WALLACH, Circuit Judge.
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'
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).
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,
The jurisdiction of the Claims Court was invoked pursuant 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 Congress 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 Article I of the Fort Laramie Treaty," a determination that the trial court believed to be both the main jurisdictional question and an issue of first impression.
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).
Resolution of this case depends solely on the interpretation of the "bad men" provisions of the Laramie Treaty.
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,
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, representative, or otherwise acting in any other capacity for or on behalf of the United States."
"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 potential 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 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.
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 authority 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 meaning. 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, white, black, or Indian,
The Supreme Court has stated that it is an "established canon of construction" for "similar language contained 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 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; notwithstanding, the treaty text unambiguously distinguishes between "bad men among the whites" and government actors. If any ambiguity did exist, however, other avenues of statutory interpretation
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 Indian Tribes,
Appellants argue that "[n]o historical evidence supports 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 Condition of the Indian Tribes). Additionally, the Government 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 factually 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.
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.
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.
Id. at 400.
However, as pointed out in Tsosie, "[p]rolonged nonenforcement, without preemption, does not extinguish Indian rights." 825 F.2d at 399.
Janis v. United States, 32 Ct.Cl. 407, 410-411 (1897) (emphasis added).
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
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, representative, or otherwise acting in any other capacity for or on behalf of the United States." Richard, 98 Fed.Cl. at 284. 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.
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" provision from the Fort Laramie Treaty of 1868 does not render the United States liable for wrongs committed by 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, including the Tucker Act, must be narrowly construed. Radioshack Corp. v. United States, 566 F.3d 1358, 1360 (Fed.Cir.2009). On the other hand, we also construe discrepancies 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 Chippewa Indians, 526 U.S. 172, 200, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999) (citations omitted). 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, ___ U.S. ___, 132 S.Ct. 1441, 1448, 182 L.Ed.2d 497 (2012) (citations omitted). "Any ambiguities . . . are to be construed in favor of immunity 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
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, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979) ("A treaty . . . is essentially a contract between two sovereign nations."); Santovincenzo v. Egan, 284 U.S. 30, 40, 52 S.Ct. 81, 76 L.Ed. 151 (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, 119 S.Ct. 1187 (quoting Choctaw Nation v. United States, 318 U.S. 423, 432, 63 S.Ct. 672, 87 L.Ed. 877 (1943)); see also Medellin v. Texas, 552 U.S. 491, 507, 516-517, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008) (considering postratification understanding of the parties); El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 167, 119 S.Ct. 662, 142 L.Ed.2d 576 (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, 119 S.Ct. 1187; Choctaw Nation v. Oklahoma, 397 U.S. 620, 631, 90 S.Ct. 1328, 25 L.Ed.2d 615 (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:
Richard, 98 Fed.Cl. at 285 (citations omitted). The court then listed a number of entries in the Doolittle Commission 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 frontiers 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, like-wise noted the difficulty of containing all of the Indian Tribes' complaints:
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, including the Fort Laramie Treaty. Id. at 282.
The majority opinion focuses on the accounts in the Doolittle Commission Report's of atrocities by civilians. Majority Op. at 1147-50. 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 civilians; 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, 119 S.Ct. 1187. 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 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, evidence that the Sioux and the United States did not intend that this agreement cover persons not affiliated with the United States government. The "bad
The majority relies on the following passage from Tsosie as constituting a holding and controlling our interpretation of the "bad men" provision:
Tsosie, 825 F.2d 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 government 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 1150. 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.
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 1146-48. 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 government actors], and at peace therewith." Majority Op. at 1147. Instead, the majority suggests that the term "subject to the authority of the United States" could likely mean "persons governed by U.S. law." Majority Op. at 1146. But it would make even less sense for the United States to be involved with citizens of one Indian nation committing a wrong against a citizen of another Indian nation, as the majority's view would suggest. As
As noted by the majority, the comma placement between "whites, or among other people" is inconclusive as an interpretive aid in the context of the particular phrase here. Majority Op. at 1145-46 n.8. Given the comma ambiguity, 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 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' behalf."
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.
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 [25 L.Ed. 645] (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).
