Jones v. United States, 2015-5148

Decision Date27 January 2017
Docket Number2015-5148
Parties Debra JONES, as Personal Representative of the Estate of Todd R. Murray, Deceased, for and on Behalf of the Heirs of Todd R. Murray, Arden C. Post, Individually and as the Natural Parents of Todd R. Murray, Ute Indian Tribe of the Uintah and Ouray Reservation, Plaintiffs-Appellants v. UNITED STATES, Defendant-Appellee
CourtU.S. Court of Appeals — Federal Circuit

Jeffrey S. Rasmussen , Fredericks Peebles & Morgan LLP, Louisville, CO, argued for plaintiffs-appellants. Also represented by Frances C. Bassett .

James Maysonett , Environment and Natural Resources Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by John C. Cruden .

Before Lourie, O'Malley, and Taranto, Circuit Judges.

O'Malley, Circuit Judge

Debra Jones, Arden C. Post, and the Ute Indian Tribe of the Uintah and Ouray Reservations (collectively, "Jones"), appeal the judgment of the United States Court of Federal Claims ("CFC") dismissing (1) Jones's claims for damages against the United States for failure to state a claim under the 1868 Treaty between the United States and the Ute Tribe, and (2) a breach of trust claim for failure to state a claim under the 1868 Treaty and an 1863 Treaty between the same parties. Jones v. United States , 122 Fed.Cl. 490 (Fed. Cl. 2015) (" Jones II "). We hold that the CFC erred in dismissing Jones's claims by improperly limiting the scope of claims cognizable under the bad men provision of the 1868 Treaty.1 The CFC also erred in applying issue preclusion without considering an essential spoliation issue. We vacate and remand.

A. Circumstances Surrounding Murray's Death

On April 1, 2007, Utah State Trooper Dave Swenson ("Swenson") attempted to stop a car for speeding near to, but outside of, the Uncompahgre Ute Reservation in Utah. The car did not stop but turned into the reservation. About twenty-five miles into the reservation, the car stopped and the driver, seventeen-year-old Uriah Kurip ("Kurip"), and the passenger, twenty-one-year-old Todd R. Murray ("Murray"), exited the car. Swenson exited his patrol car with his gun drawn, and ordered Kurip and Murray to the ground. Murray and Kurip ran in different directions. Swenson caught and arrested Kurip without further incident.

At some point during the pursuit, Swenson requested back-up. Vernal City Police Officer Vance Norton ("Norton"), Utah Highway Patrol Trooper Craig Young ("Young"), and Uintah County Deputy Anthoney Byron ("Byron") responded. Norton pursued Murray on foot and ordered Murray to the ground. According to Norton, Murray raised a gun and fired two shots towards Norton, and Norton fired two shots at Murray. All of the shots missed. Norton testified that Murray then turned his own gun on himself and pulled the trigger. Norton called dispatch, indicated that shots had been fired, and explained that Murray had shot himself. Meanwhile, Byron and Young approached the scene with their guns drawn. Neither witnessed the shot that brought down Murray. Byron and Young handcuffed Murray.

The officers found an illegally-purchased .380 caliber gun and two bullet casings near Murray. Investigators found two other bullet casings some distance away. A third casing was also found inside the chamber of Norton's gun. An ambulance arrived on the scene thirty-two minutes after the shooting, while Murray was still alive. No officer administered medical assistance to Murray in that time. By the time the ambulance arrived, additional police officers had arrived from various police departments and had "commandeered the site and were asserting state jurisdiction over the site." Complaint at 9, Jones II , 122 Fed.Cl. 490 (Fed. Cl. 2013) (No. 1:13–cv–00227).

Federal Bureau of Investigation ("FBI") special Agents Rex Ashdown and David Ryan and Bureau of Indian Affairs ("BIA") Officers James Beck and Terrance Cuch (collectively, "federal officers") then arrived and "ostensibly assumed [federal] jurisdiction of the scene." Id. Ashdown took charge of the investigation. The complaint alleges that the federal and local officers prevented Raymond Wissiup—a member of the Ute tribe, a law enforcement officer, and the Director of the Tribe's Fish and Wildlife Department—from accessing the crime scene.

An ambulance took Murray off the reservation to the Ashley Regional Medical Center ("Medical Center") in Vernal, Utah, where was declared dead at 1:19 pm. At the Medical Center, one of the officers allegedly disrobed Murray, photographed him nude, and manipulated his remains. For example, Byron was photographed with his finger in Murray's head wound

. A sample of Murray's blood was also taken. Jones alleges that BIA Officer Kevin Myore "condoned and participated in, or failed to prevent" these actions. Complaint at 11, Jones II , 122 Fed.Cl. 490 (Fed. Cl. Dec. 3, 2013) (No. 1:13–cv–00227).

The local officers then took Murray's body to the off-reservation Thomson-Blackburn Mortuary ("Mortuary") in Vernal, Utah to await an autopsy. There, Vernal City Police Chief Gary Jensen inserted a needle with syringe into Murray's heart and directed a mortuary employee to make an incision into Murray's jugular vein to collect two vials of blood. No one ever accounted for the blood or provided any reason for the necessity of collecting additional blood, the use of a jugular incision, or the insertion of a needle into Murray's heart.

Murray's body was then transferred to the off-reservation Office of the Medical Examiner ("OME"), where the medical examiner declined to perform an autopsy. Jones alleges that this was done either at the direction of the FBI, or with the FBI's tacit approval.

After an external examination, the medical examiner concluded that the bullet entered the back of Murray's head, above and behind his left ear, and exited on the right side of his head. Murray was right-handed. The medical examiner did not find soot on Murray's hands, but noted that his right hand was bloodied while his left was clean. The medical examiner considered Murray's death a suicide, but later testified that he could not rule out the possibility that Murray was shot in the back of the head, execution-style.

The federal officers secured the .380 gun, which became the subject of a federal investigation into its illegal sale. In the course of the investigation, Ashdown retired and was replaced by Special Agent Ryan. Jones v. Norton , No. 2:09–cv–730–TC, 2014 WL 909569 at *4 (D. Utah Mar. 7, 2014) (unpublished) (" Spoliation Order "). When the criminal investigation into the illegal sale of the gun concluded, the judge hearing the case signed an order forfeiting the gun to the government. Id. The FBI thereafter destroyed the firearm. Id.

Jones alleges that Murray was shot execution-style in the back of the head and that the gaps in the investigation were part of a conspiracy to cover-up this fact. Jones argues that the United States is liable for the actions of the federal and local officers under two treaties negotiated between the United States and the Ute Indians.

B. The Ute Treaties

The predecessor to the modern Ute Tribe entered into two treaties with the United States, one in 1863 and one in 1868. See Treaty with the Utah Tabeguache Band, Oct. 7, 1863, 13 Stat. 673 (hereinafter "1863 Treaty"); Treaty with the Ute, Mar. 2, 1868, 15 Stat. 619 (hereinafter "1868 Treaty").

The Ute Tribe and the United States had a particularly acrimonious relationship prior to the 1863 Treaty, with several rounds of stalled treaty implementations and several skirmishes occurring between the parties. Ned Blackhawk, Violence Over the Land 215–16 (2008) (hereinafter, "Blackhawk"). A Ute War Council decided to forgo war in 1863 after being persuaded by Ouray, a leader of the Tabeguache Ute Tribe, that armed resistance to the United States would be futile. Id. Ouray led the Ute negotiations, which resulted in the Ute Tribe ceding to the United States "among the largest and most valuable tracts of land ever ceded to the United States," according to Commissioner of Indian Affairs Dole. Id. at 216. The Tabeguache Band admitted that they reside within the United States, acknowledged the United States' supremacy, and claimed their protection, 1863 Treaty, art. 1; the United States agreed to send monthly payments in goods and provisions, id. , art. 2; and the Treaty set the stage for the creation of a large Ute reservation in Colorado's mountain valleys in the 1868 Treaty. Blackhawk at 216.

The 1868 Treaty established the Ute reservation. In common with the 1863 Treaty, its goal was peace between the Ute Tribe and white settlers. See Tsosie v. United States , 825 F.2d 393, 395 (Fed. Cir. 1987) (noting nine treaties made in 1868 containing bad men provisions with "peace as their object").

The 1868 Treaty included the following particularly relevant provisions. Article 2 reads:

[T]he United States now solemnly agree that no persons, except those herein authorized so to do, and except such officers, agents, and employees of the Government as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law shall ever be permitted to pass over, settle upon, or reside in the Territory described in this article, except as herein otherwise provided.

1868 Treaty, art. 2. Article 6, the primary provision at issue in this case, reads as 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 reimburse the injured person for the loss sustained.

Id. at art. 6. We refer to this provision as the "bad men provision" throughout this opinion.

The 1868 Treaty also includes a...

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