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For the children in exile

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DLN Issues : Legal Affairs Involving American Indians

How qualified is the attorney in the boarding school child abuse case?

http://www.lakotajournal.com May 16-23,2003

Monetary compensation would be a salve, but hardly a cure

The Indian mission and Bureau of Indian Affairs boarding schools caused near irreparable damage to at least two generations of Indian children. Thousands of children were abused culturally, spiritually and sexually. The damage done is still felt in the Indian communities of America and Canada.

For more than 25 years I wrote about it and was eventually considered some sort of nut for daring to broach this hideous subject. When the Canadian Indians won their suit against the Anglican Church of Canada, I felt vindicated.

How dare I speak out against an institution that was only trying help the Indian people? How dare I turn my back upon the fine education I received at the Indian mission? How dare I indeed.

An education is a fine thing to have, but at what cost? Does one surrender their culture, spirituality and self-esteem for this gift? Must one submit to sex abuse of the worst kind for this great education? I think not.

The residual effects of the Canadian lawsuit and eventual victory by the Indians was still hanging in the air when the 24/7 networks lit up with all of the sex abuse scandals attributed to the Catholic Church nationally. Hundreds of victims stepped forward and many Catholic priests were defrocked.

The question of whether Indians in the lower 48 could be successful if they brought a class action lawsuit against the federal government and the different church groups had never been answered.

Two men showed up in Lakota Country with briefcases in hand and an offer to file such a suit; Gary Frischer and Jeffrey Herman.

The man who did most of the talking calls himself a "Multi-District Litigation Consultant." Gary Frischer gave an outline of his past experiences to one of my reporters. He said his efforts were paramount in exposing and litigating the Ramparts Division police scandal in Los Angeles. In this case corrupt LA police officers were found guilty of victimizing members of the Los Angeles minority community.

I could find no evidence of Frischer direct connection to the Ramparts case. Frischer has public relations connections to the Hollywood madam, Heidi Fleiss, and to movie actor Bobby Benton. He did work as a public relations consultant for at least one family following the Ramparts scandal, but it does not seem to be in a key role.

Captain Dan Koenig, CO of the Administrative Group of the Los Angeles Police Department, had never heard of Frischer. Frischer's claims to being a part of the litigation in the Union Carbide disaster at Bhopal, India or his involvement with the victims of the 9/11 disaster also could not be substantiated.

Frischer's role in the class action lawsuit filed on behalf of six Indian people will be, in all probability, to handle the public relations. Herman's role is more serious. He will handle the litigation.

First off, the National Indian Law Library has no articles on file written by or about Herman. Frischer has put out the word that Herman is immensely educated in cases involving Indian tribes, tribal members, treaty rights, etc.

Litigation covering all of these areas is known as "Indian Law."

According to the Florida Bar Association there have been seven complaints against Herman in the last year. All were settled during inquiry. The Press Office of the Florida Bar Association said that different areas of the law tend to generate different numbers of complaints and for some types of practices this number would not be excessive.

Jennifer Ring, Director of the American Civil Liberties Union of the Dakotas said, "Indian law is a highly specialized field. It involves a lot of areas of the law that are not taught in other courses and that are not commonly taught in law schools around the United States. If you look at the Constitution, one of the powers that the federal government has is, very specifically, the right to regulate affairs dealing with Indian tribes and that is not something that applies to any other minority group."

Ring said, Then you go on to the treaties, interpretation of the treaties, and jurisdictional issues. There are a lot of rules that apply in Indian country that do not apply anywhere else."

She concluded, "Indian law is not simple."

Two attorneys who have litigated several high profile cases in Indian country, including class action suits, said they would not consider themselves qualified to handle cases on the scale of the suits pursued by Herman without bringing on a partner who specializes in Indian Law. So far, Herman has not indicated he will bring in such a partner.

Herman recently signed on to handle the land claims case of the Yankton Sioux Tribe. On April 28 he told one of my reporters that he had never litigated a single case involving Indian law.

I am a bit apprehensive. I have been around Indian country for a long time. I know the complexities of Indian law and the reasons why so many other attorneys have stayed away from filing a suit on behalf of the Indian people who were abused in the boarding schools and away from suits involving Indian land claims.

The cases are extremely difficult and once the suit is filed it must be pursued to its conclusion and if the attorneys do not have the much-needed experience to handle such cases, a loss could put an end to any future lawsuit forever.

The attorneys only get one shot, and if they miss, they have taken the Indian people they represent out of the game forever.

The Church and the Government are the defendants here and their help in rebuilding the Indian people and their Nations psychologically and structurally would do much more than money alone. It's just a question of admitting the guilt.


Will the Case Come to Its Rightful End?

By Kim Karaff

Lakota Journal Correspondent

DALLAS, Tex. — Gary Frischer whose office is in California and attorney Jeffery Herman, Hollywood, Florida intend to file a class-action lawsuit against the U.S. Government and those responsible for residential boarding schools on South Dakota Indian reservations, most notably the Catholic Church. They are claiming the abuse of students over the past decades—physical, mental, emotional, sexual, spiritual and cultural abuse.

They expect hundreds of claimants and believe it will be the largest lawsuit ever brought on behalf of victims of abuse in this country. Herman’s law firm has handled several sexual abuse claims against institutions such as schools, religious organizations, psychiatrists and therapists, and residential care facilities for the disabled.

In 1997, attorney Sylvia Demarest, on behalf of 11 plaintiffs won a $119.6 million settlement against the Dallas (Texas) Catholic Diocese who jurors said committed "gross negligence" and engaged in fraud and a cover-up of the sexual abuse committed by a priest in the diocese. She has filed and won many other suits on behalf of victims of abuse.

Demarest says that she visited South Dakota at the request of Phil Lane of the 4Worlds International Institute between 1998 and 2002. Lane heads the institute which he calls "a family of people and organizations, bound together by a set of common principles based on the traditional teachings of North American tribal peoples brought together with the best that western science and technology has to offer in a non-profit organization." Lane whose own family members and friends suffered sexual abuse, often speaks about the need for healing and is involved with projects to help victims of abuse.

The purpose of the South Dakota visits was to research abuse committed in the boarding schools on Indian reservations. Lawsuits were considered.

"It appeared to me that there had been substantial problems and much residual impact from the residential school experience, but I found few people who were willing to talk about it. I felt the community needed to organize around the issue for there to be any chance for the issue to be confronted in a reasonable way," she said.

She also says that she never saw a clear remedy in the United States courts for the genocide that was done to Indian people.

"What we are really dealing with is genocide, and the genocide treaty cannot be used as the basis of a civil claim in the United States. If you are familiar with Indian law, you know that they will get you on technicalities—jurisdiction, failure to state a claim or statute of limitations," Demarest said.

"The entire community suffers from post-traumatic-stress disorder as the result of the inter-generational effects of forced removal and the abuse (sexual, cultural and physical) of the residential school experience. I felt ultimately that the issue would have to be fought in the court of public opinion. Unfortunately, that takes a great deal of community involvement and that is still in progress," she said referring to efforts she believed might be underway outside of the efforts of Frischer and Herman.

Frischer and Herman agree that the entire community suffers, but they believe that there is a legal remedy.

They intend to sue not only religious organizations but the federal government as well. They plan to use a provision in the 1868 Fort Laramie Treaty referred to as the "bad men provision."

The treaty reads: "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, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also re-imburse the injured person for the loss sustained."

Herman says that this provision clearly says that ‘bad man’ clause in the treaty is intended to do just what it says: protect Indian nations from non-Indians coming onto reservations and causing harm.

"Spotted Tail and Red Cloud only asked that the government come to the reservations to teach English. They never asked that their people be converted to Christianity. They never asked that their people be beaten into submission for speaking their native language. They clearly never asked that their children be abused," Frischer said.

Demarest said that there is "no clear way around the issue" of the statutes of limitations in South Dakota. She says that she began talking about the ‘bad man provision’ five years ago but said that the provision is "very limited and it still does not resolve the limitations issue."

"The difference between me and everyone else is that I when I do a project, I hire the best lawyers. If it is an aviation case, I hire the best aviation lawyers, if it is an abuse case, I hire the best abuse lawyers I can find," Frischer, who likens himself as more the director of the lawsuit than anything else, said.

Frischer said that he does not do things the easy way. He and his team have conducted hundreds of hours of research and looked at nearly every law on the books in South Dakota, which is where they believe they have found the remedy to the case.

According to Herman and Frischer, there are South Dakota laws that date back to the 1800s that were originally put on the books to ‘protect non-Indians’ from any future claims an Indian could bring against them for the return of land. Herman called these laws "concealment laws." He believes provisions in these laws will allow his plaintiffs to win their case.

Demarest is not so certain.

"What has been concealed? The shocking truth about residential schools has been known for many years, at least ten and there is a requirement of the plaintiffs to exercise diligence once they knew or should have known of their possible claim."

Frischer said that he could not comment further until the suit is filed in the next weeks, but says he feels confident in the ultimate success of the case.

"We’ve done our homework," he said.

Of the assertion that Indians on South Dakota reservations are not willing to step forward or that they are not willing to organize around the issue, Frischer stated that he has over 200 signed retainers and expects many more. Further, he has found a great deal of willingness on the part of people to talk about their experiences and to want to join with others in the spirit of healing; especially what he termed "traditional people."

Of the dozen people interviewed by Lakota Journal who have either signed on as claimants or who are considering doing so, all have voiced their support of Frischer and the work he is doing on behalf of the abuse survivors.

Floyd Hand, Lakota Headsman, says that he strongly supports Frischer and that he has heard a couple of people fling charges at him, but thus far he believes the charges to be either unfounded or irrelevant.

"When my relative from Rosebud called me about helping her put Gary in touch with other abuse sufferers in Pine Ridge, I invited him over. I quickly was able to introduce him to people who wanted to tell their stories, people who want justice. I believe he is on the up and up. I have heard some comments others have made, but I trust this man," he said.

Adele Zephier from the Yankton Sioux Reservation also credits Frischer for stepping forward to offer his assistance.

"No one listened to me until I met Gary. I waited my whole life for someone to step forward and help me. We were just babies. I don’t see how people could have done what they did to us," she said.

Frischer and Herman say that they will not earn one penny unless the case is successful. They are charging the standard one-third contingency fee and no more.

"This is the most important case I have ever been involved with, and I don’t mean important as in glory or publicity, I mean important as in trying to undo a great wrong and as in trying to seek justice for one of the most horrible acts committed in this country," Frischer said.

Frischer who is Jewish said, "Yes, the Holocaust was deplorable, a hideous example of attempted genocide. But the one thing about it was that the worst part of it was over in a few years. But what happened to Indian people, I have learned, went on and on. The effects of both holocausts are visible today, but Indian people have not healed to the extent that many Jewish people have. They deserve a chance to heal. No, it’s not a chance to heal, it is a right to heal."

Frischer says he has been involved with many controversial and successful legal cases, including the civil litigation around the Ramparts case in Los Angeles concerning corrupt police officers and the bombed airplane crash over Lockerbie, Scotland. He says he has been involved in many, many cases dealing with victims’ rights.

Frischer has this to say about the Ramparts case, "By representing those who had no voice in the media (numerous members of the Latino community) we were able to provide the media with names and faces of those harassed, beaten and wrongfully imprisoned by the Los Angeles Police Department. The Scandal, which became known as The Ramparts Scandal, has forced the political establishment of the City of Los Angeles to re-evaluate and change the patterns and practices of the Los Angeles Police Department. The continues press coverage has led to numerous substantial settlements for the victims."

Another case that Frischer is proud of is what he calls the "Jennifer Harbury case." Harbury, a civil rights attorney who represents Leonard Peltier among other clients, went to Guatemala to help refugees. There, she met and fell in love with Efrain Bámaca Velásquez, better know as Commander Everardo, a Mayan Indian resistance leader who disappeared in combat in 1992. Harbury uncovered evidence that the CIA was likely involved in the death of her husband. The government first told Harbury that the death was a suicide.

"My involvement in the case brought about White House recognition of civil rights violations in Guatemala. Change was brought about in the Guatemalan Government and Jennifer's story was published by Warner Books and sold for feature movie to Castle Rock Films," Frischer said.

Some of the cases might be deemed controversial for other reasons.

Frischer has been the spokesperson for Carrie Leigh who in 1999 sued her ex-boyfriend, Hugh Hefner for breach of contract when Playboy Enterprises published a nude photo of her. Leigh was reportedly married to Frischer at the time. The case was settled out of court to the Leigh’s satisfaction. He also represented the ex-wife of porn star John Holmes while she was attempting to sue a publication for libel. She later dropped the lawsuit.

"I would have to say, I am not popular with establishment people. I am involved with cases that go against the status quo. Since I assume that there is a status quo on reservations like anywhere else, I doubt that I am popular with it either," he said in response to charges that he recently read in a Todd County newspaper that claim that the legal team who is soliciting clients who have been abused in boarding schools are greedy lawyers out to ruin the good reputations of nuns and priests who have given their lives in service to Indian people and the church over the years.

Frischer also said that he is doing his work in a responsible manner. He recognizes that many of the claimants may be in need of support as they go through the process of remembering the abuse, naming the abuse, naming the abusers and attempting to heal.

"In each of the communities I have visited over the past seven months, I have found mental health care workers and more importantly spiritual leaders who have offered their assistance to the people who have stepped forward. That is the first thing I did: I made sure that there was a network of support for anyone who needed it," he said.

Herman and Frischer are also looking into the possibility of suing the Catholic Church in order for them to stop using the name of Chief Red Cloud at Red Cloud School in light of the abuse that went on there. That litigation, Frischer believed would be pro-bono. Oliver Red Cloud, descendent of Chief Red Cloud hopes that the lawsuit will be filed.

"They have raised a lot of money at that school. I often ask, where is the money going. I hope we can get them to stop using Red Cloud’s name. I have been thinking on this for several days and I believe that this will all cause problems. The Catholic attorneys will be coming after us," Red Cloud said.

Frischer said that he is undeterred by any people who might question his credibility.

"I have met lifelong friends in South Dakota. I hope to see the case to its rightful end," he said.

Demarest seemed not only hesitant in her conviction that the case could be won, but also in the ability of the communities she visited to organize in a sustained way.

"The native community in the United States is much less organized than in Canada (where successful compensation has been awarded to some victims of residential school abuse), probably as the result of intentional government policy. But that lack of organization is what has prevented this issue from finding a voice that comes from the people who were harmed," she said.


Exposing the Truth, Righting a Wrong

Lawsuit Over Abuse in South Dakota Residential Schools to be Filed

By Kim Karaff
Lakota Journal Correspondent

"Even when they had me down, I’d say to myself, ‘I will beat them," Floyd Hand, Lakota Headsman said as he recounted some of his boarding school experiences to a small group that met on the Pine Ridge Reservation last week.

Hand called the meeting to introduce community members to consultant Gary Frischer, who has been meeting with tribal members across the state of South Dakota for the past seven months. He and attorney, Jeffrey Herman, Hollywood, Florida are preparing to file a class action lawsuit against the United States government and churches who operated residential schools on reservations over the past century.

Hand and others may finally get their chance to call to task those accountable for their abuse.

Frischer, who says he has over 200 Indian clients said Herman plans to file the lawsuit within the next two weeks claiming abuse suffered by thousands of schoolchildren over the years—physical, emotional, verbal, spiritual, sexual, and cultural abuse.

"Hundreds have stepped forward to tell their stories. I expect hundreds more to do the same," he said referring to the over 1,000 retainers he has passed out over the last months.

Hand, who said his parents left him at Holy Rosary Mission Boarding School at the beginning of his fourth grade year, said the first thing he did was to try to run away. "They hunted me down and cut me bald-headed," he said.

This was the first of many abuses he underwent at the school. Although he only resided in the boarding school for a short time in the fourth grade before his father came on horseback to take him home, Hand returned to the school for his high school education and said that nothing had changed. He says he was beaten not only by nuns, priests and brothers but that older boys at the school were conditioned to abuse the younger boys. Boys and girls with darker skin had a harder time he says.

Much of the abuse was verbal and emotional although Hand recalled that one priest liked to teach the children to dance and would rub up against them.

Hand also spoke about the abuse that many, he believes, have failed to account for—cultural abuse.

"They tried to take the Indian out of us. If it didn’t come out easy, then they beat it out of us. Some of us hung on tight," he said.

"I always felt dirty, incomplete. It created an anger inside me. I wanted to hurt myself, which is what started me drinking, I think. So many of my buddies have died from alcohol or car accidents and I believe in my heart that their lives were damaged by what we went through at the hands of those charged to care for us," said Hand who has been sober for 30 years.

Hand said he underwent anger management, attended AA, said many prayers and took part in many ceremonies to help him overcome the effects of his boarding school experiences.

"Cash can’t heal the pain," Hand said. "But this lawsuit can be a part of the healing process. I think it is a good thing."

Regina Brave also attended the gathering and told about her years at Holy Rosary Mission School.

"The nuns and priests deliberately divided the half-bloods from the full-bloods. They pitted one group against the other. And our communities are suffering from that division to this day," she said.

She, like Hand, says she remained strong in spite of what they tried to take from her. She held on to her language, and she credits her parents for supporting her and her siblings by caring enough about them to step forward and make complaints, which she said did not totally stop the abuse, but did help.

"My father always told me that I had something they wanted, and if I let them take it they would. For so long I thought he meant our language, but now I know he meant our spirit. They tried to break our spirit, and sometimes they succeeded," she said of many of her friends who she says went on to live "broken lives."

Not everyone in attendance agreed. Two women came to say that they had attended Holy Rosary and had not experienced any of what the others had said happened.

"I have spoken to elders, many elders and none of them can or will collaborate what you are saying," one of the women, Emma Patton-Brewer Wilson said.

Brave addressed what they said.

"So many people are in denial. I talked about my experiences on a Denver television program several years ago and it riled up so many people. The producers of the show received threats for daring to have me on their show to accuse the good nuns and priests of being abusive. But, when I came back home to Rapid City, Indian people stopped me on the street and drove past me in cars yelling to thank me for telling the truth," Brave said.

"I know it happened. I saw it with my own eyes, and heard it with my ears. I felt it on my skin, and I felt it in my heart," she said.

Frischer said that the women who claimed they had not been abused were lucky because abuse often becomes a learned behavior that is passed from one generation to another.

"So many children learned that pain equals love and have went on to abuse others in some way or to enter into abusive relationships," Frischer said.

Not all who were abused, however, abuse others. Frischer also said that he and his partners have done extensive research. They have tracked certain individuals from reservation school to reservation school.

"Former students at one school who have never met other students at another school have stories about certain individuals that are strikingly similar. We also have evidence that the administration of these school were put on notice about the activities going on in the schools, and they failed to act in the interest of the students," he said.

The lawsuit will also contend that at the same time Indian students were being abused in the boarding schools, the administrators of these schools and church officials were using the children to raise a great deal of money to support the operation of the schools and the churches that were established on Indian reservations.

"I have piles of brochures and begging letters that date back decades, which show how Indian children were depicted and used to generate money by theses schools," he said.

One client, Adele Zephier from the Yankton Sioux Reservation stood up to say that much of the money that had been donated on behalf of Indian students was actually used to support the abusers.

"We ate mush and a slice of bread. They ate at their fancy tables with their linen tablecloths and their baskets of fruit," she said.

Zephier also says that food was one of the main weapons used against the students. The students were often left to go without food or were rewarded with food if they took part in the abuse by either remaining silent, telling on others or taking part in the abuse itself.

Zephier is glad that she met Frischer because it has helped her to understand that she is not alone. Zephier attended St. Paul’s Indian Mission in Marty, South Dakota from kindergarten to ninth grade. There are 18 children in her family, all of whom went to boarding school. Twelve of her sisters and brothers have joined the lawsuit. She says the lawsuit has helped strengthen her family.

She knows that several people have already responded negatively to hearing that she and others are planning to file a lawsuit. Recent letters in a Todd County newspaper have called the reports of abuse "lies" and are blaming "greedy lawyers" who have come from the outside to stir up trouble.

Zephier says that it is hard for her to understand that others say the abuse did not happen. She believes they have the right to say what they will; however, she says that not a day went by that she or another student didn’t suffer abuse. It was constant. She admits that it could be a possibility that a handful of people weren’t abused, but can’t really understand how they could not have witnessed abuse.

"We were hit for every little thing. Sometimes we were hit if one of us wouldn’t tell on another. The other thing they would do is intimidate us. One of my first memories of the school was seeing another student slapped. It was like a warning of what would happen to me if I stepped out of line," she said.

"When they call the lawyers greedy, they are also saying that about us, too, right? I have been called worse. No amount of money could fix what has happened or will bring back those who have died. This is not about money. This is about what we are owed for all that was taken from us. It is about righting a wrong. It is about exposing the truth," Zephier said.

Zephier also said that it is hard for her to understand what would motivate others to discount her stories and the hundreds of other stories.

"If these people are so god-fearing, then you would think they would have sympathy for us and not go on to hurt us more by saying things about us," she said.

After ninth grade, Zephier changed schools and attended Todd County High School. Although she lived in the dorms there, she says nothing like what had happened at St. Paul’s happened to her at Todd County.

However, the "rage "stayed with her, she says, but she believes she is in the process of healing. The hardest thing for her to get over she says is hearing about what had happened to others in generations before her and to know that nothing had been done about it that would have prevented what she and others went through.

Zephier encourages anyone who has been abused to come forward. She realizes that there is fear involved but says that the fear of punishment instilled in them as children is no longer a risk

"They can’t hurt you anymore," she said.



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