New Scholarship on the “Bad Men” Clause in the Sherman Treaties

James D. Leach has published “Bad Men Among the Whites” Claims After Richard v. United States” in the New Mexico Law Review.

An excerpt:

This article contends that Richard provides Indians with exactly what they bargained for and received when their tribes negotiated and signed treaties with the United States. The government is unlikely to return the parties to their pre-agreement status by returning to Indians the lands they gave up in treaties. The right of Indians to receive what the government promised them in exchange for large amounts of tribal land would seem to be beyond moral or legal dispute. But as we will see, even these seemingly self-evident principles are now disputed.

Our post on the Richard case is here.

Federal Circuit Decision Reopening Money Claims against US under “Bad Man” Clause of Treaty of Fort Laramie

Very interesting case to watch. Here are the materials:

CAFed Opinion

Richard Opening Brief

US Appellee Brief in Richard v US

Richard Reply

An excerpt:

The United States Court of Federal Claims (“Claims Court”) held that a drunk driver who killed two Sioux men on a Sioux reservation was not a “bad man” within the meaning of the 1868 Laramie Treaty, and that in any event, the relevant provisions of the Treaty are no longer enforceable by its beneficiaries. Considering our textual analysis, and because we held in Tsosie v. United States, 825 F.2d 393, 395 (Fed. Cir. 1987), the “bad men” provisions (“‘bad men’ provisions”) of the Fort Laramie Treaty of 1868 (“the Laramie Treaty”) are not limited to persons acting for or on behalf of the United States, and because the Claims Court’s textual analysis and its historical recitations are erroneous or incomplete, the Claims Court improperly dismissed Appellants’ Complaint for lack of jurisdiction. Accordingly, we vacate and remand for further proceedings.

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

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