Making fry bread. Photo: Marcus Metropolis
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Federal court dismisses lawsuit over fry bread incident at Indian school





A student who was burned in a fry bread accident at an Indian school in South Dakota has had her case thrown out of court.

Even though the federal government admitted S.C. suffered injuries to her hand, wrist, neck and face, Judge Roberto A. Lange said the Bureau of Indian Education was not liable. Why not?

The judge concluded that Peggy Henson, who was teaching the home economics class at the Cheyenne-Eagle Butte School when the girl was burned, is an employee of the state, not the federal agency.

"Henson's employment contract was with the public school district, and her salary was paid out of the public school district's budget," Lange wrote in the 23-page decision on Tuesday.

Additionally, the judge noted, the class Henson was teaching "had concepts mandated by state standards, used supplies purchased from the public school district's budget, and apparently had a mix of non-Indian and American Indian students."

The ruling means S.C., who was a 14-year-old freshman at the time of the January 2014 incident, can't seek damages for physical pain, loss of enjoyment of life and mental and emotional suffering. Her guardians also sought to cover the costs of her past and future medical treatment.

And while the the girl's family could presumably pursue their case in the state court system, they noted that the school is maintained and operated by the Bureau of Indian Affairs. The Cheyenne River Sioux Tribe, as a sovereign nation, also plays a role in the management of the institution.

"Mrs. Henson was providing education in a federally owned building which was providing federally and tribally authorized education to Native American children. She did not ensure the students’ safety in the operation of her class," attorneys for the student's guardians wrote in a court filing. "S.C. was injured as a result."

Students participate in the Cheyenne Eagle Butte School Drum Circle in South Dakota. Photo: U.S. Department of Agriculture

But attorneys from the Department of Justice took pains to describe the unique circumstances at the school. The tribe, the state and the federal government all play a role in the way students on the Cheyenne River Sioux Reservation are educated.

The principal, for example, is employed by the BIE. Some of the teachers are BIE employees as well.

But others are employed by the Eagle Butte public school district, an arm of the state. Henson, the "Family and Consumer Science" teacher, falls into that category.

"Henson sets her curriculum based upon state guidelines," a motion filed by the government noted.

And while the school itself is a federal facility, it is co-managed by the BIE and the public school district under a cooperative agreement. To further illustrate the divide, government attorneys noted that both entities maintain separate boards that meet separately.

All of the information convinced the judge that Henson was not a federal employee at the time of the fry bread incident. Regardless of the BIA's and the tribe's role at the school, the teacher's "job duties and responsibilities were all within the physical control and under the regulations and standards of the public school dstrict and the state of South Dakota," the decision read.

Despite Henson's source of employment and description of duties, she has incorporated tribal culture in her classes, according to a newsletter from the South Dakota Department of Tribal Relations, a state agency. She also has taken students to the annual Lakota Nation Invitational, a popular sports and academic event, and has managed a group called Natural Helpers that helps youth deal with issues on the reservation.

The school is located in Eagle Butte, the headquarters of the Cheyenne River Sioux Tribe. According to its website, its vision is "Keeping our Wakanyaja (children) sacred through positive thinking."

The BIA, through its BIE sub-agency, runs the school but tribal government is a party to the cooperative agreement that was frequently cited in court filings. However, the tribe has not taken steps to exert more control of the institution through either the Tribally Controlled Schools Act or the Indian Self- Determination and Education Assistance Act, according to the judge's decision.

Turtle Talk has posted documents from the case, Lightning Fire v. United States