Richard v. United States
98 Fed. Cl. 278
Fed. Cl.2011Background
- Plaintiffs are purported personal representatives of the estates of Calonnie D. Randall and Robert J. Whirlwind Horse, members of the Oglala Sioux Tribe.
- They invoke Article I of the Fort Laramie Treaty’s “bad men” clause to seek damages for the deaths of Randall and Whirlwind Horse caused by Timothy Hotz, a non-Indian driver who was intoxicated at the time of the incident.
- Hotz pled guilty to involuntary manslaughter in SD federal court and is serving a prison sentence; he had no government employment at the time of the incident.
- Plaintiffs filed an administrative claim with the Interior; as of August 2, 2010, the claim had not been granted or denied.
- Plaintiffs allege they are treaty beneficiaries seeking $3,000,000 for losses including income, companionship, medical and burial expenses, and other damages.
- Defendant moved to dismiss for lack of subject-matter jurisdiction (RCFC 12(b)(1)) or, alternatively, for failure to state a claim (RCFC 12(b)(6)).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Fort Laramie Treaty authorizes suit against the United States when the wrongdoer is a private non-agent. | Randall/Whirlwind Horse seek relief for Hotz’s actions under the treaty. | No jurisdiction because Hotz was not an agent/employee of the United States. | Lacks jurisdiction; wrong must be by a ‘bad man’ who acted as or for the United States. |
| Whether a non-agent non-Indian can be a ‘bad man’ subject to the United States’ authority under the treaty. | The clause covers any ‘white’ plus any nonwhite subject to US authority; Hotz should fall within this. | There must be a nexus—agent/employee or equivalent—with the United States. | Not satisfied here; there is no such nexus, so Tucker Act jurisdiction does not lie. |
Key Cases Cited
- Tsosie v. United States, 825 F.2d 393 (Fed.Cir.1987) (ambiguous scope of ‘bad men’ clause; not obsolete)
- Hebah v. United States, 428 F.2d 1334 (Ct.Cl.1970) (treaty rights for third-party beneficiaries; agency-like relationship)
- Begay v. United States, 219 Ct.Cl. 599 (Ct.Cl.1979) (treaty claims against government actors at BIA school)
- Elk v. United States, 70 Fed.Cl. 405 (Fed.Cl.2006) (treatment of treaty claims involving government employees on reservations)
- Jan’s Helicopter Serv., Inc. v. FAA, 525 F.3d 1299 (Fed.Cir.2008) (jurisdictional approach under money-mandating sources; reliance on treaty language)
- Hernandez v. United States, 93 Fed.Cl. 193 (Fed.Cl.2010) (neither party adequately connects defendant to the wrong)
- Slattery v. United States, 635 F.3d 1298 (Fed.Cir.2011) (jurisdictional requirement that the breaching entity be part of government or its agent)