This is a HUGE victory–it reaffirms treaty rights and finally admits to the connection that tribes have long been painfully aware of–the connection between sexual assault and colonization. White men raping native women *means* something–and the government finally has admitted that with this case.

Something even more significant to me: tribal elders have long recognized health as being essential, important and necessary. Important enough to recognize that it was vital to mention in negotiations with colonizing powers. It was vital for health to be *protected* in as many ways as possible.

If those who came before us recognized our health as so vital and necessary–why on earth does it seem so foreign, so nonsensical, so *privileged* to rest a movement specifically on the health and well being of entire communities?

Judge rules treaty obligations include reimbursement for pain and suffering

By Heidi Bell Gease, Journal staff | Thursday, April 30, 2009

In what is being called a groundbreaking decision, a federal judge has awarded nearly $600,000 to a Wounded Knee woman who sought damages from a sexual assault under provisions of the 1868 Fort Laramie Treaty.

Lavetta Elk, now 26, is entitled to damages for pain and suffering caused when a U.S. Army recruiter sexually assaulted her in January 2003, U.S. Court of Federal Claims Judge Francis Allegra wrote in an opinion filed Tuesday.

Elk chose to release her name when she filed the suit.

A spokesman for the U.S. Department of Justice said the government is reviewing the court’s decision and has not yet decided whether to appeal. A spokesman declined to comment further.

Because Elk is a member of the Oglala Sioux Tribe, she is covered by the tribe’s 1868 treaty with the United States. Allegra cited what is called the treaty’s “bad men” clause, which states that “if bad men among the whites, or among other people subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will … reimburse the injured person for the loss sustained.”

Elk’s attorney, Adam Horowitz of Miami, said treaty language had previously been assumed to cover only out-of-pocket expenses of Native Americans who had suffered injury or property damage.

But after researching old law dictionaries and congressional records, Horowitz was able to show that the treaty was intended to do more. “At that time (in 1868), the word ‘reimburse’ referred to something much broader, to ‘make someone completely whole,’” he said.

Horowitz said congressional records showed there was discussion as far back as 1860 about Native American women being assaulted by white men. “That was one of the wrongs that were contemplated by the treaty,” he said.

To his knowledge, this is the first time a personal injury case has been filed against the government seeking damages for pain and suffering under treaty rights.

“It’s sort of a David versus Goliath case, and David won,” Horowitz said.

According to court documents, Elk met Staff Sgt. Joseph Kopf, an Army recruiter, while she was a student at Red Cloud High School. After graduating from high school in 2002, she failed a military physical examination, but Kopf told her she had passed.

On Jan. 7, 2003, Kopf picked Elk up at her house, saying he would take her to Sioux Falls for another exam at the Military Entrance Processing Station. Instead, he drove to an isolated area on the Pine Ridge Indian Reservation, locked the car doors and began kissing her and touching her breasts against her will, trying to coerce her into having sex, according to court documents.

The U.S. Attorney’s Office did not prosecute Kopf. He did, however, go through a non-judicial military proceeding, which resulted in a loss of rank from staff sergeant to sergeant, loss of military pay and removal from recruiting duties.

Horowitz believes that if the decision is appealed it will be upheld — and will open the door for more lawsuits filed by Native Americans who belong to tribes with similar treaties.

“That, to me, could be the legacy of this case,” he said. “An award for pain and suffering is especially significant because it really compensates them for a loss in a way that no court had previously recognized. We think it’s a historic decision for Native Americans.”

Allegra awarded Elk a total of $590,755.06 for the costs of therapy and medication, past and future lost income, and pain, suffering and emotional distress.

Horowitz said Elk, who is now married with children, is thrilled with the decision.

“She feels vindicated and especially happy that a federal court judge of the United States ruled for her and against the United States,” he said.

Contact Heidi Bell Gease at 394-8419 or heidi.bell@rapidcityjournal.com