30 January 2017

Bad Man Liability

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. 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 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.” 
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 $600,000 from the United States government.
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.
From Note, "A Bad Man Is Hard To Find", 127 Harvard Law Review 2521 (2014).

A similar provision exists in a treaty with the Ute Indian tribe of Colorado and Utah, which recently resulted in a reported decision from the Federal Circuit in a plaintiff's favor. Article 6 of that treaty which was at issue reads as follows:
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, 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.

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