District of South Dakota – Page 19

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.

Guest Post by Frank Pommersheim on the Recent Federal Court Decision Affirming Flandreau Tribal Court Jurisdiction over Nonmember Business

May 9, 2012Matthew L.M. Fletcher1 Comment

The federal district court decision of Judge Schreier that denied the plaintiff’s motion for a preliminary injunction in the case of Fox Drywall and Plastering, Inc. v. Sioux Falls Construction was a ringing endorsement of the Flandreau Santee Sioux Tribal Court of Appeals decision in this case. It is one of the few (and perhaps only) federal court decisions indicating that the tribal court’s subject matter jurisdiction over non-Indians in the Montana context was so certain that the plaintiffs were not entitled to injunctive relief in that they could not show the likelihood of prevailing on the merits. Judge Schreier also noted that “there is a significant public interest in recognizing a tribe’s sovereign right to regulate activities by non-members on tribal trust land and a tribal court’s right to enforce those regulations, as long as that regulation falls within the confines of Montana” (p. 33).

Here is the tribal appellate decision at issue: Flandreau COA Decision II

And the rest of the materials in the case are here.