South Dakota Federal Court Reminds Prisoners — 1868 Treaty “Bad Men” Clause Does Not Get You Off the Hook

Here is the opinion in United States v. Wright (D. S.D.):

DCT Order Dismissing Wright Complaint

An excerpt:

Although this Court does not need to reach the merits of Wright’s claims, this Court has had cause, on a number of previous occasions, to address the misapprehension that Native American Indians are exempted from enforcement of criminal laws under that treaty. That misapprehension stems from a misinterpretation ofthe “bad men” clause of the treaty. The “bad men” clause provides that:

If bad men among the Indians shall commit a wrong or depredation upon the person or property of anyone, 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 …

Art. I, paragraph 3, Treaty of Ft. Laramie of 1868. Wright does not specify what treaty rights he believes Defendants violated and does not plead any facts in support of his assertion that his “Indian rights” were violated.

The “bad men” clause does not exempt Native American Indians from being held responsible for violation offederal law. Congress, in passing the Major Crimes Act, “intended full implementation offederal criminal jurisdiction in those situations to which the Major Crimes Act extended” United States v. Jacobs, 638 F.3d 567, 569 (8th Cir. 2011). Wright’s misinterpretation ofthe “bad men” clause ofthe Fort Laramie Treaty of 1868 is at odds with the Major Crimes Act. While Native Americans have good reason in a historical sense to question how the United States chose to honor or dishonor the Fort Laramie Treaty of 1868, the “bad men” clause and the treaty itself does not render Wright a separate sovereign immune from prosecution for violation of federal criminal law.


One thought on “South Dakota Federal Court Reminds Prisoners — 1868 Treaty “Bad Men” Clause Does Not Get You Off the Hook

  1. Adelina Defender September 19, 2012 / 7:54 pm

    The “Bad Man” clause in the Ft. Laramine Treaty can be interpreted in the courts. During the Wounded Knee Trial in 1973 this treaty was the treaty defense. This Treaty was a spiritual link with the past and with the future and this Treaty is why people were there and the treaty has to be brought before juries and before the courts. That was the challenge because the courts do not want to hear about Treaties, they want to hear about criminal laws The attorneys, Bill Kunstler, the legal giant of this centry, Lou Berwitz and Larry Levanthal knew that the trial really had nothing to do with criminal laws because the only crimes were crimes by the agents of the U.S and the crimes by the GOONS. Not the crimes of the people who came to Wounded Knee to stand up, because they were not crimes. They were there to honor the Treaties, to honor the people, and was something they had to bring out before the the courts, and before the juries. The Ft. Laramie Treaty had provisions which guaranteed the right of the peoples. Under the US Law, treaties are part of the Supreme Law of the Land and it goes further. The Constutution says that all judges are bound by the treaties. It is in the constitution. Ft. Laramie Treaty talked about there would be no illegal actions by the United States. It talked about that there would be bad men among the whites and they would be removed. Bad men among the Indians could be tried by the people there. It talked about the people who would or could be removed, or the tribe could deal with them, if it wished to deal with them.

Comments are closed.