Jones v. United States , 846 F.3d 1343 ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
DEBRA JONES, AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF TODD R.
MURRAY, DECEASED, FOR AND ON BEHALF OF
THE HEIRS OF TODD R. MURRAY, ARDEN C.
POST, INDIVIDUALLY AND AS THE NATURAL
PARENTS OF TODD R. MURRAY, UTE INDIAN
TRIBE OF THE UINTAH AND OURAY
RESERVATION,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2015-5148
______________________
Appeal from the United States Court of Federal
Claims in No. 1:13-cv-00227-MBH, Judge Marian Blank
Horn.
______________________
Decided: January 27, 2017
______________________
JEFFREY S. RASMUSSEN, Fredericks Peebles & Morgan
LLP, Louisville, CO, argued for plaintiffs-appellants. Also
represented by FRANCES C. BASSETT.
2 JONES v. US
JAMES MAYSONETT, Environment and Natural Re-
sources Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by JOHN C. CRUDEN.
______________________
Before LOURIE, O’MALLEY, and TARANTO, Circuit Judges.
O’MALLEY, Circuit Judge
Debra Jones, Arden C. Post, and the Ute Indian Tribe
of the Uintah and Ouray Reservations (collectively,
“Jones”), appeal the judgment of the United States Court
of Federal Claims (“CFC”) dismissing (1) Jones’s claims
for damages against the United States for failure to state
a claim under the 1868 Treaty between the United States
and the Ute Tribe, and (2) a breach of trust claim for
failure to state a claim under the 1868 Treaty and an
1863 Treaty between the same parties. Jones v. United
States, 122 Fed. Cl. 490 (Fed. Cl. 2015) (“Jones II”). We
hold that the CFC erred in dismissing Jones’s claims by
improperly limiting the scope of claims cognizable under
the bad men provision of the 1868 Treaty. 1 The CFC also
erred in applying issue preclusion without considering an
essential spoliation issue. We vacate and remand.
I. BACKGROUND
A. Circumstances Surrounding Murray’s Death
On April 1, 2007, Utah State Trooper Dave Swenson
(“Swenson”) attempted to stop a car for speeding near to,
but outside of, the Uncompahgre Ute Reservation in
Utah. The car did not stop but turned into the reserva-
tion. About twenty-five miles into the reservation, the car
stopped and the driver, seventeen-year-old Uriah Kurip
(“Kurip”), and the passenger, twenty-one-year-old Todd R.
Murray (“Murray”), exited the car. Swenson exited his
1 See infra p. 7 for text.
JONES v. US 3
patrol car with his gun drawn, and ordered Kurip and
Murray to the ground. Murray and Kurip ran in different
directions. Swenson caught and arrested Kurip without
further incident.
At some point during the pursuit, Swenson requested
back-up. Vernal City Police Officer Vance Norton (“Nor-
ton”), Utah Highway Patrol Trooper Craig Young
(“Young”), and Uintah County Deputy Anthoney Byron
(“Byron”) responded. Norton pursued Murray on foot and
ordered Murray to the ground. According to Norton,
Murray raised a gun and fired two shots towards Norton,
and Norton fired two shots at Murray. All of the shots
missed. Norton testified that Murray then turned his
own gun on himself and pulled the trigger. Norton called
dispatch, indicated that shots had been fired, and ex-
plained that Murray had shot himself. Meanwhile, Byron
and Young approached the scene with their guns drawn.
Neither witnessed the shot that brought down Murray.
Byron and Young handcuffed Murray.
The officers found an illegally-purchased .380 caliber
gun and two bullet casings near Murray. Investigators
found two other bullet casings some distance away. A
third casing was also found inside the chamber of Nor-
ton’s gun. An ambulance arrived on the scene thirty-two
minutes after the shooting, while Murray was still alive.
No officer administered medical assistance to Murray in
that time. By the time the ambulance arrived, additional
police officers had arrived from various police depart-
ments and had “commandeered the site and were assert-
ing state jurisdiction over the site.” Complaint at 9, Jones
II, 122 Fed. Cl. 490 (Fed. Cl. 2013) (No. 1:13-cv-00227).
Federal Bureau of Investigation (“FBI”) special
Agents Rex Ashdown and David Ryan and Bureau of
Indian Affairs (“BIA”) Officers James Beck and Terrance
Cuch (collectively, “federal officers”) then arrived and
“ostensibly assumed [federal] jurisdiction of the scene.”
Id. Ashdown took charge of the investigation. The com-
4 JONES v. US
plaint alleges that the federal and local officers prevented
Raymond Wissiup—a member of the Ute tribe, a law
enforcement officer, and the Director of the Tribe’s Fish
and Wildlife Department—from accessing the crime
scene.
An ambulance took Murray off the reservation to the
Ashley Regional Medical Center (“Medical Center”) in
Vernal, Utah, where was declared dead at 1:19 pm. At
the Medical Center, one of the officers allegedly disrobed
Murray, photographed him nude, and manipulated his
remains. For example, Byron was photographed with his
finger in Murray’s head wound. A sample of Murray’s
blood was also taken. Jones alleges that BIA Officer
Kevin Myore “condoned and participated in, or failed to
prevent” these actions. Complaint at 11, Jones II, 122
Fed. Cl. 490 (Fed. Cl. Dec. 3, 2013) (No. 1:13-cv-00227).
The local officers then took Murray’s body to the off-
reservation Thomson-Blackburn Mortuary (“Mortuary”)
in Vernal, Utah to await an autopsy. There, Vernal City
Police Chief Gary Jensen inserted a needle with syringe
into Murray’s heart and directed a mortuary employee to
make an incision into Murray’s jugular vein to collect two
vials of blood. No one ever accounted for the blood or
provided any reason for the necessity of collecting addi-
tional blood, the use of a jugular incision, or the insertion
of a needle into Murray’s heart.
Murray’s body was then transferred to the off-
reservation Office of the Medical Examiner (“OME”),
where the medical examiner declined to perform an
autopsy. Jones alleges that this was done either at the
direction of the FBI, or with the FBI’s tacit approval.
After an external examination, the medical examiner
concluded that the bullet entered the back of Murray’s
head, above and behind his left ear, and exited on the
right side of his head. Murray was right-handed. The
medical examiner did not find soot on Murray’s hands,
JONES v. US 5
but noted that his right hand was bloodied while his left
was clean. The medical examiner considered Murray’s
death a suicide, but later testified that he could not rule
out the possibility that Murray was shot in the back of the
head, execution-style.
The federal officers secured the .380 gun, which be-
came the subject of a federal investigation into its illegal
sale. In the course of the investigation, Ashdown retired
and was replaced by Special Agent Ryan. Jones v. Nor-
ton, No. 2:09-cv-730-TC, 2014 WL 909569 at *4 (D. Utah
Mar. 7, 2014) (unpublished) (“Spoliation Order”). When
the criminal investigation into the illegal sale of the gun
concluded, the judge hearing the case signed an order
forfeiting the gun to the government. Id. The FBI there-
after destroyed the firearm. Id.Jones alleges that Murray was shot execution-style in
the back of the head and that the gaps in the investiga-
tion were part of a conspiracy to cover-up this fact. Jones
argues that the United States is liable for the actions of
the federal and local officers under two treaties negotiated
between the United States and the Ute Indians.
B. The Ute Treaties
The predecessor to the modern Ute Tribe entered into
two treaties with the United States, one in 1863 and one
in 1868. See Treaty with the Utah Tabeguache Band, Oct.
7, 1863, 13 Stat. 673 (hereinafter “1863 Treaty”); Treaty
with the Ute, Mar. 2, 1868, 15 Stat. 619 (hereinafter
“1868 Treaty”).
The Ute Tribe and the United States had a particular-
ly acrimonious relationship prior to the 1863 Treaty, with
several rounds of stalled treaty implementations and
several skirmishes occurring between the parties. Ned
Blackhawk, Violence Over the Land 215–16 (2008) (here-
inafter, “Blackhawk”). A Ute War Council decided to forgo
war in 1863 after being persuaded by Ouray, a leader of
the Tabeguache Ute Tribe, that armed resistance to the
6 JONES v. US
United States would be futile. Id. Ouray led the Ute
negotiations, which resulted in the Ute Tribe ceding to
the United States “among the largest and most valuable
tracts of land ever ceded to the United States,” according
to Commissioner of Indian Affairs Dole. Id. at 216. The
Tabeguache Band admitted that they reside within the
United States, acknowledged the United States’ suprema-
cy, and claimed their protection, 1863 Treaty, art. 1; the
United States agreed to send monthly payments in goods
and provisions, id., art. 2; and the Treaty set the stage for
the creation of a large Ute reservation in Colorado’s
mountain valleys in the 1868 Treaty. Blackhawk at 216.
The 1868 Treaty established the Ute reservation. In
common with the 1863 Treaty, its goal was peace between
the Ute Tribe and white settlers. See Tsosie v. United
States, 825 F.2d 393, 395 (Fed. Cir. 1987) (noting nine
treaties made in 1868 containing bad men provisions with
“peace as their object”).
The 1868 Treaty included the following particularly
relevant provisions. Article 2 reads:
[T]he United States now solemnly agree that no
persons, except those herein authorized so to do,
and except such officers, agents, and employees of
the Government as may be authorized to enter
upon Indian reservations in discharge of duties
enjoined by law shall ever be permitted to pass
over, settle upon, or reside in the Territory de-
scribed in this article, except as herein otherwise
provided.
1868 Treaty, art. 2. Article 6, the primary provision at
issue in this case, reads as follows:
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
JONES v. US 7
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.
Id. at art. 6. We refer to this provision as the “bad men
provision” throughout this opinion.
The 1868 Treaty also includes a requirement for a
plaintiff seeking damages under the bad men provision to
exhaust administrative remedies before filing a claim.
See 1868 Treaty, Art. 5; Jones II, 122 Fed. Cl. at 510.
This provision is not at issue on appeal.
C. Procedural History
Jones 2 first brought suit in state court in Utah, alleg-
ing Constitutional violations committed by the local
officers against Murray and the Ute Tribe. The case was
removed to the United States District Court for the Dis-
trict of Utah. Jones v. Norton, 3 F. Supp. 3d 1170 (D.
Utah 2014) (“Jones I”).
Jones alleged that the state, county, and city officers
in various combinations were responsible for various
Constitutional violations under 42 U.S.C. § 1983—illegal
seizure, excessive use of force, failure to intervene and call
for medical attention, assault/battery, and wrongful
death—conspiracy to violate civil rights under 42 U.S.C.
§ 1985, and additional state law tort claims. Id. at 1177.
On summary judgment, the district court held against
Jones, concluding that he failed to establish that the state
officers violated the Constitution. It concluded that there
was no seizure, that the pursuit was reasonable, and that
Murray had, in fact, fired at Norton. Id. at 1189. The
2 The reference to “Jones” in this section includes
all the Plaintiffs here except the Ute Tribe, which was not
a party to the earlier action.
8 JONES v. US
court also concluded that “Plaintiffs offer no more than
speculation and no reasonable jury could find that Norton
shot Murray in the head at point-blank range.” Id. at
1191. The court relied primarily on the testimony of
Young and Byron that Norton was not near Murray when
Murray went down, Norton’s testimony that Murray shot
himself in the head after exchanging shots with Norton,
and the testimony of the medical examiner that the bullet
came from point-blank range. Id. at 1189—92.
In the course of the litigation, Jones alleged that the
local officers spoliated evidence by (1) failing to give aid to
Murray after the shooting (thus failing to preserve Mur-
ray’s life); (2) failing to test Murray’s gun for residue and
destroying the gun pursuant to a court order; (3) failing to
test Norton’s gun; (4) failing to preserve the crime scene
evidence (e.g., swabbing Murray and Norton’s fingers,
examining their clothing, searching for bullets, perform-
ing blood splatter analysis, or searching Norton);
(5) desecrating Murray’s body at the Medical Center and
Mortuary; and (6) failing to perform a full autopsy.
Spoliation Order, 2014 WL 909569 at *3–10. The district
court concluded that there was no spoliation of evidence
by any of the parties to the suit. Id. at *1. In particular,
the court found that there was no evidence that Murray’s
wound was survivable and that the failure to give aid was
a cause of Murray’s death. Id. at *3. The court also found
that the destruction of Murray’s gun was performed on
the orders of a judge in a separate investigation, and the
state, county, and local officers (collectively, “local offic-
ers”) did not know about the FBI’s imminent destruction
of the gun. Id. at *4–7. Because the state, county, and
local officers did not know about the imminent destruction
of the gun, they did not have a duty to request a test of
the gun from the FBI. Id. The court found that the state,
county, and local officials also had no obligation to inquire
about the testing of the gun or preserve the crime scene
evidence because they were not in charge of the investiga-
tion. Id. at *7–9. Finally, the court found there was no
JONES v. US 9
prejudice to the plaintiffs for the potential desecration of
the body at the Medical Center and Mortuary. Id. at *9–
10.
The district court’s spoliation decision was predicated
on the local officers’ lack of supervisory authority over
several key pieces of evidence, which the court determined
were either in the charge of the federal officers, including
Ashdown, or the medical examiner. See id. at *3 (“Be-
cause the shooting took place on the Uintah and Ouray
Indian Reservation (the Reservation), the FBI had juris-
diction over the investigation.”); id. at *7 (“As part of his
investigation, Agent Ashdown possibly should have taken
Detective Norton’s firearm to have necessary tests per-
formed. But Agent Ashdown is not a named Defendant.”);
id. at *8 (“[N]one of the named Defendants can be held
liable for these alleged misdeeds, because Agent Ashdown
and Keith Campbell were in charge of the investigation.”).
“No one from the federal government ha[d] been named as
a Defendant,” and no member of the federal government
was a party to the district court litigation. Id. at *3 n.3.
The Tenth Circuit affirmed the district court’s conclu-
sions with respect to both spoliation and the substantive
Constitutional violations. Jones v. Norton, 809 F.3d 564,
573-582 (10th Cir. 2015).
D. Court of Federal Claims
After filing in the district court, but before the Tenth
Circuit’s affirmance, Jones filed suit in the Court of
Federal Claims against the United States, alleging viola-
tions of the bad men provision of the 1868 Treaty and a
violation of the United States’ trust obligations, arising
out of the same circumstances surrounding Murray’s
shooting death. Jones predicated jurisdiction on the
Indian Tucker Act and the 1868 Treaty.
The CFC first considered which of Jones’s claims were
cognizable under the bad men provision. The court relied
on two of its previous decisions, Garreaux v. United
10 JONES v. US
States, 77 Fed. Cl. 726 (2007), and Hernandez v. United
States, 93 Fed. Cl. 193 (2010), to conclude that “any
wrong” in the bad men provision was limited to affirma-
tive criminal acts committed on reservation lands. Jones
II, 122 Fed. Cl. at 522. Applying these limitations, the
CFC dismissed several of Jones’s allegations as not cog-
nizable under the bad men provision. Id. at 522. These
allegations included the failure to take custody of Mur-
ray’s body and secure the body against desecration and
spoliation of evidence, the failure to ensure a proper
autopsy was performed, the failure to conduct an investi-
gation into Murray’s death, and the failure to protect the
territorial integrity of the Tribe’s reservation boundary
and sovereign interest in maintaining the crime scene.
Id.
The CFC split Jones’s remaining claims—allegations
that the federal agents acted in concert with state, county,
and local officers to concoct a false story that Murray shot
himself, and allegations that some of those officials partic-
ipated in, allowed, or failed to prevent the desecration of
Murray’s body and spoliation of critical evidence—into
those that occurred off-reservation and those that oc-
curred on the reservation. The court held that acts occur-
ring outside the reservation were not cognizable under
the bad men provision, id. at 522, and that those on the
reservation, although cognizable, were barred by issue
preclusion. Id. at 529.
With regard to issue preclusion, the court explained
that the issues presented in this case and those in the
district court were identical—“namely the allegations that
officials committed a wrong by pursuing Murray at gun-
point without jurisdiction and without probable cause, by
shooting Murray execution-style, and then conspiring to
cover-up the execution-style shooting and to obstruct
justice.” Id. at 527 (internal citation omitted). The CFC
also held that Jones had a full and fair opportunity to
litigate in the district court, explaining that the parties
JONES v. US 11
thoroughly litigated both the substantive determination of
whether Norton killed Murray and the underlying spolia-
tion issues. Id. at 529. In a footnote, the CFC explained:
Although the District Court decision addressed
only the state and local officers named in the suit,
in the District Court's spoliation order, the Dis-
trict Court noted that “[t]he State Defendants and
Uintah County Defendants had no responsibility
to ensure that Detective Norton's firearm was
tested . . . . As part of his investigation, Agent
Ashdown possibly should have taken Detective
Norton's firearm to have necessary tests per-
formed. But Agent Ashdown is not a named De-
fendant.” [Spoliation Order], 2014 WL 909569, at
*7. As determined above, however, only affirma-
tive acts trigger the “bad men” provision of the
1868 Treaty. Plaintiffs offer no claims as to what
affirmative action by federal officials took place on
Tribal lands which would implicate the “bad men”
provision of the 1868 Treaty.
Jones II, 122 Fed. Cl. at 529 n.32. The CFC did not
consider the effect of the federal officers’ actions on either
the spoliation issues or the substantive issues.
The CFC also rejected Jones’s breach of trust claims,
concluding that Jones failed to “identif[y] any ‘specific-
right-creating or duty-imposing statutory or regulatory
prescriptions,’ that establish ‘specific fiduciary or other
duties’ that the United States allegedly has failed to fulfill
as part of its trust duties.” Id. at 535 (quoting United
States v. Navajo Nation, 537 U.S. 488, 506 (2003) (“Nava-
jo Nation I”)). The court therefore dismissed all of Jones’s
claims. Jones timely appealed. We have jurisdiction over
appeals from the Court of Federal Claims under 28 U.S.C.
§ 1295(a)(3) and the Indian Tucker Act, 28 U.S.C. § 1505.
12 JONES v. US
II. DISCUSSION
A. Standard of Review
We review the CFC’s dismissal for failure to state a
claim de novo. Frankel v. United States, 842 F.3d 1246,
1249 (Fed. Cir. 2016). We take all factual allegations in
the complaint as true and construe the facts in the light
most favorable to the non-moving party. Laguna Hermo-
sa Corp. v. United States, 671 F.3d 1284, 1288 (Fed. Cir.
2012).
We review the CFC’s interpretation of treaties de no-
vo, Richard, 677 F.3d at 1144–45, and the application of
issue preclusion de novo. Shell Petroleum, Inc. v. United
States, 319 F.3d 1334, 1338 (Fed. Cir. 2003).
B. Rules of Interpretation of Indian Treaties
In interpreting treaties, we must “attempt to deter-
mine what the parties meant by the treaty.” Northwest-
ern Band of Shoshone Indians v. United States, 324 U.S.
335, 353 (1945). The United States and the Native Amer-
ican Tribes have a “unique trust relationship.” Cty. Of
Oneida v. Oneida Indian Nation, 470 U.S. 226, 247
(1985). In light of this relationship, we “interpret Indian
treaties to give effect to the terms as the Indians them-
selves would have understood them,” Minn. v. Mille Lacs
Band of Chippewa Indians, 526 U.S. 172, 196 (1999), and
“construe[] [them] liberally in favor of the Indians with
ambiguous provisions interpreted for their benefit.” Cty.
Of Oneida, 470 U.S. at 247; Cty. of Yakima v. Confederat-
ed Tribes & Bands of the Yakima Indian Nation, 502 U.S.
251, 261 (1992). See also Richard, 677 F.3d at 1145, 1149
n.14 (explaining that “[t]he intent of the parties is of
particular importance” when interpreting treaties with
Indians, and considering the understanding of the Sioux
Nation during negotiations to determine their intent).
Determining the way that the Ute Tribe understood
the 1868 Treaty presents many complications, owing
JONES v. US 13
primarily to the fundamental differences between the
Native societies’ oral tradition and the United States
society’s written tradition. See Whitefoot v. United States,
293 F.2d 658, 667 n.15 (Ct. Cl. 1961) (“A great and un-
bridgeable void existed between the language and culture
of the two races.”). When determining a non-written
culture’s understanding of written words, we must be
careful to avoid reasoning that holds strictly to our later-
established understanding of those words. See, e.g.,
Worcester v. Georgia, 31 U.S. 515, 552–53 (1832), over-
ruled on other grounds by Nevada v. Hicks, 533 U.S. 353,
361–62 (2001) (interpreting “allotted” to mean “marked
out” and not according to its technical meaning of convey-
ing ownership interest). The Treaty was written in Eng-
lish, however, and we must honor any unambiguous
language in the treaty. Northwestern Band of Shoshone
Indians, 324 U.S. at 353 (“We stop short of varying [the
Treaty’s] terms to meet alleged injustices.”); Chickasaw
Nation v. United States, 534 U.S. 84, 88–89 (2001) (reject-
ing application of liberal-construction canon where Court
found no ambiguity).
C. Claims Cognizable Under
the Bad Men Provision
Jones’s primary contention is that the actions (and
inactions) of the federal officers are the type of wrongs
cognizable under the bad men provision and that the CFC
erred in limiting the realm of cognizable wrongs to af-
firmative criminal acts occurring on reservation land. To
state a claim for relief under the bad men provision
requires the identification of particular “bad men,” and an
allegation that those men committed a wrong within the
meaning of the treaty. Hernandez, 93 Fed. Cl. at 200
(citing Ex parte Kan-gi-shun-ca, 109 U.S. 556, 567–68
(1883)). Jones identifies the federal officers as “bad men,”
who have committed several wrongs:
i. Acting in concert with state/county/municipal
officers, expressly or impliedly, in concocting, or
14 JONES v. US
permitting to be concocted, a false story that Todd
Murray shot himself in the back of his head
ii. Failing to take custody of Murray’s body and
to secure the body against desecration and spolia-
tion of evidence
iii. [skipped in the complaint]
iv. Participating, tacitly allowing, or failing to
prevent, the desecration of Murray’s body and the
spoliation of critical evidence both at the shooting
scene and afterwards at the Medical Center,
Blackburn Mortuary, and at the Utah Office of the
Medical Examiner
v. Failing to insure that a proper autopsy was
performed on Murray’s body
vi. Failing to conduct any kind of investigation
into Todd Murray’s murder
vii. Failing to protect the territorial integrity of
the Tribe’s reservation boundary and the Tribe’s
sovereign interests in the crime scene where Mur-
ray was shot.
See Complaint at 18, Jones II, 122 Fed. Cl. 490 (Fed. Cl.
2013) (No. 1:13-cv-00227); Jones II, 122 Fed. Cl. at 520–
21.
In addition to the allegations above, Jones also alleges
that Murray suffered “injuries at the hands of bad men,”
including “the extra-territorial police pursuit, assault
upon, and murder of Todd Murray,” and “the conspiracy
to cover up Todd Murray’s murder.” Complaint at 17-18,
Jones II, 122 Fed. Cl. 490 (Fed. Cl. 2013) (No. 1:13-cv-
00227). Jones does not identify the particular officers
responsible for each of those injuries. Nevertheless, we
read paragraphs 67 and 69 liberally in conjunction with
paragraph 70, which states, “In addition, or alternatively,
the bad men include (i) the Utah state/county/municipal
JONES v. US 15
enforcement officers who were involved in the illegal
extraterritorial pursuit and execution-style shooting of
Todd Murray, the conspiracy to cover up Murray’s execu-
tion-style shooting, and the desecration of Murray’s body
and spoliation of critical evidence.” Id. at 19. Jones also
identifies as bad men “the owners and employees of [the
Mortuary] in Vernal, Utah, who permitted and participat-
ed in the desecration of Todd Murray’s body at the Mortu-
ary.” Id. For purposes of the appeal from the CFC’s
motion to dismiss, we consider the alleged actions of all
the identified bad men, including the local officers, the
mortuary employees, and the federal officers. See Rich-
ard, 677 F.3d at 1153 (holding that bad men need not be
agents of the federal government).
The interpretation of the cognizable claims under the
bad men provision of the Ute Treaty requires considera-
tion of three issues: (1) the nature of the cognizable
wrongs, (2) the universe of applicable “laws of the United
States,” and (3) the geographic location of the wrongs. We
address each in turn below.
i. The Bad Men Provision is Limited
to Criminal Wrongs
This court has not defined the types of alleged wrongs
cognizable under the bad men provisions of this and
similar treaties. To perform this analysis, we begin with
the text of the 1868 Treaty and consider the “larger
context that frames the Treaty,” its “history, purpose, and
negotiations.” Mille Lacs, 526 U.S. at 196, 202; see Rich-
ard, 677 F.3d at 1145. The bad men provision in the 1868
Treaty reads:
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 . . . pro-
ceed at once to cause the offender to be arrested
and punished according to the laws of the United
16 JONES v. US
States, and also reimburse the injured person for
the loss sustained.
1868 Treaty, 15 Stat. 619 (emphasis added). The 1868
Treaty does not define “any wrong.” The CFC previously
limited the cognizable wrongs under similar bad men
provisions to affirmative criminal acts. See generally
Garreaux, 77 Fed. Cl. 726; Hernandez, 93 Fed. Cl. 193.
In Garreaux, a Native-American plaintiff alleged that
the United States was liable under a different treaty’s bad
men provision because agents of the Bureau of Indian
Affairs and the Department of Housing and Urban Devel-
opment failed to administer her land lease properly,
causing her to lose her home. 77 Fed. Cl. at 734. The
CFC explained that these wrongs were not cognizable
under the bad men provision because prior cases brought
under that provision were uniformly “criminal in nature,”
id. at 737, and the primary intent of the bad men provi-
sion “was to guard against affirmative criminal acts,
primarily murder, assault, and theft of property,” id. at
736 (citing Kan-gi-shun-ca, 109 U.S. at 567–68).
The plaintiff in Hernandez was indicted for drug-
related offenses and brought suit in the CFC under a
different treaty’s bad men provision, alleging that a
narcotics officer bribed a witness to acquire perjured
testimony, a judge committed judicial misconduct, the
county prosecutor committed prosecutorial misconduct,
and the court-appointed counsel provided ineffective
assistance. 93 Fed. Cl. at 196. The CFC explained that
the “primary intent of [the bad men provision] was to
keep the peace between Native Americans and non-Native
Americans, and, as such, the Fort Laramie Treaty has
been applied to affirmative criminal acts and not mere
acts of negligence.” Id. at 199 (citing Kan-gi-shun-ca, 109
U.S. 556 and Janis v. United States, 32 Ct. Cl. 407, 409
(1897)). Even as to alleged affirmative criminal acts, the
CFC concluded that, although Plaintiff “makes many
claims that might result in criminal punishment,” none of
JONES v. US 17
those alleged acts “would have threatened the peace that
the Fort Laramie Treaty was intended to protect.” Id.The court reasoned that none of the alleged acts could be
“considered a crime of moral turpitude that the ‘Bad Men’
clause purports to cover.” Id. at 199 n.5 (citing Kan-gi-
shun-ca, 109 U.S. at 567; Elk v. United States, 70 Fed. Cl.
405, 405–06 (2006)).
The CFC here applied Hernandez and Garreaux to
dismiss most of the alleged wrongs for failure to meet the
“affirmative criminal acts test” because “inaction is not a
recognized harm under the 1868 Treaty.” Jones II,
122 Fed. Cl. at 522. Specifically, the Court explained
that, “[b]ecause arresting and criminally prosecuting
individuals for civil wrongs does not logically follow,
‘wrongs,’ as defined by the 1868 Treaty, are only allega-
tions of criminal wrongs.” Id.
Jones argues that both the text and context of the
treaty compel a reading of the bad men provision that
would encompass the officers’ actions here. Jones argues
that the Native Americans in 1868 would not have under-
stood “any wrong” as limited to affirmative criminal acts
because: (1) on its face, the bad men provision recognizes
the commission of “any wrong,” without a limitation such
as “any [criminal] wrong”; (2) in 1868, the ordinary mean-
ing of “wrong” was not limited to acts that violate crimi-
nal laws, but meant “deviates from moral rectitude; any
injury done to another; a trespass; a violation of right,”
Noah Webster, AN AMERICAN DICTIONARY OF THE ENGLISH
LANGUAGE (1828); (3) the United States’ duty to “arrest[]
and punish[]” wrongdoers is separate from—and does not
limit the scope of—cognizable wrongs; (4) the distinction
between civil and criminal wrongs is an Anglo-American
import, and the Ute leaders would not have understood a
distinction between wrongs worthy of redress through
criminal law, and those admitting solely to civil penalties;
and (5) the context of the 1868 Treaty manifests an intent
to protect Native Americans’ right to be free from a broad
18 JONES v. US
array of injuries caused by non-Indians, because tribal
members were not afforded the same rights as U.S. citi-
zens, and that policy would not be served by an affirma-
tive acts limitation to cognizable wrongs.
In addition, Jones argues that the CFC wrongly de-
cided Hernandez and Garreaux based on an overbroad
reading of the Supreme Court’s decision in Kan-gi-shun-
ca, and the United States’ commitment to “arrest” wrong-
doers should be read as “stopping the motion of” wrongdo-
ers, and not as criminal arrest. Any other reading,
according to Jones, “judicially nullifies the justifiable
expectations of the Ute Tribe and its tribal members.”
Appellant Reply Br. 24.
The Government first argues that the Treaty unam-
biguously obligates the United States to “arrest[] and
punish[]” those who commit the “wrong,” which necessari-
ly limits the scope of cognizable wrongs to those for which
arrest is an appropriate punishment. The Government
notes that every case of a cognizable wrong has involved
an affirmative and aggressive criminal act. Second, the
Government argues that the bad men provision says
“commit any wrong,” and a bad man can only “commit”
affirmative acts—as distinguished from omitting to act.
The Government argues that we have so held in Hebah II,
where we defined a wrong as an “[a]ction or conduct
which inflicts harm.” 456 F.2d at 704. To support both of
these limitations, the Government argues that the bad
men provision was intended to prevent crime or aggres-
sion by whites against the Native Americans, Indian
Peace Commission, H. Exec. Doc. No. 40-90 (1868); Condi-
tions of the Indian Tribes: Report of the Joint Special
Committee Appointed Under Joint Resolution of March 3,
1865, S. Rep. No. 39-156 at 5 (1867) (“The committee are
[sic] of [the] opinion that in a large majority of cases
Indian wars are to be traced to the aggressions of lawless
white men.”), a purpose which would not be served by
JONES v. US 19
including omissions or non-criminal action into the cogni-
zance of the bad men provision.
We agree with the Government that only acts that
could be prosecutable as criminal wrongdoing are cog-
nizable under the bad men provision. We turn first to the
text of the 1868 Treaty itself. Mille Lacs, 526 U.S. at 206.
The text unambiguously commits the United States to
arrest and punish those who commit a wrong. This
commitment to arrest is express, 1868 Treaty, 15 Stat.
619 (“[T]he United States will . . . proceed at once to cause
the offender to be arrested”), and is in addition to the
commitment to “punish[]” the wrong-doer and to reim-
burse the injured person, id. (“[T]he United States will . . .
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.”) (emphases added).
The definition of “any wrong” is thus tied to the concept
that the United States would at least have the authority
to make an arrest with respect to such wrongs.
There are only two internally consistent ways of in-
terpreting the bad men provision. Either (1) “any wrong”
is limited to criminal wrongdoing, or (2) the United States
agreed to arrest non-criminal wrongdoers where the
victim was a Native. Jones argues that the second inter-
pretation is correct because, “[t]o construe it otherwise
would require Natives to endure harm to their person or
property from, for example, the reckless behavior of non-
Indians not rising to the level of a federal crime such as,
for example, constitutional torts.” Appellant Br. 22. We
disagree.
“An arrest is the initial stage of a criminal prosecu-
tion.” Terry v. Ohio, 392 U.S. 1, 26 (1968). In most cir-
cumstances, “[w]hether [an] arrest was constitutionally
valid depends in turn upon whether, at the moment the
arrest was made, the officers had probable cause to make
it—whether at that moment the facts and circumstances
within their knowledge . . . were sufficient to warrant a
20 JONES v. US
prudent man in believing that the petitioner had commit-
ted or was committing an offense.” Beck v. State of Ohio,
379 U.S. 89, 91 (1964). Even the limited circumstances
that fall outside this rule require some connection with
criminal wrongdoing. See generally 1 Charles Alan
Wright et al., Federal Practice and Procedure § 58 (4th ed.
2016) (explaining circumstances of allowable warrantless
arrest).
Jones has not argued that proof of a non-criminal
wrong justifies an arrest. Absent explicit language to the
contrary, we cannot reasonably read the bad men provi-
sion to obligate the United States to disregard the struc-
ture of our jurisprudential system so blatantly by
compelling arrest for non-criminal acts. If the bad men
provision is not limited to criminal wrongs, moreover, its
scope would be largely indefinite, placing on the United
States government the duty to arrest individuals and
reimburse injured parties for anything that might be
considered a “wrong.” The breadth of such a provision
could extend to simple negligence or breach of contract
claims without a principled distinction between cogniza-
ble and non-cognizable claims.
Jones argues that the commitment to “arrest” does
not require criminal arrest, but should be read in the
sense of “to obstruct; to stop; to check or hinder motion.”
Noah Webster, AN AMERICAN DICTIONARY OF THE ENGLISH
LANGUAGE (1828). In this context, Jones’s definition
would mean that the United States agreed to remove non-
Indian wrong-doers from the reservation. This argument
is unconvincing. First, Jones offers no evidence that this
was the understanding of the Ute Tribe. Second, it is
unclear what mechanism the United States could use to
“stop the motion” of wrongdoers on the Reservation other
than to arrest the wrongdoers.
We reject Jones’s argument that limiting the bad men
provision to criminal wrongdoing fails to read the 1868
Treaty in the way the Indian leaders would have under-
JONES v. US 21
stood it. In interpreting a treaty, we “attempt to deter-
mine what the parties meant by the treaty[, but w]e stop
short of varying its terms to meet alleged injustices.”
Northwestern Band of Shoshone Indians, 324 U.S. at 353.
Even if the Ute leaders may not have appreciated the
complex distinction between American civil and criminal
law, we may not interpret the 1868 Treaty in a way that
the United States would not reasonably have agreed to
adopt at the time of the signing. In other words, the
extent of our interpretive deference to the perspective of
the Native leaders cannot extend past the meeting of the
minds between the parties. See Confederated Bands of
Ute Indians v. United States, 330 U.S. 169, 179 (1947)
(“While it has long been the rule that a treaty with Indi-
ans is to be construed so as to carry out the Government's
obligations in accordance with the fair understanding of
the Indians, we cannot, under the guise of interpretation .
. . rewrite congressional acts so as to make them mean
something they obviously were not intended to mean.”);
South Carolina v. Catawba Indian Tribe, 476 U.S. 498,
506 (1986) (“The canon of construction regarding the
resolution of ambiguities in favor of Indians, however,
does not permit reliance on ambiguities that do not exist;
nor does it permit disregard of the clearly expressed
intent of Congress.”). We therefore hold that only wrongs
that could give rise to arrest and potential criminal prose-
cution are cognizable under the 1868 Treaty’s bad men
provision. 3
3 As the CFC correctly explained, it is not a prereq-
uisite to maintaining a claim under the bad men provision
that criminal charges actually be brought against the
alleged bad men. Jones II, 122 Fed. Cl. at 523 (“The
court, however, cannot infer from the absence of prosecu-
tions that all the FBI and BIA actions were taken permis-
sibly.”).
22 JONES v. US
ii. The Universe of “Laws of the United States”
The CFC had no cause to address the source of the
“laws of the United States” for purposes of the bad men
provision, and as such, we do not have the benefit of
either a trial court opinion or the parties’ briefing. We
thus restrict ourselves to a general discussion and remand
to the CFC to consider in the first instance the application
of these principles to the case at bar.
As of 1817, “any crime, offense, or misdemeanor”
committed “within any town, district, or territory belong-
ing to any nation or nations, tribe or tribes, of Indians”
was punishable in like manner to how it would be pun-
ished on non-Native land under the sole and exclusive
jurisdiction of the United States. Indian Country Crimes
Act, 3 Stat. 383 (1817). At the time of the 1868 Treaty,
there was a body of federal criminal law understood to
apply to Indian country beyond that limited number of
laws explicitly addressing actions on the reservation.
That law has since evolved into 18 U.S.C. § 1152(2006) (emphasis added): “Except as otherwise expressly
provided by law, the general laws of the United States as
to the punishment of offenses committed in any place
within the sole and exclusive jurisdiction of the United
States, except the District of Columbia, shall extend to
the Indian country.” Indian Reservations are “Indian
country” for purposes of § 1152. 18 U.S.C. § 1151 (2006).
The “general laws of the United States” in § 1152, as
it existed in 2007, included what is now the Assimilative
Crimes Act, 18 U.S.C. § 13 (2006), 4 Williams v. United
4 This Act also has a long history. Beginning in
1824, it was applied primarily to naval and military
bases, see United States v. Press Pub. Co., 219 U.S. 1, 10
(1911); 30 Stat. 717 (1898); 4 Stat. 115 (1824), and it later
extended to Indian Country.
JONES v. US 23
States, 327 U.S. 711, 713 & n.3 (1946), which makes
federally punishable any act or omission committed on
“[a]ny lands reserved or acquired for the use of the United
States, and under the exclusive or concurrent jurisdiction
thereof,” where that act or omission would be punishable
under state law if committed within the state’s jurisdic-
tion. 5 18 U.S.C. § 7 (2006).
We leave it to the CFC in the first instance to deter-
mine whether any of the “wrongs” Jones alleges would
subject the alleged bad men to arrest under the “laws of
the United States,” and as such, are cognizable under the
bad men provision.
iii. Whether The Bad Men Provision Is Limited
to Affirmative Acts Should Be Explored
on Remand If Necessary
The CFC also limited the cognizable claims under the
bad men provision to those that alleged affirmative acts,
rejecting claims premised on alleged omissions. We do
not decide whether the bad men provision is limited to
affirmative acts. At present, Jones has not yet explained
what particular crimes each alleged omission constituted,
so we do not have concrete criminal-law duties to analyze.
We also have not been provided with sufficient briefing to
decide the question in the abstract. If, on remand, Jones
establishes that any of the alleged omissions constitute
crimes (under the laws of the United States, as discussed
above), the CFC should reconsider the affirmative-acts
issue in the context of a specific crime or crimes, with
more complete briefing by the parties.
We limit our discussion here to only certain aspects of
the issue. We begin with the language of the bad men
5 Subject to the limitation that Congress has not
made that same act or omission independently punisha-
ble. 18 U.S.C. § 13 (2006).
24 JONES v. US
provision. The provision applies to bad men who
(a) “commit any wrong” (b) “upon the person or property
of the Indians.”
The first phrase, notably, is not “commit any act” or
even “commit any wrongful act.” Rather, it is “commit
any wrong.” That phrase is closely akin to “commit any
crime,” or “commit any offense,” phrases that in familiar
legal usage appear to cover committing a crime by a
failure to act in the (comparatively few) circumstances in
which there is a criminal-law duty to act. See 1 Wayne R.
LaFave, Subst. Crim. L. § 6.2 (2d ed. 2016) (“Most crimes
are committed by affirmative action rather than by non-
action. But there are a number of statutory crimes which
are specifically defined in terms of failure to act, and
other crimes which, though not specifically so defined,
may be committed either by affirmative action or by
failure to act under circumstances giving rise to a legal
duty to act.”); Model Penal Code § 2.01(3) (2015) (“Liabil-
ity for the commission of offense may not be based on an
omission unaccompanied by action unless: (a) the omis-
sion is expressly made sufficient by the law defining the
offense; or (b) a duty to perform the omitted act is other-
wise imposed by law.”). Even as to that phrase, however,
we have not been presented a full historical analysis of
the common usage of it at the time.
The Treaty provision also does not stop at the first
phrase. The second phrase requires that the wrong be
committed “upon the person or property of the Indians.”
That phrase might suggest a focus on affirmative acts.
Again, however, we do not know enough to so hold. We
lack briefing on a proper historical understanding of that
phrase, in general or in the relevant context. That con-
text plainly includes a focus on keeping the peace and
preventing retaliation for wrongs. Richard, 677 F.3d at
1154–55 (Lourie, J., dissenting); Tsosie, 825 F.2d at 395;
Hernandez, 93 Fed. Cl. at 199. It is possible the particu-
lar criminal failures to act would be so generally under-
JONES v. US 25
stood to be injurious that they would provoke the retalia-
tion the Treaty meant to prevent. We cannot at present
say.
In short, we currently lack the context or historical
analysis required to determine whether the language of
the bad men provision covers criminal omissions—or
perhaps only some criminal omissions—as well as com-
missions. Indeed, we do not currently have enough in-
formation to decide definitively even whether the
provision ultimately involves an ambiguity to be resolved
in favor of the Indians under established canons of con-
struction. See Seufert Bros. Co. v. United States, 249 U.S.
194, 198 (1919) (“We will construe a treaty with the
Indians . . . as justice and reason demand in all cases
where power is exerted by the strong over those to whom
they owe care and protection, and counterpoise the ine-
quality by the superior justice which looks only to the
substance of the right without regard to technical rules.”)
(quoting United States v. Winan, 198 U.S. 371, 380
(1905)); Worcester v. Georgia, 31 U.S. 515, 547, 552–53
(1832), distinguished on other grounds by Nevada v.
Hicks, 533 U.S. 353, 361–62 (2001) (interpreting the
Hopewell Treaty with the Cherokee Indians, which in-
cluded a provision whereby the United States “allotted”
land for Native hunting grounds. There, “allotted” meant
simply “marked out,” and was not used as a technical
indicator of ownership, because the focus of the Hopewell
Treaty was the location of the line being drawn, and the
Cherokee would not have recognized the legal import of
the word “allotted” beyond that of “marked out”).
Governing case law, contrary to the Government’s as-
sertion, does not resolve the issue. To date, all of the
cases that are precedent in this court involved affirmative
acts; none presented the question whether some omissions
could come within the bad men provision. Accordingly,
we have never held that a wrong under the bad men
provision must be an affirmative act.
26 JONES v. US
In Hebah II, we defined a wrong broadly as an
“[a]ction or conduct which inflicts harm.” 456 F.2d at 704.
But as in every other pertinent case that this court, its
predecessor, or the Supreme Court has heard, the alleged
wrong—a killing—was indisputably cognizable under the
bad men provision as both a criminal wrong and an
affirmative act. Nothing in the Hebah II definition dic-
tates the affirmative-acts limitation the Government
proffers.
The CFC in this case relied on its earlier decisions in
Garreaux and Hernandez to support its affirmative-acts
limitation, but those cases are not binding precedent for
us, and they relied on overbroad readings of the Supreme
Court’s decision in Kan-gi-shun-ca and the Court of
Claims’ decisions in Janis, Elk, and Hebah v. United
States, 428 F.2d 1334, 1338 (Ct. Cl. 1970) (“Hebah I”).
The nature of wrongs cognizable under the bad men
provision was never at issue in Kan-gi-shun-ca, an action
brought by the family of a murder victim against an
alleged bad man from the same tribe, 109 U.S. at 567, or
in Janis, an action brought by a non-Native citizen who
had been adopted into a tribe against members of that
tribe for cattle theft, 32 Ct. Cl. at 408. The alleged acts in
both were unquestionably “wrongs.” Elk, which dealt
with the scope of administrative exhaustion, is likewise
inapposite. See 70 Fed. Cl. at 405. Hebah I addressed
whether a claim under a bad men provision could be
brought by an individual (the widow of a Native Ameri-
can) or must be brought on behalf of the tribe itself. 428
F.2d at 1337. These cases do not compel finding an
affirmative-acts limitation in the bad men provision.
It is unnecessary and inadvisable to go further at this
stage. On remand, Jones may or may not identify appli-
cable crimes covering the alleged omissions. If Jones does
so, the legal analysis can be both more focused (on those
crimes) and more developed than it currently is. We
therefore vacate the CFC’s ruling that the alleged omis-
JONES v. US 27
sions are not cognizable under the bad men provision, and
we include those omissions, to be addressed anew if
necessary, in the remand.
iv. Territoriality of the Bad Men Provision
Without citing any authority, the CFC added the fur-
ther limitation that any actions or omissions performed
off the reservation are necessarily outside the scope of the
bad men provision. Jones II, 122 Fed. Cl. at 522 (“The
court also notes, however, that defendant is correct that
the ‘bad men’ provision does not include, as plaintiffs[]
suggest[,] the universe of off-reservation activities that
would have occurred but for the initial conduct on the
reservation.”). The court thus dismissed all the claims of
“wrongs” occurring at the Medical Center, the Mortuary,
and at the OME as not cognizable under the bad men
provision. For the reasons explained below, we find that
the CFC erred in dismissing all the off-reservation actions
as not cognizable.
The text of the bad men provision itself does not limit
cognizable wrongs to those occurring wholly on reserva-
tion lands. Indeed, the bad men language broadly pro-
tects against wrongs “upon the person or property of the
Indians.” 1868 Treaty, 15 Stat. 619. Nothing in the
remainder of the 1868 Treaty explicitly limits the geo-
graphic scope of where cognizable wrongs may be commit-
ted. Compare id. with Treaty With the Navajo, June 1,
1868, 15 Stat. 667 (“[I]f any Navajo Indian or Indians
shall leave the reservation herein described to settle
elsewhere, he or they shall forfeit all the rights, privileg-
es, and annuities conferred by the terms of this treaty.”)
(discussed in Herrera v. United States, 39 Fed. Cl. 419,
420 (1997), aff'd, 168 F.3d 1319 (Fed. Cir. 1998)).
This court and its predecessor have commented on the
territorial scope of similar bad men provisions. See Rich-
ard, 677 F.3d at 1153 n.22 (“[C]laims under this provision
are limited to the clear geographic limits found in the
28 JONES v. US
Treaties.”); Campbell v. United States, 44 Ct. Cl. 488,
491–92 (1909) (applying a provision similar to the bad
men provision, and explaining that the treaty “contem-
plates such injuries as result from invasion or aggression
on the territory or reservation of the [Indians]”); Janis, 32
Ct. Cl. at 410 (discussing the general purpose of the bad
men provision as “contemplat[ing] that the Indians shall
be responsible for what Indians do within the white man’s
territory and that the Government will be responsible for
what white men do within the Indian’s territory.”); Pablo
v. United States, 98 Fed. Cl. 376, 382 (2011) (no compen-
sation awarded under a bad men provision for wrongs
suffered outside the boundaries of the reservation recog-
nized by a Treaty). None of these decisions, however,
created a strict territorial line at the reservation bounda-
ry for cognizable wrongs under the bad men provision. In
Richard, for example, the only issue was whether gov-
ernment liability under the bad men provision was lim-
ited to actions performed by government actors, or
whether it could extend to a drunk driver who killed two
Sioux men on land indisputably within the Sioux reserva-
tion. 677 F.3d at 1142, 1153. The footnote in Richard
that the provision at issue was “limited to the clear geo-
graphic limits found in the Treaties,” id. at 1153 n.22,
does not define where a wrong actually occurred or the
implications for wrongs physically committed off the
reservation following on-reservation acts. Janis similarly
failed to address the geographic location issue and was
primarily concerned with whether a white man who had
been adopted into the Sioux nation could bring a claim
under a bad men provision for injuries done to him by an
Indian. 32 Ct. Cl. at 408–411.
Pablo does not help the Government either—that ac-
tion was brought by a Plaintiff who had no permanent
address on the reservation and was not a registered
member of the Tribe that was party to the treaty includ-
JONES v. US 29
ing the bad men provision. 98 Fed. Cl. at 382. 6 The Fort
Sumner Treaty that gave rise to the bad men provision at
issue in Pablo included a provision that is arguably
geographically-limiting, unlike the 1868 Treaty at issue
here. See id. at 378 (“[I]t is further agreed and under-
stood by the parties to this treaty, that if any Navajo
Indian or Indians shall leave the reservation herein
described to settle elsewhere, he or they shall forfeit all
the rights, privileges, and annuities conferred by the
terms of this treaty”). Finally, Campbell, 44 Ct. Cl. 488,
does not support a strict geographic limitation because
there was no bad men provision at issue and our prede-
cessor court held that cognizable injuries were those that
“result from invasion or aggression on the territory or
reservation,” not simply ones that physically and wholly
occurred on the reservation. Id. at 491 (emphasis added).
Jones does not argue that the bad men provision is
unlimited in geographic scope, but argues that a wrong
committed on reservation land and continuing off-
reservation land is cognizable. We agree with this gen-
eral principle. Even assuming, without deciding, that the
bad men provision includes some form of geographic
boundary, the bad men provision may take cognizance of
off-reservations activities that are a clear continuation of
activities that took place on-reservation. For a general
discussion of the treatment of territoriality issues in
criminal law, which we do not suggest applies in any
given particular here, see 4 Wayne R. LaFave et al., Crim.
Proc. § 16.4(b), (c) (4th ed. 2016).
6 The attack in Pablo occurred on, and the victim
was a resident of, a reservation of another Tribe that was
not within the scope of the treaty at issue. 38 Fed. Cl. at
381. The tribe on whose land the attack occurred was a
party to a different treaty that also included a bad men
provision, but this was held not to change the geographic
limitation of the actual treaty at issue. Id. at 382.
30 JONES v. US
Like the alleged affirmative acts limitation, a geo-
graphic limitation would ill-serve the peace-creating and
peace-maintaining policy of the 1868 Treaty. Wrongs
occurring off-reservation that occur as a direct result of
wrongs occurring on-reservation may be as injurious to
peace as those same acts occurring wholly on reservation.
For example, it would make little sense to treat a kidnap-
ping and murder wholly on reservation land as a cogniza-
ble wrong, but exclude from the bad men provision off-
reservation damages resulting from a kidnapping on the
reservation. This is not to say that all off-reservation
wrongs fall within the cognizance of the bad men provi-
sion, only that the geographic line is not as bright as that
drawn by the CFC.
Here, Jones alleges that bad men committed wrongs
after Murray was taken from the site of the shooting on
the reservation to the off-reservation Medical Center, the
Mortuary, and the OME, and that at least some of these
wrongs were a continuation of the conspiracy to cover-up
Murray’s on-reservation killing. Jones also alleges that
the off-reservation destruction of the gun and the off-
reservation failure to preserve evidence and investigate
were wrongs directly tied to the circumstances of his
death.
The inquiry into which off-reservation acts are a clear
continuation of on-reservation activities is heavily fact-
dependent. The CFC erred in summarily dismissing
Jones’s allegations of off-reservation wrongs without
considering the connection those alleged wrongs had, if
any, to the alleged on-reservation wrongs. We leave it to
the sound judgment of the CFC to determine, in the first
instance, whether any of these off-reservation acts
demonstrate the alleged continuation of on-reservation
acts so as to be cognizable under the bad men provision.
JONES v. US 31
D. Issue Preclusion
Issue preclusion is available as a defense when the
following four elements are met:
1. The issue previously decided is identical with
the one presented in the action in question.
2. The prior action has been finally adjudicated
on the merits.
3. The party against whom the doctrine is in-
voked was a party, or in privity with a party, to
the prior adjudication.
4. The party against whom the doctrine is raised
had a full and fair opportunity to litigate the issue
in the prior action.
See Park Lake Res. Ltd. Co. v. United States Dep’t of Ag.,
378 F.3d 1132, 1136 (10th Cir. 2004). 7 The party assert-
ing issue preclusion bears the burden to establish each of
these elements. Stan Lee Media, Inc. v. Walt Disney Co.,
774 F.3d 1292, 1297 (10th Cir. 2014).
The CFC held that the district court’s factual find-
ings—i.e., that Murray had indeed killed himself and that
there was no conspiracy to cover-up the culpability of the
local officers—and the legal determination of no spolia-
tion, met each of the elements for issue preclusion. Jones
II, 122 Fed. Cl. at 525–30. The CFC thus dismissed all of
7 The CFC here applied the issue preclusion law as
framed by the Tenth Circuit, and neither party contests
this choice of law. The elements of issue preclusion are
essentially the same under Federal Circuit and Tenth
Circuit law. Compare Park Lake, 378 F.3d at 1135 with
Biafora v. United States, 773 F.3d 1326, 1333 (Fed. Cir.
2014). We do not believe the choice of law is dispositive,
and we follow the parties and the CFC in applying Tenth
Circuit law.
32 JONES v. US
Jones’s claims that it deemed potentially cognizable under
the bad men provision. Id. at 530.
Jones concedes that the Government satisfied ele-
ments two and three of issue preclusion, but argues that
the issues are not identical, and that she did not receive a
full and fair opportunity to litigate these issues in the
district court. Jones frames her objections in various
ways. First, Jones argues that the issues raised in the
CFC—primarily, whether the state and federal officers
were bad men—are distinct from the Constitutional tort
issues against the state and local officials decided in the
district court. Second, Jones argues that she did not have
a full and fair opportunity to litigate in the district court
because the absence of the federal officers created signifi-
cant procedural limitations in asserting spoliation. Final-
ly, Jones argues that the district court’s spoliation
decision did not decide whether the federal officers spoli-
ated evidence, but only that state and local officials could
not be charged with that spoliation.
The Government argues that the “core” of the case—
which the government defines as the alleged extra-
judicial pursuit of Murray, the execution-style killing of
Murray, and the conspiracy to cover-up the killing—has
already been fully litigated. In particular, the Govern-
ment cites the district court’s conclusion that the evidence
“clearly shows that Mr. Murray shot himself” and that “no
reasonable jury could find that Detective Norton inflicted
the mortal blow to Mr. Murray.” See Jones I, 3 F. Supp.
3d at 1191–92. The Government argues that the district
court also definitively held that there was no spoliation of
evidence. In response to Jones’s argument with respect to
the failure of the district court to rule on the federal
officers’ failure to investigate the scene or Norton’s gun, or
their destruction of the gun, the Government argues that
those claims are not cognizable under the bad men provi-
sion.
JONES v. US 33
We agree with Jones that the CFC erred in issue pre-
cluding Jones’s claims against the United States. In the
district court, Jones argued that the local officers spoliat-
ed evidence by: 1) failing to render aid to Murray after the
shooting; 2) failing to secure the evidence on the scene; 3)
failing to test or secure Norton’s gun for blowback (poten-
tially indicative of it being used to shoot Murray from
close-range); 4) failing to test the gun found near Murray
(potentially exculpatory evidence that Murray did not
shoot himself from close range); 5) destroying the gun
found near Murray; and 6) failing to perform a full autop-
sy on Murray. Because the federal officers were not
parties to the suit, the district court excluded the actions
of the federal officers in determining whether to issue
spoliation sanctions. See Spoliation Order, 2014 WL
909569, at *7. The district court explained that the local
officers could not be liable for several alleged acts of
spoliation because the duty to preserve the evidence was
not on them, but on the non-party federal officers. See id.For example, with respect to Norton’s firearm, the district
court noted that “Plaintiffs have possibly been prejudiced
by the lack of evidence that testing might have uncov-
ered,” but held that none of the Defendants (the local
officers) were spoliators. Id. This was because, in part,
the state, county, and local officers “had no responsibility
to ensure that Detective Norton’s firearm was tested,” and
although “Agent Ashdown possibly should have taken
Detective Norton’s firearm to have necessary tests per-
formed,” “Agent Ashdown is not a named Defendant.” Id.The district court did not decide whether Jones was, in
fact, prejudiced, or whether Ashdown’s failure to test the
firearm justified spoliation sanctions.
Similarly, the district court did not decide whether
spoliation sanctions would be appropriate for (1) the
federal officers’ failure to test or preserve the .380 firearm
found near Murray, see id. at *6, and (2) the federal
officers’ failure to investigate and preserve the scene of
the shooting—such as testing for gunshot residue on
34 JONES v. US
Murray’s and Norton’s hands, and testing Norton and
Murray’s clothes for blood or tissue. Id. at *8–9 (“None of
the named Defendants can be held liable for these alleged
misdeeds, because Agent Ashdown and Keith Campbell
were in charge of the investigation”; “Agent Ashdown and
Officer Campbell were in charge of documenting the
physical evidence for the investigation. . . . None of the
named Defendants had the responsibility or duty to
investigate and document the actual scene of the shooting
. . . . [so] the court will not impose sanctions on any of the
Defendants.”).
The absence of the federal officers as defendants in
the district court litigation fundamentally undermines the
preclusive effect of several of the district court’s ultimate
conclusions, including the key conclusion that Murray
shot himself. But for the destruction of the cited evidence,
Jones may have shown that Murray was, in fact, shot by
Norton. Though the lost evidence may not be retrieved—
and, even if retrieved, may have corroborated Norton’s
testimony—a determination of spoliation may trigger a
sanction that could provide sufficient evidence for Jones’s
claims to survive a motion to dismiss or for summary
judgment. To allow the application of issue preclusion
here would, by implication, decide that issue for the first
time without any substantive debate. “[T]he rules of issue
preclusion do not purport to prohibit litigation of matters
that never have been argued or decided.” 18 Charles Alan
Wright et al., Federal Practice and Procedure § 4416 (2d
ed. 2016). Notably, the question we consider is not
whether claims against the local officials are barred by
claim preclusion—surely they are—but whether the
claims against the United States under the bad men
provision are barred by issue preclusion—they are not.
Applying issue preclusion here would undercut the
district court’s explicit statements that it was not deciding
the federal officers’ liability for spoliation. “Courts in
subsequent actions have honored express statements by
JONES v. US 35
the court deciding the first action that a particular issue
was not being decided.” Id. at § 4417. Though the district
court did ultimately decide that Murray shot himself and
that there was no conspiracy, the preclusive effect of that
conclusion is explicitly limited to situations where no
additional evidence (possibly in the form of spoliation
sanctions) arises out of the federal officers’ actions with
respect to the evidence.
The culpability of the federal officers for spoliation
has never been decided, and to assume the resolution of
such a central issue ipse dixit without substantive consid-
eration “depriv[es] litigants of their first chance[] to
litigate an issue,” see Levi Strauss & Co. v. Abercrombie &
Fitch Trading Co., 719 F.3d 1367, 1371 (Fed. Cir. 2013),
and is an improper application of issue preclusion.
We thus vacate the CFC’s dismissal on the basis of
issue preclusion, and remand for consideration, in the
first instance, of Jones’s spoliation assertions and the
appropriate sanction, if any. If the CFC concludes on
remand that spoliation sanctions are not appropriate, or
that the appropriate sanctions would not change the
evidentiary landscape for particular issues, 8 the CFC may
reconsider the application of issue preclusion. If it deter-
mines that sanctions are appropriate and do change the
evidentiary landscape, the CFC should independently
consider Jones’s substantive allegations of bad men
violations.
E. Breach of Trust
On appeal, Jones presses a claim that the United
States assumed a fiduciary duty to the Ute Tribe mem-
8 If the CFC determines that the federal officer spo-
liated evidence, we leave it to the sound discretion of the
CFC to decide, in the first instance, which of its findings,
if any, were affected by the spoliation and which were not.
36 JONES v. US
bers, and that it violated that duty. “To state a claim
cognizable under the Indian Tucker Act . . . a Tribe must
identify a substantive source of law that establishes
specific fiduciary or other duties, and allege that the
Government has failed faithfully to perform those duties.”
Navajo Nation I, 537 U.S. at 506.
On appeal, Jones points only to the bad men provision
of the 1868 Treaty as the substantive source of law. Jones
therefore must show a breach of the bad men provision as
a condition precedent to state a claim for breach of trust.
As such, the inquiry into the breach of trust violation
collapses into the bad men inquiry.
If the CFC decides on remand that the United States
has not violated the bad men provision, then Jones’s
failure to show a breach of that provision also compels
dismissal of the breach of trust claim. If the CFC decides
on remand that the United States has violated the bad
men provision, Jones will be entitled to compensation
directly under the bad men provision, and the trust claim
will be cumulative to that provision.
VACATED AND REMANDED
COSTS
No costs.