*Throughout this post the author uses the terms “Indian” and “Indian country” as legal terms of art to refer to Native Americans, Indigenous peoples, and other tribal members that have lived on the North American continent since time immemorial. The author uses the term Indian when referencing legal concepts to keep consistent with the field of Federal Indian Law.
Today the Montana Supreme Court will hear arguments in L.B. v. United States. The case originated in federal court when L.B. filed a claim against the United States, under the Federal Tort Claims Act, for the conduct of Buruea of Indian Affairs (BIA) Officer Dana Bullcoming, who abused his power and authority to sexually assault L.B., resulting in her pregnancy and the subsequent birth of D.B. The district court found that Officer Bullcoming did not act within the “scope of his employment” when he sexually assaulted L.B.; ergo, L.B. could not hold the U.S. liable for Offer Bullcoming’s misconduct. The district court read Montana precedent to limit the scope of employment to only actions taken by employees that further an employer’s interest, and it determined that Officer Bullcoming’s conduct did not fit that test. On appeal, the Ninth Circuit certified to the Court whether, in Montana, law enforcement officers act within the scope of their employment when they sexually assault members of the public through use of their power and authority.
The Ninth Circuit certified a narrow, but immensely significant, part of L.B.’s case to the Court. If she prevails, her case is far from over, but she may proceed with her federal claim to hold the U.S. liable for Officer’s Bullcomings violation of her rights. Though the Court is constrained to a legal analysis of what it wants the scope of employment to encompass in Montana, from an equitable and policy standpoint, L.B.’s situation represents the harsh truth of the disparities between sexual assaults within and outside reservation boundaries.
Montana state law already permits liability on the part of law enforcement agencies for the illicit conduct of on-duty officers. When a state, county, or municipal law enforcement officer assaults a private citizen, the agency may be held liable. But Officer Bullcoming was a federal employee, which presents a heightened question compared to the relative straightforwardness of other law enforcement officer assaults. To hold the United States liable, Officer Bullcoming’s sexual assault of L.B. needs to be within the scope of his employment.
This question to the Court highlights a large contrast between the remedies and protections available to citizens outside reservation boundaries, where law enforcement in Montana primarily operates under state, county, or municipal laws, and those available to citizens within reservation boundaries, where federal BIA officers hold authority.
Indian country includes the land within the limits of any federally recognized Indian reservation. Generally, state laws do not apply within Indian country. However, federal law does. The BIA is a federal agency with jurisdiction over criminal activity in Indian country. BIA officers may enforce both tribal and federal laws within reservations. A private citizen in Montana is much more likely to interact with a federal officer within reservation boundaries compared to outside reservation boundaries. This disparity in interactions primarily impacts Indigenous communities.
The different standards between federal officers and the rest of law enforcement in Montana create a greater difficulty for Indigenous peoples to hold a law enforcement officer’s employer accountable for their illicit conduct. This in turn contributes to the epidemic of violence against Indigenous women.
The numbers that reflect the probability an Indigenous woman will experience violence within their lifetime are egregious. Some reservations report missing and murdered Indigenous women at ten times the rate of the national average. Eighty percent of Indigenous women “have experienced violence in their lifetime.” Indigenous women “experience the highest rates of sexual assault and violence in the United States.” Overwhelmingly, these violent crimes are committed by non-Indian perpetrators.
With such a high prevalence of violent crime, logically the importance of adequate and informed policing to keep communities safe should become a priority. However, violent crimes—including sexual assault—are too often committed by law enforcement officers.
As discussed in Professor Michelle S. Jacobs’s article, Sometimes They Don’t Die: Can Criminal Justice Reform Measures Help Halt Police Sexual Assault on Black Women?, published in the Spring 2021 Harvard Journal of Law and Gender, law enforcement sexual misconduct is not the hidden mystery that many want or claim it to be. This sexual misconduct includes any behavior that a law enforcement officer commits that “takes advantage of [their] position . . . to misuse his/her power and authority to commit a sexual act or to initiate or respond to a sexual act initiated by another person.” Under 18 U.S.C. § 242, this misconduct can be punished, but only when the victim is detained or arrested.
Despite documentation that police sexual misconduct is real, little has been done to address it. In her article, Professor Jacobs points out five issues that the International Association of Chiefs of Police identified as barriers to addressing and reducing this conduct. These barriers included insufficient written policies that define and prohibit sexual misconduct, ineffective training to prevent sexual misconduct, the absence of a database listing officers accused of sexual misconduct, “inadequate” measures to hold law enforcement officers accountable, and the habit of law enforcement officers to stick together and not cooperate in the investigation of fellow officers. Professor Jacobs notes that these are all still issues.
These acts of sexual misconduct are not only terrible for the most direct reasons, but also because sexual misconduct committed by law enforcement officers alienates the entire community. This incentivises people to avoid law enforcement officers and to not call them when they need help, which contributes to the underreporting of violent crimes within Indian country.
With its decision in L.B. v. United States, the Court could recognize the real occurrence of law enforcement assaults and the disparate access to remedy from law enforcement assaults for specific communities. Holding this assault within the scope of a federal officer’s employment, would both address, in part, the difficulties in holding law enforcement accountable and aid in the safety of Indigenous communities within the State.