HELENA – The U.S. Bureau of Indian Affairs can be held responsible for damages awarded to a Montana woman who became pregnant after an on-duty BIA officer used the threat of criminal charges to coerce her into having sex, the Montana Supreme Court has ruled.
The woman, identified by the initials L.B. in court documents, sued former BIA officer Dana Bullcoming and his employer for the October 2015 sexual assault on the Northern Cheyenne Indian Reservation that resulted in the birth of a child, who is now 7, said her attorney, John Heenan.
“This is a woman that had the courage to report a federal law enforcement officer for sexually assaulting her and then had the courage to go through the entire process, including agents there to collect DNA when the child was born,” Heenan said Wednesday. She pursued the case on behalf of people living on reservations to show “that they should have the same rights as Montanans do on this issue.”
U.S. District Judge Susan Watters of Billings awarded the woman $1.6 million in damages in May 2020, but had ruled earlier that the BIA could not be held responsible for paying them because under federal law, the coercion and sex were outside the scope of Bullcoming’s duties.
The woman appealed to the 9th U.S. Circuit Court of Appeals, which in turn asked the Montana Supreme Court to determine whether the federal agency could be held accountable under state law.
Since a 2009 court ruling, Montana law has held that an employer is responsible for the action of employees when they have a duty to provide protection, Heenan said.
On Tuesday, the Montana Supreme Court ruled 5-2 that the facts in the case establish that “Officer Bullcoming was not, as a matter of law, acting outside the scope of his employment when he sexually assaulted L.B.,” Justice Laurie McKinnon wrote.
The conduct at issue here, the court wrote, “is the BIA officer’s abuse of his official authority by expressly or implicitly threatening L.B. with arrest and criminal prosecution with the intent and purpose to coerce her into engaging in sexual intercourse with him.”
The BIA did not respond to an emailed request for comment.
Heenan said he expected the case to be returned to Watters’ court for an order holding the BIA financially liable.
“It’s a great day for Native women in Montana,” April Youpee-Roll, an enrolled member of the Fort Peck Tribes and an attorney who represented some Montana tribes who filed briefs in support of L.B., said in a statement. “The Montana Supreme Court closed the gap and provided us the same remedy for on-duty sexual assault by law enforcement as Montana already afforded our neighbors.”
In this case, L.B. called dispatchers to report that her mother was driving while intoxicated after they returned from a bar off the reservation. After finding the woman’s mother was OK, Bullcoming went to the woman’s house in Lame Deer and asked her if she had been drinking. She was home with her two children.
He then took her to his patrol car and performed a breath test, which revealed she was legally intoxicated and thus in violation of a tribal law that prohibits intoxication on the southeastern Montana reservation, court records said.
She asked Bullcoming not to arrest her or call tribal social services out of fear of losing custody of her children and her job. Bullcoming responded that “something has to be done,” according to court records.
The woman asked if that meant sex and Bullcoming said it did, court records said. The woman got pregnant.
After a DNA test confirmed Bullcoming was the father of the child, he pleaded guilty to depriving the woman of her rights using the power and authority granted to him by the BIA. He was sentenced to three years in federal prison.
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