Kramer Levin Partners With ACLU in Filing Amicus Brief Supporting Appeal by Native American Woman

As part of our Racial Justice Initiative, Kramer Levin is continuing our important pro bono work in support of Native American women. As we observe Native American History Month, we write to share that on Nov. 27, 2023, Kramer Levin, in partnership with the ACLU's Women's Rights Project and its affiliate offices in Montana, Alaska, Arizona, Northern California, Oregon, Nevada, Hawaii and Washington, filed an amicus curiae brief in the U.S. Court of Appeals for the Ninth Circuit. The brief supports the appeal by L.B., a Native woman residing on the Northern Cheyenne Reservation, from an order by the federal District Court of Montana granting the U.S. government summary judgment and dismissing her claim against the government under the Federal Tort Claims Act (FTCA). The claim seeks damages resulting from a sexual assault by an on-duty Bureau of Indian Affairs officer who threatened to arrest her if she did not comply with his sexual advances.

The brief argued that the officer acted within the scope of his employment when he abused his law enforcement authority to commit sexual assault, making the U.S. government vicariously liable as his employer under the FTCA. It also argued that vicarious liability in such situations would improve law enforcement accountability on reservations, highlighting that police sexual misconduct is enabled by the nature and culture of police work, the rampant victimization of Indigenous women, and the incentivizing power of civil liability on law enforcement agencies. This issue on appeal is critical for Indigenous women like L.B., especially given that sexual assault, human trafficking, and other forms of violence have reached crisis levels on Indian reservations. When federal officers themselves are perpetrators, it exacerbates these harms, makes justice for survivors even more unlikely, and discourages tribal members from reporting crimes or seeking assistance from law enforcement.

At an earlier stage of the lawsuit, Kramer Levin worked with the ACLU to submit an amicus curiae brief to the Montana Supreme Court.