bad men clause

New Scholarship on Bordertowns and the Bad Men Clauses

Matthew L.M. Fletcher

Taylor Graham has published “Bad Men in the Bordertown” in the New Mexico Law Review.

Here is the abstract:

In nine treaties signed by Tribal Nations and the United States between 1867 and 1868, the United States promised redress to Native Americans for wrongs committed against them by “bad men among the whites.” Today, Native Americans are more likely to be killed by police than any other group, with much of this violence concentrated near the borders of Tribal Nations. Although claims brought under the “bad men” treaty clauses offer an avenue for combatting this epidemic of violence, courts have begun interpreting the clauses to apply only when “wrongs” occur within Tribal boundaries. This article argues that the territoriality of the bad men clauses should be read broadly to encompass violence committed outside of Tribal boundaries to address the disproportionate police violence against Native Americans that occurs there.

Crow Citizen Sues BIA Cops for Trespass, False Imprisonment, Etc. under Bad Men Clause/FTCA

Matthew L.M. Fletcher

Here is the complaint in Siemion v. United States (D. Mont.):

1 ComplaintDownload

CFC Rules that Federal Police Officer Did Not Shoot Ute Tribal Member [Bad Men Clause Claim]

Matthew L.M. Fletcher

Here are the trial materials in Jones v. United States (Fed. Cl.):

223 Jones Pre-Trial Brief.pdfDownload
227 US Pre-Trial Pleading.pdfDownload
260 US Post-Trial Pleading.pdfDownload
261 Jones Post-Trial Pleading.pdfDownload
268 Opinion.pdfDownload

Prior post here.

Federal Circuit Rules against Government on Evidence Issue and Remands Ute Tribal Member Shooting Suit to Trial Court (again)

Matthew L.M. Fletcher

Here are the materials in Jones v. United States (Fed. Cir.):

20-2182.OPINION

Opening Brief

Answer Brief

Reply

Prior post here.

Federal Claims Court Dismisses Opioid Claims Arising under Bad Men Clause

Matthew L.M. Fletcher

Here are the materials in Cheyenne & Arapaho Tribes v. United States (Fed. Cl.):

7-1 US Motion to Dismiss

10 Response

11 Reply

14 DCt Order

We posted the complaint here.

Federal Claims Court Rejects Ute Family’s “Bad Men” Claims on the Merits that Police Shot Relative, Police Had Destroyed the Evidence

Matthew L.M. Fletcher

Here are the materials in Jones v. United States (Fed. Cl.):

150-1 US Motion for Summary Judgment

156 Response

157 Reply

158 DCT Order

Prior post here.

Cheyenne & Arapaho Tribes Sue US for Violation of “Bad Men” Clause over Opioids

Matthew L.M. Fletcher

Here is the complaint in Cheyenne & Arapaho Tribes v. United States (Fed. Cl.):

1 Complaint

Update in Remanded “Bad Men” Case regarding Shooting of Indian Man

Matthew L.M. Fletcher

Here are the materials in Jones v. United States (Fed. Cl.):

137 Motion for Sanctions

139 Response

142 Reply

145 DCT Order

Prior posts here.

Federal Circuit Revives “Bad Men Clause” Claim

Matthew L.M. Fletcher

Here are the materials in Jones v. United States.

Opinion

Briefs:

Jones Brief

US Response Brief

Reply

 

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

Matthew L.M. Fletcher1 Comment

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.