677 F.3d 1141 (Fed. Cir. 2012), 2011-5083, Richard v. United States

Docket Nº:2011-5083.
Citation:677 F.3d 1141
Opinion Judge:WALLACH, Circuit Judge.
Party Name:James RICHARD, Sr., (Personal Representative of the Estate of Calonnie D. Randall, Deceased), and Jon Whirlwind Horse, (Personal Representative of the Estate of Robert J. Whirlwind Horse, Deceased), Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.
Attorney:James D. Leach, of Rapid City, South Dakota, argued for plaintiffs-appellants. J. Hunter Bennett, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Tony West, Assistant At...
Judge Panel:Before LOURIE, LINN, and WALLACH, Circuit Judges. Opinion for the court filed by Circuit Judge WALLACH. Dissenting opinion filed by Circuit Judge LOURIE. LOURIE, Circuit Judge, dissenting.
Case Date:April 13, 2012
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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677 F.3d 1141 (Fed. Cir. 2012)

James RICHARD, Sr., (Personal Representative of the Estate of Calonnie D. Randall, Deceased), and Jon Whirlwind Horse, (Personal Representative of the Estate of Robert J. Whirlwind Horse, Deceased), Plaintiffs-Appellants,

v.

UNITED STATES, Defendant-Appellee.

No. 2011-5083.

United States Court of Appeals, Federal Circuit.

April 13, 2012

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James D. Leach, of Rapid City, South Dakota, argued for plaintiffs-appellants.

J. Hunter Bennett, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director and Bryant G. Snee, Deputy Director.

Before LOURIE, LINN, and WALLACH, Circuit Judges.

Opinion for the court filed by Circuit Judge WALLACH. Dissenting opinion filed by Circuit Judge LOURIE.

OPINION

WALLACH, Circuit Judge.

INTRODUCTION

The United States Court of Federal Claims (" Claims Court" ) held that a drunk driver who killed two Sioux men on a Sioux reservation was not a " bad man" within the meaning of the 1868 Laramie Treaty, and that in any event, the relevant provisions of the Treaty are no longer enforceable by its beneficiaries. Considering our textual analysis, and because we held in Tsosie v. United States, 825 F.2d 393, 395 (Fed.Cir.1987), the " bad men" provisions (" ‘ bad men’ provisions" ) of the Fort Laramie Treaty of 1868 (" the Laramie Treaty" ) are not limited to persons acting for or on behalf of the United States, and because the Claims Court's textual analysis and its historical recitations are erroneous or incomplete, the Claims Court improperly dismissed Appellants' 1 Complaint for lack of jurisdiction. Accordingly, we vacate and remand for further proceedings.

BACKGROUND

In 1868, the Laramie Treaty was negotiated between " different tribes of Sioux Indians" and " commissioners, on the part of the United States." Laramie Treaty, 15 Stat. 635, 635 (1868).2 " The United States

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treaty commissioners included that famed and redoubtable warrior, Lt. General William T. Sherman." Tsosie, 825 F.2d at 395. Article I of the Laramie Treaty as found in 15 Stat. 635 contains two " bad men" provisions and reads in part:

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 wilfully 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.

15 Stat. 635, 635 (emphasis added). On August 27, 2008, two members of the Oglala Sioux Tribe, Calonnie Randall and Robert Whirlwind Horse, were killed on the Pine Ridge Indian Reservation by Timothy Hotz, a non-Sioux,3 who was driving while intoxicated. Richard v. United States, 98 Fed.Cl. 278, 280 (2011). Hotz pled guilty to involuntary manslaughter in the United States District Court for the District of South Dakota and was sentenced to federal prison for 51 months. Id. 4 Appellants filed a complaint with the Claims Court alleging that under the relevant " bad men" provision in the Laramie

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Treaty, Hotz's actions were a " wrong" against Native Americans, Hotz was a " bad man" under the treaty, and the United States therefore must reimburse the injured parties for losses sustained as a result of " wrong" actions by a " bad man" against Sioux tribal members on their reservation. Id. 5

The jurisdiction of the Claims Court was invoked pursuant to (1) the Tucker Act, which waives sovereign immunity " for any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort," id. at 281 (quoting 28 U.S.C. § 1491(a)(1)), and (2) the " bad men among the whites" provision of the Laramie Treaty, id. The Claims Court found that " [t]his case requires the court to determine the meaning of the phrase ‘ subject to the authority of the United States' contained in the first ‘ bad men’ clause of Article I of the Fort Laramie Treaty," a determination that the trial court believed to be both the main jurisdictional question and an issue of first impression.6 Id. at 284. The trial court ultimately held that

[T]he Fort Laramie Treaty does not confer upon the Court of Federal Claims jurisdiction to entertain plaintiffs' claim because Mr. Hotz, who had no connection to the federal government (other than citizenship) at the time of the tragic incident, was not " subject to the authority of the United States" within the meaning of the first " bad men" clause contained in Article I of the Fort Laramie Treaty such that the United States can be held liable for plaintiffs' losses.

Id. Accordingly, the Claims Court dismissed the claim for lack of jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims. Id. This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).

DISCUSSION

Resolution of this case depends solely on the interpretation of the " bad men" provisions of the Laramie Treaty.7

This court reviews a dismissal of a claim for lack of jurisdiction by the Court of Federal Claims de novo. Bank of Guam v. United States, 578 F.3d 1318, 1325 (2009). The underlying question of treaty interpretation is a question of law,

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reviewed de novo. Barseback Kraft AB v. United States, 121 F.3d 1475, 1479 (Fed.Cir.1997) (citing Cook v. United States, 86 F.3d 1095, 1097 (Fed.Cir.1996)). " [T]he Supreme Court has made clear that while the court should look to the parties' ‘ choice of words,’ it should also consider the ‘ larger context that frames the Treaty,’ including its ‘ history, purpose and negotiations.’ " Elk v. United States, 87 Fed.Cl. 70, 79 (2009) (quoting Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 196-202, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999)). " In evaluating this argument, we are mindful that ‘ treaties should be construed liberally in favor of the Indians.’ " Okla. Tax Comm'n v. Chickasaw Nation, 515 U.S. 450, 465-466, 115 S.Ct. 2214, 132 L.Ed.2d 400 (1995) (quoting County of Oneida v. Oneida Indian Nation of N.Y., 470 U.S. 226, 247, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985)).

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."

I.

The Treaty Text Clearly Does Not Limit Bad Men Among The Whites To Governmental Actors

" The interpretation of a treaty, like the interpretation of a statute, begins with its text." Medellin v. Texas, 552 U.S. 491, 506, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008). The relevant portion of the provision at issue states: " 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 ... [after steps not at issue here] reimburse the injured person for the loss sustained." 15 Stat. 635, 635. The structure of the treaty divides potential bad men into two categories, " bad men among the whites" and " bad men ... among other people." Id. There are two issues to address: (1) whether the phrase " subject to the authority of the United States" applies to both categories or only the latter, and more importantly, (2) the definition of the phrase " subject to the authority of the United States." 15 Stat. 635, 635; see Richard, 98 Fed.Cl. at 284.

With regards to the former, the trial court assumed, without analysis or explanation, that " subject to the authority of the United States" applies to both categories, interpreting the text to say: There are bad men among the whites and there are bad men among other people, all of whom must be " subject to the authority of the United States," for the Treaty to apply. See Richard, 98 Fed.Cl. at 284. However, it is equally if not more reasonable to interpret the provision to raise two wholly separate categories made parallel by the repeated use of the word " among," i.e., there are bad men among the whites and, separately, there are bad men among other people who are subject to the authority of the United States.8

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Additionally, the parties dispute the definition of " subject to the authority of the United States." 15 Stat. 635, 635; see Richard, 98 Fed.Cl. at 284. The trial court accepted the Government's definition that " subject to the authority of the United States" is equivalent to " an agent, employee, representative, or [an individual] otherwise acting in any other capacity for or on behalf of the United States." Richard, 98 Fed.Cl. at 284, 289-90. The trial court offered no explanation and did not seem to consider why the alternative interpretation, that " subject to the authority of the United...

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