motivated to further his employer’s interest in coercing the woman into having sex with him.
The woman first sued the federal government in 2018 under the Federal Tort Claims Act, saying that while responding to an October 2015 dispatch call concerning a domestic issue, the BIA officer coerced her into having sex with him under threat of jail time for being intoxicated around her two children.
As a result of the assault, the woman became pregnant and now has a child with Bullcoming, according to court filings.
In fear of losing her job and custody of her children, the woman said she felt she had no choice but to have sex with Bullcoming.
Bullcoming, in May 2018, was sentenced to three years in federal prison on one count of deprivation of rights under the law stemming from the allegations. Two counts of making a false statement to a federal officer were dismissed as part of a plea agreement.
The district court erred in awarding the federal government summary judgment, the Ninth Circuit panel said, arguing that neither party was entitled to the ruling due to the existence of a material dispute of fact regarding whether Bullcoming was acting within the scope of his authority when he coerced L.B. into committing sexual acts.
In seeking to overturn Judge Watters’ decision, the woman argued that the court ignored the Montana Supreme Court’s August 2022 analysis of the government’s respondeat superior liability in the case and required an additional element of proof that Bullcoming’s act must have been motivated by an interest in furthering his employment.
Respondeat superior liability holds an employer legally responsible for its employees’ wrongful actions, although states can adopt their own versions of the doctrine.
However, the BIA, in fighting the woman’s appeal to the Ninth Circuit, said that under the Federal Tort Claims Act, “the United States is vicariously liable” for Bullcoming’s assault of L.B. only if the incident was in the course and scope of Bullcoming’s employment with the federal agency’s Office of Justice Services.
In its opinion on the case, the Montana Supreme Court applied a two-prong test for analyzing the course and scope of employment under Montana law, both of which L.B.’s claims failed to pass, according to the federal government.
“Bullcoming’s assault was a reprehensible abuse of authority, but the fact that Bullcoming was on duty when he assaulted L.B. does not imply he was acting in the course and scope of his employment,” the BIA said.
Judge Watters’ ruling ran contrary to the Montana Supreme Court decision, which not only determined that the BIA can be held responsible for Bullcoming’s actions, but also awarded the woman $1.6 million out of the $10 million in damages sought, according to court records.
The former officer, the BIA said, has never testified or stated that he was motivated by anything other than his personal interests when he assaulted L.B.
To the contrary, it argued, when Bullcoming spoke at his sentencing hearing, he stated, “I put a black eye on [law enforcement], and that was something I never even thought of. I was selfish, only thought about myself.”
The litigation caught the attention of several Native American nonprofit organizations that back victims of domestic and sexual violence, and those groups argued in favor of a remand, saying that the prospect that the lawsuit is not suitable for torts litigation undermines the safety of Native American women.
The issue of violence against Native American women is of national importance, with 75% of the country’s 574 federally recognized tribes living within the Ninth District, the appellate court was told by the Coalition of Large Tribes and the National Indigenous Women’s Resource Center in a November amicus brief.
Without federal accountability for public safety in Indian Country, there is no accountability, the group said.
“The rates of violence on tribal lands, the trust relationship between the United States and Indian tribes and the predominantly federal public safety regime in Indian country render access to federal law enforcement essential and require that acts of sexual violence by those in positions of authority are effectively prevented,” they said.
Counsel for the parties couldn’t immediately be reached for comment Thursday.
U.S. Circuit Judges Johnnie B. Rawlinson, Danielle J. Forrest and Jennifer Sung sat on the panel for the Ninth Circuit.
L.B. is represented by Timothy M. Bechtold of Bechtold Law Firm and John C. Heenan of Heenan & Cook.
The government, the Bureau of Indian Affairs and Bullcoming are represented by Mark Steger Smith and Timothy A. Tatarka of the U.S. Attorney’s Office, Billings Division, and Randy J. Tanner of the U.S. Attorney’s Office for the District of Montana.
The Coalition of Large Tribes and the National Indigenous Women’s Resource Center are represented by Jennifer H. Weddle, Troy A. Eid and Harriet McConnell Retford of Greenberg Traurig LLP, Shoney Blake of Pipestem Law PC, Dion Killsback and Michaela RedCherries of Killsback Law PLLC and Mary Kathryn Nagle.
The case is L.B. v. United States et al., case number 23-35538“>23-35538, in the Ninth Circuit Court of Appeals.