Restoration Magazine

NIWRC Fights To Protect Native Women From Sexual Assaults Perpetrated by BIA Law Enforcement

At the time of this article’s drafting, the NIWRC’s VAWA Sovereignty Initiative (VSI) awaits decisions on two cases. The first, Rahimi v. United States, was argued in the United States Supreme Court in November 2023. The second, L.B. v. United States, was argued before the Ninth Circuit Court of Appeals on June 3, 2024. Each case will significantly impact Native women’s safety.

United States v. Rahimi

On August 21, 2023, the NIWRC filed its amicus brief in United States v. Rahimi. This case was argued before the Supreme Court on November 7. In Rahimi, the Fifth Circuit Court of Appeals held that 18 U.S.C. § 922(g)(8) violates the Second Amendment. If left untouched, this decision threatens to leave Native women and children even more vulnerable and susceptible to homicide than they are at present.

Section 922(g)(8) is the federal law prohibiting individuals subject to a protection order from accessing and possessing firearms. The NIWRC filed its amicus brief to explain how the loss of § 922(g)(8)’s protections will place Native women at even greater risk. Native women are more likely to be victimized by domestic violence than any other population in the United States. When a Native woman goes to her Tribal Court and secures a protective order, § 922(g) (8) makes it illegal for her abuser to access a firearm. This is a statute that saves lives.

Under the Supreme Court’s Second Amendment jurisprudence, whether § 922(g)(8) remains constitutional and in effect as federal law will depend on whether the Court finds the firearm regulation in § 922(g)(8) to commiserate with firearm regulations at the time of the Second Amendment’s passage. Thus, much of the briefing and discussion at oral argument focused on relevant historical analysis. The NIWRC’s amicus brief points out that although the Second Amendment was initially passed to protect the right of individual Americans to possess firearms to kill Indians, this policy changed by the time the United States passed the Fourteenth Amendment—a time when the United States was signing numerous treaties with Tribal Nations and promising to protect tribal citizens from “bad men”—white men seeking to harm tribal citizens on tribal lands. The NIWRC amicus brief, therefore, makes the argument that § 922(g) (8)’s prohibition on access to firearms for individuals subject to a protection order is part and parcel of the United States’ treaty trust duty and responsibility to safeguard the lives of Native women. 

Although it is impossible to predict which way the Supreme Court will ultimately go, the Justices did sound skeptical that the Second Amendment would preclude § 922(g)(8)’s firearm prohibition altogether. As this case was argued back in November, a decision from the Supreme Court should be forthcoming any day now. The NIWRC will continue to monitor this decision and evaluate its impacts on the safety of Native women once the Court has issued its decision.

L.B. v. United States

The NIWRC has filed two amicus briefs in L.B. v. United States—a case where a Northern Cheyenne victim of a rape committed by a BIA officer is suing the United States under the Federal Tort Claims Act, asking for damages to pay for her pain and suffering caused by the rape. The case is currently before the Ninth Circuit Court of Appeals. 

The United States, and specifically the Department of the Interior and the BIA, is arguing it cannot be held liable for its law enforcement officer’s actions (he was responding to a Native woman’s call for help and was on duty when he committed the rape) because he committed the rape for “his own enjoyment,” and not to “further the interests of his employer.” It is a despicable, deplorable argument that contributes directly to the large rates of violence against Native victims in this country. If Native women calling BIA law enforcement for help must choose between 66 calling for help and being raped or not calling for help and not being raped, then they are in a no-win, incredibly violent, unjust situation. The BIA and DOI should publicly apologize to L.B. for the rape she endured, and they should pay the damages she is owed. They also need to instigate programs geared towards training officers to report other officers who rape Native women. The officer who raped L.B., Officer Bullcoming, bragged in his deposition that he had done the same thing to at least 12 other women. There is no way he has done this to so many women, and his fellow officers and supervisors did not know. Why didn’t the BIA do something about Officer Bullcoming’s behavior? This situation is inexcusable, and the fact that DOI and BIA won’t accept responsibility for their wrongdoing here is beyond the pale.

The case has bounced from court to court for years now. The case was originally filed in federal district court, but in 2022, the Ninth Circuit Court of Appeals sent a certified question to the Montana Supreme Court regarding a question of Montana law related to when a law enforcement agency can be held liable for sexual assaults of one of its law enforcement officers. The Montana Supreme Court answered the legal question in L.B.’s favor, and the case was kicked back down to the federal district court. The United States and the BIA, however, continued to refuse to accept responsibility for the horrific acts of one of their law officers and continued to litigate this case. When the District Court decided against L.B. and in the BIA’s favor, L.B. appealed back up to the Ninth Circuit Court of Appeals. In November 2023, the NIWRC filed an amicus brief supporting L.B.’s position. The NIWRC’s amicus brief was co-authored and filed by COLT, the Coalition of Large Tribes. 

The case will now be argued in the Ninth Circuit on June 3, 2024. The argument will take place at the federal courthouse in Portland, Oregon. COLT and NIWRC will work together to organize and host a rally/prayer vigil on the steps of the Courthouse on the day of the oral argument. We invite all advocates, survivors, tribal leaders, and allies to join the NIWRC and COLT on June 3 to show your support for L.B. and all of our Native women, men, and Two-Spirit Relatives who have been sexually abused and assaulted by law enforcement. There is no excuse for this kind of abuse of power, and it is deeply troubling that the Biden Administration—an Administration that claims to care deeply about ending violence against Native women—is taking the position that the BIA cannot be held responsible when one of its on-duty law officers rapes a Native woman.

The NIWRC and COLT will work with local Tribes in Oregon to organize and host the prayer vigil on June 3. Please stay in touch and look for more information posted on the NIWRC’s website and social media. We hope to see you there.

The following is a select excerpt from the NIWRC/ COLT amicus brief: 

The United States has largely failed to respond to L.B.’s appellate arguments, and has dodged entirely the key issue presented to this Court on appeal- namely, how can the United States not be vicariously liable given that “[i]t is beyond dispute that the assault arose out of [Officer] Bullcoming’s employment with the BIA. He showed up to L.B.’s house in response to a dispatch call and it was through his authority under the BIA that he coerced L.B. into sex.” ER-13. Moreover, in its response brief the government reinforces this point as well: referring to Officer Bullcoming’s statement that “something needed to be done,” “Bullcoming made the statement to coerce L.B. to have sex with him under the threat of arrest.” Government brief at 21. Only his position as a BIA police officer allowed Officer Bullcoming the authority to arrest L.B. or coerce her to have sex.

The United States avoids entirely the Montana Supreme Court’s findings applicable to this very case with respect to the vicarious liability factors. It attempts to unilaterally narrow “the act” for purposes of the legal analysis to “sexual assault” when the Montana Supreme Court has already held that all of the attendant circumstances that brought Officer Bullcoming to L.B.’s home that evening are to be considered. And, it fails to address the fact that, under Montana law as established in the L.B. v. United States decision, even a scintilla of employer benefit satisfies the “mixed motive” test.

The United States further offers no response to L.B.’s initial point that no employer could ever be held liable under the subjective “perspective of the abuser” test that the district court created requiring the victim of sexual coercion to prove that the employee’s subjective motives were related to his employment function.

The United States twists itself attempting to justify the district court’s decision to accept wholesale Officer Bullcoming’s deposition testimony which cannot be reconciled with the testimony he gave the same district court under oath at his change of plea colloquy.

The United States, echoing the district court, attempts to place form over substance by arguing that L.B.’s emergency discovery motion was not really a motion about discovery issues. The United States’s brief is authored by the same Assistant United States Attorney who spoke privately with Officer Bullcoming before his deposition and told him at the outset of his deposition he did not need to worry about criminal consequences. Much of the excerpts of record cited by the United States are the self-selected affidavit testimony of the same Assistant United States Attorney who refused to make himself available for deposition so that his affidavit testimony could be tested under examination.

In short, the United States has offered nothing to justify the district court’s summary judgment opinion that runs contrary to Montana law as expressed by the Montana Supreme Court in this very case. The Court should reverse this matter with direction to enter summary judgment in favor of L.B.