1868 Treaty of Fort Laramie – Page 3

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.

PBS Newshour Video on Black Hills Judgment

August 26, 2011Matthew L.M. Fletcher1 Comment

Here.

Eighth Circuit Rejects Challenge to Federal Prosecution Based on 1868 Treaty of Fort Laramie

May 2, 2011Matthew L.M. Fletcher2 Comments

Here is the opinion in United States v. Jacobs: United States v. Jacobs CA8 Opinion.

The court’s syllabus:

Argument that the government’s failure to comply with the provisions of the Fort Laramie Treaty deprived the district court of criminal jurisdiction rejected; even if Articles I and V of the treaty could reasonably be construed as establishing a jurisdictional requirement at the time the Treaty was executed, Congress’s subsequent grant of citizenship to the Indians makes them subject to all restrictions to which any citizen is subject and is evidence of a clear indication to abrogate any contrary treaty provisions.

And the briefs are here.

“Bad Men” Treaty Claim against U.S. re: Personal Injury Case Dismissed

April 7, 2011April 6, 2011Matthew L.M. Fletcher

Interesting argument, which in a nutshell is that the 1868 Treaty of Fort Laramie requires the United States to be responsible for “bad men” on the reservation, and therefore the federal government is liable for torts of bad white men on the reservation. The district court dismissed the action. Here are the materials in Richard v. United States (Fed. Cl.):

DCT Order Dismissing Richard Complaint

US Motion to Dismiss Richard Complaint

Richard Response Brief

USA Reply Brief — Richard

Fay v. Chester: Tenth Circuit Rejects Pro Se Challenge to Constitutionality of Major Crimes Act

February 10, 2011Matthew L.M. Fletcher

Here is that unpublished opinion.

An excerpt:

Mr. Fay asserts that he “is a[n] enrolled member of the Sioux Tribe . . .and has maintained his Traditional standing in the Tribe with TraditionalMembers.” Aplt. Opening Br. at 5a. Construing his appellate brief liberally, Mr.Fay raises three grounds in support of his argument that the United States—morespecifically, the Commission—lacked jurisdiction over him because he is anAmerican Indian and the Sioux Nation is a sovereign: (1) the Major Crimes Act isunconstitutional; (2) the Sioux Nation did not relinquish its sovereignty under the Fort Laramie Treaty of 1851; and (3) the Fourteenth Amendment recognizesAmerican Indian tribes as sovereigns.