Tsosie v. U.S.

Citation825 F.2d 393
Decision Date30 July 1987
Docket NumberNo. 87-1103,87-1103
PartiesVenita TSOSIE, Plaintiff-Appellee, v. The UNITED STATES, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Kathleen P. Dewey, Dept. of Justice, Washington, D.C., argued for defendant-appellant. With her on the brief were F. Henry Habicht, II, Asst. Atty. Gen., Patricia L. Weiss and Robert L. Klarquist.

Stephen T. LeCuyer, Mettler & LeCuyer, P.C., of Albuquerque, N.M., argued for plaintiff-appellee.

Before RICH and DAVIS, Circuit Judges, and NICHOLS, Senior Circuit Judge.

NICHOLS, Senior Circuit Judge.

This case is here on an appeal, which we have permitted, seeking our review of an interlocutory order of the Claims Court denying a motion to dismiss or for summary judgment, but certifying that the order involves a controlling question of law with respect to which there is substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation.

Plaintiff-Appellee, a Navajo Indian, sued in the Claims Court for relief under the Article I clause of the Navajo Treaty of June 1, 1868, 15 Stat. 667, which provides that if "bad men" among the whites commit "any wrong" upon the person or property of any Navajo, the United States will reimburse the injured person for the loss sustained. The trial court, (Yock, J.), was of the opinion that this treaty provision was obsolete and has been abandoned, 11 Cl.Ct. 62 (1986), but he felt constrained to hold the contrary by certain decisions of a predecessor of this court, the Court of Claims, to be discussed below. We hold, however, that the treaty provision in question, even if infrequently invoked, has not become obsolete or been abandoned or preempted in any sense that affects its enforceability by suit in the Claims Court under the Tucker Act, 28 U.S.C. Sec. 1491. We have also reviewed other portions of Judge Yock's order holding that the treaty provision does not fail because of an absence of subsequent legislation to implement it, and that article IV of the treaty does not preclude judicial review of any administrative decision that may ensue on the claim. We agree with those portions. We affirm the order appealed from, and the case will be returned to the Claims Court for further proceedings.

The government suggested that the case be heard in banc because of the possibility a panel of this court might feel constrained, as Judge Yock did, to make a decision contrary to its real beliefs because of the supposed binding effect of the Court of Claims' precedents. A majority of the active judges of the court did not vote for a hearing in banc. Moreover, none of the issues we now decide were discussed or decided in any of such precedents as we read them. Therefore, a decision favoring the government's position, as now stated by it, respecting any currently argued issues, would not have required us to overrule any precedents of this or any predecessor court. We have, therefore, given the government's arguments full consideration, feeling perfectly free to adopt them if we agreed with them, which we did not.


The treaty in question is one of nine made in 1868, by and between commissioners representing the United States and chiefs of various previously hostile Indian tribes. The treaties were all duly ratified, proclaimed, and published in volume fifteen of the Statutes at Large. All say that peace is their object and all contain "bad men" articles in similar language. The Navajo treaty, 15 Stat. 667, was made at Fort Sumner, New Mexico. As held in Duran v. United States, 32 Ct.Cl. 273 (1897), the Navajos had been at war with the United States in 1863, and being defeated, were detained thereafter as prisoners of war at Fort Sumner. The United States treaty commissioners included that famed and redoubtable warrior, Lt. General William T. Sherman. Negotiations with the Indian commissioners were recorded and are in the instant record. Article I embodies the two "bad men" clauses and is set forth below in full so its context may be appreciated. Article IV is also set forth.

ARTICLE I. From this day forward all war between the parties to this agreement shall forever cease. The government of the United States desires peace, and its honor is hereby pledged to keep it. The Indians desire peace, and they now pledge their honor to keep it.

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 to reimburse the injured persons 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 Navajo tribe agree that they will, on proof made to their agent, and on notice by him, deliver up the wrongdoer 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 treaty, or any others that may be made with the United States. And the President may prescribe such rules and regulations for ascertaining damages under this article as in his judgment may be proper; but no such damage shall be adjusted and paid until examined and passed upon by the Commissioner of Indian Affairs, and no one sustaining loss whilst violating, or because of his violating, the provisions of this treaty or the laws of the United States, shall be reimbursed therefor.

* * *

* * * ARTICLE IV. The United States agrees that the agent for the Navajos shall make his home at the agency building; that he shall reside among them, and shall keep an office open at all times for the purpose of prompt and diligent inquiry into such matters of complaint by or against the Indians as may be presented for investigation, as also for the faithful discharge of other duties enjoined by law. In all cases of depredation on person or property he shall cause the evidence to be taken in writing and forwarded, together with his finding, to the Commissioner of Indian Affairs, whose decision shall be binding on the parties to this treaty.

Navajo Treaty of June 1, 1868, Arts. I & IV, 15 Stat. 667-68.

Other articles, not set out, provide for a permanent reservation to which the Navajos were to be removed from Fort Sumner, and also for allotment of land for farming within the reservation to individual Navajos, for United States Government aid to education of Navajos, to continue for 10 years, the Navajos, on their side, agreeing to send all their children to the government schools until age 16, and for other subsidies in money or kind. The Navajos agreed to stay on their reservation and to occupy no other land, but were allowed to hunt elsewhere.

It is evident from the negotiations that the Navajos were not to be permanently disarmed, and could defend their reservation. They feared attacks by other Indian tribes, which they could repel, but pursuit and retaliation it was hoped they would refrain from, leaving that to the United States Army. The "bad men" clause dealing with wrongs to the Navajos is not confined to United States Government employees, but extends to "people subject to the authority of the United States." This vague phrase, to effectuate the purpose of the treaty, could possibly include Indians hostile to the Navajos whose wrongs to Navajos the United States will punish and pay for: thus the need for Indian retaliation would be eliminated. 1 On the other hand, the "bad men" clause, dealing with depredations or wrongs by the Indians, provides for notice to the Indians, and an opportunity for them to deliver up the offender, and only on their failure to do this upon notice, is recoupment to be extracted from annuities due the Indians. "Indians" here means Navajo Indians, as the context makes clear.

The government asserts that the "bad men" clauses were virtually dead letters until recently, in the case of the Navajo, at least. The President never prescribed any "rules and regulations for ascertaining damages." Apparently, as we shall discuss more at length later, the portion dealing with wrongs or depredations by Indians (of the tribe with whom the treaty was made) was preempted by the Indian Depredation Act of March 3, 1891, 26 Stat. 851. In Brown v. United States, 32 Ct.Cl. 432 (1897), the Court of Claims put the proposition not, however, as preemption, but as an expression of opinion by the United States that the treaties were never from their inception intended to exonerate a tribe from its legal liability for depredations by its members on the grounds it had not been given notice, or if given notice, had not willfully failed to give up the offender. Id. at 436-38. This decision virtually nullified the aspect of the treaty that differed from other law to the Indians' advantage, as to their own depredations.

Apparently, so far as the parties to this case know, the clause relating to wrongs against members of a treaty tribe was first invoked in 1969 in Hebah v. United States, 192 Ct.Cl. 785, 428 F.2d 1334 (1970) (Hebah I ). Hebah sued as administratrix to recover for the death of a Shoshone at the hands of an Indian policeman said to have been a "bad man" in the treaty sense. The government moved to dismiss on two specific grounds: (1) that the treaty did not create a right owing to individuals, but only to the tribe, and (2) that the suit was unconsented. The holding was that Hebah was a third-party beneficiary of a contract, or else a direct beneficiary of an Act of Congress (construin...

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