$650,000 settlement in lawsuit based on 1868 treaty

Published Monday January 11, 2010
BY CHET BROKAW
THE ASSOCIATED PRESS

PIERRE, S.D. (AP) – A settlement in a lawsuit will require the federal government to pay $650,000 in damages to an Oglala Sioux woman who was sexually assaulted by a U.S. Army recruiter, the woman’s lawyer said Thursday.

The settlement leaves intact a federal judge’s ruling that an 1868 treaty with the Sioux required the government to pay damages for pain and suffering to Lavetta Elk, said attorney Adam Horowitz of Miami.

Judge Francis M. Allegra of the U.S. Court of Federal Claims in Washington ruled in April that Elk was entitled to more than $590,000 in damages under treaty language that requires the government to reimburse Sioux tribe members who are injured by “any wrong” done by “bad men among the whites, or among other people subject to the authority of the United States.”

Elk, a member of the Oglala Sioux tribe, chose to have her name released when she filed the lawsuit.

The government appealed Allegra’s ruling to the U.S. Court of Appeals, but the settlement was reached before that court heard the case, Horowitz said. The $650,000 settlement is larger than the lower court’s award to account for expenses, he said.

The U.S. Justice Department declined to comment on the case, said spokesman Andrew Ames.

Allegra’s ruling in April said the Fort Laramie Treaty of 1868 requires not only compensation for actual expenses, but also for the woman’s lost income, emotional distress and pain and suffering.

Horowitz said the treaty language had previously been used only to reimburse Native Americans for expenses for injuries or property damage. The April ruling marked the first time a court had found the treaty to cover damages for pain and suffering, he said.

“It creates a very strong precedent for Native Americans to use a treaty that in the past had largely been ignored,” Horowitz told The Associated Press. “It’s a new remedy essentially that previously had not been available to them.”

Elk was one of many young women who told officials a few years ago that they had been assaulted by recruiters after expressing interest in joining the military. More than 80 recruiters were disciplined in 2005 for sexual misconduct with potential enlistees, according to records obtained by the AP in 2006.

When Staff Sgt. Joseph Kopf, an Army recruiter, was supposedly taking Elk, then 19, to a military entrance processing center in 2003, he instead stopped in a remote area of the Pine Ridge Indian Reservation and kissed her and touched her breasts against her will, according to court records.

A military proceeding determined Kopf had committed indecent assault against Elk, and he was reduced in rank and removed from recruiting duties, according to court documents.

In responding to the lawsuit, the government acknowledged that Kopf had assaulted Elk. However, the government argued Elk was entitled only to damages for her actual expenses for treatment.

Elk eventually married and now lives in South Dakota with her husband and two children.

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One Response to “$650,000 settlement in lawsuit based on 1868 treaty”

  1. The Battle For Whiteclay» Blog Archive » Native activists protesting “bad man” clause violation Friday in Whiteclay Says:

    [...] clause when he sexually molested her while transporting her to a military recruiting appointment. Elk recently won a $650,000 settlement that left intact a federal judge’s ruling that said the treaty language requires the [...]

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