Court Rules BIA Can Be Held Liable For Officers’ Assault

The Montana Supreme Court ruled on Tuesday, Aug. 16, that the Bureau of Indian Affairs can be held responsible for $1.6 million in damages awarded to a Northern Cheyenne woman who was coerced into sex by BIA Officer Dana Bullcoming in 2015.

After a lengthy judicial process, the Montana Supreme Court finally answered the question of whether law enforcement officers act outside the scope of their employment when they use their authority as on-duty officers to sexually assault a person they are investigating for a crime. The answer is they do not; thus, the officer’s employer, in this case, the federal government, can be held liable.

In Montana, if a citizen is sexually assaulted by a state, county or municipal law enforcement officer, the victim can sue the agency the officer works for. However, before this ruling, those protections did not extend to Indian Country because the BIA is a federal agency.

“It’s a great day for Native women in Montana. Today, the Montana Supreme Court closed the gap and provided us the same remedy for on-duty sexual assault by law enforcement as Montana law already afforded our neighbors,” said April Youpee-Roll, council for friends of the court National Indigenous Women’s Resource Center, Sovereign Bodies Institute, Fort Belknap Indian Community, and Blackfeet Nation.

Bullcoming pleaded guilty to coercing a victim into sex “under the color of law.” He was sentenced to three years in federal prison after he had unprotected sex while responding to a call for service by the victim identified in court documents as L.B — the incident that is at the crux of the litigation.

In 2018, L.B . brought a Federal Tort Claims Act suit against the United States, seeking to hold the United States liable for Officer Bullcoming’s rape. A Montana district court rejected the claim, saying the scope of employment only includes an employee’s actions if they are made “in furtherance of his employer’s interest.”

L.B. appealed the 2018 ruling to the Ninth Circuit, but because the question at the center of the case had not been litigated in Montana, the Ninth Circuit sent the case to the Montana Supreme Court for a ruling.

A U.S. District judge awarded L.B. $1.6 million in damages in 2020 but did not hold the federal government responsible for the payment because the earlier ruling said he was acting outside the scope of his employment.

Lawyers for Bullcoming argued he had a “crush” on L.B. and that his actions were motivated by self-interest and not of the interest of his employer.

However, the 5-2 opinion issued by Justice Laurie McKinnon disagreed.

“Even if some of Officer Bullcoming’s motive was ‘self-interest,’ he was there to investigate the interests of his employer — acting as an officer and agent of the BIA investigating a crime — when he used his employer- conferred powers to sexually assault L.B,” the opinion states.

In 2015, L.B., a Northern Cheyenne tribal member living on the Northern Cheyenne Reservation in Lame Deer, called the police to report that her mother had gone out drunk driving on the reservation.

Bullcoming responded to the call, and after determining L.B.’s mother was safe, he went to L.B.s home. At her home, Bullcoming administered a breathalyzer test on L.B. and determined she was above the legal limit for intoxication and threatened to call social services and have L.B. arrested for child endangerment, according to court documents.

The documents say Bullcoming told L.B. that “something had to be done,” and when L.B. asked if that meant sex, Bullcoming “replied affirmatively.” Bullcoming and L.B. then had unprotected sex, which resulted in L.B. becoming pregnant and having the child — leading to Bullcoming’s guilty plea.

“I’ve been representing her since she was pregnant, and now the child is 7 years old, so she has been really courageous in pursuing her claim,” said L.B.’s lawyer John Heenan following the Supreme Court’s opinion.

Throughout L.B.’s case, a continuing epidemic of violence against Native women played out in the background. During arguments on the case, lawyers for friends of the court and L.B. noted that Native women are 2.5 times more likely to be raped or sexually assaulted than women in the United States in general, and more than half report being victims of sexual violence.

Heenan said he spoke with L.B. about the decision Wednesday morning.

“The biggest takeaway from that was that not only is she thrilled to win herself, but she was more excited about the impact this decision will have on people in Indian country,” he said.

Justices Jim Rice and Dirk Sandefur dissented and called the majority opinion speculative.

“Based on the stipulated factual record here, there is simply no non-speculative factual basis upon which the finder of fact could reasonably conclude that the BIA officer used his authority to coerce L.B. to engage in sexual intercourse for any purpose other than solely for his own personal sexual gratification,” the dissenting opinion authored by Sandefur said.