WARNING Missing and murdered Indigenous relatives, sexual assault
That Dana Michael Bullcoming, a former police officer with the Bureau of Indian Affairs, raped a woman in her own home while on duty is not in dispute. But the federal government says it bears no responsibility for what its attorney called the “reprehensible actions” of its officer because he assaulted the woman “solely for his own benefit.”
On Monday at Portland’s Pioneer Courthouse, a government attorney told judges for the U.S. Court of Appeals for the Ninth Circuit that it shouldn’t be held liable in the woman’s civil lawsuit because the officer didn’t rape the woman on behalf of the U.S. government.
The case has implications for the epidemic of Missing and Murdered Indigenous Relatives (MMIR), according to advocates who filed an amicus brief in the case.
A previous ruling in the case from a federal judge in Montana “threatens to silence other Native victims, leaving them with the knowledge that calling BIA law enforcement to stop the commission of one crime could likely lead to them becoming a victim of another crime, for which there will be no resolution, justice, or recompense,” according to the amicus brief filed by the National Indigenous Women’s Resource Center and the Coalition of Large Tribes.
The lawsuit is highly relevant for Indigenous communities throughout the United States, including here in the Pacific Northwest.
As the Ninth Circuit’s three-judge panel heard arguments in the case and other cases at Pioneer Courthouse on June 3, Indigenous community members dressed in ribbon skirts, beaded earrings and MMIR awareness shirts gathered in the marble hallway below the main courtroom.
Standing in a circle around Mary Kathryn Nagle, attorney for the National Indigenous Women’s Resource Center, Indigenous community members and allies introduced themselves. Nagle, a nationally renowned expert on MMIR issues, had traveled across the country with her infant and her mother to attend Monday’s hearing. Influential local leaders were also in attendance, including the city of Portland’s Tribal Relations Program Manager Adam Bencenti, Diné; Renea Perry, Tlingit and Inupiat, executive director for the Portland All Nations Canoe Family; and Jillene Joseph, Aaniiih citizen, engagement lead for Future Generations Collaborative and executive director of Native Wellness Institute.
Just two days earlier, Joseph said, she put out a call to action for people to come show support for the plaintiff in the case, identified in court documents as L.B. Joseph is part of a local group called MMIW PDX that is committed to raising awareness and seeking justice for those impacted by the epidemic of Missing and Murdered Indigenous Relatives.
“We just thought this was a great opportunity to try to mobilize the community to show up and support a fallen sister in need,” Joseph said.
Also in attendance at the hearing was Billy Williams, former U.S. Attorney for Oregon. Williams said the case could affect government responsibility for abusive law enforcement on tribal lands in Oregon. Federal law applies on the Warm Springs Reservation, the Umatilla Indian Reservation, the Burns Paiute Reservation and at the Chemawa Indian School.
“Whether it’s a BIA officer or the FBI or any other federal law enforcement agency, it raises questions for tribal members here in Oregon,” Williams told Noeledrich. “If you have a federal employee while doing their job committing a crime, then the question would be: what is the liability on the part of the United States?”
‘We keep getting reports with platitudes’
L.B. is a member of the Northern Cheyenne Tribe. The woman, a resident of Lame Deer, Montana, located on the Northern Cheyenne Indian Reservation, called police on Halloween in 2015 to report that her mother was driving while intoxicated. Bullcoming, an officer with the Bureau of Indian Affairs, which has jurisdiction on that reservation, responded to the call. He first determined that the woman’s mother was not driving. Then he went to L.B.’s house. He entered her home without her consent and found her sleeping on her couch.
When she told him her two children were asleep in rooms nearby, he threatened to arrest her for endangerment because she was intoxicated in their presence. Alcohol is illegal on the Northern Cheyenne Reservation. She protested that she had recently started a new job and couldn’t risk arrest, according to facts agreed on by all parties in the case.
“Something needs to be done about this,” he told her.
“Like what do you mean?” she asked. “Like sex?”
“Yes,” he responded.
Bullcoming then raped the woman. She became pregnant due to the incident. In a criminal trial, he admitted in his deposition that he had sex with “a dozen or so” other women while policing on the Northern Cheyenne Reservation. In 2017, he pleaded guilty to deprivation of rights under color of law — part of a plea deal where prosecutors agreed not to prosecute him for sexual abuse and to dismiss two counts of lying to officers. Bullcoming served three years in federal prison for a crime that typically comes with a 10-year sentence.
Native American women are more likely to be sexually assaulted, to be the victims of domestic violence or to be murdered than any other group. Because of a complex web of overlapping laws, criminal jurisdiction on Indigenous reservations varies — depending on the reservation, state, federal or tribal authorities could be the ones responsible for responding to the calls of Indigenous people in distress.
In the wake of an ongoing epidemic of missing and murdered Indigenous relatives, Native nations have worked to take on a larger role in prosecuting cases of violence against their citizens. But because of a 1978 U.S. Supreme Court ruling, tribes can’t prosecute most violent crimes committed against their citizens by non-Native people. That means tribal citizens often rely on outside police agencies to respond to their calls for help.
In Oliphant v. Suquamish Indian Tribe, the high court said tribal courts don’t have the inherent ability to charge or punish non-Native people for crimes committed on tribal lands. There was no clear legal precedent for such a ruling, but the court found that Congress and former U.S. presidents had operated under “the assumption” that tribal courts lacked jurisdiction over non-Native people.
The Biden Administration has taken steps to better address the stark disparities in violent crimes suffered by Native people. But on Monday, government lawyers claimed the Bureau of Indian Affairs bears no responsibility for sexual assault committed by an officer while responding to an Indigenous woman’s call for help.
“We keep getting reports with platitudes: the Not Invisible Report, Not One More. Well, that’s bullshit,” Jennifer Weddle, attorney for the Coalition of Large Tribes, which filed an amicus brief in the case, said after the hearing on Monday. “They want to say the right things, but nobody wants to do the right thing: actually fund Indian Country law enforcement and resolve the baseline issue, which is the wrongfulness of the Oliphant decision that says tribes don’t have jurisdiction over non-Indians.”
‘Continually plagued with recurrent trauma’
After Bullcoming’s sentencing, the woman sued him and the federal government, claiming it should be held responsible for the actions of an on-duty police officer acting on behalf of a federal agency.
U.S. District Judge Susan Watters in Montana found that the government cannot be held responsible for its officer’s on-duty assault, because Bullcoming raped the woman “solely for his own benefit,” not “for the benefit of the BIA.”
But Bullcoming didn’t answer his summons, and the court entered a default judgment against him. The court awarded $1.6 million to L.B., an amount based on testimony from an economist who estimated the cost of raising the child and a social worker who testified that although 70% of those who become pregnant from rape decide to terminate the pregnancy, “those that chose to bear and raise the child are continually plagued with recurrent trauma as a result of the rape.”
L.B. appealed the part of the decision that cleared the government of responsibility for Bullcoming’s actions. In 2022, the Ninth Circuit reversed that decision, ordering the lower court to determine whether the federal government was liable for Bullcoming’s actions.
The federal court in Montana then dismissed the case, in another ruling from Judge Watters finding that Bullcoming’s rape of L.B. was “unauthorized” by the BIA, since sexual assault is prohibited in the agency’s employee handbook. Watters added that the government is not liable because Bullcoming admitted in a deposition that he raped L.B. for his own personal gratification, not on behalf of the federal government.
“I was only thinking of myself,” Bullcoming said in his deposition.
The woman appealed, asking the Ninth Circuit to send the case back to the federal court in Montana for a trial.
‘It’s about power’
Inside a Portland courtroom packed with Indigenous community members and allies on Monday, an attorney for the U.S. government told the Ninth Circuit judges the federal government is not liable for an assault committed by its on-duty officer, partly because the officer had “a crush” on the woman.
Randy Tanner, assistant U.S. Attorney for the District of Montana, pointed to the same deposition testimony the federal court cited, where Bullcoming said he assaulted L.B. “purely for his own gratification, not for the benefit of the United States.”
“Just because the officer was on duty at the time and wearing a badge does not mean that he acted in the course and scope of his employment,” Tanner said.
Circuit Judge Danielle J. Forrest, appointed in 2019 by President Donald Trump, asked Tanner if there were “new facts” in the case.
“What are the new facts?” Forrest asked.
“It was Bullcoming and L.B.’s longstanding personal relationship,” Tanner said “They had known each other for 30 years. Bullcoming had always had a romantic interest in her. And on the night of the assault, L.B. asked Bullcoming, ‘you’ve always had a crush on me —’”
Circuit Judge Jennifer Sung, a Biden appointee, jumped in.
“How does that affect the ‘scope of employment’ question?” Sung asked.
“Because what that shows is that his interest in sexually assaulting her was purely personal,” Tanner said. “He had a crush on L.B. and he was not sexually assaulting her to serve some interest of the BIA.”
A few minutes later, Circuit Judge Johnnie B. Rawlinson, a Clinton appointee, questioned that logic.
“Counsel, are you aware of the studies by psychologists and sociologists that sexual assault is really not about sex?” Rawlinson asked. “It’s about power. And so, to say that this was for personal gratification really disregards the fact that this is abusive conduct. To say it’s for his personal gratification, in my view, demeans the victim. Because it’s minimizing the wrong that’s done when there is a sexual assault.”
Tanner agreed that Bullcoming’s assault was “an absolutely reprehensible abuse of authority.”
“That’s why the United States prosecuted him,” Tanner said. “That’s why he got sent to prison. But the fact of the matter is that that abuse of authority served no interest of the federal government whatsoever.”
Judge Rawlinson disputed that claim.
“But the context was that he was investigating a complaint,” Rawlinson said. “And he implicitly threatened L.B. that ‘something had to be done’ or she would face some consequences. So the context is all about his authority to bring some negative consequences upon her. It’s not like he just randomly knocked on her door. He went there under the auspices of his authority.”
‘There’s no accountability’
After the hearing, community members gathered with Nagle and with L.B.’s attorneys, John Heenan and Timothy Bechtold. Some wondered aloud about what they could do to support L.B. and spread the word about her case. Others expressed disgust about Tanner’s arguments before the court, saying it sounded like victim blaming.
“I almost expected him to say what she was wearing,” one person said.
Standing on the front steps of the courthouse, Nagle, a Cherokee citizen, said the case parallels a long history of violence against Native women in this country.
“Officer Bullcoming’s actions are really just part of the historic tradition of actors and officials on behalf of the U.S. and state governments violating our women,” Nagle said. “This is all documented. During the Cherokee Trail of Tears, soldiers for the U.S. Army, perpetrating genocide, were raping Cherokee women along the way. Law officers, soldiers, people in positions of power can still abuse that power, and they do, against Native women.”
Nagle said abuse of power is one cause of the ongoing crisis of Missing and Murdered Indigenous Relatives.
“Our communities have been taught, ‘You can’t trust law enforcement.’” Nagle said. “Your choice is: I think someone’s at risk. Do I call law enforcement knowing I could be raped or beaten or killed?”
She added that deep distrust of law enforcement comes from “real, concrete things that happen in real life. It’s not just a misunderstanding.”
“People in our community continue to be raped and killed and beaten by federal officers, and there’s no accountability for it,” Nagle continued. “And until that is addressed, our communities will continue to be some of the most unsafe communities in this country. If the Biden administration truly cared about the crisis of Missing and Murdered Indigenous Women and Girls, then L.B. wouldn’t be litigating this case. They would be compensating her for her injuries.”
Nika Bartoo-Smith contributed reporting to this story.
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