Free Post Trial Brief - District Court of Federal Claims - federal

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DEFENDANT'S EXHIBIT 1

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STATE OF SOUTH DAKOTA ) :SS COUNTY OF MINNEHAHA )
Diana Ryan, being duly sworn, deposes and states:
1. I am currently an Assistant U.S. Attorney (AUSA) serving as the

designated Civil Chief for the U.S~ Attorney's Office in the District of

South Dakota. i have been an AUSA in the South Dakota U.S.
Attorney's Office for approximately 19 years.

2. The U.S. Attorney's Office handles tort cases involving allegations of
sexual assault committed by a federal employee. i have represented
the United States of America in many of those actions and am

familiar with the damages awarded against the United States of
America by the federal district court judges or in settlements made
by the U. S. Attorney's Office.
3. i was asked to prepare a summary of the damage awards from past

sexual assault cases filed against the government in the District of
South Dakota based upon my knowledge and records kept in our

offce and the Clerk of Courts.

4. Attached to my affdavit is Exhibit 1, which consists of certified copies
of documents in the case of Theresa Imitàtes Dog, Guardian Ad
Litem on Behalf of her Minor Daughter, Celeste Imitates Dog, Tanya

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Hernandez, Viola Hernandez and Shirley Salway v. United States of
America, Civ. 96-5044, U.S. District Court, District of South Dakota,

Western Division. In the Complaint, the plaintiffs accuse three tribal
police officers of stopping their vehicle without probable cause and

sexually assaulting them, spraying them with mace, and placing

them under arrest in an area where the offcers lacked jurisdictional

authority to make an arrest. The settlement agreements with those
plaintiffs are also contained in Exhibit 1, which show the settlement

amounts were: Viola Hernandez, $3,000; Teresa and Celeste
Imitates Dog, $2,275.00; Shirley Salway, $5,805.00; and Tanya
Hernandez $4,687.50.

5. Attached to my affdavit is Exhibit 2, which consists of certified copies
of documents in Geraldine White Butterfly, Guardian Ad Litem of
Janelle White Butterfly, Civ. 97-5075, U.S. District Court, District of

South Dakota, Western Division. The Complaint alleges that a tribal
reserve òfficer, while on duty, arrested the 14 year old juvenile and
instead of taking her to jail, had consentual sex with her instead.

The case was settled for $90,000.00 (ninety thousand dollars), which
money was used to buy an annuity provide payments of $630.00 per
month for ten years to the minor plaintiff.

6. Attached to my affidavit is Exhibit 3, which consists certified copies of
documents in Melanie Willams v. United States of America, acting

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through the Department of the Interior, Bureau of Indian Affairs and
Rio Lunderman, Civ. 98-3018, U.S. District Court, District of South

Dakota, Central Division. The complaint alleges that while the
plaintiff was incarcerated in the tribal jail, a jailer forcibly raped her.

This case was settled for the sum of $1,000.00.

7. Attached to my affdavit is Exhibit 4, which consists of certified copies
of documents in Rodger Red Elk, Guardian Ad Litem on Behalf of his

Minor Daughter, Melinda Red Elk, and his minor Grandchild, Taylor
Red Elk, and Malinda Red Elk, On Behalf of Herself and As

Guardian Ad Litem for her son, Taylor Red Elk v. United States of
America, Civ. 92-5100, U.S. District Court, District of South Dakota,

Western Division. The Complaint alleges that a tribal police officer
repeatedly picked up the thirteen year old plaintiff for sexual

intercourse, during which she became pregnant. One of these

sexual acts occurred in the presence of another offcer. This case
was tried to the Court, and U.S. District Judge Andrew W. Bogue
who found that the educational/vocational goals were interrupted as

the result of the pregnancy and that she suffered substantial
discomfort throughout her pregnancy, and mental anguish both

before and after the birth of her son. The Court held that a
reasonable award for all of the damages suffered by Melinda is
$100,000 (one hundred thousand dollars).

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8. Attached to my affidavit is Exhibit 5, which consists of certified copies
of documents in Debra St. John v. United States of America, acting through the Bureau of Indian Affairs, Civ. 97-3051, U.S. District

Court, District of South Dakota, Central Division. The Plaintiff
alleged in her complaint that her ex-husband, while on duty as a
Bureau of Indian Affairs police officer, arrested and jailed her, and

then removed her from jail, taking her out into the country where he

forcibly raped her. The case was tried to the court, who found for the
Defendant as to the alleged sexual assault, but found for the plaintiff

as to the unlawful arrest. The court awarded $3,000.00 in damages

to the plaintiff, plus costs. The decision was affirmed on appeaL.
Dated this ,; 'II) day of June, 2008.

DfanaRyan ~
Chief, Civil Division U.S. Attorney's Office 325 S. ¡st Avenue, Suite 300 P.O. Box 2638 Sioux Falls, SD 57101-2638 605.330.4400 605.330.4402 fax
Diana.Ryanêusdoj .gov

k.

Subscribed and sworn to before me this 14 day of June, 2008.

- K.AAl/l --- ---

./L)"' Î n ~ \O.\CJ.cA

Notary Pubiic - South Dakota

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RYAN

DECLARATION EXHIBIT 1

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FII~ED
UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION
MAY 2 'j 1996

THERESA IMITATES DOG, Guardian Ad Litem on Behalf of

)

File #CIV Cffo-50P(

~~

Her Minor Daughter,
CELESTE IMITATES DOG, TANYA HERNANDEZ, VIOLA HERNANDEZ, and SHIRLEY SALWAY, Plaintiffs,

) ) )
)

) ) ) )
)

COMPLAINT

vs.
UNITED STATES OF AMERICA,

) ) )

Defendant.

PRELIMINARY ALLEGATIONS

i.

This action arises and this Court has jurisdiction under the Federal Tort Claims Act
of 1948,62 Stat. 982,28 U.S.C., §1343(a)(4), 1346(b), and 2671 et seq., and Public Law

101-512(1990).
" .

Plaintiffs Theresa Imitates Dog, Guardian Ad Litem on behalf of her minor
daughter, Celeste Imitates Dog, Viola Hernandez, and Tanya Hernandez, reside in Martin,

South Dakota, within the jurisdiction of this Court.
I" .

Plaintiff Shirley Salway resides in Sturgis, South Dakota, within the lurisdiction of

. Court. ' i Jml,EPH Salmi DI\KOIA J this DISTRIC'r OF HAAS, Cier:i of the United
S~les Distric:t Court for the Distric; of

UNliED STATi=S OF AM RICA \ ~Jr.

SOlJih Dakow, hsreby ceriify thal the
above and foregoing is a true copy of the onginal now on filE! i'1 my ice,

Dated: d P Ô --. ¡' .

ß'j d-,__..-",-~ -- Deput;i

JOSEP HM"~ l.

I

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IV.

At all relevant times herein mentioned, the Defendant, by and through its
Department of the Interior, Bureau of Indian Affairs, contracted with the Oglala Sioux
Tribe and its Public Safety Commission pursuant to 25 U.S.C. § 450, et seq., Indian Self
Determination Act, to provide law enforcement services on the Pine Ridge Indian

Reservation.
V.

At all relevant times, the Oglala Sioux Tribe and its Public Safety Commission
operated a police department on the Pine Ridge Indian Reservation and employed
numerous employees. In doing so, and committing the acts alleged herein and in omitting

to do all things alleged herein, the Oglala Sioux Tribe, its Public Safety Commission, and

all of its employees were performing functions under the contract entered into pursuant

to 25 U.S.C. § 450 et seq.
Vi.

At all relevant times, Glen Gibbons, Norman Rogers, and Charles Cummings were

employees of the Oglala Sioux Tribe and its Public Safety Commission as law
enforcement or investigative officers.
V".

Under the provision of Public Law 101-512, the Oglala Sioux Tribe, its Public
Safety Commission, and Public Safety Commission employees are deemed, for the
purposes of the Federal Tort Claims Act, to be part of the Bureau of Indian Affairs in the

2

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United States Department of Interior while either carrying out any such contract, or in the

case of employees, while acting while within the scope of their employment.
VIII.

On or about February 19, 1995, the above-mentioned Plaintiffs were passengers
in a vehicle driven by Viola Hernandez. The vehicle and passengers had been in Martin,

Bennett County, South Dakota, a town located outside of the Oglala Sioux Reservation
and outside tribal jurisdiction. The vehicle was stopped without probable cause by Oglala
Sioux Tribal Law Enforcement Officer Norman Rogers immediately north of Martin, South

Dakota, in an area which is outside tribal jurisdiction. Subsequently tribal police officers

Glen Gibbons and Charles Cummings joined Officer Rogers at the scene of the arrest.
IX.

Officers Gibbons, Rogers, and Cummings arrested the Plaintiffs for various
violations of the Tribal Code, including curfew violation, liquor violations, disorderly
conduct, and driving under the influence. That said violations did not occur within the
boundaries of the Oglala Sioux Reservation. That the above-mentioned Plaintiffs were
taken from off of the reservation onto the reservation and jailed in the tribal police station

in Kyle, South Dakota.
X.

Tribal Officers Norman Rogers, Charles Cummings, and Glen Gibbons were, at all
times alleged, law

enforcement officers and employees of the Oglala Sioux Tribe and its

Public Safety Commission and were acting in the course and the scope of their
employment as law enforcement officers.

3

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Xl.

If Defendants were private persons, they would be liable to each Plaintiff in
accordance with the laws of South Dakota and the Oglala Sioux Tribe.
XiI.

On or about August 23, 1995, each Plaintiff filed a claim for administrative
settlement with the Bureau of Indian Affairs as required by 28 U.S.C. 2675 in the amounts

previously set forth. That more than six months has elapsed since demand was made
and since service was admitted by the Bureau of Indian Affairs, and no action has been

taken by said Bureau of Indian Affairs.
COUNT I - SEXUAL ASSAULT
X"1.

Plaintiffs reallege paragraphs I through X above as though set forth fully herein.
XiV.

As a result of the intentional and/or reckless actions of the Defendant's employee,
Oglala Sioux Tribal Law Enforcement Officer, Glen Gibbons, the Plaintiff, Shirley Salway,

was damaged as set forth in paragraph XXVII below.
COUNT II. - ASSAULT
XV.

Plaintiff realleges paragraphs I through X above as though set forth fully herein.

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XVi.

The Plaintiffs, Shirley Salway and Theresa Imitates Dog, on behalf of her daughter,

Celeste Imitates Dog, were assaulted and had a battery committed upon them by the

Defendants, Glen Gibbons and Norman Rogers.
XV".

As a direct and proximate result of the actions of the Defendants, Plaintiffs Shirley

Salway and Theresa Imitates Dog, Guardian Ad Litem on behalf of her minor daughter,

Celeste Imitates Dog, have incurred pain and suffering, emotional distress, and were
damaged as set forth in paragraph XXVII below.
COUNT ILL - FALSE IMPRISONMENT
XVIII.

Plaintiffs reallege paragraphs I through X above as though set forth fully herein.
XiX.

The Plaintiffs, Shirley Salway, Theresa Imitates Dog, Guardian Ad Litem on behalf

of her minor daughter, Celeste Imitates Dog, Tanya Hernandez, and Viola Hernandez,
were falsely imprisoned by the Defendants, Glen Gibbons, Norman Rogers, and Charles

Cummings, in that the Defendants had no authority nor jurisdiction to arrest and detain
the above-mentioned Plaintiffs.
XX.

As a result of the above-mentioned false imprisonment, the Plaintiffs have suffered

inconvenience, extreme mental distress, and have been damaged as set forth in
paragraph XXVII below.

5

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COUNT IV - INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
XXi.

Plaintiffs reallege paragraphs I through X above as though set forth fully herein.
XXiI.

The actions of the Defendants were extreme, outrageous, unreasonable, and the
Defendants acted with the intent to cause or with the reckless disregard of probability of causing severe emotional distress.
XXIII.

As a direct and proximate cause of the Defendants' actions, the Plaintiffs, Shirley

Salway, Theresa Imitates Dog, Guardian Ad Litem on behalf of her minor daughter,

Celeste Imitates Dog, Tanya Hernandez, and Viola Hernandez, suffered severe and
serious emotional distress, and have been damaged as set forth in paragraph XXVII
below.
COUNT V - VICARIOUS LIABILITY
XXiV.

Plaintifs reallege paragraphs i through X above as though set forth fully
herein.
XXV.

The Defendant, by and through its Department of Interior, Bureau of Indian Affairs,

the Oglala Sioux Tribe, and its Public Safety Commission, are vicariously liable for the
actions of their employees, Glen Gibbons, Norman Rogers and Charles Cummings, when

said Defendants injured the Plaintiffs.

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XXVi.

As a result of said vicarious liability, the Defendant, United States of America, as

set forth above, is vicariously liable for any and all damages incurred on behalf of their
employees. The amounts of said damages to Plaintiffs are set forth in paragraph XXV"
below.
COUNT VII - DAMAGES
XXViI.

As a direct and proximate cause of the actions of the Oglala Sioux Tribe, its Public

Safety Commission, and its Public Safety Commission employees, including, but not

limited to, Glen Gibbons, Norman Rogers, and Charles Cummings, Shirley Salway
suffered damages in the amount of $1,000,000.00 for the following:

A. Pain' and suffering, both mental and physical in
the past and future;
B. Embarrassment and humiliation resulting from

the sexual assault;
C. Emotional distress resulting from the sexual

fondling by Officer Glen Gibbons;
D. Out of pocket expenses.

As a direct and proximate cause of the negligence of the Oglala Sioux Tribe, its
Public Safety Commission, and its Public Safety Commission employees, including, but
not limited to, Glen Gibbons, Norman Rogers, and Charles Cummings, Theresa Imitates

7

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Dog, Guardian Ad Litem on behalf of her minor daughter, Celeste Imitates Dog, suffered

damages in the amount of $750,000.00 for the following:

A. Pain and suffering, both mental and physical, in
the past and future;
B. Emotional distress as a result of being maced

by Tribal Police Officer Norman Rogers;

C. Embarrassment and humiliation at being illegally arrested and detained by the three officers
mentioned;
D. Out of pocket expenses.

As a direct and proximate cause of the actions of the Oglala Sioux Tribe, its Public

Safety Commission, and its Public Safety Commission employees, including, but not
limited to, Glen Gibbons, Norman Rogers, and Charles Cummings, Viola Hernandez
suffered damages in the amount of $500,000.00 for the following:

A. Pain and suffering, both mental and physical, in
the past and future;
B. Emotional distress occasioned by the illegal

arrest and detainment;

C. Embarrassment and humiliation at being illegally arrested and detained by the three officers
mentioned;
D. Out of pocket expenses.

8

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As a direct and proximate cause of the actions of the Oglala Sioux Tribe, its Public

Safety Commission, and its Public Safety Commission employees, including, but not
limited to, Glen Gibbons, Norman Rogers, and Charles Cummings, Tanya Hernandez
suffered damages in the amount of $500,000.00 for the following:

A. Pain and suffering, both mental and physical, in
the past and future;
B. Emotional distress occasioned by the illegal

arrest and detainment;

C. Embarrassment and humiliation at being illegally

arrested and detained by the three officers
mentioned;
D. Out of pocket expenses.

WHEREFORE, the Plaintiffs request judgment against all Defendants, as follows:
i.

A. Shirley Salway in the amount of One Millon Dollars ($1,000,000.00);
B. Theresa Imitates Dog, Guardian Ad Litem on behalf of her minor daughter,
Celeste Imitates Dog, in the amount of Seven Hundred Fifty Thousand Dollars
($750,000.00) ;

C.

Viola Hernandez

in

the amount of Five Hundred Thousand Dollars

($500,000.00);
D.

Tanya Hernandez

in

the amount of Five Hundred Thousand Dollars

($500,000.00).

9

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i i.

Costs and disbursements herein.
IIi.

Reasonable attorney's fees.
IV.

For such other and further relief as the Court may deem just and equitable in the

premises.
Dated this ;2c¡äy of May, 1996.

ìi

MORMAN LAW FIRM

)

10

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1:" =!?~11":tJ~ ':r~.' .~~ ~~.

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Ji. ;1t1.i!;.L2~r!k-H ¿;~,¡l¡

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH DAKOTA

qro 0 Î\ ''îflï 'V~l t! 7¿J ~j~f
't..7r) ~ Î ,?i~;L.~, "'~'./"l.~.

WESTERN DIVISION

1..).,._l~' \".;;i r...l:-ll~ ( ~ 1..'-::(..._'" V\.\Vr-~d~ . .~~.;..... ~,¡hÇ,~.~~

TERESA IMITATES DOG, Guardian Ad Litem on Behalf of Her Minor Daughter, CELESTE IMITATES DOG, TANYA HERNANDE Z, VIOLA HERNANDEZ, and SHIRLEY SALWAY,

CIV. 96-5044

Plaintiffs,
vs.
UNITED STATES OF AMERICA,

SETTLEMENT AGREEMENT REGARDING VIOLA
HERNANDEZ

Defendant.

It is hereby stipulated by and between Viola Hernandez,
Plaintiff, and the United States of America, Defendant, by and
through their respective attorneys as follows:

i. The parties do hereby agree to settle and compromise the

above-enti tIed action under the terms and conditions set forth

herein.
2. The United States of America, defendant, agrees to pay to
the plaintiff the total sum of $3,000.00 (three thousand dollars),

which sum shall be in full settlement and satisfaction of any and

all claims, demands, rights, and causes of action of whatsoever
kind and nature, arising from and by reason
and unknown, foreseen and unforeseen bodily

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2

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4. This stipulation for compromise settlement shall not
consti tute an admission of liability or fault on the part of the

United states, its agents, servants or employees, and is entered

into by both parties for the purpose of compromising disputed
claims and avoiding the expenses and risks of litigation.

5. It is also agreed, by and among the parties, that the
settlement amount of $3,000.00 represents the entire amount of the

compromise settlement. It is also agreed that the respective
parties will each bear their own costs, fees and expenses and that

any attorneys fees owed by the plaintiff will be paid out of the
settlement amount and not in addition thereto.

6. It is also understood by and among the parties that
pursuant to Title 28 of the United states Code, Section 2678,
attorneys fees for services rendered in connection with this action

shall not exceed 25 per cent of the amount of the compromise

settlement.
7. Payment of the settlement amount will be made by a check
drawn on the Treasury of the United states for $3,000.00, and made

payable to Viola Hernandez and John T. Hughes. The check will be

mailed to the U. S. Attorney's Office in Rapid City at the following
address: P.O. Box 2893, Rapid City, SD 57709. Upon its receipt,

the Assistant U. S. Attorney will insure that all the necessary releases are signed, and once that condition is met, the United
States Attorney will forward the check to plaintiff's attorney,

3

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John T. Hughes. Plaintiff's attorney agrees to distribute the
settlement proceeds to the plaintiff. Plaintiff's attorney is

solely responsible to the plaintiff for insuring that the
settlement money is properly distributed. No further claims
against the United states will be brought by plaintiff or her heirs

or assigns as the result of improper distribution of settlement
proceeds once the check has been provided to plaintiff's attorney.

8. In consideration of the payment of $3,000.00 as set forth
above, plaintiff agrees that she will cause her attorney to execute

and file with the court such documents as shall be necessary to

cause the above-captioned lawsuit to be dismissed with prej udice
from the docket of the United states District Court.

4

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Dated this ;L5,efday of September, 1997.

KAEN E. SCHREIER
United States Attorney

By:

Dated this -f day of Sept

VIOLA H DEZ

JJ~noo~

5

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mED

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH DAKOTA

WESTERN DIVISION

L

b

~~

SEP 29 1997

TERESA IMITATES DOG, Guardian Ad Litem on Behalf of Her Minor Daughter, CELESTE IMITATES DOG, TANYA HERNANDEZ, VIOLA HERNANDEZ, and SHIRLEY SALWAY,

CIV. 96-5044

Plaintiffs,
vs.
UNITED STATES OF AMERICA,

SETTLEMENT AGREEMENT REGARDING TERESA and CELESTE IMITATES DOG

Defendant.

It is hereby stipulated by and between Teresa Imitates Dog,
Guardian Ad Litem on behalf of her minor daughter, Celeste Imitates

Dog, Plaintiff, and the United States of America, Defendant, by and

through their respective attorneys as follows:

i. The parties do hereby agree to settle and compromise the

above-enti tled action under the terms and conditions set forth

herein.
2. The United States of America, defendant, agrees to pay to
the plaintiff the total sum of $2,275.00 (two thousand two hundred

and seventy-five dollars), which sum shall be in full settlement
and satisfaction of any and
of action of whatsoever

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complaint in the action brought in the United states District
Court, District of South Dakota, Western Division, Civil No.

96-5044.
To procure this payment, Teresa Imitates Dog declares that she

is of legal age, authorized and fully competent to execute this

release; that no representation about the nature and extent of
claimed injuries, disabilities or damages made by any physician,

attorney or agent of the government, nor any representation
regarding the nature and extent of legal liability or financial

responsibili ty of the United States induced them to make this
settlement and sign this release.

It is specifically acknowledged and agreed by the parties
hereto that this agreement does and shall be construed to release

and extinguish any claims against the United States, in full, as

aforesaid, and that any sum for damages recovered by way of jury

verdict, judgment, settlement, or otherwise, against any third

parties that may be claimed to be joint tortfeasors, shall be
reduced in the sum of the present value of the settlement as set
forth in the aforementioned settlement agreement, or in such sum as

shall be the pro rata share of the United States' obligation or
liability for damages to Celeste Imitates Dog, however the same
shall be determined, whichever sum shall be larger.

It is the intent and purpose of this agreement, and it is
agreed that the same shall be construed to the end that not only
are the claimed obligations and liabilities of the United states to
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Celeste Imitates Dog or any heirs thereof, fully released and

extinguished, but also that there shall exist no right of
contribution on the part of any third parties or other claimed
joint tortfeasors against the United States. This agreement shall

be construed to this end in accordance with South Dakota Codified
Laws, Sections 15-8-11 through 15-8-22.

It is further understood and agreed that this settlement is
the compromise of a disputed claim and that the payment is not to
be construed as an

admission of liability on the part of the United

States by whom liability is denied.

It is agreed that plaintiff, and her heirs, executors,
administrators and assigns shall hold the United States harmless

and indemnify them from any claims of other persons whomsoever,
whether for contribution or full indemnity, including reasonable

attorney's fees, in defending such claims which arise out of
allegations contained in Civil Action No. 96-5044 filed in the
Uni ted States District Court, District of South Dakota, Western

Division.
Teresa Imitates Dog warrants that she is the legal guardian

for Celeste Imitates Dog and that she has carefully read this
release, knows and understands all of the contents thereof, and
signs her name hereto as

her own free act.
of September, 1997.

Dated this ~~ay

3

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CAUTION: THIS IS
READ I T BE FORE

Yk~¥i~ witness:
Guardian Ad Li tern for
Celeste Irni tates Dog

CiltL~mD ~ Dog , Celeste Irni tates _ ;vitness:

4

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"rùI."lD "I..~. ~~

UNITED STATES DISTRICT COURT

.l . J1 ~..iL.t"ji

~¡.' f("' " .~

FOR THE DISTRICT OF SOUTH DAKOTA

SEP 29 1997
5ì()) 1
"...~.l . ~Q.J';i (i""'k'~,r~&

WESTERN DIVISION

TERESA IMITATES DOG, Guardian Ad Litem on Behalf of Her Minor Daughter, CELESTE IMITATES DOG, TANYA HERNANDEZ, VIOLA HERNANDEZ, and SHIRLEY SALWAY,

CIV. 96-5044

Plaintiffs,
vs.
UNITED STATES OF AMERICA,

SETTLEMENT AGREEMENT REGARDING SHIRLEY
SALWAY

Defendant.

It is hereby stipulated by and between Shirley Salway,
Plaintiff, and the United States of America, Defendant, by and
through their respective attorneys as follows:

i. The parties do hereby agree to settle and compromise the

above-enti tIed action under the terms and conditions set forth

herein.
2. The United States of America, defendant, agrees to pay to

the plaintiff the total sum of $5,805.00 (five thousand dollars

eight hundred and five dollars), which sum shall be in full
settlement and satisfaction of any and all claims, demands, rights,

and

and

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unforeseen bodily and personal injuries of Shirley Salway, and the

consequences thereof. This agreement binds Shirley and all of her
heirs, executors, administrators, or assigns, in settlement of all
claims each has or may hereafter acquire against the United States

of America, its agents, servants and employees for any incident
resul ting from the same subj ect matter that gave rise to the above-

captained lawsuit brought against the United States of America for

the alleged false arrest, false imprisonment, and personal injury
of Shirley Salway.

3. Plaintiff hereby agrees to accept the sum of $5,805.00 in

full settlement and satisfaction of any and all claims, demands,
rights and causes of action of whatsoever kind and nature, arising from, and by reason of any and all known and unknown, foreseen and

unforeseen bodily and personal injuries of Shirley Salway, which

she may have or hereafter acquire against the United States of

America, its agents, servants and employees on account of her
arrest and imprisonment at the Kyle jail on February 19-22, 1995.

Plaintiff agrees to reimburse, indemnify and hold. harmless the
United States of America, its agents, servants and employees from

any and all such causes of action, claims, liens, rights or
subrogated or contribution interests incident to or resulting from

further litigation or the prosecution of claims by either Shirley

or her heirs, executors, administrators or assigns against any
third party or against the United States resulting from the same

2

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incident which gave rise to this lawsuit.

4. This stipulation for compromise settlement shall not
consti tute an admission of liability or fault on the part of the
Uni ted states, its agents, servants or employees, and is entered

into by both parties for the purpose of compromising disputed
claims and avoiding the expenses and risks of litigation.

5. It is also agreed, by and among the parties, that the
settlement amount of $5,805.00 represents the entire amount of the

compromise settlement. It is also agreed that the respective
parties will each bear their own costs, fees and expenses and that

any attorneys fees owed by the plaintiff will be paid out of the
settlement amount and not in addition thereto.

6. It is also understood by and among the parties that
pursuant to Title 28 of the United states Code, Section 2678,
attorneys fees for services rendered in connection with this action

shall not exceed 25 per cent of the amount' of the compromise

settlement.
7. Payment of the settlement amount will be made by a check
drawn on the Treasury of the United states for $5,805.00, and made

payable to Shirley Salway and John T. Hughes. The check will be
mailed to the U.s. Attorney's Office in Rapid City at the following

address: P.O. Box 2893, Rapid City, SD 57709. Upon its receipt,

the Assistant U. S. Attorney will insure that all the necessary releases are signed, and once that condition is met, the United

3

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states Attorney will forward the check to plaintiff's attorney,

John T. Hughes. Plaintiff's attorney agrees to distribute the
settlement proceeds to the plaintiff. Plaintiff's attorney is

solely responsible to the plaintiff for insuring that the
settlement money is properly distributed. No further claims
against the United states will be brought by plaintiff or her heirs

or assigns as the result of improper distribution of settlement
proceeds once the check has been provided to plaintiff's attorney.

8. In consideration of the payment of $5,805.00 as set forth
above, plaintiff agrees that she will cause her attorney to execute

and file with the court such documents as shall be necessary to
cause the above-captioned lawsuit to be dismissed with prejudice
from the docket of the United states District Court.

4

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Dated this 4g~ day of September, 1997.

KAEN E. SCHREIER
United States Attorney

By:

-v
Attorney

~'~~

RLEY SAL ~(J

5

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T:'1ì~~~D~di 1~:: ~~~l1

~"" r,!S h= ~¡'~

cßt\ JtJtr~~loLj rlJ

UNITED STATES DISTRICT COURT

1,~'p :; 0 1ÜO"l¡ V-i W.J V ~"..V

FOR THE DISTRICT OF SOUTH DAKOTA

it:k()J 1

~J .~..~v '~. ....~. ..

WESTERN DIVISION

(~)).., .~'t~;;,;~

TERESA IMITATES DOG, Guardian Ad Litem on Behalf of Her Minor Daughter, CELESTE IMITATES DOG, TANYA HERNANDEZ, VIOLA HERNANDEZ, and SHIRLEY SALWAY,

CIV. 96-5044

Plaintiffs,
vs.
UNITED STATES OF AMERICA,

SETTLEMENT AGREEMENT REGARDING TANYA
HERNANDEZ

Defendant.
It is hereby stipulated by and between Tanya Hernandez,
Plaintiff, and the United States of America, Defendant, by and
through their respective attorneys as follows:

i. The parties do hereby agree to settle and compromise the

above-enti tIed action under the terms and conditions set forth

herein.
2. The United States of America, defendant, agrees to pay to
the plaintiff the total sum of $4, 687.50 (four thousand six hundred

and eighty-seven dollars and fifty cents), which sum shall be in
full settlement and satisfaction of any and all claims, demands,
rightsi and causes of action of whatsoever kind and nature, arising
UNITED STATi:S OF AMERICA \ ss

from and by reason of any and all known an~sTft~~eWf~D~~~een and
I JOSEPH HAAS, clertòffli.'1llãa

S~tes Districl ~urt for the Disiir,j of
South Dakota, hereby Clrtlfy that the above and foregoing is a true copy of

the onginal;i?w n file i riy,-eice,

Daled: (l oJ Ò '( r ('

OSEPH MS, 'V
Deputy

By_

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unforeseen bodily and personal injuries of Tanya Hernandez, and the

consequences thereof. This agreement binds Tanya Hernandez and

all of her heirs, executors, administrators, or assigns, in
settlement of all claims each has or may hereafter acquire against

the United states of America, its agents, servants and employees
for any incident resulting from the same subject matter that gave

rise to the above-captained lawsuit brought against the United
states of America for the alleged false arrest, false imprisonment,

and personal injury of Tanya Hernandez.

3. Plaintiff hereby agrees to accept the sum of $4,687.50 in

full settlement and satisfaction of any and all claims, demands,
rights and causes of action of whatsoever kind and nature, arising
from, and by reason of any and all known and unknown, foreseen and

unforeseen bodily and personal injuries of Tanya Hernandez, which

she may have or hereafter acquire against the United states of

America, its agents, servants and employees on account of her
arrest and imprisonment at the Kyle jail on February 19-21, 1995.

Plaintiff agrees to reimburse, indemnify and hold harmless the
Uni ted states of America, its agents, servants and employees from

any and all such causes of action, claims, liens, rights or
subrogated or contribution interests incident to or resulting from
further litigation or the prosecution of claims by either Tanya or

her heirs, executors, administrators or assigns against any third
party or against the United states resulting from the same incident

2

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which gave rise to this lawsuit.

4. This stipulation for compromise settlement shall not
consti tute an admission of liability or fault on the part of the

United states, its agents, servants or employees, and is entered

into by both parties for the purpose of compromising disputed
claims and avoiding the expenses and risks of litigation.

5. It is also agreed, by and among the parties, that the
settlement amount of $4,687.50 represents the entire amount of the

compromise settlement. It is also agreed that the respective
parties will each bear their own costs, fees and expenses and that

any attorneys fees owed by the plaintiff will be paid out of the
settlement amount and not in addition thereto.

6. It is also understood by and among the parties that
pursuant to Title 28 of the United states Code, Section 2678,
attorneys fees for services rendered in connection with this action

shall not exceed 25 per cent of the amount of the compromise

settlement.
7. Payment of the settlement amount will be made by a check
drawn on the Treasury of the United States for $4,687.50, and made

payable to Tanya Hernandez and John T. Hughes. The check will be
i

mailed to the U.s. Attorney's Office in Rapid City at the following

address: P.O. Box 2893, Rapid City, SD 57709. Upon its receipt,

the Assistant U. S. Attorney will insure that all the necessary
releases are signed, and once that condition is met, the United

3

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states Attorney will forward the check to plaintiff's attorney,

John T. Hughes. Plaintiff's attorney agrees to distribute the
settlement proceeds to the plaintiff. Plaintiff's attorney is

solely responsible to the plaintiff for insuring that the
settlement money is properly distributed. No further claims
against the United states will be brought by plaintiff or her heirs

or assigns as the result of improper distribution of settlement
proceeds once the check has been provided to plaintiff's attorney.

8. In consideration of the payment of $4,687.50 as set forth
above, plaintiff agrees that she will cause her attorney to execute

and file with the court such documents as shall be necessary to
cause the above-captioned lawsuit to be dismissed with prejudice
from the docket of the United states District Court.

4

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Dated this -dA( day of September, 1997.

Uni ted States Attorney
By:

KAEN E. SCHREIER

Attorney

Dated this ~~y of

SYci\~9~~
TANYA HIL)iZ

5

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RYAN DECLARATION EXHIBIT 2

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.,;- 'T.... 'D.' . . ~.w

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

.' .:".01

i' 0 'r:07
',) t~J
: .¡ ',,::~~;; , 1

WESTERN DIVISION
GERALDINE WHITE BUTTERFLY, Guardian Ad Litem of JANELLE WHITE BUTTERFLY,

Civ.

No. g1.Ç07~

Plaintiff,
vs.
UNITED STATES OF AMERICA,

COMPLAINT

Defendant.
Comes now Geraldine White Butterfly, through her attorney,

Terry L. Pechota, and for her complaint states and alleges as

follows :'
1. This action arises and this Court has jurisdiction under the Federal Tort Claims Act of 1948, 62 Stat. 982,28 USC 1346

(b), 2671 et ~ , and Pub. L. 101-512 (1990).
2. Plaintiff Geraldine White Butterfly and Janelle White
Butterfly reside at Pine Ridge, 30uth Dakota, within the juriadiction of this Court.

3. At all relevant times herein mentioned, defendant, by
and through its Department of Interior, Bureau of Indian Affairs,

contracted with the Oglala Sioux Tribe and its Public Safety

Commission pursuant to 25 USC 450 ~ ~., Indian Self Determination Act, to provide law enforcement services on the Pine Ridge

1

II

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Indian Reservation.

4. At all relevant times, the Oglala Sioux Tribe and its
Public Safety Commission operated a police department on the Pine

Ridge Indian Reservation and employed numerous employees. In
doing and in omitting to do all things alleged herein, the Oglala
Sioux Tribe, its Public Safety Commission, and all of its

employees were performing functions under the contract entered

into pursuant to 25 USC 450, ~ ~.
5. At all relevant times, Tancrede J. Hamel was an employee
of the Oglala Sioux Tribe and its Public Safety Commission as a
law enforcement officer.

6. Under the provisions of Pub. L. 101-512, the Oglala
Sioux Tribe, its' Public Safety Commission, and Public Safety

Commission employees are deemed, for the purposes of the Federal

Tort Claims Act, to be part of the Bureau of Indian Affairs in
the United States Department of Interior while either carrying

out any such contract or, in the case of employees, while acting
w~ th~n the acope of their employment.

7. On or about December 16, 1995, Tancrede J. Hamel, a law
enforcement officer and employee of the Oglala Sioux Tribe and its Public Safety Commission, while acting in the course and
scope of his employment as a law enforcement officer and

employee, took Janelle White Butterfly, a fourteen (14) year old child at the time, into his presence, possession, and custody

2

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near Pine Ridge, South Dakota, and had acts of sexual intercourse

with her.
8. Tancrede J. Hamel, while employed by the Oglala Sioux
Tribe and ,its Public Safety Commission on or about December 16,

1995, as previously alleged, was negligent, including but not

limi ted to the following:
a. Assaulting Janelle White Butterfly; b. Committing a battery upon Janelle White Butterfly;
c. Falsely imprisoning Janelle White Butterfly;

d. Abuse of process in his dealings with Janelle White

Butterfly;
e. Engaging in acts of unlawful sexual intercourse with
. Janelle' Whi te Butterfly;

f. Violating rules, regulations, and procedures dealing
with the arrest, custody, and disposition of juveniles;

g. Negligently inflicting emotional distress upon Janelle
Whi te Butterfly;

h. Negligently disregarding the rights of Janelle White
Butterfly under 25 USC 1302, 18 USC 2423, and other
federal and tribal statutes designed for the protection

of her rights;
i. Failing to protect Janelle White Butterfly from harm.
9. The Oglala Sioux Tribe and its Public Safety Commission,
deemed by law to be part of the Bureau of Indian Affairs, in the

3

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Uni ted States Department of Interior, acting by and through its

servants and employees, all acting within the scope of their agency and employment, were negligent with respect to employment
of Tancrede J. Hamel, including but not limited to the following:

a. Failing to monitor, supervise, control, and discipline
its officers;

b. Failing to undertake prior to employment adequate background investigation of persons selected as police

officers;
c. Failing to employ qualified officers;
d. Failing to properly train its officers;
e. Failing to properly select its officers;

f. . Hiring persons with dangerous propensities;
g. Permitting, encouraging, tolerating, and ratifying
unjustified, unreasonable, and illegal treatment of

ci vilians and juveniles by police officers.
10. As a proximate cause and cause in fact of the
nealigence of the Oglala Sioux Tribe, its Public Safety
Commission, and Public Safety Commission employees, including but

not limited go Tancrede J. Hamel, Janelle White Butterfly

suffered damages in the amount of $ 1,250, 000 for the following:
a. Pain and suffering, both mental and physical, in the
past and for the future;

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b. Embarraasmcnt and humiliation, including disgrace and

disrepute;
c. Loss of wages and diminished earning capacity;

d. Medical and counseling expenses, both in the past and
for the future;

e. Loss of enjoyment of life; and
f. Diminishment in quali tv of life;

11. If defendants were private persons/ they would be
liable to plaintiff in accordance with the law of South Dakota or

the Oglala Sioux Tribe.
12. On or about May 2, 1996, plaintiff filed a claim for
administrative settlement with the Bureau of Indian Affairs and
Oglala Sioux Tribe Public Safety Commission as required by 28 USC

2675 in the amount of One Million Two Hundred Fifty Thousand

Dollars ($1/250,000). The Bureau of Indian Affairs denied the
claim on or about March 11, 1997, and this action is brought

wi thin six months of denial as authorized by law.
WHEREFORE, plaintiff demands judgment against defendant in the amount set forth in the administrative claim or such other

amount as this Court deems proper under the circumstances, pI us
their costs and disbursements, including attorney's fees, and for
such other or additional relief as the Court may deem just in the

premises.

5

, . . (

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Dated this ~ day of September, 1997.

Terry L. Pecha VIKEN, VIKEN, PE Attorneys at Law 1617 Sheridan Lake Road Rapid City, SO 57702 (605) 341-4400

& DEWELL, LLP

6

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FILED
UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION

~~

JUL i 7 1998

CIY. No. 97-5075

GERADINE WHITE BUTTERFLY, )

WHITE BUTTERFLY, )

Guardian Ad Litem of JANELLE )

vs. )
UNTED STATES OF AMERICA, )
)

Plaitiff, ))
)

MOTION FOR APPROVAL OF SETTLEMENT

Defundant. )

)

COMES NOW the Plaintif, by and though her undersigned attorney, and
respectflly moves ths cow1, pursuant to its Order Appointig Guardian Ad Litem of
September 9, 1998, for its order approvig the settlement agreed to between the pares as
set fort in their Stipulation for Compromise Settement and Release of

Federal Tort Claims

Act Claim Pursuant to 28 U.S.c. § 2677, a copy of

which settlement agreement is attached

to and by ths reference made a par of ths motion.

Dated ths / ¿ of July, 1998.

LJNI'f~tj 5iAifm OF AMERICA \ BS

¡:¡¡nRltf f;í' iiOUiH OAKOTA J I J("~~PH HM~. eliirK öf tho Unlt:d
S~tei: ei¡~triii C)eYr\ for tna District o. South lJaketi. heifijby certlly that the
iibove a~d foregoing 13 a tre copy of
the original now on fie In my

D. McGregor VIKEN VIN PECHOTA LEACH & DEWELL, LLP Attorney for the Plaintiff
1617 Sheridan Lake Road

offce.

Dated: (" - do" -08
eputy

By&r;4-,ti~

JOSEPH HAS, Clerl

Rapid City, SD 57702-3483 (605) 341-4400

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CERTIFICATE OF SERVICE

The undersigned hereby certfies that he served a tre and correct copy of the above
and foregoing MOTION FOR APPROVAL OF SETTLEMENT upon the person(s) next

designated below by depositing the same in the United States mail, first class postage prepaid, at Rapid City, South Dakota 57701, in an envelope addressed to that person(s) at
her last known address, namely:

Ms. Diana Ryan Assistant United States Attorney P.O. Box 2893 Rapid City, SD 57709-2893
Dated ths i~ day of July, 1998.

2

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

GERALDINE WHITE BUTTERFLY, )

White Butterfly, )
) ) ) )

Guardian ad Litem for Janelle )

Plaintiff, ) vs. )
UNITED STATES OF AMERICA )

civil Action No. 97-5075

Dafendant. )
STIPULATION FOR COMPROMISE SETTLEMENT AND RELEASE OF FEDERAL TORT CLAIMS ACT CLAIMS PURSUANT TO 28 U. S . C. § 2677

The parties to this Stipulation For compromise Settlement And
Release stipulate and agree that the above-captioned action and the
Federal Tort Claims Act claims of the undersigned claimant Geraldine

Whi te Butterfly, as Guardian Ad Litem for Janelle white Butterfly
and Janelle's beneficiaries be settled and compromised based on the

terms and conditions set forth below:

1. This Stipulation For Compromise Settlement And Release
shall not constitute an admission of liability or fault on the part

of the united States , its agents, servants, or employees, and is
entered into by the parties for the purpose of compromising disputed

claims under the Federal Tort Claims Act and avoiding the expenses
and risks of further litigation.

2. The united States agrees to pay to Geraldine white
Butterfly, Guardian Ad Litem for Janelle White Butterfly, the
undersigned claimant, the cash sums set forth below in paragraph

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2. a., and to purchase the annuity contract described below in

paragraph 2. b.
a. As soon as it is practicable after the execution of this
stipulation For Compromise Settlement And Release, the United States

will wire transfer to Ringler Associates Settlement Trust Account
(at Sandy Spring National Bank of Maryland, 17801 Georgia Avenue,

Olney, Maryland 20832, ABA# 055001096, Account # 5201494901), the
sum of Ninety Thousand Dollars ($90,000.00) (hereinafter "settlement

amount"), out of which the following disbursements will be made by
Ringler Associates, Inc., Washington, D. C. from said trust account:

annui ty described below in paragraph 2. b. ;

(1) To the claimant, and her attorney, Scott D. McGregor, the sum remaining from the settlement amount after purchase of the

A.M. Best rating service, a sum sufficient to purchase an
2. b.

(2) To a life insurance company rated at least A+ as rated by

annui ty contract to make the payments described in paragraph

The parties agree that any attorney's fees owed by the
claimant(s) shall not exceed 25% of the settlement amount (28 U.S.C.

§ 2678) and must be paid out of the settlement amount and not in
addi tion thereto.

b. The United states will purchase an annuity contract (s) to
make the following payments:
Payable to Janelle White Butterfly:
$ 630 a month for 10 years certain only. Payments begin 1 year after annuity purchase.

In the event of the death of Janelle White Butterfly prior to
the end of the certain period, any remaining certain payments shall
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be paid to the estate of Janelle White Butterfly or to the
beneficiary that Janelle White Butterfly may designate in writing to

the annuity issuer after reaching the age of maj ori ty. Any such

designation, or revocation thereof, shall be in writing and in a
form acceptable to the annuity issuer.

The annuity contract will be owned solely and exclusively by

the united states and will be purchased as soon as practicable

following the execution of this stipulation For compromise
Settlement And Release, the receipt of court approval of the
settlement on behalf of Janelle White Butterfly by her Guardian,
Geraldine White Butterfly, and the Dismissal with Prejudice of the

action pending in the Oglala sioux Tribal Court. The parties
stipulate and agree that the united States' only obligation with
respect to said annuity contract and any annuity payments therefrom
is to purchase the annuity contract, and they further agree that the

united states does not guarantee or insure any of the annuity
payments. The parties further stipulate and agree that the united
states is released from any and all obligations with respect to the

annui ty contract and annuity payments upon the purchase of the
annui ty contract.

The parties stipulate and agree that the annuity company that
issued the annuity contract or its assignee shall at all times have

the sole obligation for making all annuity payments. The obligation

of the annuity company to make each annuity payment shall be
discharged upon the mailing of a valid check in the amount of such

payment to the address designated by the party to whom the payment
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is required to be made under this stipulation For Compromise
Settlement And Release. Checks lost or delayed through no fault of

the annuity company shall be promptly replaced by the annuity
company, but the annuity company is not liable for interest during

the interim.
The parties stipulate and agree that the annuity payments
cannot be accelerated, deferred, increased, or decreased by the
parties, that no part of any annuity payments called for herein or
any assets of the united states or the annuity company are subject
to execution or any legal process for any obligation in any manner,

and that the claimant shall not have the power to sell, mortgage,

encumer, or anticipate said annuity payments, or any part thereof,
by assignment or otherwise. Upon reaching her age of maj ori ty,
Janelle White Butterfly may not sell, mortgage, encumber, or
anticipate said annuity payments, or any part thereof, by assignment

or otherwise and is fully bound by the terms of this agreement.

The claimant and Janelle's guardians, heirs, executors,

administrators or assigns do hereby agree to maintain with the
annuity company and the United states a current mailing address, and

to notify the annuity company and the United states of the death of

any beneficiary of said annuity contract within ten (10) days of

death.
3. Geraldine White Butterfly, Guardian Ad Litem for Janelle
White Butterfly and Janelle's heirs, executors, administrators or
assigns do hereby accept the cash sums set forth above in paragraph

2. a. and the purchase of the annuity contract set forth above in
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paragraph 2.b. in full release, settlement, and satisfaction of any
and all claims, demands, rights, and causes of action of whatsoever

kind and nature, in federal, state and tribal court, arising from,

and by reason of, any and all known and unknown, foreseen and

unforeseen, bodily and personal injuries, death, or damage to

property, and the consequences thereof, which Janelle White
Butterfly or her heirs, executors, administrators, or assigns may

have or hereafter acquire against the United states, its agents,
servants and employees on account of the same subj ect matter that
gave rise to the above-captioned action, including any future claims

for wrongful death and any claims for fees, costs and expenses; and
do hereby agree to reimburse, indemnify and hold harmless the United
states and its agents, servants, and employees from any and all such

claims, causes of action,
i

liens, rights,

or subroga ted or

contribution interests incident to, resulting or arising from the

acts or omissions that gave rise to the above-captioned action,
including claims or causes of action for wrongful death.

4. This compromise settlement is specifically subject to each
of the following conditions:

(a)

An agreement by the parties on the terms,

~ ~. conaiI ,-ions, and

requirements of this stipulation For compromise Settlement And
Release and the annuity contract. The parties stipulate and agree
that the Stipulation For compromise Settlement And Release and the

compromise settlement are null and void in the event the parties

cannot agree on the terms, conditions and requirements of this
Stipulation. For Compromise Settlement And Release, or the annuity
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contract. The terms, conditions and requirements of this stipulation

For Compromise Settlement And Release are not severable and the
failure to agree, fulfill or comply with any term, condition, or
requirement renders the entire stipulation For compromise Settlement

And Release and the compromise settlement null and void. The
authorization by the Attorney General or the Attorney General's
designee to negotiate and consummate a settlement for the amount
agreed upon by the parties does not ffãke the settlement binding upon

the United States unless and until the other terms, conditions and

requirements of this Stipulation For compromise Settlement And
Release have been completely agreed upon in writing.

(b) Janelle white Butterfly, as beneficiary of the annuity
contract set forth above in paragraph 2. b., must be alive at the

time of the purchase of said annuity contract. In the event of
Janelle White Butterfly's death prior to both the purchase of said
annui ty contract, the entire stipulation For compromise Settlement

And Release and the compromise settlement are null and void.

(c) Prior approval of the settlement by a court of competent

jurisdiction, if required by law. In the event a claimant or state
law requlres court approval of this settlement, the claimant has the

obligation to obtain such approval. Such court approval must be
obtained prior to both the purchase of the annuity contract. The
claimant agrees to obtain such approval in a timely manner: time

being of the essence. The claimant further agrees that the united
states may void this settlement at its option in the event the

claimant fails to obtain such approval in a timely manner. In the
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event the claimant or state law requires court approval of this
settlement and such approval is not obtained, the entire Stipulation

For Compromise Settlement And Release and the compromise settlement
are null and void.

(d) Claimant agrees to obtain a dismissal, with prejudice, of

the pending action in tribal court, Geraldine White Butterfly,
Guardian Ad Litem of Janelle White Butterfly vs, Oglala Sioux Tribe,

Oglala Sioux Tribe Public Safety- Cornission..d Tancrede J. Hamel,

ci v. 97-1132, arising out of the same incidence as this federal
Ii tigation prior to the purchase of the annuity contract and the
di sbur semen t 0 f funds.

5. Claimants i attorney agrees to distribute the settlement

proceeds among the claimants, and to obtain a dismissal of the
above-captioned action with prej udice, with each party bearing its

own fees, costs, and expenses.

Executed this 16th

day of

July
, /'/1/'-'

, 19~.

G aldine White Butterfly, \ r

oJcl ~ ~Lu_

/'\.' ",/ ,¡ --'-~'-)
..t-

. ;i ,.fa ,-¿.L./ DianaL Ryan ./'

Guardian Ad Li tem for

Janelle e Butterfly,
Clai

Attorney for Defendant Uni ted states of America

LAWRNCE H. CURTIS
MELINDA A. LONG

Ringler Associates, Inc.
Structured Settlement Consul tants

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Case 5:97-cv-05075-AWB Document 10 Filed 07/201 998 Page 1 of 2

FILED
UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION

~~

JUL i 7 1998

CIV. No. -5075

GERADINE WHTE BUTTERFLY, )

WHITE BUTTERFLY, )

Guadian Ad Litem of JANELLE )

vs. )
) )
)

Plaùntiff, )
)

MOTION FOR PPROV AL OF SETTL MENT

UNITED STATES OF AMERICA, )

Defendant. )
COMES NOW the Plaintiff, by and though her wider igned attorney, and
respectflly moves ths cour pursuant to its Order Appointing G ardian Ad Litem of

September 9, 1998, for its order approvig the settlement agreed to tween the partes as

set fort in their Stipulation for Compromise Settlement and Release 0 Federal Tort Claims

Act Claim Pursuant to 28 U.S.c. § 2677, a copy of which settement greement is attached

to and by this reference made a par of ths motion.

Dated ths / ¿ of July, i 998.

D. McGregor VlKEN VIN PECHOT A LEA & DEWELL, LLP Attorney for the Plaintiff

Rapid City, SD 57702-3483 .
(605) 341-4400
.1

1617 Sheridan Lake Road

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Case 5:97-cv-05075-AWB Document 10 Filed 07/20/1998 Page 2of2
.. .,

CERTIFICATE OF SERVICE

The undersigned hereby certifies that he served a tre and co ect copy of the above
and foregoing MOTION FOR APPROVAL OF SETTLEMENT u on the person(s) next

designated below by depositing the same in the United States iI, first class postage
prepaid, at Rapid City, South Dakota 57701, in an envelope addres ed to that person(s) at her last known address, namely:
Ms. Diana Ryan Assistant United States Attorney P.O. Box 2893 Rapid City, SD 57709-2893
Dated tlús /¿ day of July, 1998.

.J",

..,..":

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Filed 08/04/1998 Page 1 of 1

.

P1;BD'
AUG 041998

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

l§~~
, mi,.
GERADINE WHITE BUTTERFLY,
Guardian Ad Li tern of JANELLE

CIV. 97-5075

WHITE BUTTERFLY,

Plaintiff,
vs.
UNITED STATES OF AMERICA,
ORDER

Defendant.
Pursuant to the parties Stipulation for Compromise Settlement

and Release of Federal Tort Claims Act Claim, it is hereby
ORDERED that the proposed settlement is apprnvpn ann ~hp r.aBe

is dismissed with prejudice.

Dated this ~Lday of August, 1998.
BY THE COURT:
/"',:

~ .~~~ t.,-'" ~ ~_~
ANREW W. BOGlÆ
SENIOR DISTRICT JUDGE

//;/; ~

~
'::;

. /-".

I ~

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UNTED STATES DISTRICT COURT
FOR TH DISTRICT OF SOUTH DAKOTA

FILED
r:, PR 2 9 1999

WESTERN DIVISION

GERADIN WITE BUTTERFLY,
Guardian Ad Litem of JANLLE WITE BUTTERFLY,
Plaintiffs,
vs.

)

CN 97-5075

d5~

)
)

UNTED STATES OF AMRICA,
Defendant.

) ) ) ) ) ) )
)

KAN E. SCHRIER
United States Attorney
By:

DIAA

~

RYAN 'f

Assistant U. S. Attorney P.O. Box 2893 Rapid City, SD 57709 (605) 342-7822

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Keyport Life Insurance Company
A Stock Company

READ YOUR POLICY CARFULLY. Ths is a legal contract between you and the Company.

RIGHT TO CANCEL. You may ret th policy to us or to your agent withi 10 days of its
receipt. We wi refund any premum pad and the policy wi be treed as if it had never be

issued.

We wil pay the benefits provided in ths policy, subject to its tenn and conditions. The POLICY GUIE on the inside of the front cover shows where the major policy provisions ca be found.
Signed for the Company on the Date of Issue. Our Administratve Ofce for ths policy is P.O. Box

1525, Dover, N.H. 03821-1525.

~l.~ ~w.Qa4
Secretary

President

POLICY DESCRITION

Ths is a single premium imediate ANTY POllCY with one Anuitat. The Anuity
Benefit is shown on page 3. Th policy is not eligible for dividends.
SPIA(3)-1995
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Page

POLICY GUIDE ANNUITY BENEFIT ............................ 4 ASSIGNMENT ................................ 5

BENEFICIARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 4
DEFINITIONS ................................ 2 GENERA CONTRCT PROVISIONS ................. 5

INCONTESTABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . .. 5 OWNER.................................... 4 PAYMENT OF PROCEEDS ... . . . . . . . . . . . . . . . . . . . .. 5

PREMIUM.......... . . . . . . . . . .. . . . . . .. . . . . . .. 4
ANY ADDITIONAL AGREEMENTS, A COPY OF THE APPLICATION AN ANY ENDORSEMENTS

POLICY INFORMTION ......................... 3

APPEAR BEFORE PAGE. . . . . . . . . . . . . . . . . . . . . . . . .. 6

DEFINITIONS This is what we mean when we use these italicized words in your policy:
Date of Issue. The date ths policy is issued and your rights and

benefits begin. It is shown on page 3.
Administrative Offce. P.O. Box 1525, Dover, N.H. 03821-1525.

Proceeds. All or part of the amount payable under any provision
of this policy.

Written Request. A notice in writing, satisfactory to us, placed on
fie at our Administrative Offce.

We have not italicized the following words because they appear in so many places in your policy, but this is what they mean:
We, Our, Us. Keyport Life Insurance Company.

You, Your. The Owner of this policy, who may be someone other than the Anuitant.

SPIA(3)-1995

2

Case 1:05-cv-00186-FMA

Document 85-2 Filed 08/01/2008 POLICY INFORMTION

Page 58 of 95

ANNUITANT:

JANELLE RAE WHITE BUTTERFLY

POLICY NUMBER: NP3-090033

DATE OF ISSUE: August 31, 1998
SINGLE PREMIUM:

ISSUE AGE:

17

Valuable Consideration

SEX:

Female
TYPE OF COVERAGE

POLICY:

Single Premium Immediate Annuity

ADDITIONAL AGREEMENTS: Amendatory Agreement

$630.00 wil be paid on August 31, 1999 and continue monthly

thereafter through July 31,2009.

ALL PAYMENTS ARE GUARANTEED.

Payments wil be made to the Annuitant if living, otherwise;

to the Estate of Janelle Rae White Butterfy.

DUPLICATE

Case 1:05-cv-00186-FMA Document 85-2 BENEFIT Al\ JITY BENEFIT
page 3.

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shown on

This policy provides for the payment of the Anuity Benefit

PREMIUM

SINGLE PREMIUM
The single premium is payable on or before delivery of ths policy. The

premium is payable at our Administrative Offce, or to an authorized agent. We wil give you a receipt upon request.
This policy wil not tae effect until the premium is paid.

AND BENEFICIARY
OWNER

OWNER The Owner is as naed in the application on the Date of Issue, and may

be changed from time to time. Unless otherwise provided, the ownership

rights of an individual who dies before the Anuitat wil belong to the
executors or admistrators of that individual's estate. The ownership
rights of a corporation, partership or fiduciar wil belong to its
successors or assign.

Durig the Anuitat's lifetie, the rights and privileges stated in this
policy may be exercised only by the Owner.

BENEFICIAY
The Beneficiar wil have an interest in the proceeds after the death of the Anuitant 9nly if page 3 provides for such an interest.

The Beneficiar is as named in the application on the Date of Issue, and may be changed from tie to time. The interest of any Beneficiar who

dies before the Anuitat wil termte at the death of the Beneficiar.
The interest of any Beneficiar who dies after the Anuitat, but before
receipt of any proceeds, wil belong to the executors or admstrators of

that Beneficiar's estate.

If no Beneficiar designation is in effect at the Anuitant's death, or if
there is no designated Beneficiar then living, you wil be the Beneficiar.
However, if the Anuitat was the Owner, the executors or admstrators
of the Anuitat's estate wil be the Beneficiar.

Unless otherwise provided, payment wil be made in equal shares to those beneficiares entitled to receive the proceeds.

CHANGE OF OWNERSHI OR BENEFICIAY
You may change the Owner or any Beneficiary by written request during

the Anuitant's lifetime. The change wil tae effect as of the date the
request is signed if we acknowledge receipt in writing, whether or not you

or the Anuitant is living at the time of acknowledgment. The change wil be subject to any assignment, and to any payment made or action
taen by us before acknowledgment.

SPIA(3)-1995

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PAYMENT OF
PROCEEDS

PROOF BEFORE PAYMENT
We have the right to require proof:

1. of the correct age of the Anuitat before makng the first Anuity
Benefit payment; and
2. that the Anuitat is living on the date each Anuity Benefit payment

is payable.

Payment to the Beneficiar wil be made only if we receive proof,
satisfactory to us, of the Anuitant's death.
INCONTESTABILITY
INCONTESTABILITY

We wil not contest ths policy.
YOUR POLICY Your policy is issued in consideration of the application and the pa