219 Ct. Cl. 599 | Ct. Cl. | 1979
Plaintiffs are eleven Navajo female minors, and their parents or guardians, who have filed separate suits alleging that, while students at the Teec Nos Pos Boarding School on the Navajo Reservation (administered by the Bureau of Indian Affairs), the girls were each sexually abused and assaulted by male teachers, counsellors, or faculty aides at the school.
1. Article I is identical with the treaty provision in Hebah v. United States, 192 Ct. Cl. 785, 428 F.2d 1334 (1970), 197 Ct. Cl. 729, 456 F.2d 696, cert. denied, 409 U.S. 870 (1972). It provides that "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 and forwarded to the Commissioner of Indian Affairs at Washington City, * * * reimburse the injured person for the loss sustained.” In the first Hebah case, supra, we held that this court has jurisdiction under 28 U.S.C. § 1491, of individual claims under this treaty provision; that the treaty covers, not only whites, but also Indians working for the Federal Government; and that the only prerequisite to suit is that the claimant first make "proof’ to the "agent,” with copy to the Commissioner of Indian Affairs.
Plaintiffs allege, and defendant does not contest, that such claims for damages were made on September 30, 1977
Defendant has moved to dismiss the petitions, insofar as the claims rest on Article I, on the sole ground that the plaintiffs failed to exhaust their administrative remedy since the seventeen days between the filing of the claims under the treaty and the commencement of these suits was too short for proper administrative consideration by the Interior Department. Apparently the Department has done nothing toward investigating the claims since the suits were filed on October 17, 1977.
Assuming with defendant that insufficient time for administrative consideration had elapsed when this litigation began in October 1977, the court cannot understand why nothing at all was done by the Interior Department after that time.
The unexcused failure to pass on the Article I treaty claims in the fifteen months since the petitions were filed
2. Defendant’s motion to dismiss also urges that the claim under Article VI should be dismissed for failure to state a claim. Article VI provides for education and schooling for Navajo children and includes, among its stipulations, that the Federal Government will provide competent teachers who will "faithfully discharge his or her duties as a teacher.” 15 Stat. at 669. The Government urges that Article VI has not (under its terms) been in effect since 1878 and that in any event it does not cover individual (nontribal) claims for personal injuries inflicted on students by teachers.
We do not and need not consider Article VI at this time. Plaintiffs’ claim can stand under Article I alone and nothing substantial would be added to the proof of either side through invocation of Article VI. The duration and coverage of Article VI is now pending before the court in Navajo Tribe of Indians v. United States, No. 69 (on transfer from the Indian Claims Commission), a much more far-reaching litigation, and it is inappropriate to pass on Article VI in this case where it is unnecessary to do so at this stage.
IT IS THEREFORE ORDERED that:
1. Defendant’s motion to dismiss is denied with respect to the claims under Article I of the Treaty;
3. Defendant’s motion to dismiss is denied without prejudice with respect to the claims under Article VI of the Treaty.
Most of the charges are against a white, non-Indian counsellor, but two Navajos on the school faculty are also said to have been involved in some of the incidents.
The Government’s motion to dismiss was not even filed until February 17, 1978.
The motion to dismiss was argued orally in January 1979.
Article I declares that "no such damage shall be adjusted and paid until thoroughly examined and passed upon by the Commissioner of Indian Affairs * * * ” 15 Stat. at 667-68.