The James F. Battin federal courthouse in Billings, Montana (Photo by Darrell Ehrlick of the Daily Montanan).
The facts of the case are horrific and undisputed.
Former Bureau of Indian Affairs Officer Dana Bullcoming used the threat of jailing a Northern Cheyenne woman and taking away her children as leverage to coerce her into unprotected sex. The woman had a child as a result of the sexual assault, and she sued both Bullcoming and the BIA for damages.
Yet in a case that has journeyed through both state and federal courts, U.S. District Judge Susan Watters has determined that while no one disputes the shocking facts of the case, the United States government is in no way liable for Bullcoming’s on-duty behavior and sexual assault.
In a nuanced ruling that has already traveled once to the U.S. Ninth Circuit Court of Appeals and was the subject of a question addressed by the Montana Supreme Court, Watters distilled the issue to whether Bullcoming was acting in the scope of his duty as a BIA officer. Even though Bullcoming, who served time in federal prison for the assault, went to the victim’s house, coerced her into sex, and fathered a child, Watters ruled that because sexual assault is not part of a law enforcement officer’s duties that he was not acting “in his scope” as BIA officer and therefore the federal government has immunity from damages.
The victim’s attorney, John Heenan of Billings, has already filed a notice of appeal to the Ninth Circuit Court. He also said that while the victim has received some payments of child support for the youth, who is now 10, she has not received a penny in damages for Bullcoming’s conduct.
Heenan said that during interviews the U.S. Attorney’s Office had with Bullcoming, who was at one time also a federal employee, the former officer spoke of other on-duty assaults, and Heenan said the Department of Justice has failed to take responsibility for its role in keeping a predator on staff.
“It’s shocking. When they met with him, he confesses to other assaults,” Heenan said. “And what have they done with it? They have avoided any culpability. But he was there alone as a federal law enforcement agent. They won’t admit what they did to Native American women.”
Attorneys who worked on the case for the U.S. government could not be reached when contacted on Friday.
“Although Bullcoming’s act arose out of conduct connected to his law enforcement duties, he did not rape (the victim) in prosecution of those duties,” the judge said. “In short, the circumstances of Bullcoming’s employment created an opportunity for him to rape her, but he clearly did not rape her in furtherance of the BIA’s interests.”
Heenan points out that if the same set of circumstances happened on state land with a city, county or state official, there’d be little doubt that the government would be held responsible.
“Law enforcement officers do not commonly rape civilians while performing their duties; the purpose of the act was not in furtherance of the BIA’s interest; there is no indication Bullcoming’s previous relationship with the BIA provide provided any notice that he may commit such and act,” the ruling said. “There is no indication the BIA had reason to expect the conduct from Bullcoming.”149 SJ Order
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