In a series of nine treaties with Native Nations in the late 1860s, the United States promised to reimburse Indigenous people for wrongs committed by “bad men among the whites, or among other people subject to the authority of the United States.” In the century and half that followed the signing of these nine treaties, “bad men among the whites” claims have been litigated in the Federal Circuit with some success by Indigenous plaintiffs, and courts have shaped the meaning of the clause and the remedies a successful plaintiff may receive. This comment explores the Bad Men clause in the Mni Wiconi – Water is Life – Age. Mni Wiconi is an Indigenous movement which began in earnest in 2016 at the Dakota Access Pipeline protests on the Standing Rock Sioux Reservation, and seeks to address the harms done to Indigenous peoples and their lands and waters because of extractive industries. This comment begins with a background of the nine treaties that have Bad Men clauses, and surveys settled legal principles of Bad Men litigation. Next, it explores recent Bad Men cases which have had an impact on the scope of the clause. The comment then re-examines an approach to judicial interpretation of the Bad Men clause first proposed in a 2014 Harvard Law Review Student Note entitled, “A Bad Man is Hard to Find.” Finally, the comment provides an overview of how Indigenous peoples have invoked treaty rights post-Standing Rock, and anticipates how the Court of Federal Claims might view Bad Men claims related to resource extraction including disruption of Indigenous religious practice, pollution and damage to sacred waters, and sexual violence against Indigenous women.

Pages 41-71.



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