Richard v. United States
677 F.3d 1141
Fed. Cir.2012Background
- In 1868, the Fort Laramie Treaty includes two 'bad men' provisions: (1) bad men among the whites or others subject to US authority to be arrested and reimbursed; (2) bad men among Indians or among others subject to US authority to be delivered to the US for trial and reimbursed if Indians refuse.
- On Aug. 27, 2008, two Sioux on Pine Ridge Reservation were killed by Timothy Hotz, a non-Sioux driving intoxicated; Hotz pled guilty to involuntary manslaughter and received a 51-month sentence.
- James Richard, Sr. and Jon Whirlwind Horse, personal representatives of deceased Sioux, filed in the Court of Federal Claims seeking reimbursement under the 'bad men' provisions for losses from Hotz’s actions.
- The Court of Federal Claims dismissed for lack of jurisdiction, holding the 'subject to the authority of the United States' phrase limits liability to persons acting for or on behalf of the United States.
- The Federal Circuit vacates and remands, holding the treaty text and history show the provisions are not so limited to government actors; Tsosie precedent supports broader interpretation.
- Dissent would affirm the Claims Court, insisting on sovereign-immunity limits and a narrower reading of the treaty.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is 'subject to the authority of the United States' limited to government actors? | Richard argues no, broad reading. | United States contends limited to government actors. | Not limited; broad interpretation upheld. |
| Does 'bad men among the whites' and 'among other people' both fall within liability? | Richard asserts both categories fall within liability. | US argues limits apply to select categories by text. | Text supports two parallel categories not restricted to government actors. |
| Is Tsosie controlling precedent for this interpretation? | Richard relies on Tsosie to expand scope. | US argues Tsosie does not override limitations. | Tsosie controls; supports non-governmental liability. |
Key Cases Cited
- Tsosie v. United States, 825 F.2d 393 (Fed.Cir. 1987) (treaty bad-men provision not confined to government employees)
- Janis v. United States, 32 Ct.Cl. 407 (Ct.Cl. 1897) (treaty covers depredations by non-government actors against Indians)
- Ex parte Crow Dog, 109 U.S. 556 (Sup. Ct. 1883) (construction of bad-men provisions in context of whites vs Indians)