A Native American woman from Wounded Knee won a historic ruling in federal court based on a century-old treaty between the U.S. government and the Oglala Sioux Tribe. The woman had been  sexually assaulted by a military recruiter.

The U.S. government must pay Lavetta Elk, formerly of Wounded Knee, almost $600,000 in damages after she was sexually assaulted by Army recruiter Staff Sgt. Joseph Kopf in his car January 2003, according to court documents. Judge Francis Allegra based the ruling on a "bad men" provision in the April 29, 1868, treaty between the government and the Oglala Sioux Tribe.

That provision of the Fort Laramie Treaty "provides that if 'bad men' among the whites commit 'any wrong' upon the person or property of any Sioux, the United States will reimburse the injured person for the loss sustained," court documents filed Tuesday indicated.

The judgment against the U.S. government based on the treaty is unprecedented, said Adam Horowitz, Elk's Miami-based lawyer. The treaty previously had been interpreted to cover only out-of-pocket expenses for injured Native Americans or property damage, he said.

"Never before has this treaty been used to bring such a claim," Horowitz said. "It creates precedent for Native Americans who belong to tribes with treaties like this in effect."

Elk, who was 19 at the time of the assault, now is married and lives in California. She could not be reached for comment.

Shattered dream

Elk, 26, had hoped to become the first female in her family to join the military. Kopf was to guide her entrance into the Army.

During a recruiting trip in August 2002, Kopf told Elk he had to measure and weigh her as part of her application process but he instead repeatedly grabbed her and tried to kiss her in a hotel room, according to court documents. Several weeks later, on Jan. 7, 2003, Kopf showed up unannounced at Elk's home and told her she had to return to Sioux Falls with him for another physical exam because her "paperwork had been lost again."

Kopf then drove the two into a remote part of the reservation, turned the car off, and began to fondle and kiss Elk, according to court records. Elk resisted, but Kopf continued.

Elk reported the assault. Though Kopf did not face criminal charges or a court- martial, the Army demoted him to sergeant and removed him from his recruiting post in Rapid City, court records indicate.

Kopf no longer is with the military, Horowitz said.

Unique provision

The case argued that a provision within the treaty is unique among treaties, said Frank Pommersheim, law professor at the University of South Dakota.

Horowitz said the case should create more opportunities for individual Native Americans to sue the government and collect damages.

"It'll be very interesting to see if it's appealed to the U.S. Supreme Court or if the government will pay the judgment and be done with it," Pommersheim said. "The government might be concerned about its liability and seek a review by the Supreme Court."

Elk has suffered psychological problems from the assault, Horowitz said.

"It's too early to call it closure. It has made this long process worthwhile to get some vindication and some accountability from the government for their actions," Horowitz said.

Pommersheim said: "I think Lakota people would applaud the decision as an example of the treaty being interpreted by the court in a way that I think Indian signatories took it to mean."

Patrice Kunesh, an associate professor of law at USD and director of the Institute of American Indian Studies, said the decision marks a victory in a larger battle against an epidemic of sexual assault on Native American.

"I just find this to be so remarkable that the court here is obviously looking to help these women vindicate their rights," she said.

This ruling also shows that even old treaties are enforceable, Kunesh said.

"Now we see that the treaties are not locked in time, they're not static, that they are still the law of the land," she said.

Reach reporter Matthew Gruchow at 331-2301 mgruchow@argusleader.com