Restoration Magazine

We have witnessed two recent victories in cases in which the VAWA Sovereignty Initiative (SI) participated, which are discussed below. Victims and survivors prevailed in Rahimi v. United States in the United States Supreme Court and in L.B. v. United States in the Ninth Circuit of Appeals.

Rahimi v. United States
On August 21, 2023, the NIWRC filed its amicus brief in United States v. Rahimi. This case was argued before the Supreme Court in November. The Court issued its decision on June 21, 2024. The Supreme Court reversed the Fifth Circuit’s dangerous ruling that allowed domestic abusers to be armed and confirmed that abusers subject to restraining orders do not have a constitutional right to own guns.

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 threatened to leave Native women and children even more vulnerable to homicide than they were before the Fifth Circuit’s decision.

Section 922(g)(8) is the federal law prohibiting individuals subject to a protection order from accessing and possessing firearms. The NIWRC’s amicus brief explained how the loss of § 922(g)(8)’s protections places Native women at greater risk. Native women are more likely to be victimized by domestic violence than any other population in the country. When a Native woman secures a Tribal Court 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 depends on whether the Court finds the firearm regulation in § 922(g)(8) to be commiserative with firearm regulations at the time of the Amendment’s passage. Thus, much of the oral argument focused on relevant historical analysis. The NIWRC’s amicus brief pointed out that although the Second Amendment was initially passed to protect the right of individuals to possess firearms to kill Indians, this policy changed with the passage of the Fourteenth Amendment—a time when the United States signed treaties with Tribes promising to protect Tribal citizens from “bad men” or white men seeking to harm Tribal citizens. The NIWRC amicus brief, therefore, made 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 responsibility to safeguard Native women.

On June 21, 2024, the Supreme Court ruled, in an 8-1 decision, that the federal law prohibiting domestic abusers subject to protective orders from possessing guns is constitutional under the Second Amendment. In an opinion authored by Chief Justice John Roberts, the Supreme Court concluded that “[a]n individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.” In its decision, the Court found that the history of American gun laws “confirm[s] what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”

The NIWRC is thankful that the Court preserved § 922(g)(8)’s firearm prohibition for domestic violence abusers. The Court’s decision will save lives, especially of Native victims. The VAWA SI is honored to have played a role in this case.

L.B. v. United States

The NIWRC, through the VAWA SI, filed two amicus briefs in L.B. v. United States. In this case, a Northern Cheyenne woman who was the victim of a rape committed by an on-duty BIA officer sued the United States under the Federal Tort Claims Act (FTCA). She asked for damages to pay for the pain and suffering caused by the rape. The case was argued before the
Ninth Circuit Court of Appeals in June.

On July 24, 2024, the Ninth Circuit reversed the lower court’s decision, 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 FTCA. In August of 2023, District Court Judge Susan Watters dismissed L.B.’s lawsuit, claiming that BIA 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 his actions. The Coalition of Large Tribes (COLT) and the NIWRC filed a joint amicus brief supporting L.B.’s appeal before the Ninth Circuit.

During oral arguments in June, the United States, and specifically the DOI and the BIA, argued it cannot be held liable for its officer’s actions 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 to the high rates of violence against Native victims. The BIA and DOI should publicly apologize to L.B. for the rape and pay the damages she is owed. They must train officers to report other officers who rape Native women. Officer Bullcoming bragged in his deposition that he had done the same thing to at least 12 other women. Why didn’t the BIA do something about his behavior to prevent these rapes? This situation is inexcusable, and the fact that DOI and BIA won’t accept responsibility for their wrongdoing is beyond the pale.

As the attorney arguing for the Department of Justice, DOI, and BIA stood before three women judges and told them that it is not rape if the perpetrator has a “crush” on his victim, the Native victim, their relatives, and allies stood outside the Court demanding justice. The Ninth Circuit decided against the federal agencies, and the case goes back to the District Court.

Enough is enough. COLT and the NIWRC call on the United States—specifically the DOI and the BIA—to settle this case immediately. The United States must accept responsibility for its officer’s actions, apologize, and compensate L.B. for her losses. Indian Country is watching.

¹ Case No. 22-915 and Case No. 23-35538, respectively.

² § means section.