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Judge dismisses $25B BIA boarding school suit
Monday, November 8, 2004

A federal judge has dismissed a $25 billion lawsuit alleging sexual, physical and mental abuse at boarding schools formerly overseen the Bureau of Indian Affairs.

A group of former boarding school students filed the case earlier this year in the U.S. Court of Claims. They said the federal government violated the 1868 Treaty of Fort Laramie by allowing "Bad Men" to come onto the reservation and abuse them.

But in a 19-page decision, Judge Diane Gilbert Sypolt said the plaintiffs didn't follow an arcane procedure set out in the treaties regarding the "Bad Men." The former students should have first asked the BIA to hear and adjudicate the case before coming to the courts, she wrote.

"Having failed to bring their claims administratively, plaintiffs are barred from seeking relief from this court," she wrote in the unpublished October 29 opinion that granted the Department of Justice's motion to dismiss.

Sypolt also said the former students could not rely on the treaties to establish a trust relationship that gives rise to money damages if breached. She said the "physical, sexual, and physiological abuse claimed by the plaintiffs in this case, even if true" is beyond the limited authority of the claims court.

The case was filed by six members of the Sioux Nation from South Dakota. They sought class action status on behalf of all former boarding school students who suffered abuse at the institutions, which were overseen by the BIA but managed by local Christian denominations.

The claim centered on language in the 1868 peace treaty signed by the Dakota, Lakota and Nakota tribes of the Sioux Nation, as well as by other tribes. "If bad men among the whites, or among people subject to the authority of the United States, shall commit any wrong upon the person or property of the of the Indians, the United States will, upon proof made ... reimburse the injured person for the loss sustained," the treaty states.

The language was common in treaties signed by other Indian nations in the late 1800s. But the BIA never appears to have created regulations to deal with "Bad Men" cases, as was required by treaties.

Sypolt acknowledged this fact but pointed to a small handful of claims where tribal members who felt wronged by outsiders went to the agency for financial redress. Only one of those cases, however, involving a man who was shot to death by a BIA officer, resulted in money being awarded under the "Bad Men" language.

The administrative handling of "Bad Men" claims is crucial because the treaty requires "proof made" to the BIA. That never happened in the abuse case, Sypolt said.

Herman & Mermelstein, the Florida-based law firm that filed the claim, did not return repeated requests for comment. The BIA also did not comment. The schools the plaintiffs attended in South Dakota are no longer under the BIA's jurisdiction but any damages awarded would come from the federal government.

The same law firm filed lawsuits against the churches that ran the schools, according to a July story published by the Associated Press. The suit seeks damages from the Catholic Diocese of Sioux Falls, the Catholic Diocese of Rapid City and other organizations that provided staff for the St. Paul's School and St. Francis Mission School. The case was filed in state court, the AP reported.

The plaintiffs could seek to reinstate the $25 billion case by going to the Federal Circuit Court of Appeals. In the past four years, the appeals court has favored tribes in trust-related cases, overturning negative decisions issued by the Court of Claims.

A similar suit was filed in Canada on behalf of Native students who suffered abuse at residential schools overseen by the government but managed by churches. Some cases have resulted in financial awards for victims but the overwhelming majority remain mired in a settlement process that has cost the government $78 million (Canadian) but which has paid little to the survivors.

Allegations of abuse and mistreatment at BIA schools have been widely accepted, even by government officials. Former assistant Kevin Gover, who ran the agency during the last three years of the Clinton administration, offered an apology for the transgressions in September 2000.

"This agency forbade the speaking of Indian languages, prohibited the conduct of traditional religious activities, outlawed traditional government, and made Indian people ashamed of who they were," he said. "Worst of all, the Bureau of Indian Affairs committed these acts against the children entrusted to its boarding schools, brutalizing them emotionally, psychologically, physically, and spiritually."

Earlier this year, Sen. Sam Brownback, a conservative Republican from Kansas, introduced a resolution to apologize for "official depredations and ill-conceived policies" towards Native peoples. The apology cited "the forcible removal of Native children from their families to faraway boarding schools where their Native practices and languages were degraded and forbidden."

Although backed by Sens. Ben Nighthorse Campbell (R-Colorado), Daniel Inouye (D-Hawaii) and other lawmakers, the resolution did not get approval this year.

Get the Decision:
Zephier v. United States (October 29, 2004)