98 Fed. Cl. 376
Fed. Cl.2011Background
- Officer Kettell, on Rosebud Sioux Reservation, sexually abused F.C. while transporting her to a detention facility.
- F.C.’s mother Jennifer Pablo sues the United States under the Fort Sumner Treaty Article I “bad men” clause for compensatory damages.
- Plaintiff seeks $2,000,000 and related relief for future medical and counseling costs.
- Article XIII conditions treaty rights on residing within the reservation boundaries; plaintiff was outside the Navajo reservation per Article XIII.
- F.C. was born on Rosebud Reservation, resides there intermittently, and is enrolled as Navajo Nation member; however, the Rosebud Reservation is outside the Fort Sumner Reservation boundaries.
- Court granted the government’s summary judgment motion, holding that Article XIII forecloses recovery where both residence and attack occurred off the Fort Sumner Reservation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether injuries are compensable under Fort Sumner Article I. | Pablo contends protections extend via Article I despite residence/off-reservation. | Kettell/the Government argues Article XIII excludes off-reservation claims. | Granted summary judgment for government; no compensation. |
| Effect of residence outside Fort Sumner Reservation on Treaty rights. | Treaty intent protected Navajos regardless of location. | Article XIII unambiguously limits rights to reservation boundaries. | Article XIII bars relief; Herrera alignment maintained. |
| Reliance on Fort Laramie clause for protection when within other treaty reservations. | Argues cross-treaty protection should apply. | No extension beyond Fort Sumner boundaries; no enrollment exception. | Not persuasive; no Treaty extension. |
| Available avenues for redress besides Fort Sumner claim. | FTCA claim already raised with BIA. | FTCA claims belong in district court; administrative denial necessary. | FTCA avenue remains available; not pursued here. |
Key Cases Cited
- Herrera v. United States, 39 Fed.Cl. 419 (1997) (injury outside reservation not covered by bad men clause; Herrera cited)
- Tsosie v. United States, 825 F.2d 393 (Fed.Cir.1987) (limits treaty protections to reservation boundaries; interpretation of reservation scope)
- United States v. Sherwood, 312 U.S. 584 (1941) (Tucker Act jurisdiction with non-United States parties; dismissal of claims against individuals)