A Bad Man Is Hard to Find

Harvard Law Review, June 2014 | Go to article overview

A Bad Man Is Hard to Find


In January 2003, a young woman named Lavetta Elk got into a car with an Army recruiter whom she had known since she was sixteen. She believed that she had been accepted as an enlistee--her dream was to work eventually as an Army nurse--and that he was taking her for a medical evaluation. Instead, Staff Sergeant Joseph Kopf drove down a deserted road and, once they were miles away from the nearest building, sexually assaulted Elk. Kopf was never prosecuted for his crime in civilian court; his Army court-martial resulted in no prison time. (1) However, because Elk was a member of the Oglala Sioux Tribe and the assault occurred on a Sioux reservation, she had access to an unusual cause of action.

Nine treaties concluded between the United States and various Indian tribes in 1867 and 1868 each contain what is known as a "bad men" provision. Within each of these provisions is a clause in which the United States promises to reimburse Indians (2) for injuries sustained as a result of wrongs committed by "bad men among the whites, or among other people subject to the authority of the United States." (3)

Although these "bad men among the whites" clauses have rarely been used in the last century and a half, they remain the source of a viable cause of action for Indians belonging to those tribes that signed the nine treaties of 1867 and 1868. In 2009, Lavetta Elk won her action for damages under the Fort Laramie Treaty of 1868, recovering a judgment in the Court of Federal Claims of almost $600,0004 from the United States government. (5)

Elk is the first and only plaintiff to take a "bad men among the whites" action through trial and win on the merits. She is unlikely to remain alone in her success. In 2012, the Federal Circuit decided Richard v. United States, (6) a case brought by the estates of two Sioux Indians killed by a drunk driver on the Pine Ridge Reservation. The United States argued that the driver, a private citizen with no ties to the federal government, was not a "bad man" within the meaning of the Sioux treaty. The Federal Circuit rejected that reading. "[A]ny 'white' can be a 'bad man,'" the court held (7)--leaving unsaid the logical corollary that any "white" can therefore trigger, through his wrongs, a potentially boundless indemnity obligation on the part of the United States.

This Note is the first work of legal scholarship to focus exclusively on the "bad men among the whites" clauses of these nine treaties and to propose an interpretive approach based on the treaties' historical significance. To situate this approach, Part I of this Note describes the historical context in which these treaties were concluded and provides a textual overview of the "bad men" provisions within these treaties. Part II describes the doctrine interpreting these provisions, identifying both what courts have settled and what remains open or ambiguous. Part III critiques the traditional principles of Indian treaty interpretation as applied to these provisions and, finding courts' existing interpretive tools to be of limited usefulness, proposes replacing them with a more nuanced approach. Finally, this Note concludes by returning to the idea of opportunity: the uncertain scope of the "bad men" cause of action means that there is still much ground left to explore, and the exigencies of the treaties' formation provide hope that this unexplored ground is of great potential for the Indian tribes.

I. THE NINE TREATIES OF THE GREAT PEACE COMMISSION

A. Historical Background

In 1871, on the strength of two sentences buried innocuously between a payment for insurance and a present of farm tools, a centuries-old tradition came to an end. The House of Representatives, tired of the ballooning cost of the nation's treaty obligations and jealous of the Senate's monopoly on Indian affairs, (8) added a short rider to the annual Indian appropriations bill (9) that ended all future treatymaking with the Indian tribes. …

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