South Dakota Supreme Court throws out Sexual-Abuse Lawsuit

SIOUX FALLS, S.D. –– The South Dakota Supreme Court has handed down a decision in a childhood-sexual-abuse case arising from a Catholic-run boarding school for Native American children. On November 30, the justices upheld a lower-court ruling when they decided plaintiff D.Z. Iron Wing, a Yankton Sioux tribal member who attended St. Paul’s Indian Mission in Marty, South Dakota, during the 1950s and 60s, had waited too long to sue the Catholic Diocese of Sioux Falls; Blue Cloud Abbey, in Marvin, South Dakota; and the Oblate Sisters of the Blessed Sacrament, in Marty, South Dakota, all of which administered the school and/or provided staff.

“I’m not going to stop here,” said Iron Wing. “I’ll take this to the U.S. Supreme Court, and if necessary I’ll sue the Vatican. Every time I’ve had to tell my story, it’s brought back the pain. I’m not going to stop fighting for justice.”

The statute of limitations the Supreme Court relied on in the Iron Wing decision requires that cases like his must be brought within three years of the abuse, or within three years of when a “reasonably prudent person” would have connected the abuse with current problems such as anger management, alcoholism and the like.

“Shame on the South Dakota Supreme Court,” said Robert Brancato, head of the South Dakota office of SNAP (Survivors Network of Those Abused by Priests). “The mental-health professional who testified said Mr. Iron Wing had not made the connection. Judges should not second-guess the experts.”

In oral arguments before the court, Iron Wing’s attorney, Michael Shubeck, of The Law Offices of Gregory A. Yates, in Rapid City, noted that the psychologist consulted in the case said six years of sexual abuse meant Iron Wing suffered post traumatic stress disorder, which was covered up by anger issues he experienced. The anger was “the mechanism of self-concealment” that allowed Iron Wing to preserve his sanity, the expert found. It would be “supremely odd,” Shubeck told the court, to say that the way the victim hides horrific abuse from himself is something he should be aware of – but that the various Catholic Church defendants were doing precisely that.

The court didn’t buy it. In their opinion, Justices David E. Gilbertson, Steven L. Zinter, Glen A. Severson and Lori S. Wilbur wrote that the plaintiff “perhaps subjectively” could not “connect the full extent of his injuries to the sexual abuse.” However, the court continued, he was objectively “aware of enough facts” that he should have. Therefore the statute of limitations clock began running years ago – and had run out. An attorney for defendant Blue Cloud Abbey, Robert T. Stich, of Stich, Angell, Kreidler, Dodge & Unke, in Minneapolis, said, “We asked the plaintiff to describe the abuse. He knew about the abuse and could describe its effects.”

A spokesperson for the Supreme Court said it does not comment on decisions, and Greg Sattizahn, counsel for the South Dakota Supreme Court’s State Court Administration Office, did not respond to a request for an interview.

In reference to the judicial arguments, Izzy Zephier, another Yankton Sioux plaintiff and one of Iron Wing’s brothers, said, “The system doesn’t look at the crime and make a ruling in a justifiable way. Either it is or it isn’t a crime to hurt a child. Make up your mind. There’s no in between.”

In June of this year, the high court threw out another childhood-sexual-abuse suit, brought by Roger Rodriguez, of Lower Brule Indian Reservation, against the Congregation of Priests of the Sacred Heart, which runs St. Joseph’s Indian School, in Chamberlain. Because the lower court had dismissed both the Iron Wing and Rodriguez complaints prior to passage of a 2010 South Dakota statute (HB1104) limiting suits by anyone over 40, that law did not factor into either Supreme Court decision.

Brancato noted that out-of-state lawyers, such as Stich, represented Catholic Church-related defendants in both the Iron Wing and Rodriguez cases. According to a transcript of discussions among South Dakota legislators prior to the vote on HB1104—written by Steve Smith of Chamberlain, a lawyer defending multiple cases Native Americans had brought against his client, St. Joseph’s Indian School – the presence of non-South Dakota attorneys among those on Native Americans’ legal teams was a major factor in convincing some lawmakers to vote for the measure. Smith has repeatedly referred to attorneys with offices out of state as “con men.”

“I have no idea if my firm being from out of state had any effect on the case one way or another,” said Stich. “I suppose lawyers, like persons in other professions, might be a little possessive, but I represent my clients whenever and wherever cases occur.”

In response to a query about the Church’s reliance on the statute of limitations, rather than on proving abuse did not occur, Stich noted that the alleged perpetrators were deceased in the Iron Wing case. That makes it very difficult to produce testimony or facts that would disprove the allegations, he said. “That’s what a statute of limitations is for,” he explained.

The next set of Native American childhood-sexual-abuse lawsuits the South Dakota Supreme Court will consider are in the briefing stage, with first the plaintiffs then the defendants preparing and submitting briefs, said Stich.

Since the lower court used HB1104 to dismiss the upcoming suits, the new statute will be on trial as well. Whether it will survive the high court’s scrutiny is a serious question, according to attorney Marci Hamilton, a professor at the Benjamin N. Cardozo School of Law, in New York City, and author of God vs. the Gavel: Religion and the Rule of Law.

Because HB1104 was crafted by a Catholic Church attorney to protect the Catholic Church and because it disproportionately affects the rights of a minority group, Hamilton said, she concluded it was unconstitutional on multiple grounds. This could lead to Department of Justice scrutiny and fines for both the state as a whole and individual legislators, she wrote in a Nov. 8 public letter to the citizens of South Dakota. She took a step further, urging citizens to support repeal of the law to “avoid any monetary or other damages” that might result from a Justice Department investigation or private litigation.

An effort is underway to do just that. State representative Steve Hickey (R.-District 9), Minnehaha County has submitted a repeal measure to the legislature. Hickey has also called attorney Smith’s actions in writing and promoting a bill to protect his client “scandalous and shameful.” Hickey’s new bill in committee; the full legislature will consider it in the session beginning January 2012. “I expect several co-sponsors and bi-partisan support,” said Hickey.

Smith defended his efforts, saying he wrote the bill and provided the legislature’s only testimony for it because he believed it was necessary, not to help St. Joseph’s. He added that the school has already been “very generous” with those it felt were actually abused by “bad actors.” Defending more cases would be ruinous, according to Smith: “We have no insurance to cover this, so that would be very expensive.” In his testimony before the legislature, he said costs for one case can run into the millions of dollars.

On Nov. 1, a childhood-sexual-abuse law became part of the legal code of the Sisseton-Wahpeton Oyate, said tribal member Mary Jane Wanna, whose family was central in working to get the statute approved by the tribal council. It is named after her late brother, Howard Wanna, who was one of 100-plus Native Americans whose abuse cases were affected by HB1104.

The Sisseton Wahpeton statute is a landmark event, according to Vito De La Cruz, Yaqui, an attorney with Tamaki Law Firm, in Washington State. All tribes have criminal child-sex-abuse statutes, De La Cruz said, but the Sisseton-Wahpeton law is the first civil one, so tribal members there can bring civil complaints in their own court.

Attorney Smith dismissed the tribal-court option, saying successful claims would be appealed to federal court. “They’ll be thrown out,” Smith said.

Mary Jane Wanna was sanguine. “Every tribe should have this kind of law,” she said. “Let’s take into our own hands the power to remedy these crimes.”



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