Federal Circuit revives case over 'bad men' treaty clause

The federal government could be held liable for a drunk driving incident in which two members of the Oglala Sioux Tribe died

Calonnie Randall, 26, and Robert Whirlwind Horse, 26, were walking on a road between Whiteclay, Nebraska, and the Pine Ridge Reservation in South Dakota when they were struck and killed on August 27, 2008. Timothy Hotz, a non-Indian, pleaded guilty to involuntary manslaughter and was sentenced to 51 months in federal prison.

The families of Randall and Whirlwind Horse subsequently filed a lawsuit against the federal government, invoking the 1868 Treaty of Fort Laramie. At issue is a clause that 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 reimburse the injured person for the loss sustained.

If bad men among the Indians shall commit a wrong or depredation upon the person or property of any one, white, black, or Indian, subject to the authority of the United States, and at peace therewith, the Indians herein named solemnly agree that they will, upon proof made to their agent and notice by him, deliver up the wrong-doer to the United States, to be tried and punished according to its laws; and in case they willfully refuse so to do, the person injured shall be reimbursed for his loss from the annuities or other moneys due or to become due to them under this or other treaties made with the United States.

A judge with the U.S. Court of Claims previously ruled that the "bad men" clause can't be invoked because Holtz was not connected to the federal government. But the Federal Circuit Court of Appeals, by a 2-1 decision, reversed and sent the case back for further proceedings.

"The treaty text, the object and policy behind the treaty, and this court’s precedent dictate that the 'bad men' provisions found in Article 1 of the Laramie Treaty of 1868 are not limited to 'an agent, employee, representative, or otherwise acting in any other capacity for or on behalf of the United States,'" Judge Circuit Judge Evan J. Wallach wrote for the majority.

Judge Alan D. Lourie dissented. He agreed with the lower court that a drunk driver does not fall in the category of "employees, agents, or representatives of the United States or otherwise acting upon the United States’ behalf."

The 2-1 split could make the case a candidate for an appeal to the U.S. Supreme Court. Turtle Talk has posted briefs from the case, Richard v. US.

Federal Circuit Decision:
Richard v. US (April 13, 2012)

Court of Federal Claims Decision:
Richard v. US (March 31, 2011)

Related Stories:
Editorial: Unjust criminal system in Indian Country (4/7)
Man sentenced for deaths on Pine Ridge Reservation (3/31)

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