A settlement was announced January 7, between a member of the Oglala Sioux tribe and the U. S. government, stemming from sexual assault charges brought by Lavetta Elk against an army recruiter. Elk was one of many young women who reported to officials that they had been assaulted by recruiters after expressing interest in the military. More than 80 recruiters were disciplined in 2005 for sexual misconduct with potential enlistees, according to records obtained by the AP.
The underlying cause of the suit is an unfortunately common occurrence, but the legal basis for the damages received by Elk comes from a very uncommon source: The Fort Laramie Treaty of 1868.
The treaty, signed by representatives of the U.S. government and leaders the Sioux tribe, sought to establish a peace between the Native Americans and the government in the area surrounding Fort Laramie, Wyoming. The treaty includes many agreements that would enable the nations to live peaceably with each other, including a mutual promise to cease aggression and a venue for grievances to be brought by the original occupants of the land. The treaty states:
"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, upon proof made to the agent... proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person for the loss sustained."
In his ruling, Judge Francis M. Allegra of the U.S. Court of Federal Claims in Washington, found that Elk was entitled to more than $590,000 in damages under the terms of the treaty. This is the first time a damage award has included losses for pain and suffering, lost income and emotional distress based on the treaty. This opens a new avenue of remedies for Native Americans under the treaty. "It creates a very strong precedent for Native Americans to use a treaty that in the past had largely been ignored," attorney Adam Horowitz told the Associated Press. "It's a new remedy essentially that previously had not been available to them."
The government had appealed the ruling of the court, conceding to the charges of sexual assault, but objecting that the damages should be limited to actual expenses, such as medical costs. The government agreed to settle for $650,000 (an amount larger than the one set by the trial court) before the appeal could be heard.
- $650,000 settlement in lawsuit based on 1868 pact (AP)
- Text of Fort Laramie Treaty, 1868 (PBS)
- Economic Recovery for Accidents and Injuries (FindLaw)
- Sex Offenses (provided by Law Offices of Mark L. Horwitz, P.A.)
- Rape, Sexual Assault, Date Rape and Statutory Rape (provided by Cates, Hanson, Sargeant and Rakestraw, PLC)