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Boarding school case dismissed

ROSEBUD, S.D. - A federal claims court dismissed a lawsuit filed by former
boarding school residents who claimed physical, sexual and emotional abuse
at the hands of school officials and clergy.

Judge Diane Gilbert Zyplot, U.S. Court of Federal Claims, ruled the lawsuit
did not have jurisdiction in claims court. In her written ruling, Judge
Zyplot stated the claim the plaintiffs sought was a tort claim and that the
proper venue to receive damages would be to file and exhaust administrative
remedies against the Department of Interior and the BIA.

The case was originally filed in the spring of 2004 by members of the
Rosebud Sioux Tribe with Sherwyn Zephier as lead plaintiff. Zephier
attended St. Francis Mission on the Rosebud Reservation and claims to have
suffered physical and emotional abuse. Others on the plaintiff list also
claim sexual abuse.

"In sum, the physical, sexual and psychological abuse claimed by the
plaintiffs in this case, even if true, consists of tortuous actions not
remediable by this court," Judge Zyplot wrote.

The plaintiffs are not discouraged by the dismissal, they, in fact are
elated. Some of the wording in the ruling can be used to further the case.

"The judge found merit using the 'bad man' clause of the 1868 treaty. We
will move forward against the BIA," said Gary Frischer, legal consultant.

"We are happy, because if they no-cased us, then obviously it would be a
problem, we do have a case. On the face the ruling looks negative, but it
isn't. As you read, the case was moved to another court and directed at the
BIA," Frischer said.

The "bad man" clause in the 1868 treaty stated that if "bad men among the
whites, or among 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 and forwarded to the Commissioner
of Indian Affairs proceed to cause the offender to be arrested and punished
..."

The former boarding school residents claimed that while at the schools,
when the alleged abuses took place, the federal government was the
authority that allowed the abuse.

The court stated that if in fact the abuse took place it was a tort claim
and not subject to the jurisdiction of the federal claims court as the
government had argued.

The government also argued that the plaintiffs failed to exhaust their
administrative remedies and stated that the Department of Interior has
reviewed "bad man" claims over the years, but with only one adjudicated to
the degree that money was awarded.

Plaintiffs disagree. They asserted that it was not necessary to exhaust
administrative remedies because the DOI and the BIA do not have authority
to award money damages on the claims.

The plaintiffs are asking for $25 billion in damages. The claim is based on
court precedent that allowed American Indians to recover damages in cases
where breach of trust had taken place. The large figure is in anticipation
of a class action filing with thousands of plaintiffs listed.

Judge Zyplot stated that treaty language required proof of any wrongdoing
be reported to the commissioner and that an administrative review would
determine whether arrest or compensation was to be awarded.

Frischer said that the BIA and DOI had been told numerous times to enact a
"bad man" policy, however, they did not. "There is no mechanism, they were
told to for many years and just never did it.

"We knew this going in [to the lawsuit]. It was part of the premise - the
government has told them to put in a mechanism," Frischer said.

Judge Zyplot further found that all the evidence the plaintiffs presented
in their argument against administrative remedy had no precedent to show
that administrative exhaustion in the cases where large sums of money are
involved does not exist.

The boarding schools, run by religious organizations, were under the
authority of the federal government. Plaintiffs argued the government
exercised complete and pervasive dominion and control over the boarding
schools, therefore was the proper entity to demand damages.

The government argued that on the assumption that physical, emotional and
sexual abuse took place the case belonged in a different court under tort
law. The court agreed.

That is the type of language the plaintiffs wanted. They will file within
those parameters, Frischer said.

The accusation that the government breached a trust responsibility also
gives the court evidence to determine the case belongs in a court that
deals with tort law. She also stated that a breach of trust needs to have
property mismanagement over a period of time.

"Plaintiffs here do not even allege the existence of a trust corpus.
Calling a tort claim a contract claim does not make it one," Judge Zyplot
stated.

There are more lawsuits that have been filed in South Dakota against the
Catholic Church in Sioux Falls and Rapid City, Frischer said. Those and
other claims to follow are against the church and individual priests, nuns
and others who allegedly abused the children.

Jeffrey Herman, attorney for the plaintiffs, said federal officials have
acknowledged that compensation can be sought under the "bad man" treaty
provisions. The lawsuit will go to the Department of Interior and the BIA.