Richard v. United States

United States Court of Appeals
for the Federal Circuit
__________________________

JAMES RICHARD, SR., (PERSONAL REPRESENTATIVE
OF THE
ESTATE OF CALONNIE D. RANDALL, DECEASED), AND
JON WHIRLWIND HORSE,
(PERSONAL REPRESENTATIVE OF THE ESTATE OF ROBERT
J. WHIRLWIND HORSE, DECEASED)
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
__________________________

2011-5083
__________________________

Appeal from the United States Court of Federal
Claims in Case No. 10-CV-503, Judge Margaret M.
Sweeney.
__________________________

Decided: April 13, 2012
__________________________

JAMES D. LEACH, of Rapid City, South Dakota, argued
for plaintiffs-appellants.

J. HUNTER BENNETT, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for defendant-
RICHARD v. US 2

appellee. With him on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director and
BRYANT G. SNEE, Deputy Director.
__________________________

Before LOURIE, LINN, and WALLACH, Circuit Judges.
Opinion for the court filed by Circuit Judge WALLACH.
Dissenting opinion filed by Circuit Judge LOURIE.
WALLACH, Circuit Judge.
INTRODUCTION
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” provi-
sions (“‘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’ 1 Complaint for lack of
jurisdiction. Accordingly, we vacate and remand for
further proceedings.
BACKGROUND

1 Appellants are James Richard, Sr. (personal rep-
resentative of the estate of Calonnie D. Randall, deceased)
and Jon Whirlwind Horse (personal representative of the
estate of Robert J. Whirlwind Horse, deceased).
3 RICHARD v. US

In 1868, the Laramie Treaty was negotiated between
“different tribes of Sioux Indians” and “commissioners, on
the part of the United States.” Laramie Treaty, 15 Stat.
635, 635 (1868). 2 “The United States treaty commission-
ers included that famed and redoubtable warrior, Lt.
General William T. Sherman.” Tsosie, 825 F.2d at 395.
Article I of the Laramie Treaty as found in 15 Stat. 635
contains two “bad men” provisions and reads in part:
If bad men among the whites, or among other peo-
ple subject to the authority of the United States,
shall commit any wrong upon the person or prop-
erty of the Indians, the United States will, upon
proof made to the agent and forwarded to the
Commissioner of Indian Affairs at Washington
city, proceed at once to cause the offender to be
arrested and punished according to the laws of the
United States, and also reimburse the injured
person for the loss sustained.

If bad men among the Indians shall commit a
wrong or depredation upon the person or property
of any one, 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-

2 The Treaty “established the Great Sioux Reserva-
tion, which comprised most of what is now western South
Dakota and part of North Dakota.” South Dakota v.
Bourland, 508 U.S. 679, 682, 113 S. Ct. 2309, 124 L. Ed.
2d 606 (1993). Additionally, this treaty “is one of nine
made in 1868 . . . . The treaties were all duly ratified,
proclaimed, and published in volume fifteen of the Stat-
utes at Large. All say that peace is their object and all
contain ‘bad men’ articles in similar language.” Tsosie,
825 F.2d at 395.
RICHARD v. US 4

doer to the United States, to be tried and pun-
ished according to its laws; and in case they wil-
fully refuse so to do, the person injured shall be
reimbursed for his loss from the annuities or other
moneys due or to become due to them under this
or other treaties made with the United States.
15 Stat. 635, 635 (emphasis added).
On August 27, 2008, two members of the Oglala Sioux
Tribe, Calonnie Randall and Robert Whirlwind Horse,
were killed on the Pine Ridge Indian Reservation by
Timothy Hotz, a non-Sioux, 3 who was driving while
intoxicated. Richard v. United States, 98 Fed. Cl. 278, 280

3 The Government’s Brief states that one of two is-
sues in the case is whether the applicable “bad men”
provision “obligates the United States to compensate
members of the Sioux tribe for a ‘wrong’ committed by a
white man who was not [acting for or on behalf of the
United States].” Appellee’s Brief at 2 (emphasis added).
In its Motion to Dismiss below, the Government stated “it
is clear that the ‘bad men’ provision was designed to
maintain the peace between the United States and the
Sioux by curbing the heinous acts of aggression perpe-
trated against the tribe by white men.” Defendant’s Mo-
tion to Dismiss at 10, Richard v. United States, 98 Fed.
Cl. 278 (2011) (No. 6) (emphasis added). The assumption
in the emphasized language is fundamentally flawed.
The language of the Laramie Treaty and pertinent his-
torical facts show “bad men among the whites, or among
other people subject to the authority of the United States”
was neither limited to bad white men nor to bad white
governmental actors. See discussion ibid at 11 n.9. The
Government conceded in oral argument that the language
of the Treaty is not limited to “whites” or to “men” al-
though it still pursues its governmental actors’ argument.
Oral Arg. 11:54-13:16, available at
http://oralarguments.cafc.uscourts.gov/mp3/2011-
5083.mp3 (Feb. 9, 2012).
5 RICHARD v. US

(2011). Hotz pled guilty to involuntary manslaughter in
the United States District Court for the District of South
Dakota and was sentenced to federal prison for 51
months. Id. 4 Appellants filed a complaint with the
Claims Court alleging that under the relevant “bad men”
provision in the Laramie Treaty, Hotz’s actions were a
“wrong” against Native Americans, Hotz was a “bad man”
under the treaty, and the United States therefore must
reimburse the injured parties for losses sustained as a
result of “wrong” actions by a “bad man” against Sioux
tribal members on their reservation. Id. 5
The jurisdiction of the Claims Court was invoked pur-
suant to (1) the Tucker Act, which waives sovereign
immunity “for any claim against the United States
founded either upon the Constitution, or any Act of Con-
gress or any regulation of an executive department, or
upon any express or implied contract with the United
States, or for liquidated or unliquidated damages in cases
not sounding in tort,” id. at 281 (quoting 28 U.S.C.
§ 1491(a)(1)), and (2) the “bad men among the whites”
provision of the Laramie Treaty, id. The Claims Court
found that “[t]his case requires the court to determine the
meaning of the phrase ‘subject to the authority of the
United States’ contained in the first ‘bad men’ clause of

4 “Mr. Hotz is also subject to three years of super-
vised release . . . . [and] must pay restitution in the
amount of $1,700 to the Department of Social Services
Victims Compensation Services and amounts to be deter-
mined to the families of Ms. Randall and Mr. Whirlwind
Horse.” Richard, 98 Fed. Cl. at 280 n.1.
5 “Plaintiffs seek an award of $3,000,000 for both
estates, plus costs, attorney’s fees, and any other relief
permitted under the Fort Laramie Treaty.” Richard, 98
Fed. Cl. at 280.
RICHARD v. US 6

Article I of the Fort Laramie Treaty,” a determination
that the trial court believed to be both the main jurisdic-
tional question and an issue of first impression. 6 Id. at
284. The trial court ultimately held that
[T]he Fort Laramie Treaty does not confer upon
the Court of Federal Claims jurisdiction to enter-
tain plaintiffs’ claim because Mr. Hotz, who had
no connection to the federal government (other
than citizenship) at the time of the tragic incident,
was not “subject to the authority of the United
States” within the meaning of the first “bad men”
clause contained in Article I of the Fort Laramie
Treaty such that the United States can be held li-
able for plaintiffs’ losses.
Id. Accordingly, the Claims Court dismissed the claim for
lack of jurisdiction pursuant to Rule 12(b)(1) of the Rules
of the United States Court of Federal Claims. Id.
This court has jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(3).
DISCUSSION
Resolution of this case depends solely on the interpre-
tation of the “bad men” provisions of the Laramie Treaty.7

6 But see Tsosie, 825 F.2d 393, which, as discussed
below, has resolved this issue previously.
7 Additionally before the trial court was whether
Appellants asserted a claim upon which relief can be
granted under Rules of the Court of Federal Claims
12(b)(6). Richard, 98 Fed. Cl. at 282. The Government
asserted that “the ‘wrong’ that occurred in this case falls
outside the type of ‘wrong’ contemplated by the ‘bad men’
clause.” Id. at 280. The trial court did not reach the
merits of that argument. See id. “Whether a case must be
dismissed under Rule 12(b)(6) is a question of law that
7 RICHARD v. US

This court reviews a dismissal of a claim for lack of
jurisdiction by the Court of Federal Claims de novo. Bank
of Guam v. United States, 578 F.3d 1318, 1325 (2009).
The underlying question of treaty interpretation is a
question of law, reviewed de novo. Barseback Kraft AB v.
United States, 121 F.3d 1475, 1479 (Fed. Cir. 1997) (citing
Cook v. United States, 86 F.3d 1095, 1097 (Fed. Cir.
1996)). “[T]he Supreme Court has made clear that while
the court should look to the parties’ ‘choice of words,’ it
should also consider the ‘larger context that frames the
Treaty,’ including its ‘history, purpose and negotiations.’”
Elk v. United States, 87 Fed. Cl. 70, 79 (2009) (quoting
Minnesota v. Mille Lacs Band of Chippewa Indians, 526
U.S. 172, 196-202, 119 S. Ct. 1187, 143 L. Ed. 2d 270
(1999)). “In evaluating this argument, we are mindful
that ‘treaties should be construed liberally in favor of the
Indians.’” Okla. Tax Comm’n v. Chickasaw Nation, 515
U.S. 450, 465-466, 115 S. Ct. 2214, 132 L. Ed. 2d 400
(1995) (quoting County of Oneida v. Oneida Indian Nation
of N.Y., 470 U.S. 226, 247, 105 S. Ct. 1245, 84 L. Ed. 2d
169 (1985)).
The Treaty text, the object and policy behind the
Treaty, and this court’s precedent dictate that the “bad

this court may answer in the first instance.” Bormes v.
United States, 626 F.3d 574, 583 (Fed. Cir. 2010) (citing
Fed. R. Civ. P. 12(b)(6) advisory committee’s
note; Highland Falls-Fort Montgomery Cent. Sch. Dist. v.
United States, 48 F.3d 1166, 1170 (Fed. Cir. 1995);
Thompson v. Microsoft Corp., 471 F.3d 1288, 1291 (Fed.
Cir. 2006)). However, it is within this court’s discretion to
“allow the district court to consider first the government’s
motion to dismiss on that additional ground, as well as
any others that have not been waived.” Id. This court
elects for the Claims Court to consider this issue on
remand. See also infra 24 n.22.
RICHARD v. US 8

men” provisions found in Article 1 of the Laramie Treaty
of 1868 are not limited to “an agent, employee, represen-
tative, or otherwise acting in any other capacity for or on
behalf of the United States.”
I.
The Treaty Text Clearly Does Not Limit Bad
Men Among The Whites To Governmental Actors
“The interpretation of a treaty, like the interpretation
of a statute, begins with its text.” Medellin v. Texas, 552
U.S. 491, 506, 128 S. Ct. 1346, 170 L. Ed. 2d 190 (2008).
The relevant portion of the provision at issue states: “If
bad men among the whites, or among other people subject
to the authority of the United States, shall commit any
wrong upon the person or property of the Indians, the
United States will . . . [after steps not at issue here]
reimburse the injured person for the loss sustained.” 15
Stat. 635, 635. The structure of the treaty divides poten-
tial bad men into two categories, “bad men among the
whites” and “bad men . . . among other people.” Id. There
are two issues to address: (1) whether the phrase “subject
to the authority of the United States” applies to both
categories or only the latter, and more importantly, (2)
the definition of the phrase “subject to the authority of the
United States.” 15 Stat. 635, 635; see Richard, 98 Fed. Cl.
at 284.
With regards to the former, the trial court assumed,
without analysis or explanation, that “subject to the
authority of the United States” applies to both categories,
interpreting the text to say: There are bad men among the
whites and there are bad men among other people, all of
whom must be “subject to the authority of the United
States,” for the Treaty to apply. See Richard, 98 Fed. Cl.
at 284. However, it is equally if not more reasonable to
interpret the provision to raise two wholly separate
9 RICHARD v. US

categories made parallel by the repeated use of the word
“among,” i.e., there are bad men among the whites and,
separately, there are bad men among other people who
are subject to the authority of the United States. 8

8 As published, commas set off the clause “or among
other people subject to the authority of the United
States,” lending support to the interpretation that there
are two wholly separate categories. Both parties dispute
the significance of a comma in treaty interpretation. See
Appellants’ Brief at 4, 19-20; Appellee’s Brief at 6, 33-35;
Appellants’ Reply at 4-5. Although Appellee is correct
that “[a] single comma cannot overcome the intent of the
parties,” Appellee’s Brief at 35 (citing Hammock v. Loan
and Trust Co., 105 U.S. 77, 26 L. Ed. 1111 (1881); U.S.
Nat’l Bank of Oregon v. Indep. Ins. Agents of Am., Inc.,
508 U.S. 439, 455, 462, 113 S. Ct. 2173, 124 L. Ed. 2d 402
(1993)), a single comma contradicting the intent of the
parties is not the situation before this court. “Statutory
construction is a holistic endeavor [that] . . . at a mini-
mum, must account for a statute’s full text, language as
well as punctuation, structure, and subject matter,” even
if at times “Courts . . . should disregard the punctuation,
or repunctuate, if need be, to render the true meaning of
the statute.” U.S. Nat’l Bank of Oregon, 508 U.S. at 454-
55, 462 (internal citations omitted). In the context of the
particular phrase here, the punctuation appears to have
been included inconsistently and therefore is of limited
use as an interpretive aid. See the Laramie Treaty as
published, 15 Stat. 635, 635 (“If bad men among the
whites, or among other people subject to the authority of
the United States . . . .”); the Fort Laramie Treaty as
signed, National Archives, Sioux Treaty of 1868,
http://www.archives.gov/education/lessons/sioux-
treaty/images/sioux-treaty-1.jpg (last visited March 9,
2012) (“If bad men among the whites or among other
people, subject to the authority of the United States . . . .”
). See also Treaty with the Cheyenne Indian, 15 Stat.
655, 655 (“If bad men among the whites, or among other
people . . . .” ); Treaty with the Navajo, 15 Stat. 667, 667
(“If bad men among the whites, or among other people . . .
RICHARD v. US 10

Additionally, the parties dispute the definition of
“subject to the authority of the United States.” 15 Stat.
635, 635; see Richard, 98 Fed. Cl. at 284. The trial court
accepted the Government’s definition that “subject to the
authority of the United States” is equivalent to “an agent,
employee, representative, or [an individual] otherwise
acting in any other capacity for or on behalf of the United
States.” Richard, 98 Fed. Cl. at 284, 289-90. The trial
court offered no explanation and did not seem to consider
why the alternative interpretation, that “subject to the
authority of the United States” means persons governed
by U.S. law, is not an equal if not more valid interpreta-
tion. See, id.
Appellants argue that “[t]he word ‘whites,’ as used in
‘bad men among the whites,’ is unambiguous,” wholly
separate from the other category (bad men among other
people subject to the authority of the United States), and
that “any ‘white’ can be a ‘bad man.’” Appellants’ Brief at
3 and 7. Appellants note the phrase “subject to the au-
thority of the United States” immediately appears again
in the following paragraph of the treaty, urging the court
that these “two paragraphs must be construed together”
in order for the same terms to be given consistent mean-
ing. Id. at 12 (quoting 15 Stat. 635, 635).
Indeed, the next paragraph of the treaty incorporates
this identical language in a way that cannot be read to
contain the limitations expressed by the Claims Court: “If
bad men among the Indians shall commit a wrong or
depredation upon the person or property of any one,

.”); Treaty with the Ute Indians, 15 Stat. 619, 620 (“If bad
men among the whites or among other people . . . .” ).
11 RICHARD v. US

white, black, or Indian, 9 subject to the authority of the
United States, and at peace therewith . . . .” 15 Stat. 635,
635 (emphasis added) (quoted in Appellants’ Brief at 5). 10

9 The reference by the treaty drafters to “white” and
“black” is demonstrative of inherent racism in 1868, see,
e.g., Plessy v. Ferguson, 163 U.S. 537, 41 L. Ed. 256, 16 S.
Ct. 1138 (U.S. 1896), not an attempt to distinguish be-
tween government officials and others. Appellants assert
that
“Whites” in “bad men among the whites” is unam-
biguous. It should be given its plain meaning.
When the Treaty was signed, “white” meant
“white.” United States v. Perryman, 100 U.S. 235,
237-38 (1880) (statute enacted in 1834 providing
that the United States would reimburse “friendly
Indian” for property damage committed by a
“white person” in Indian country does not apply to
damage committed by a “negro”; Congress “meant
just what the language [“white person”] conveys to
the popular mind.”)[.] Today, “white” still means
“persons whose racial heritage is Caucasian.
WEBSTER’S UNABRIDGED DICTIONARY OF THE
ENGLISH LANGUAGE 2167 (Random House 2001).”
Appellants’ Brief at 12 (second bracket added). However,
the drafters of the Treaty were perfectly aware that
American society consisted of “others” in addition to
“whites.” Even the Plessy era Court of Claims referred to
United States v. Perryman, 100 U.S. 235 (1880), as
“somewhat remarkable,” because it held that for purposes
of reimbursement for Indian attacks the term “white
person” does not include, under a different statute, a
black man. Janis v. United States, 32 Ct. Cl. 407 (1897).
10 The Government argues the second instance of
the use of the phrase “subject to the authority of the
United States,” “clearly modified ‘Indian’ rather than ‘any
one white, black,’” because “[i]t would make no sense for
the United States to involve itself in situations where a
citizen of one Indian nation committed a wrong against a
citizen of another Indian nation.” Appellee’s Brief at 26-
27. The Government continues: “The only plausible
RICHARD v. US 12

It would make little sense for the drafters of the Treaty to
limit the terms of the Treaty to only acts committed by
Indians against “anyone, white, black, or Indian, [who are
government actors], and at peace therewith.” 15 Stat. 635,
635. 11
The Supreme Court has stated that it is an “estab-
lished canon of construction” for “similar language con-
tained within the same section of a statute [to be]
accorded a consistent meaning.” Nat’l Credit Union
Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 501,
118 S. Ct. 927, 140 L. Ed. 2d 1 (1998). See also SKF USA

reason that the United States would become involved in
such a situation is if the Indian were ‘subject to the au-
thority of the United States’ – i.e., an employee, agent or
representative or someone who was working on the
United States’ behalf.” Id. A more reasonable interpreta-
tion of this section has already been discussed by this
court: “The literal text of article I and the “legislative
history” of the treaty show that any “white” can be a “bad
man” plus any nonwhite “subject to the authority of the
United States,” whatever that means, but most likely
Indian nonmembers of the Navajo tribe but subject to
United States law.” Tsosie, 825 F.2d at 394; see infra 19
n.17.
11 Article II of the Laramie Treaty contains the
phrase “officers, agents, and employees of the govern-
ment,” used to describe who “may be authorized to enter
upon Indian reservations in discharge of duties enjoined
by law.” 15 Stat. 635, 636. The Treaty drafters knew this
phrase; they would have used it in Article I if they in-
tended to limit protection to only officers, agents, and
employees of the government. “When Congress includes a
specific term in one section of a statute but omits it in
another section of the same Act, it should not be implied
where it is excluded.” Arizona Elec. Power Co-op., Inc. v.
United States, 816 F.2d 1366, 1375 (9th Cir. 1987).
13 RICHARD v. US

Inc. v. United States, 263 F.3d 1369, 1382 (Fed. Cir. 2001)
(citing Estate of Cowart v. Nicklos Drilling Co., 505 U.S.
469, 479, 112 S. Ct. 2589, 120 L. Ed. 2d 379 (1992) (noting
the “basic canon of statutory construction that identical
terms within an Act bear the same meaning”); Sullivan v.
Stroop, 496 U.S. 478, 484, 110 S. Ct. 2499, 110 L. Ed. 2d
438 (1990) (reaffirming the presumption that “identical
words used in different parts of the same act are intended
to have the same meaning”). But cf. United States v.
Cleveland Indians Baseball Co., 532 U.S. 200, 213, 121 S.
Ct. 1433, 149 L.Ed. 2d 401 (2001) (“Although we generally
presume that identical words used in different parts of
the same act are intended to have the same meaning, the
presumption is not rigid, and the meaning [of the same
words] well may vary to meet the purposes of the law.”)
(internal quotations and citations omitted) (brackets in
original)).
Reading the phrase “subject to the authority of the
United States” as only modifying the phrase “among other
people” lessens the need to define “subject to the authority
of the United States” in the case at hand; notwithstand-
ing, the treaty text unambiguously distinguishes between
“bad men among the whites” and government actors. If
any ambiguity did exist, however, other avenues of statu-
tory interpretation including the object and policy behind
the provisions at issue lead to precisely the same result.
II.
The Object and Policy Reasons Underlying
the Treaty Show It Was Written To Cover
Provocations By All Non-Sioux
The Claims Court relied heavily, not on the text of the
statute, but instead on the “Doolittle Commission” and
the Commission’s resulting report, Condition of the In-
RICHARD v. US 14

dian Tribes, 12 as historical evidence that the phrase
“subject to the authority of the United States” is equiva-
lent to “an agent, employee, representative, or otherwise
acting in any other capacity for or on behalf of the United
States” and applicable to all “bad men.” See Richard, 98
Fed. Cl. at 284 (citing S. Rep. No. 39-156 (1867)). The
trial court determined, based on incidents of violence by
soldiers found in the report, that “[t]he ‘lawless white
men’ to which [Condition of the Indians Tribes] referred
were apparently United States soldiers, who engaged in
the ‘indiscriminate slaughter of men, women, and chil-
dren.’” Id. at 285 (quoting Condition of the Indians
Tribes).
Appellants argue that “[n]o historical evidence sup-
ports the lower court’s view . . .,” Appellants’ Brief at 17;
however, the Government asserts that Appellants “simply
ignore the substantial evidence cited by the lower court
supporting the conclusion that the ‘bad men’ provision did
not impose liability upon the United States for the actions
of those who were not employees, representatives or
agents of the United States,” Appellee’s Brief at 29 (citing

12 In 1867, Native American tribal leaders, as well
as members of the United States military and other
officials, testified before a joint special committee chaired
by Senator James R. Doolittle of Wisconsin (“Doolittle
Commission”) that was charged with inquiring into the
condition of Native American tribes. The Doolittle Com-
mission ultimately issued a report, Condition of the
Indian Tribes . . . .” Richard, 98 Fed. Cl. at 284 (citing S.
Rep. No. 39-156 (1867)). The report is 10 pages followed
by an Appendix of over 500 pages which contains primary
source material such as depositions and letters in re-
sponse to questions from the Office of Indian Affairs. S.
Rep. No. 39-156 (1867) (available at
http://www.lexisnexis.com/congcomp/getdoc?HEARING-
ID=HRG-1867-CTR-0001).
15 RICHARD v. US

Condition of the Indian Tribes). Additionally, the Gov-
ernment asserts that “[a]s the lower court explained, the
Doolittle Commission report establishes that the white
men who were perpetrating wrongs against the Indians
were, by and large, United States soldiers. Id. at 31.
Finally, the Government claims that “it is clear from the
legislative history of the statute that the parties were
concerned with ‘wrongs’ perpetrated by United States
soldiers and recognized the limitations on the United
States’ ability to control the behavior of white men who
were not employees, agents or representatives of the
United States.” Id. at 36.
The Government’s assertions are historically and fac-
tually inaccurate. In Tsosie, this court recognized the
purpose of the Laramie Treaty of 1868 as being a “treaty .
. . between two nations, and each one promised redress for
wrongs committed by its nationals against those of the
other nation.” 825 F.2d at 400 n.2. To Appellants, this
means “the [t]reaty sought to protect whites against
Indians, and Indians against whites, not just to protect
federal officers, agents of employees against Indians, and
not just to protect Indians against federal officers, agents
or employees.” Appellants’ Brief at 14. Condition of the
Indian Tribes, the historical evidence offered by the trial
court, when read in full, supports the position that “bad
men” were both those associated with the government and
those wholly unassociated. See Condition of the Indian
Tribes at 3-4 (“Major General Pope says: They are rapidly
decreasing in numbers from various causes: . . . [includ-
ing] by cruel treatment on the part of the whites—both by
irresponsible persons and by government officials.”)
(emphasis added); 4 (“General Carleton [responded] to the
same question [:] . . . Indians alluded to are decreasing
very rapidly in numbers [in part due to] . . . Wars with our
pioneers and our armed forces.”) (emphasis added); 5
RICHARD v. US 16

(“The committee are of [the] opinion that in a large major-
ity of cases Indian wars are to be traced to the aggressions
of lawless white men, always to be found upon the frontier,
or boundary line between savage and civilized life. Such is
the statement of the most experienced officers of the
army.”) (emphasis added); 6 (“On the other hand, the
emigration from California and Oregon into the Territo-
ries from the west is filling every valley and gorge of the
mountains with the most energetic and fearless men in
the world. In those wild regions, where no civil law has
ever been administered, and where our military forces
have scarcely penetrated, these adventurers are practi-
cally without any law, except such as they impose upon
themselves, viz: the law of necessity and self-defence.”)
(emphasis added)). 13
Accordingly, the Claims Court’s historical evidence
and United States’ history generally show that any
“white” can be a “bad man” and that the United States
government and specifically General Sherman, as chief
negotiator of the Treaty, were concerned with friction
created by more than just “bad acts” by whites serving in
or with the armed forces of the United States. 14 Equally
13 The heavy reliance of the Government and the
Trial Court on this document as representative evidence
of the history and policy behind this treaty is perplexing.
Not only did the trial court selectively quote from the
Doolittle Commission, there seems reason to believe the
Doolittle Commission and the resulting text, Condition of
the Indian Tribes, may be far from reliable as historical
evidence. See Harry Kelsey, The Doolittle Report of 1867:
Its Preparation and Shortcomings, 17.2 ARIZONA AND THE
WEST 107, 120 (1975) (“In sum, the celebrated Doolittle
report was incomplete and largely misleading”).
14 Sherman’s overall concern was that the transcon-
tinental railroads be completed and peaceful relations
among the Native Americans, the United States military,
17 RICHARD v. US

as persuasive as the factual history is the legal precedent,
some of it binding, concerning the “bad men” provisions of
the Laramie Treaty of 1868. 15

and citizens not associated with the government were
essential to that goal. Once the railroads were in opera-
tion, everything changed. As Sherman put it, the Com-
mission prepared “. . . the way for the great Pacific
Railroads, which, for better or worse, have settled the fate
of the buffalo and the Indians forever. There have been
wars and conflicts since . . . but they have been the dying
struggles of a singular race of brave men fighting against
destiny . . . the Indian question has become one of senti-
ment and charity, but not of war.” WILLIAM TECUMSEH
SHERMAN, Memoirs of General W.T. Sherman, [reproduc-
tion of Second Ed.] (Michael Fellman ed., Penguin Books
2000) (1875) at 783. As Justice Blackmun summarized, in
part, the treaty terms seemed to effectuate this intent:
“The Indians also expressly agreed to withdraw all oppo-
sition to the building of railroads that did not pass over
their reservation lands, not to engage in attacks on set-
tlers, and to withdraw their opposition to the military
posts and roads that had been established south of the
North Platte River.” United States v. Sioux Nation of
Indians, 448 U.S. 371, 375-76, 100 S. Ct. 2716, 65 L. Ed.
2d 844 (U.S. 1980) (citations omitted). The intent of the
parties is of particular importance in this context: “Espe-
cially is this true in interpreting treaties and agreements
with the Indians; they are to be construed, so far as
possible, in the sense in which the Indians understood
them, and ‘in a spirit which generously recognizes the full
obligation of this nation to protect the interests of a
dependent people.’” Choctaw Nation of Indians v. United
States, 318 U.S. 423, 432, 63 S. Ct. 672, 87 L. Ed. 877
(1943) (quoting Tulee v. Washington, 315 U.S. 681, 684-
85, 62 S. Ct. 862, 86 L. Ed. 1115 (1942)). In negotiating
this treaty, there is no indication that the Sioux Nation
would have understood the bad men provisions to only
refer to government officials.
15The dissent says “the historical record stands for
two propositions: (1) atrocities were committed by U.S.
RICHARD v. US 18

III.
Precedent Prohibits The Trial Court’s Holding
This court has previously found that the “bad men”
provisions were not confined to wrongs committed by
government employees. See Tsosie, 825 F.2d 393. 16 In
Tsosie, the court stated: “We hold . . . that the treaty
provision in question [the “bad men” provision of Art. 1],
even if infrequently invoked, has not become obsolete or

soldiers and civilians; and (2) controlling civilians would
be difficult if not impossible.” The historical record does
indeed, inter alia, support these two contentions; how-
ever, the United States, in Art. II of the Treaty “solemnly
agree[d] that no persons . . . except such officers, agents,
and employees of the government as may be authorized . .
. shall ever be permitted to pass over, settle upon, or
reside in the territory described in this article.” 15 Stat.
635, 636. The United States had already committed to
the difficult task of controlling civilians, an extremely
difficult task that would prove to be troublesome. Sioux
Nation of Indians, 448 U.S. at 378 n.8 (“In an interview
with a correspondent from the Bismarck Tribune, pub-
lished September 2, 1874, Custer recognized the mili-
tary’s obligation to keep all trespassers off the reservation
lands, but stated that he would recommend to Congress
‘the extinguishment of the Indian title at the earliest
moment practicable for military reasons.’”).
16 As mentioned above, see supra at 3 n.2, the treaty
at issue in Tsosie, the Navajo Treaty, and the treaty in
this case, the Laramie Treaty, are two of nine treaties
made in 1868, “by and between commissioners represent-
ing the United States and chiefs of various previously
hostile Indian tribes. The treaties were all duly ratified,
proclaimed, and published in volume fifteen of the Stat-
utes at Large. All say that peace is their object and all
contain ‘bad men’ articles in similar language.” Tsosie,
825 F.2d at 395.
19 RICHARD v. US

been abandoned or preempted in any sense that affects its
enforceability by suit in the Claims Court under the
Tucker Act, 28 U.S.C. § 1491.” Tsosie, 825 F.2d at 394. In
rejecting the notion that the provision at issue had been
preempted by changes in the law since the treaty’s nego-
tiation, notably since the advent of the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 2671, we stated:
[T]he “bad men” provision is not confined to
“wrongs” by government employees. The literal
text of article I and the “legislative history” of the
treaty show that any “white” can be a “bad man”
plus any nonwhite “subject to the authority of the
United States,” whatever that means, but most
likely Indian nonmembers of the Navajo tribe but
subject to United States law.
Id. at 400. 17 The court’s finding in Tsosie is controlling
here. 18

17 The lower court expressed that the “whatever that
means” language from this passage of Tsosie is an “ex-
pressly noted ambiguity,” indicating that this court “never
explicated the meaning or scope of the clause” and as
such, the trial court “cannot conclude that it possesses
jurisdiction in this case based solely upon the Federal
Circuit’s observation.” Richard, 98 Fed. Cl. at 286. It
seems much more likely, however, that the ambiguity
referred to is limited to the latter half of the passage in
question, i.e., the interpretation of the scope of a nonwhite
who is “subject to the authority of the United States.”
Indeed, we stated “‘wrongs’ committed” “would likely be
committed by soldiers in the immediate future,” accepting
not only that soldiers would be “bad men,” but that others
would be “bad men” as well in the less immediate future.
Tsosie, 825 F.2d at 401-02.
18The Government claims, however, despite this
language, that the relevant provisions of the Treaty are
“outdated.” Both the Government’s position and the trial
RICHARD v. US 20

After rejecting Tsosie as guiding precedent, the trial
court then examined two types of cases: (1) where courts
have reached the merits of claims alleging that “wrongs”
were committed by “bad men” who were acting for or on
behalf of the government, and (2) cases where “courts
have dismissed claims failing to allege that ‘wrongs’ were
committed by individual ‘bad men’ who were subject to
the authority of the United States.” Richard, 98 Fed. Cl.
at 286-89. The trial court concluded that, among these
cases, “[a] common thread is discernible . . . the court
possesses jurisdiction over Article I ‘bad men’ clause

court’s interpretation directly contradict the determina-
tions of this court in Tsosie. The Government argues, for
example, that Appellants’ urged interpretation is
grounded in a “hopelessly outdated notion that the Sioux
and the United States are two independent sovereigns
standing upon the precipice of war,” Appellee’s Brief at 7,
and describes as absurdly outdated “. . . the idea that ‘the
Indians shall be responsible for what Indians do within
the white man’s territory and . . . , the Government will
be responsible for what white men do within the Indian’s
territory,’ id. at 45. The Government’s obsolescence
posture is disturbing. That the relative power of the
parties to a treaty has changed over time is no ground for
the treaty’s modification or dissolution, nor does the
Government offer any authority or support for its trou-
bling argument. Treaty rights are not so easily dissolved.
See United States v. Dion, 476 U.S. 734, 739, 777, 106 S.
Ct. 2216, 90 L. Ed. 2d 767 (1986) (finding that Congress
made “an unmistakable and explicit legislative policy
choice” to abrogate Indian treaty rights and “Indian
treaty rights are too fundamental to be easily cast
aside.”); Menominee Tribe of Indians v. United States, 391
U.S. 404, 412-413, 88 S. Ct. 1705, 20 L. Ed. 2d 697 (1968)
(“While the power to abrogate [treaty] rights exists . . . the
intention to abrogate or modify a treaty is not to be lightly
imputed to the Congress.”) (citations omitted).
21 RICHARD v. US

claims where there exists a nexus between the individual
committing the alleged ‘wrong’ and the United States.” Id.
at 289. The trial court relied on the absence of “bad men”
cases brought against defendants who were not officers,
agents, or employees of the federal government as evi-
dence that such cases cannot be brought. 19

19 The dissent states “[t]he complete dearth of cases
brought against non-government ‘whites’ testifies to a
practical construction adopted by the parties over an
exceedingly long period of time, evidence that the Sioux
and the United States did not intend that this agreement
cover persons not affiliated with the United States gov-
ernment.” Certainly, to determine treaty rights, “we look
beyond the written words to the larger context that
frames the Treaty, including the history of the treaty, the
negotiations, and the practical construction adopted by
the parties.” Minn. v. Mille Lacs Band of Chippewa Indi-
ans, 526 U.S. 172, 196, 119 S. Ct. 1187, 143 L. Ed. 2d 270
(1999) (citations omitted). However, given the relative
power of the treaty parties and the position of financial
and social dependence into which the Sioux Nation was
forced, it is questionable, at best, to apply the practical
construction precept in the negative, viz., because cases
have not been brought against non-governmental actors,
the original parties intended the treaty to be so limited.
This is in contrast to the cases where practice over time
was used to determine the intent of parties of equal
power. See New Jersey v. New York, 523 U.S. 767, 831-
832, 118 S. Ct. 1726, 140 L. Ed. 2d 993 (1998) (Scalia, J.,
dissenting) (turning to the actions of New York and New
Jersey as evidence of the meaning of the Compact of 1834
and the ownership of Ellis Island); Air France v. Saks, 470
U.S. 392, 403-404, 105 S. Ct. 1338, 84 L. Ed. 2d 289
(1985) (turning to the conduct of the parties to the War-
saw Convention and the subsequent interpretations of the
signatories to clarify the term in question); Massa-
chusettes v. New York, 271 U.S. 65, 94-96, 46 S. Ct. 357,
70 L. Ed. 838 (1926) (turning to the “long acquiescence” of
Massachusetts as evidence of New York’s right to the land
under the Treaty of Hartford).
RICHARD v. US 22

However, as pointed out in Tsosie, “[p]rolonged nonen-
forcement, without preemption, does not extinguish
Indian rights.” 825 F.2d at 399. 20 In addition, there are
other cases that provide guidance for our interpretation,
indicating that the “bad men” provisions should not be
limited as defined by the trial court. For example, as
articulated in Janis v. United States:
In a somewhat remarkable case, United States v.
Perryman (100 U.S. [ ] 235), the Supreme Court
has held that the term “a white person” in section
16 of the act of 1834 (section 2154 of the Revised
Statutes) does not include a black man. That is to
say, the Supreme Court has held of a crime perpe-
trated by a black man in the Indian country in
stealing the property of a friendly Indian, amid
circumstances which would have rendered the
Government liable if the perpetrator had been a
white man, that the Government is not liable; and
that for such a depredation a friendly Indian can
not recover, though the black man was a citizen of
the United States. The [Laramie] treaty is more
comprehensive than the act of 1834. It provides
against depredations both by whites and by “other
persons subject to the authority of the United
States;” and conversely it holds the Indians liable
for a depredation upon the person or property of

20 The Government also asserts that the “Court ap-
peared to leave open the possibility that the FTCA had
preempted the bad men provision, declining to state
explicitly that it had not . . . .” Appellee’s Brief at 22. The
Government seems to be ignoring the direct statement
from the court: “The Federal Tort Claims Act, 28 U.S.C.
§ 2671 and ff has been, since 1946, a notable change, but
it cannot seriously be argued to constitute preemption.”
Tsosie, 825 F.2d at 400.
23 RICHARD v. US

anyone “subject to the authority of the United
States,” be he “white, black, or Indian.”
Janis v. United States, 32 Ct. Cl. 407, 410-411 (1897)
(emphasis added). 21 Also, in Ex parte Crow Dog, the
Supreme Court articulated the following with regards to
the “bad men” provisions of the Laramie Treaty:
But it is quite clear from the context that this
does not cover the present case of an alleged
wrong committed by one Indian upon the person
of another of the same tribe. The provision must
be construed with its counterpart, just preceding
it, which provides for the punishment by the
United States of any bad men among the whites,
or among other people subject to their authority,
who shall commit any wrong upon the person or

21 As Janis makes clear in the context of interac-
tions between Native Americans and African Americans,
the Fort Laramie treaty was intended when drafted to
protect against and indemnify for the bad acts committed
by more than just white men. That fact is not necessarily
inconsistent with the dissent’s narrow point; there were
multiple regiments of African American troups on the
frontier functioning as governmental actors. See Quintard
Taylor, African American Men in the American West,
1528-1990, 569 ANNALS 102, 108 (2000) (“Twenty-five
thousand black men served in the 9th and 10th Cavalry
and the 24th and 25th Infantry of the United States Army
between 1866 and 1917.”). It is, however, fatal to the
government’s and the dissent’s broader claim that “bad
men among the whites, or among other people subject to
the authority of the United States,” was necessarily and
intentionally limited to governmental actors. Although in
dicta, Janis establishes that under the Treaty, the “steal-
ing [of] property of a friendly Indian” by a black man not a
government actor “would have rendered the government
liable.” Janis, 32 Ct. Cl. at 410-411.
RICHARD v. US 24

property of the Indians. Here are two parties,
among whom, respectively, there may be indi-
viduals guilty of a wrong against one of the other -
- one is the party of whites and their allies, the
other is the tribe of Indians with whom the treaty
is made.”
Ex parte Crow Dog, 109 U.S. 556, 557-558, 3 S. Ct. 396, 27
L. Ed. 1030 (1883) (emphasis added). Clearly, any “white”
can be a “bad man” within the terms of the Laramie
Treaty. 22
CONCLUSION
The Treaty text, the object and policy behind the
Treaty, and this court’s precedent dictate that the “bad
men” provisions found in Article 1 of the Laramie Treaty
of 1868 are not limited to “an agent, employee, represen-
tative, or otherwise acting in any other capacity for or on
behalf of the United States.” Richard, 98 Fed. Cl. at 284.

22 The trial court asserted, and the Government ech-
oed on appeal, that “Plaintiffs’ interpretation yields an
absurd result and imposes upon the federal government
an impossible task: to guarantee the safety and tranquil-
ity of all Native Americans on reservations during any
and all of their interactions with anyone.” Richard, 98
Fed. Cl. at 290. See Appellee’s Brief at 43-46. Appellant
responds that claims made under this provision are
limited both by the “precise contours of ‘wrong,’” and by
geography. Appellant’s Brief at 26. Indeed, claims under
this provision are limited to the clear geographic limits
found in the Treaties; additionally, because the Treaty
determines offenders are to “be arrested and punished
according to the laws of the United States,” “wrongs”
seem to be limited to the criminal jurisdiction of the
United States. 15 Stat. 635, 635. However, we have
determined that arguments as to the contours of “wrongs”
are to be considered in the first instance by the Claims
Court. See supra 6 n.7.
25 RICHARD v. US

Because we conclude the “bad men” provisions of the
Laramie Treaty of 1868 is not so limited, the Claims
Court improperly dismissed Appellants’ Complaint for
lack of jurisdiction. Accordingly, we vacate and remand
for further proceedings.

VACATE AND REMAND
 United States Court of Appeals
for the Federal Circuit
__________________________

JAMES RICHARD, SR., (PERSONAL REPRESENTATIVE
OF THE
ESTATE OF CALONNIE D. RANDALL, DECEASED), AND
JON WHIRLWIND HORSE,
(PERSONAL REPRESENTATIVE OF THE ESTATE OF ROBERT
J. WHIRLWIND HORSE, DECEASED)
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
__________________________

2011-5083
__________________________

Appeal from the United States Court of Federal
Claims in Case No. 10-CV-503, Judge Margaret M.
Sweeney.
__________________________

LOURIE, Circuit Judge, dissenting.
I respectfully dissent from the majority’s decision to
vacate and remand the United States Court of Federal
Claims’ (“Claims Court”) dismissal of the claim in this
case.
The Claims Court concluded that the “bad men” pro-
vision from the Fort Laramie Treaty of 1868 does not
render the United States liable for wrongs committed by
RICHARD v. US 2

those who are not “subject to the authority of the United
States”—i.e., employees, agents, or representatives of the
United States or otherwise acting upon the United States’
behalf. Richard v. United States, 98 Fed. Cl. 278, 290
(2011). As the drunk driver in this case was not such a
person, the Claims Court dismissed the case for lack of
jurisdiction. I would affirm that decision.
There is a tension here between waiver of sovereign
immunity and construction of treaties with the Indians.
On the one hand, waivers of sovereign immunity, includ-
ing the Tucker Act, must be narrowly construed. Ra-
dioshack Corp. v. United States, 566 F.3d 1358, 1360 (Fed.
Cir. 2009). On the other hand, we also construe discrep-
ancies in favor of the Native Americans without extending
the treaty beyond its bounds in order to meet varying
alleged injustices. Minnesota v. Mille Lacs Band of Chip-
pewa Indians, 526 U.S. 172, 200 (1999) (citations omit-
ted). The Supreme Court recently noted in Cooper that “a
waiver of sovereign immunity must be ‘unequivocally
expressed’” and “[l]egislative history cannot supply a
waiver that is not clearly evident from the language.”
Fed. Aviation Admin. v. Cooper, No. 10-1024, 2012 WL
1019969, at *5 (U.S. Mar. 28, 2012) (citations omitted).
“Any ambiguities . . . are to be construed in favor of im-
munity so that the Government’s consent to be sued is
never enlarged beyond what a fair reading of the text
requires.” Id. (citations omitted). The Supreme Court
added that such “[a]mbiguity exists if there is a plausible
interpretation of the statute that would not authorize
money damages against the Government.” Id. “We also
construe any ambiguities in the scope of a waiver in favor
of the sovereign.” Id. In that event, the “scope of Con-
gress’ waiver [must] be clearly discernable” and “[i]f it is
not, then we take the interpretation most favorable to the
Government.” Id. In this case, in my view, the scope of
3 RICHARD v. US

Congress’ waiver is not clearly discernable in the treaty
and the balance therefore rests on the side of sovereign
immunity.
A treaty with an Indian tribe is a contract, and it
should be interpreted to give effect to the intent of the
signatories. Washington v. Wash. State Comm. Passenger
Fishing Vessel Ass'n, 443 U.S. 658, 675 (1979) (“A treaty .
. . is essentially a contract between two sovereign na-
tions.”); Santovincenzo v. Egan, 284 U.S. 30, 40 (1931);
Tsosie v. United States, 825 F.2d 393, 397 (Fed. Cir.
1987). In discerning the intent of the signatories to a
treaty, we look to the parties’ “choice of words” and the
“larger context that frames the treaty, including ‘the
history of the treaty, the negotiations, and the practical
construction adopted by the parties.’” Minnesota, 526
U.S. at 196 (quoting Choctaw Nation v. United States, 318
U.S. 423, 432 (1943)); see also Medellin v. Texas, 552 U.S.
491, 507, 516–517 (2008) (considering postratification
understanding of the parties); El Al Israel Airlines, Ltd. v.
Tsui Yuan Tseng, 525 U.S. 155, 167 (1999) (same). In this
fashion, treaties are construed “to give effect to the terms
as the Indians themselves would have understood them.”
Minnesota, 526 U.S. at 196; Choctaw Nation v. Oklahoma,
397 U.S. 620, 631 (1970).
The Claims Court thoroughly reviewed the historical
context surrounding the Fort Laramie Treaty of 1868,
including both the Indian Peace Commission Report of
1868 and the Doolittle Commission Report from 1867
cited by the majority. The Claims Court, quoting the
Doolittle Commission Report, concluded that:
The Doolittle Commission observed that “useless
wars with the Indians” could “be traced to the ag-
gressions of lawless white men, always to be found
upon the frontier.” The “lawless white men” to
RICHARD v. US 4

which [Doolittle Commission Report] referred
were apparently United States soldiers, who en-
gaged in the “indiscriminate slaughter of men,
women, and children....”
Richard, 98 Fed. Cl. at 285 (citations omitted). The court
then listed a number of entries in the Doolittle Commis-
sion Report describing massacres, butchering, and murder
by United States soldiers. Id. The Doolittle Commission
Report also noted that it was “difficult if not impossible to
restrain white men, especially white men upon the fron-
tiers from adopting [savage] warfare against the Indians.”
Id. (emphasis added). Consequently, as the court noted,
the Doolittle Commission Report recommended that
Congress establish five boards of inspection of Native
American affairs that would, among other things, inquire
into conduct of the military toward tribes in order to
“preserve peace and amity.” Id. (citations omitted).
Similarly, the Indian Peace Commission Report, as
the court also pointed out, likewise noted the difficulty of
containing all of the Indian Tribes’ complaints:
In making treaties it was enjoined on us to re-
move, if possible, the causes of complaints on the
part of the Indians. This would be no easy task.
We have done the best we could under the circum-
stances.... The best possible way then to avoid war
is to do no act of injustice. When we learn that
the same rule holds good with Indians, the chief
difficulty is removed. But it is said our wars with
them have been almost constant.
Id. (emphasis added). In an effort to settle this conflict,
the United States entered into nine treaties between
various hostile Indian tribes in the United States, includ-
ing the Fort Laramie Treaty. Id. at 282.
5 RICHARD v. US

The majority opinion focuses on the accounts in the
Doolittle Commission Report’s of atrocities by civilians.
Majority Op. at 13–17. But just because the Doolittle
Commission Report listed those acts does not mean the
treaty was intended or understood to prevent all of them,
especially in light of the same reports noting the difficulty
of such a task. Indeed, the Doolittle Commission Report
is not legislative history; it is historical context. In other
words, the historical record stands for two propositions:
(1) atrocities were committed by U.S. soldiers and civil-
ians; and (2) controlling civilians would be difficult if not
impossible.
Given this historical backdrop, one must discern the
meaning of the phrase “bad men among the whites, or
among other people subject to the authority of the United
States” as the parties themselves would have understood
it, informed by the practical construction adopted by the
parties. See Minnesota, 526 U.S. at 196. In the over 144
year history of the Fort Laramie Treaty, neither party nor
the majority has been able to identify a single case
brought by an Indian individual against a “white” person
who was not an employee, agent, representative of the
United States or otherwise acting upon the United States’
behalf that has been found liable and upheld by any
appellate or district court. Instead, as the Claims Court
pointed out, the “bad men” line of cases points to one
common thread: “the court possesses jurisdiction over
Article I ‘bad men’ clause claims where there exists a
nexus between the individual committing the alleged
‘wrong’ and the United States.” Id. at 289.
As the court showed, in each of the cases, the bad men
were individuals (“white” or “other people”) who were
“subject to the authority of the United States” in some
capacity. Id. at 289–90; see, e.g., Tsosie, 825 F.2d at 397
(involving a United States Public Health Service Hospital
RICHARD v. US 6

employee); Begay v. United States, 219 Ct. Cl. 599 (1979)
(teachers, both white and Native American, who were
employed at a Bureau of Indian Affairs school); Hebah v.
United States, 456 F.2d 696 (Ct. Cl. 1972) (Indian Police
Force officer subject to the authority of Department of the
Interior); Elk v. United States, 70 Fed. Cl. 405 (2006)
(U.S. Army staff sergeant). In fact, the earliest case
brought against a person unaffiliated with the Federal
government appears to be Hernandez in 2010, which was
dismissed for lack of subject matter jurisdiction because
he was not a federal employee. Hernandez v. United
States, 93 Fed. Cl. 193, 200 (2010) (involving an officer
who was employed by WING, a non-federal agency). The
sound reasoning of the Claims Court derived from these
cases has already been independently followed at least by
one other U.S. District Court. Banks v. Guffy, No. 1:10-
CV-2130, 2012 WL 72724, *7 & n.10 (M.D. Pa. Jan. 10,
2012) (slip copy).
In the interim century and a half since the treaty was
signed, there have undoubtedly been wrongs committed
against the Sioux by white, non-government men. The
complete dearth of cases brought against non-government
“whites” testifies to a practical construction adopted by
the parties over an exceedingly long period of time, evi-
dence that the Sioux and the United States did not intend
that this agreement cover persons not affiliated with the
United States government. The “bad men” cases support
this understanding. It is not for us to in effect create a
new remedy in the Claims Court, as the majority does,
that neither the courts nor the Sioux contemplated for
over 140 years, and for which the government has not
waived sovereign immunity.
The majority relies on the following passage from
Tsosie as constituting a holding and controlling our inter-
pretation of the “bad men” provision:
7 RICHARD v. US

[T]he “bad men” provision is not confined to
“wrongs” by government employees. The literal
text of article I and the “legislative history” of the
treaty show that any “white” can be a “bad man”
plus any nonwhite “subject to the authority of the
United States,” whatever that means, but most
likely Indian nonmembers of the Navajo tribe but
subject to United States law.
Tsosie, at 400. However, a plain reading of this statement
is merely that the “bad men” provision is broader than
government employees. It does not define the outer limit.
Indeed, the “bad man” at issue in Tsosie was a govern-
ment employee at a United States hospital. Id. at 397.
Thus any broader interpretation was not a holding, but
was dictum. Likewise, we did not define “whites” or rule
whether the term “whites” was modified by “subject to the
authority of the United States.” We declined to do so, and
simply noted the ambiguity of the phrase “subject to the
authority of the United States.” Id. at 400 (“whatever
that means”). In contrast to Tsosie, this case turns on the
outer limit of “whites” and “subject to the authority of the
United States.”
The majority also quotes Tsosie as stating: “We hold . .
. that the treaty provision in question [the “bad men”
provision of Art. 1], even if infrequently invoked, has not
become obsolete or been abandoned or preempted in any
sense that affects its enforceability by suit in the Claims
Court under the Tucker Act, 28 U.S.C. § 1491.” Majority
Op. at 18–19. Again, such is not a holding that the “bad
men” provision is not limited to government actors, given
the fact that the offending white party in Tsosie was a
United States government employee, i.e., a government
hospital employee. Instead, it merely holds that the “bad
men” provision is still generally enforceable under the
Tucker Act, which is not questioned in this appeal.
RICHARD v. US 8

The majority is correct that we noted in Tsosie that
“[p]rolonged nonenforcement, without preemption, does
not extinguish Indian rights.” Tsosie, 825 F.2d at 399.
But the Claims Court did not hold that the “bad men”
provision is no longer enforceable. Instead the Claims
Court stated that the United States and the Sioux did not
intend that the “bad men” provision cover those who are
not employees, agents, or representatives of the United
States or otherwise acting upon the United States’ behalf.
That is distinct from whether treaty rights have been
abrogated by nonenforcement as discussed in Tsosie.
The majority gives much weight to the use of “subject
to the authority of the United States” in the second “bad
men” clause. Majority Op. at 10–13. In particular, the
majority argues that it makes “little sense” to have the
terms of the Treaty limited to acts committed by Indians
against “anyone, white, black, or Indian, [who are gov-
ernment actors], and at peace therewith.” Majority Op. at
9–10. Instead, the majority suggests that the term “sub-
ject to the authority of the United States” could likely
mean “persons governed by U.S. law.” Majority Op. at 10.
But it would make even less sense for the United States
to be involved with citizens of one Indian nation commit-
ting a wrong against a citizen of another Indian nation, as
the majority’s view would suggest. As the government
notes, the phrase “at peace therewith” immediately fol-
lows “subject to the authority of the United States.” The
United States was not at war with its own citizens in
1868. The logical conclusion is that “subject to the au-
thority of the United States” (and “at peace therewith”) as
used in the second “bad men” clause only modifies “Indi-
ans.”
As noted by the majority, the comma placement be-
tween “whites, or among other people” is inconclusive as
an interpretive aid in the context of the particular phrase
9 RICHARD v. US

here. Majority Op. at 9 n.8. Given the comma ambigu-
ity, it is, therefore, equally as likely that the drafters
intended both categories, “whites” and “among other
people” to be modified by “subject to the authority of the
United States” while avoiding unnecessary repetition. In
other words, while the phrase could have been written:
“whites, subject to the authority of the United States, or
among other people, subject to the authority of the United
States” the drafters could have easily discarded the
unnecessary surplusage and ended with: “whites or
among other people, subject to the authority of the United
States” as in the Fort Laramie Treaty as signed.
I would take judicial notice of what may well be the
original version of the treaty, obtained from the National
Archives, which contains the comma after “among other
people.” See National Archives, Sioux Treaty of 1868,
http://www.archives.gov/education/lessons/sioux-
treaty/images/sioux-treaty-1.jpg (last visited Apr. 11,
2012). That would lead to the conclusion, as discussed
above, that “subject to the authority of the United States”
was meant by the parties to modify both “whites” and
“among other people,” supporting the interpretation that
“whites” had to be subject to the authority of the United
States government for liability to apply. Even so, given
the ambiguity in the text, the historical context and the
practical construction adopted by the parties over the
following century and a half are needed to inform us what
was intended by the parties.
As discussed above, the historical context of the treaty
and the practical construction adopted by the parties in
the intervening 140 years of its enforcement all suggest
that it is unlikely that the federal government would
broadly have waived sovereign immunity, opened its
coffers, and, as the Claims Court stated, agreed to the
impossible task of guaranteeing the safety and tranquility
RICHARD v. US 10

of all Native Americans on reservations from any and all
of their interactions with anyone. In other words, the
signatories, including the Indians themselves, would have
understood “bad men among the whites, or among other
people subject to the authority of the United States” to
mean “employees, agents, or representatives of the United
States or otherwise acting upon the United States’ be-
half.”
I finally note that the plaintiffs are not without an
avenue for redress. The briefing before us represents that
the plaintiffs are currently pursuing damages against the
drunk driver. In any event, I see no reason to reverse the
trial court, which decided the case correctly. I therefore
respectfully dissent.