Judge won't allow suit over death of young member of Ute Tribe

Monday, August 3, 2015

The parents of a member of the Ute Tribe can't sue the federal government for his death, a judge ruled last week.

Todd Rory Murray died on April 1, 2007, following an encounter with law enforcement officers on the Uintah and Ouray Reservation. A medical examiner concluded that the 21-year-old shot himself but the family believes he was murdered.

Murray's parents, however, won't get to pursue their case. Judge Marian Blank Horn ruled that they failed to state a claim under the "bad men" provision of an 1868 treaty.

The provision requires "bad men" to be "arrested and punished" by the United States for "any wrong" committed upon a tribal member. It also requires the government to "reimburse the injured person for the loss sustained."

But Horn said the government's failure to prosecute the Federal Bureau of Investigation and Bureau of Indian Affairs officers who were present at the scene of Murray's death was not contemplated by the treaty. Refusing to take action is not a "wrong," the judge determined.

A view of the Uintah and Ouray Reservation in Utah. Photo from Ute Tribe

"While, as plaintiffs note, it is doubtless true that 'a person can be wronged by the inaction of another,' inaction is not a recognized harm under the 1868 treaty," Horn wrote in the 56-page decision from the Court of Federal Claims in Washington, D.C., on Thursday.

Additionally, Horn said Murray's parents raised the same issues in a different lawsuit that was filed against non-federal law enforcement officers. In that case, the family's claim that their son was shot in the head "execution-style" by an officer from the city of Vernal was dismissed as "very speculative" in March 2014.

"The court agrees with defendant that the issues identified in the amended complaint filed in this court, namely the allegations that officials committed 'a wrong by pursuing Murray at gunpoint without jurisdiction and without probable cause, by shooting Murray execution-style, and by then conspiring to cover-up the execution-style shooting and to obstruct justice,' presents identical issues with those decided in the district court litigation," Horn wrote, referring to the earlier decision.

Despite Horn's dismissal of the case, the dispute over Murray's death is far from over. A lawsuit is pending in tribal court against the officers who were involved in the incident, which included a high-speed chase on the reservation.

Officials in Utah asked a federal judge to bar the tribal court from hearing the case. Judge Bruce Jenkins declined to intervene in May.

The seal of the Ute Tribe of Utah is seen on a gymnasium on the reservation. Photo from Facebook

Additionally, Murray's family has asked the 10th Circuit Court of Appeals to overturn Judge Tena Campbell's decision dismissing their case against the non-federal officers. Briefing is ongoing in that case, Jones v. Norton, No. 14-4040.

The Ute Tribe its not involved in the litigation. But its leaders are locked in a decades-long battle with state and local authorities over law enforcement on the reservation.

The tribe scored a major victory when the 10th Circuit last month rebuked officials from the state and three counties for repeatedly claiming that the reservation has been diminished. The decision means tribal members cannot be prosecuted in the areas that were under dispute.

"Indeed, the harm to tribal sovereignty in this case is perhaps as serious as any to come our way in a long time," Judge Neil Gorsuch wrote for the majority in the June 16 decision.

Turtle Talk has posted documents from the Court of Federal Claims case, Jones v. United States, and the 10th Circuit case, Ute Tribe v. Utah.

delegation of leaders from the Ute Tribe traveled to Washington, D.C, in 1868 to negotiate the treaty with the "bad men" provisions. Images from Denver Public Library, Western History Collection

The treaty at issue was negotiated and signed in Washington, D.C., on March 2, 1868. The "bad men" provision is similar to language found in other treaties from the same time period.

The full "bad men" provision of the 1868 Treaty With The Ute follows:

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.

Court of Claims Decision:
Jones v. US (July 30, 2015)

10th Circuit Decision:
Ute Tribe v. Utah (June 16, 2015)