In the United States Court of Federal Claims

No. 13-227L

July 30, 2015

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DEBRA JONES, et al.,

Plaintiffs,

v.

UNITED STATES,

 

 Defendant.

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Motion to Dismiss; Lack of 

Subject Matter Jurisdiction; 

Failure to State a Claim; 

Exhaustion of Administrative 

Remedies; Issue Preclusion; 

1868 Ute Treaty; “Bad Men” 

Provision.

Frances C. Bassett, Fredericks Peebles & Morgan LLP, Louisville, CO, for 

plaintiffs. With her were Sandra L. Denton and Todd K. Gravelle, Fredericks Peebles & 

Morgan LLP, Louisville, CO. 

Jody H. Schwartz, Trial Attorney, Environment and Natural Resources Division, 

Department of Justice, Washington D.C., for defendant. With her were Kenneth D. 

Rooney, Trial Attorney, Environment and Natural Resources Division, and John C. 

Cruden, Assistant Attorney General, Environment and Natural Resources Division, 

Department of Justice.

O P I N I O N

HORN, J.

FINDINGS OF FACT

On April 1, 2013, plaintiffs filed their complaint in the United States Court of Federal 

Claims.1 Plaintiffs allege that on April 1, 2007, “Utah State Trooper Dave Swenson sent 

 

1 The plaintiffs are “Debra Jones and Arden C. Post, individually and as the natural 

parents of Todd R. Murray; Debra Jones, as personal representative of the Estate of Todd 

R. Murray, deceased, for and on behalf of the heirs of Todd R. Murray, and the Ute Indian 

Tribe of the Uintah and Ouray Reservation.” Plaintiffs Jones and Post are the biological 

parents of Todd R. Murray, a 21-year old member of the Ute Indian Tribe, whose death 

is the basis for the above captioned case, filed against the United States for violation of 
2

a radio dispatch from his patrol car advising the Utah central Police Dispatch that he was 

pursuing a car containing ‘two tribal males’ for a speeding violation.” Trooper Swenson 

later testified2that the vehicle was traveling 74 miles per hour in a 65 mile an hour zone. 

The driver of the vehicle was 17-year-old Uriah Kurip, and his lone passenger was the 

decedent, 21-year-old Todd Murray. The alleged speeding violation occurred just outside 

the boundary of the Ute Tribe’s Uncompaghre Reservation in Utah. In what Trooper

Swenson later testified he viewed as an attempt to evade police pursuit, Mr. Kurip turned 

off U.S. Highway 40, onto State Road 88, an intersection located more than two miles 

outside the boundary of the Uncompahgre Reservation. Although Trooper Swenson 

began his pursuit off the Uncompaghre Reservation, the pursuit carried into the 

Uncompaghre Reservation, land held by the Ute Indians, and ended 25 miles south of 

the intersection of U.S. 40 and State Road 8 at the intersection of Seep Ridge Road and 

Turkey Track Road, an intersection also inside the boundary of the Uncompaghre 

Reservation. Once stopped, Mr. Kurip and Mr. Murray exited their vehicle and stood on 

either side of the vehicle. The amended complaint reflects that Trooper Swenson testified 

that he exited his vehicle with his gun drawn and ordered the two to the ground. Mr. Kurip 

and Mr. Murray exchanged looks and Trooper Swenson repeated the command two or 

three times, after which Mr. Kurip and Mr. Murray ran from their vehicle in opposite 

directions. Trooper Swenson pursued Mr. Kurip on foot and quickly apprehended him.

Responding to Trooper Swenson’s earlier radio dispatch requests for help, off-duty 

Vernal City police officer Vance Norton was next to arrive on the scene, dressed in street 

clothes and driving his personal vehicle. Officer Norton set off on foot in pursuit of Mr. 

Murray. Utah Highway Patrol Trooper Craig Young and Uintah County Deputy Anthoney 

Byron subsequently joined in the search. Officer Norton later testified he eventually

encountered Mr. Murray as Mr. Murray was rounding a hill. According to the amended 

complaint, Officer Norton testified he saw Mr. Murray before Mr. Murray saw him. Officer 

Norton allegedly raised his gun and shouted, “POLICE—GET TO THE GROUND.” 

(capitalization in original). Also, according to the amended complaint, Officer Norton 

recalled seeing something in Mr. Murray’s hand, but admitted that he could not tell what 

was in Mr. Murray’s hand. Defendant indicates in its motion to dismiss that it was later 

determined Mr. Murray was carrying an illegally purchased .380 caliber handgun. Further, 

according to plaintiffs’ amended complaint, Officer Norton indicated Mr. Murray raised his

hand and fired shots, and Officer Norton, in turn, fired two rounds at Mr. Murray. The 

amended complaint states that “Norton alleges that Murray then turned the gun on himself 

and pulled the trigger. Officer Norton contacted dispatch, advised that shots had been 

fired and that Murray had shot himself.” “At the time of the shooting, Officers Byron and 

Young state they were approaching from the south with their firearms drawn. Officers 

Byron and Young worked together to handcuff Murray.” Plaintiffs contend that Trooper 

 

the Ute treaties and federal statutes and breach of trust in violation of the Ute treaties

federal statutes. 

2 Although the amended complaint repeatedly refers to “testimony” by multiple individuals, 

the amended complaint does not indicate how or under what circumstances the 

“testimony” was taken. 
3

Swenson, Officer Norton, “Defendant” Byron, and “Defendant” Young3 are not crossdeputized by the federal government or the Ute Tribe to exercise law enforcement powers 

over Native Americans inside the Ute Tribe’s Reservation.4

After the shooting, a number of other officers arrived at the scene, including 

Special Agents Rex Ashdown and David Ryan with the Federal Bureau of Investigation 

(FBI) and various officials from the Bureau of Indian Affairs (BIA). In their amended

complaint, plaintiffs allege that the FBI and BIA officers “ostensibly assumed jurisdiction 

of the scene” because “the shooting scene was in Indian Country,” yet “[t]he FBI and BIA 

officers on the scene were complicit in the State officers’ improper assertion of 

jurisdictional authority over the shooting site.” Plaintiffs further allege that Raymond 

 

3 Although plaintiffs refer to Officers Young and Bryon as “defendants” in the amended 

complaint, the only proper defendant in the United States Court of Federal Claims is the 

United States. See Rule 10(a) of the Rules of the United States Court of Federal Claims 

(RCFC) (2014) (“The title of the complaint must name all the parties . . . , with the United 

States designated as the party defendant.”). The United States Supreme Court has 

indicated that for suits filed in the United States Court of Federal Claims and its 

predecessors, “[i]f the relief sought is against others than the United States the suit as to 

them must be ignored as beyond the jurisdiction of the court.” United States v. Sherwood, 

312 U.S. 584, 588 (1941) (citation omitted) Slattery v. United States, 635 F.3d 1298, 1321 

n.1 (Fed. Cir.), aff’d, 710 F.3d 1336 (Fed. Cir.), cert. denied, 134 S. Ct. 1276 (2014); May 

v. United States, 80 Fed. Cl. 442, 444 (“Jurisdiction, then, is limited to suits against the 

United States.”), aff’d, 293 F. App’x 775 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. 

Cir. 2008). Stated differently, “the only proper defendant for any matter before this court 

is the United States, not its officers, nor any other individual.” Stephenson v. United 

States, 58 Fed. Cl. 186, 190 (2003) (emphasis in original); see also United States v. 

Sherwood, 312 U.S. at 588; Brown v. United States, 105 F.3d 621, 623 (Fed. Cir.), reh’g

denied (Fed. Cir. 1997); Hover v. United States, 113 Fed. Cl. 295, 296 (2013) (“As an 

initial matter, it is well settled that the United States is the only proper defendant in the 

United States Court of Federal Claims.”); Warren v. United States, 106 Fed. Cl. 507, 510-

11 (2012) (“It is well settled that the United States is the only proper defendant in the 

Court of Federal Claims.”). Therefore, the court only refers to the United States as the 

defendant in the above captioned case.

4 Plaintiffs amended the complaint after defendant filed a motion to dismiss the complaint. 

Plaintiffs allege in the amended complaint:

Murray was shot after being pursued at gun-point by two Utah state 

Highway Troopers, a Uintah County Sheriff’s Deputy, and an off-duty Vernal 

City, Utah, police officer. The pursuit took place over tribal trust lands more 

than 25 miles inside the northern boundary of the U&O Reservation. The 

four shooting-involved officers had no criminal jurisdiction over Indians 

inside the U&O Reservation. The officers also had no probable cause to 

believe that Todd Murray had committed any crime.

(internal citation omitted).
4

Wissiup, a member of the Ute Tribe and a certified law enforcement officer was excluded 

from the scene. In addition, plaintiffs contend that the law enforcement officers did not 

segregate, question, or search the officers involved in Mr. Murray’s shooting, nor properly 

process their firearms.

At 11:30 a.m., immediately following the shooting, “Officer Norton contacted 

dispatch, advised that shots had been fired and that Murray had shot himself.” Plaintiffs

allege that an ambulance did not arrive on the scene until 12:02 p.m., and further allege 

that prior to its arrival, Mr. Murray was alive, but no state or federal officer provided him 

medical aid. According to the amended complaint, when the ambulance arrived on the 

scene, Mr. Murray’s “breathing was labored, his limbs were twitching, and he was 

unconscious. There was a copious amount of blood around his head.” The ambulance 

transported Mr. Murray to Ashely Valley Medical Center, where he was pronounced dead 

at 1:19 p.m. According to the amended complaint, the “FBI and the BIA officers then 

allowed the Utah state, county and municipal officers to transport Murray’s body to the

Thomson-Blackburn Vernal Mortuary (Mortuary) in Vernal, Utah, for holding overnight 

until the body could be transported to the Utah State Medical Examiner’s office for an 

autopsy the next day.”

Plaintiffs contend that the FBI and BIA officers “took no action to secure Todd 

Murray’s remains or the crime scene itself.” Plaintiffs also assert that “municipal officers 

present at the medical center proceeded to violate Murray’s dignity and to tamper with 

the physical evidence.” While at the hospital, plaintiffs allege that Mr. Murray’s body was

unnecessarily and inappropriately disrobed, manipulated, and photographed. Officer 

Byron was allegedly photographed with his finger inserted in Mr. Murray’s head wound.

Plaintiffs assert that BIA Officer Kevin Myore was present at the medical center and 

“condoned and participated in, or failed to prevent, the illegal and unethical desecration 

of Mr. Murray’s remains and the spoliation of critical evidence.” Plaintiffs also claim that

“Special Agent Ashdown took no action to secure and preserve Mr. Murray’s body at the 

Mortuary” and instead was “complicit in the additional acts of horrific desecration and 

evidence tampering that took place at the Mortuary.” Further, plaintiffs claim that the 

Vernal City Police Chief Gary Jensen “admits” to inserting a needle into Mr. Murray to 

draw blood, and allege that “Chief Jensen then allegedly directed a mortuary employee 

to make an unauthorized incision to Murray’s jugular vein, from which two vials of blood 

were purportedly drawn, although neither the Utah state nor the federal law enforcement 

officers have ever accounted for the blood vials drawn from Murray’s body at the 

Mortuary.” Plaintiffs also contend, “[n]either the Mortuary, nor any law enforcement 

officers, obtained the permission of Mr. Murray's next of kin to desecrate Todd Murray’s 

remains in this manner.” 

The amended complaint states that Mr. Murray’s body was next transported to the 

Utah Office of the Medical Examiner. The Utah Office of the Medical Examiner allegedly 

“elected to forego an autopsy and to perform only a simple external examination of Mr. 

Murray’s body.” Plaintiffs indicate that:
5

OME’s [Utah Office of the Medical Examiner’s] final pathological diagnosis 

was that the entrance wound on Mr. Murray's head was on the lateral left 

scalp and the exit wound was on the upper posterior right scalp. Thus, the 

gunshot wound that killed Todd R. Murray entered on the left side of Mr. 

Murray's head and exited on the right side of Mr. Murray's head.

(emphasis in original). Plaintiffs further note that the Utah Office of the Medical Examiner 

reported that Mr. Murray arrived with his hands “bagged” and that no soot was found on 

either of Mr. Murray’s hands, his left hand was clean and free of any debris or blood, and 

his right hand was bloody. Moreover, plaintiffs allege that “the FBI officers and the BIA 

officers allowed the Utah Medical Examiner’s Office to list the cause of Todd Murray’s 

death as a suicide, when the Medical Examiner himself later testified that he could not 

rule out the possibility that Todd Murray was shot in the back of his head execution style.” 

Plaintiffs, therefore, challenge Officer’s Norton version of events and state that “Todd 

Murray did not shoot himself execution-style in the back of his head.” (emphasis in 

original).

In addition, plaintiffs contend that “all of the evidence the FBI and BIA officers were 

responsible for—and that would have been of a dispositive nature in this case—has been 

destroyed or altered,” and that, throughout, the FBI and BIA officers disregarded proper 

investigatory procedure and preservation of evidence. Specifically, plaintiffs contend that 

the firearm that Mr. Murray allegedly fired during his encounter with Officer Norton was 

destroyed by the FBI and not forensically tested and that Mr. Murray’s person or clothing

were never forensically tested. Plaintiffs contend the same regarding preservation and 

forensic testing of Officer Norton’s firearm, personal vehicle, person, and clothing. 

Plaintiffs further contend that Officer Norton was not sequestered, but was allowed free

access to the scene of the shooting, thereby giving Officer Norton the “opportunity to 

tamper with the physical evidence.” Plaintiffs also allege other failures, including lack of 

documentation of the scene, failure to administer medical aid to Mr. Murray, improper 

handling of, and tampering with, Mr. Murray’s body at the medical center, mortuary, and 

Utah Office of the Medical Examiner, resulting in “significantly altered and potentially 

destroyed critical evidence,” and failure by the Utah Office of the Medical Examiner to 

perform an autopsy of Mr. Murray’s body. 

According to the complaint, “[t]hree weeks after the shooting, members of Todd 

Murray’s family met with FBI Agent Ashdown.” Plaintiffs allege that “[t]he family members 

explained to Agent Ashdown that Todd Murray was a right-handed individual; they told 

Ashdown it would have been impossible for Murray to shoot himself in the back of the 

head, above and behind his left ear.”5 Mr. Murray’s family urged Special Agent Ashdown 

to investigate and revisit the circumstances of Mr. Murray’s death. According to plaintiffs,

Special Agent Ashdown “promised the family members that the FBI would conduct a full 

investigation” yet despite this promise, the United States has never conducted a civil or 

 

5 According to the amended complaint, “Agent Ashdown admitted to the family members 

that it would be impossible for a right-handed individual to shoot himself in the back of the 

head, above and behind his left ear.”
6

criminal investigation into “the actions of any single individual” involved in the 

circumstances surrounding Mr. Murray’s death, nor of the investigatory and preservation 

procedures immediately following. Plaintiffs contend that Special Agent Ashdown later 

admitted under oath that he conducted no investigation into the shooting of Mr. Murray

largely because of his long-standing relationship with Officer Norton.

On July 17, 2009, Debra Jones, individually, as the natural parent of Todd Murray, 

and as personal representative of the Estate of Todd R. Murray for and on behalf of Mr. 

Murray’s heirs, and Arden Post, individually and as the natural parent of Todd Murray, 

filed suit in the Uintah County Court regarding the death of Mr. Murray. See Jones et al. 

v. Norton et al., 3 F. Supp. 3d 1170 (D. Utah 2014).6 The plaintiffs brought suit in the 

District Court and asserted civil rights claims under 42 U.S.C. § 1983 (2006) and 42 

U.S.C. § 1985 (2006) against Uintah County and the City of Vernal, and against law 

enforcement officers, in their individual, as well as in their official, capacities. Plaintiffs

sought upwards of $3,000,000.00 in damages. “In their § 1983 claims against the 

Individual Defendants, the Plaintiffs allege illegal seizure, excessive force, and failure to 

intervene to prevent the officers' unconstitutional acts. Under § 1985, they allege 

conspiracy to obstruct justice and conspiracy to violate Mr. Murray's civil rights based on 

racial animus.” Jones et al. v. Norton et al., 3 F. Supp. 3d. at 1177. Plaintiffs alleged 

additional numerous causes of action, including illegal seizure, use of excessive force, 

assault/battery, and wrongful death. Subsequently, the suit was removed to the United 

States District Court for the District of Utah on August 20, 2009. 

On March 12, 2013, while the District Court case was pending, plaintiffs mailed a 

letter to senior officials at the United States Department of the Interior, giving notice of 

their intent to file suit against the United States. The letter was titled “Notice of Claim 

concerning the April 1, 2007 Shooting Death of Todd Murray, Ute Indian tribal member.” 

The letter states:

Dear Messrs. Toulou, Smith, and Washburn and Secretary of the Interior: 

Our law firm represents the Ute Indian Tribe of the Uintah and Ouray 

Reservation (“Tribe” or “Ute Tribe”). We also represent tribal members 

Debra Jones and Arden Post who are the parents of Todd Murray, a tribal 

member who was shot to death in an encounter with Utah state and local 

police on the Uintah and Ouray Indian Reservation in Utah (“U&O 

Reservation”) in 2007. Please accept this letter as our notice of claim to 

your respective agencies of our intent to file a complaint against the United 

States based on breaches of the 1863 and 1868 Ute Treaties and the United 

States’ violation of its trust obligations to the Ute Tribe and its members.

We plan to file suit in the Federal Court of Claims and allege that the Federal 

Bureau of Investigation (FBI) and the Bureau of Indian Affairs (BIA), by and 

through their employees, committed wrongs upon the person or property of 

 

6 The Ute Indian Tribe was not a party to the District Court litigation.
7

the Indians, namely decedent Todd Murray his family and the Ute Indian 

Tribe as a whole. Included with our letter are the Plaintiffs’ (i) Third 

Amended Complaint, (ii) motion for default judgment on liability based on 

tampering [sic] destruction of critical evidence, and (iii) motion for summary 

judgment under Counts 1, 3 and 5 filed in the parents’ private cause of 

action, DEBRA JONES, et al., v, VANCE NORTON, et al., Civil Case No. 

2:09-cv-00730, U.S. District Court, District of Utah, Central Division.

The attached filings give an overview of the sequence of events that 

transpired on April 1, 2007 as well as a clear indication of the egregious 

actions of the law enforcement officers who participated in this 

“investigation.” The FBI and the BIA representatives who were present on 

April 1, 2007 and who participated in the “investigation” contributed to the 

travesties by (1) failing to protect the Ute Tribe’s interests as a sovereign in 

the crime scene, (2) failing to properly preserve and protect evidence from 

being tampered with and destroyed, and (3) failing to conduct their own 

independent investigation into the death of Todd Murray. As a result of the 

aforementioned failures, the Murray family and the Ute Indian Tribe are 

seeking damages from the United States in the amount of $10 million, as 

well as reimbursement of litigation costs and attorney fees.

Attached to this letter is a summary of the relevant Treaty obligations that 

have been violated by the actions and inactions of the United States in this 

case. Under Article 6 of the 1863 Treaty, the Ute Indian bands agreed to 

forego "private revenge or retaliation" for injuries suffered by the Tribe and 

individual tribal members as the result of the “misconduct of individuals.” In 

return the United States guaranteed the Tribe and individual tribal members 

a right to legal redress for "any robbery violence, or murder" committed "on 

an Indian or Indians" belonging to the Ute Indian bands. Article 6 of the 1868 

Treaty promised that any person violating the territorial integrity of the 

Reservation and causing harm to the Tribe or its tribal members would be 

"punished according to the laws of the United States." In violation of these 

treaty obligations, the United States has failed to investigate or to prosecute 

the individuals involved in the shooting death of 21 year-old Todd Murray in 

April 2007, and the subsequent conspiracy to suppress, alter, and destroy 

critical evidence.

Please feel free to contact our office should you require any additional 

information regarding this forthcoming claim.

Sincerely, 

Sandra L. Denton
8

(footnote omitted). The March 12, 2013 letter attached almost four hundred pages of 

exhibits, including filings in the District Court such as the plaintiffs’ third amended 

complaint, the motion for summary judgment, and plaintiffs’ motion for allegedly the

tampering and destruction of critical evidence.

On March 7, 2014, the District Court granted the defendant’s motion for summary 

judgment, and denied plaintiffs’ cross motion. See Jones et al. v. Norton et al., 3 F. Supp. 

3d 1170. On April 1, 2014, plaintiffs appealed the District Court’s decision to the United 

States Court of Appeals for the Tenth Circuit. See Jones et al. v. Norton et al., No. 14-

4040 (10th Cir. appeal docketed Apr. 1, 2014). On November 18, 2014, plaintiffs filed 

another appeal to the United States Court of Appeals for the Tenth Circuit, appealing the 

Distric Court’s amended judgment. See Jones et al. v. Norton et al., No. 14-4144 (10th 

Cir. appeal docketed Nov. 18, 2014).7 To date, the Tenth Circuit has not issued a decision 

on plaintiffs’ appeal.

In the District Court case, the Court considered whether Mr. Murray was “seized” 

for 4th Amendment purposes.

8 Most relevant to the above captioned case, “[t]he Plaintiffs 

contend that Detective Norton seized Mr. Murray when he (1) fired shots at Mr. Murray; 

and (2) according to Plaintiffs, shot Mr. Murray in the head.” Jones et al. v. Norton et al., 

3 F. Supp. 3d at 1189. The District Court determined that “[t]he record does not support 

their claim and no reasonable jury could find against Detective Norton,” and that “[t]he 

evidence clearly shows that Mr. Murray shot himself.” Id. at 1189, 1190. The District Court

also determined:

[T]he Plaintiffs' evidence is sparse, circumstantial, subject to more than one 

interpretation, and, at times, very speculative. Moreover, evidence to the 

contrary is strong and is consistent with a self-inflicted gunshot wound.

Deputy Byron testified that he did not see Detective Norton next to Mr. 

 

7 On October 15, 2014, the District Court amended its judgement “to reflect the award of 

costs” to the defendants. See Jones et al. v. Norton et al., No. 2: 09–CV–730–TC, 2014 

WL 909569 (D. Utah Oct, 15, 2014).

8 As indicated by the District Court:

The Plaintiffs contend that officers Norton, Young, Byron, and Swenson 

seized Mr. Murray on the Reservation and so a violation of Mr. Murray's 

Fourth Amendment rights necessarily occurred. They focus on the following 

events: (1) Trooper Swenson's order to Mr. Kurip and Mr. Murray to stop 

after the car chase ended and the men got out of the car; (2) the forming of 

a police perimeter to entrap Mr. Murray; (3) Detective Norton firing at Mr. 

Murray twice; (4) when Detective Norton's bullet allegedly entered Mr. 

Murray's head; and (5) Deputy Byron handcuffing Mr. Murray while Trooper 

Young pointed his gun as cover for Deputy Byron.

Jones et al. v. Norton et al., 3 F. Supp. 3d at 1186 (footnotes omitted).
9

Murray when Mr. Murray dropped to the ground. Detective Norton testified 

that he was up on a hill when he saw Mr. Murray shoot himself.

The Deputy Chief Medical Examiner Dr. Edward Leis, who conducted the 

physical examination of Mr. Murray's body, concluded in his report that the 

wound was caused by a gun shot “in close proximity to the skin surface 

when it was discharged.” He based his conclusion on “abundant soot at the 

inferior margin of the defect [the wound] and some marginal abrasion is also 

noted at the inferior margin.” In his testimony, he elaborated on his 

conclusion that the gun was in contact with Mr. Murray's head when it was 

fired: 

At the perimeter, there are several triangular shaped tears of 

the wound. That's a result of the gun being pressed up against 

the skin surface when it's discharged and gases causing the 

scalp to be separated from the underlying skull. When the 

scalp lifts up, it stretches and it tears and gets its characteristic 

stellae appearance.

The smaller wound on the right side of Mr. Murray's head was, in Dr. Leis' 

opinion, the exit wound. After Dr. Leis certified that Mr. Murray's death was 

a suicide resulting from a gunshot wound to the head, he added an 

additional cause of death (based on results from testing of Mr. Murray's 

bodily fluids). Because the tests showed the presence of drugs and alcohol 

in Mr. Murray's system, Dr. Leis issued an amended death certificate which 

added “Acute alcohol intoxication; recent methamphetamine use” as 

contributing to Mr. Murray's death.

Detective Norton was more than 100 yards away when Mr. Murray was 

shot. Dr. Leis testified that there was no evidence that the wound could have 

been caused by a shot coming from that far away. Plaintiffs maintain that 

Detective Norton was not 100 yards away, but was right next to Mr. Murray 

and so he had the capability of inflicting the contact wound. But the actual 

evidence in the record (that is, testimony by Detective Norton and Deputy 

Byron) shows that Detective Norton was not right next to Mr. Murray when 

the fatal shot was fired.

Id. at 1190-91 (footnotes omitted).

The District Court noted that plaintiffs also alleged the defendant conspired to 

cover up the killing of Mr. Murray, stating, “[s]ummed up, Plaintiffs’ argument is that 

Defendants engaged in ‘[a] conspiracy to cover up a killing.’ Plaintiffs’ theory is that 

Detective Norton shot and killed Mr. Murray, and that the rest of the Defendants conspired 

to cover-up that killing and protect Detective Norton.” Id. at 1197 (footnotes omitted).

Addressing the plaintiffs’ alleged conspiracy, the court stated: “The focus of the Plaintiffs’
10

conspiracy theory is the failure to give aid and their spoliation argument about the 

destruction of evidence.” Id. at 1202.

Turning to plaintiffs’ claims of the defendants’ failure to give medical aid to Mr. 

Murray, and the defendants’ “interference with Mr. Murray's due process right of access 

to courts via the failure to preserve critical evidence and the affirmative destruction of 

critical evidence,” the District Court determined,

[n]one of that testimony could allow a reasonable jury to conclude that 

Individual Defendants were deliberately indifferent to Mr. Murray's situation, 

or that they knew that there was a substantial risk of significant harm to Mr. 

Murray if they did not provide first aid. If anything, the evidence shows that 

at least three of the Individual Defendants (Young, Davis, and Slaugh) were 

concerned that attempts to provide any kind of aid to Mr. Murray would do 

more harm than good.

Id. at 1210. The District Court stated: “[i]n sum, there is no evidence before the court to 

support a finding that the inaction by each individual defendant was part of a conspiracy 

to let Mr. Murray die.” Id. at 1203. The District Court also determined that, “[b]ased on the 

facts as detailed and explained in its spoliation order, the court concludes that no 

reasonable jury could conclude that Defendants conspired to ‘effectively eliminate[ ] all 

probative evidence’ and ‘clean the closet of evidence that would have allowed Plaintiffs 

to build their case.’”

9

Id. at 1204 (quoting various plaintiffs’ briefs; omissions in original; 

footnote omitted). Therefore, the District Court concluded that “the Defendants did not 

violate Mr. Murray's civil rights for failing to provide medical aid, nor did the Defendants 

fail to preserve evidence.”

10 Id. at 1210 (footnote omitted). 

 

9

In relation to plaintiffs’ claim that defendants’ conspired to violate Mr. Murray's civil rights, 

the District Court explained that the plaintiffs asked “the court to infer the existence of 

such a conspiracy (much like they asked the court to infer racial animus) from a handful 

of facts and the Plaintiffs' speculative characterization of those facts as so ‘brazen and 

flagrant’ and ‘unjustifiable and irrational’ that they support a finding of conspiracy.” Jones 

et al. v. Norton et al., 3 F. Supp. 3d. at 1201 (footnote omitted). 

10 The defendants’ alleged failure to preserve evidence was discussed in detail in the 

District Court’s spoliation order. See Jones et al. v. Norton et al., No. 2: 09–CV–730–TC, 

2014 WL 909569. For instance, the plaintiffs argued that “critical evidence was lost 

because Mr. Murray's hands were not bagged properly and Mr. Murray's body was not 

properly preserved because the body bag was incorrectly sealed.” The District Court, 

however, determined, that:

There is no evidence to show that Mr. Murray's hands were bagged 

improperly. Plaintiffs argue that Mr. Murray's hands must have been 

improperly bagged because some photographs showed his hands bagged 

and others did not, but there is no evidence to show who, when, and where 
11

On April 1, 2013, approximately three weeks after plaintiffs mailed the March 12, 

2013 letter to the Department of the Interior officials, giving notice of their intent to file suit 

in this court, and exactly six years after Todd Murray’s death, plaintiffs filed suit in this 

court. Plaintiffs’ suit in this court was consistent with the information submitted in the 

March 12, 2013 letter.

In response, defendant filed a motion to dismiss, pursuant to RCFC 12(b)(1) and 

RCFC 12(b)(6), alleging lack of subject matter jurisdiction and failure to state a claim.

Notably, defendant argued that “[i]n addition to the various individuals identified in the 

Complaint, Plaintiffs aver that the FBI, BIA, the State of Utah, Unitah County, Vernal city, 

and various non-federal enforcement agencies are ‘bad men’ as that term is used in the 

treaties.” According to defendant, “[t]he federal government and various state 

enforcement agencies, however, cannot be ‘bad men’ as that term is used in the treaties.”

Plaintiffs subsequently moved to amend the complaint, and in support of their 

motion stated:

The Plaintiffs’ proposed amendments [sic] correct the pleading deficiencies 

cited by the United States in its motion to dismiss the complaint. The 

amendments include additional factual allegations to make clear the 

substance of the Plaintiffs’ allegations, and to make clear that Plaintiffs 

sought administrative review of Todd Murray’s shooting death before filing 

this action. The amendments also make clear that Plaintiffs’ claims are 

based on the actions and inactions of individual federal officers, not the 

actions or inactions of the federal agencies employing those officers, i.e., 

the Federal Bureau of Investigation and the Bureau of Indian Affairs.

The court granted plaintiffs’ motion, after which plaintiffs filed an amended 

complaint. Plaintiffs’ amended complaint, which asserts numerous claims for relief,

alleges that the United States committed cognizable wrongs upon Mr. Murray and the Ute 

Tribe. According to plaintiffs’ amended complaint, the United States, by and through the 

conduct of the FBI and BIA, violated the guarantees of two Ute Treaties, entered into and 

signed in 1863 and 1868. Plaintiffs also advance a breach of trust claim for the same 

alleged violations and injustices. For these alleged injuries, plaintiffs seek compensatory 

damages in the amount of $10,000,000.00, as well as costs, attorney’s fees, “and all other 

damages permitted by the Treaties with the Utes, and such other and further relief as this 

Court deems proper.” 

Specifically, plaintiffs’ claims for relief, set forth in the amended complaint, are: “I. 

VIOLATION OF THE UTE TREATIES AND OTHHER [sic] FEDERAL LAWS,” and “I. [sic] 

 

Mr. Murray's hands were bagged, or when the bags were removed. And 

there is no evidence to show that the body bag was sealed. 

Id. at *11.
12

BREACH OF TRUST IN VIOLATION OF THE UTE TREATIES AND OTHER FEDERAL 

LAW.” (capitalization in original). Within the alleged “VIOLATION OF THE UTE 

TREATIES AND OTHHER [sic] FEDERAL LAWS,” (capitalization in original) plaintiffs 

allege:

By their actions and inactions, the FBI and BIA officers committed wrongs 

to Todd Murray, the Murray family and the Ute Tribe (i) by acting in concert 

with state/county/municipal officers, expressly or impliedly, in concocting, or 

permitting to be concocted, a false story that Todd Murray shot himself in 

the back of his head, execution style, above and behind his left ear; (ii) by 

failing to take custody of Murray’s body and to secure the body against 

desecration and spoliation of evidence; [sic] (iv) by participating in, 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 OME; (v) the 

failure to insure that a proper autopsy was performed on Murray’s body; (vi)

by failing to conduct any kind of investigation into Todd Murray’s murder; 

and (vii) by failing to protect the territorial integrity of the Tribe’s reservation 

boundary and the Tribe’s sovereign interests in the crime scene where 

Murray was shot.[

11]

(emphasis in original). 

Regarding the “BREACH OF TRUST IN VIOLATION OF THE UTE TREATIES 

AND OTHHER [sic] FEDERAL LAW,” (capitalization in original) plaintiffs claim that “[i]n 

violation of federal law and its treaty obligations, the United States has failed to investigate 

or prosecute the individuals involved in the shooting death of 21 year-old Todd Murray on 

April 1, 2007, or the subsequent conspiracy to suppress, alter, and destroy critical 

 

11 The court notes that preceeding the list of allegations in plaintiffs’ amended complaint, 

plaintiffs also claim:

In April 2007, Todd Murray, Todd Murray’s family, and the Ute Indian Tribe 

suffered “injuries” at the hands of “bad men” as those terms are used in the 

Ute Treaties of 1863 and 1868. These injuries include (i) the extra-territorial 

police pursuit, assault upon and murder of Todd Murray, (ii) the conspiracy 

to cover up Todd Murray’s murder, (iii) the failure of federal officers to take 

custody of Murray’s body and to secure the body against desecration and 

spoliation of evidence; (iv) 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 OME; (v) the 

failure to insure that a proper autopsy was performed on Murray’s body; 

[sic] (vii) failure of federal officers to conduct any kind of investigation into 

Todd Murray’s murder; and (vi) the failure of federal officers to protect the 

territorial integrity of the Tribe’s reservation boundary and the Tribe’s 

sovereign interests in the crime scene where Murray was shot. 
13

evidence related to the shooting death.” Plaintiffs claim that “[b]y failing to investigate 

Todd Murray’s death and by taking no action to promote justice in Indian Country, Special 

Agent Rex Ashdown and David Ryan and BIA Officers James Beck, Terrance Cuch and 

Kevin Myore breached their duties to the Ute Tribe, to Todd Murray, and to Murray’s 

family under the Ute Treaties of 1863 and 1868. . . .”

Plaintiffs further allege:

The United States has also breached its trust obligations to the Tribe and

Murray’s family by failing to protect the territorial integrity of the Tribe’s 

reservation and the Tribe’s sovereign interest in the shooting site, thus 

allowing unauthorized persons to trespass on the Ute homeland and cause 

harm to tribal members with complete impunity. The Defendant’s breach of 

its trust and treaty obligations has resulted in substantial loss to the Tribe. 

Todd Murray was a registered tribal member and a lineal descendant of Ute 

blood. The Ute Tribe is a small tribe with less than 4,000 members. 

Unremitting tribal membership is an integral part of the Tribe’s ability to 

sustain its lineage and culture. The Defendant is liable in damages for such 

loss.

In response to the amended complaint, defendant, again, filed a motion to dismiss 

both counts pursuant to RCFC 12(b)(1) and RCFC 12(b)(6), for lack of subject matter 

jurisdiction, and failure to state a claim, respectively. For count one, defendant contends 

that the violation of the Ute Treaties should be dismissed “for lack of jurisdiction and for 

failure to state a claim.” Defendant argues that “[p]laintiffs have not complied with the 

terms of the Treaty and have not exhausted the administrative remedies required by the 

express terms of the Treaty.” Defendant contends that even if the court found jurisdiction 

under the “bad men” provision12 of the 1868 Treaty with the Utes, “plaintiffs do not state 

a cognizable claim under the ‘bad men’ provision.” For count two, defendant contends 

that, “[p]laintiffs’ breach-of-trust claims are barred by the United States’ sovereign 

immunity because plaintiffs did not allege the violation of a specific statutory or regulatory 

money-mandating duty,” and that the Treaties involved “do not impose a nondiscretionary 

fiduciary duty upon the United States to prosecute alleged ‘bad men’ without exercising 

its prosecutorial discretion.”

DISCUSSION

Background of the Ute Treaties

Many of the plaintiffs’ claims center on particular provisions of two treaties 

executed, and ratified, in the mid-19th century. The first treaty was concluded on October 

7, 1863. See Treaty with the Utah Tabeguache Band, October 7, 1863, 13 Stat. 673 

 

12 Both defendant and plaintiffs use the phrases “bad men” provision and “bad men” 

clause, in their filings. For simplicity, unless quoting directly, the court adopts the phrase 

“bad men” provision.
14

(referred to by the parties as the 1863 Treaty).13 Through the 1863 Treaty, the 

Tabeguache Band of Ute Indians ceded their rights and interest to vast tracts of land in 

the Western United States. See id. Article 1 of the 1863 Treaty states: “It is admitted by 

the Tabeguache band of Utah Indians that they reside within the territorial limits of the 

United States, acknowledging their supremacy, and claim their protection. The said band 

also admits the right of the United States to regulate all trade and intercourse with them.” 

Article 2 of the 1863 Treaty states, in part: “Said Tabeguache band of Utah Indians hereby 

cede, convey, and relinquish all of their claim, right, title, and interest in and to any and 

all of their lands within the territory of the United States, wherever situated, excepting that 

which is included within the following boundaries. . . .” Id. In return: “[f]or the period of ten 

years the said band shall receive, annually, by such distribution as the Secretary of the 

Interior may direct, ten thousand dollars' worth of goods, and also ten thousand dollars' 

worth of provisions.” Id.

Article 10 of the 1863 Treaty provides:

Each family that shall announce through its head to the agent of the band a 

willingness and determination to begin and follow the pursuits of agriculture, 

by farming or raising stock and growing wool, upon such lands and 

according to such regulations as the Secretary of the Interior may prescribe, 

shall receive the following donations of stock to aid them in their endeavor 

to gain a livelihood by such new pursuits, viz.:

Of cattle, one head annually during five years, beginning with the ratification 

of this treaty.

Of sheep, ten head annually during the first two years after the ratification 

of this treaty, and five head annually during the three years thereafter.

The Secretary of the Interior may also direct that their share of annuity 

goods and provisions shall be of a character suited to such change of life: 

Provided, however, That such stock shall only be donated as long as such 

family shall in good faith keep and use the same for the purpose indicated 

in this article.

All the Indians of said band who may adopt and conform to the provisions 

of this article shall be protected in the quiet and peaceable possession of 

their said lands and property.

Id. (emphasis in original). 

 

13 On March 25, 1864, the United States Senate advised ratification, with amendments, 

which were assented to by the Tribe on October 8, 1864. See 13 Stat. 673. The 1863 

Treaty was then signed by President Lincoln on December 14, 1864. See id.
15

In March of 1868, the United States concluded another treaty with the Ute. See

Treaty with the Ute, March 2, 1868, 15 Stat. 619 (referred to by the parties as the 1868 

Treaty).

14 As noted in the preamble and Article 1 of the 1868 Treaty:

Articles of a treaty and agreement made and entered into at Washington 

City, D.C., on the second day of March, one thousand eight hundred and 

sixty-eight, by and between Nathaniel G. Taylor, Commissioner of Indian 

Affairs, Alexander C. Hunt, governor of Colorado Territory and ex-officio 

superintendent of Indian affairs, and Kit Carson, duly authorized to 

represent the United States, of the one part, and the representatives of the 

Tabaquache[

15], Muache, Capote, Weeminuche, Yampa, Grand River, and 

Uintah bands of Ute Indians, (whose names are hereto subscribed,) duly 

authorized and empowered to act for the body of the people of said bands, 

of the other part, witness:

Article I. All the provisions of the treaty concluded with the Tabequache 

band of Utah Indians, October seventh, one thousand eight hundred and 

sixty-three, as amended by the Senate of the United States and proclaimed 

December fourteenth, one thousand eight hundred and sixty-four, which are 

not inconsistent with the provisions of this treaty, as hereinafter provided, 

are hereby reaffirmed and declared to be applicable and to continue in force 

as well to the other bands, respectively, parties to this treaty, as to the 

Tabequache band of Utah Indians.

Id. Article 2 of the 1868 Treaty states, in part:

[T]he United States now solemnly agree that no persons, except those 

herein authorized so to do, and except such officers, agents, and employes

[sic] 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 described in this article, 

except as herein otherwise provided.

Id. Art. 2. The 1868 Treaty reaffirmed and incorporated the provisions of the 1863 Treaty, 

but also created new guarantees and promises. For example, Article 5 the 1868 Treaty 

established how to resolve “depredation on person or property”:

The United States agree that the agents for said Indians, in the future, shall

make their homes at the agency buildings; that they shall reside among the 

 

14 On July 25, 1868, the United States Senate advised ratification, with amendments, 

which were assented to by the Tribe in August and September 1868. See 15 Stat. 619. 

The 1868 Treaty was then signed by President Johnson on November 6, 1868. See id.

15 Although the 1868 Treaty uses the spelling “Tabaquache” in the preamble, all other 

spellings of the Tribe are “Tabequache.”
16

Indians, and keep an office open at all times for the purpose of prompt and 

diligent inquiry into such matters of complaint by and against the Indians, 

as may be presented for investigation under the provisions of their treaty 

stipulations, as also for the faithful discharge of other duties enjoined on 

them by law. In all cases of depredation on person or property, they shall 

cause the evidence to be taken in writing and forwarded, together with their 

finding, to the Commissioner of Indian Affairs, whose decision, subject to 

the revision of the Secretary of the Interior, shall be binding on the parties 

to this treaty. 

Id. Art. 5. Article 6 states in full:

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. 

If bad men among the Indians shall commit a wrong or depredation upon 

the person or property of any one, white, black, or Indian, subject to the 

authority of the United States and at peace therewith, the tribes herein 

named solemnly agree that they will, on proof made to their agent and 

notice to him, deliver up the wrongdoer to the United States, to be tried and 

punished according to its laws, and in case they wilfully refuse so to do the 

person injured shall be reimbursed for his loss from the annuities or other 

moneys due or to become due to them under this or other treaties made 

with the United States.

Id. Art. 6. This provision is often referred to by courts and litigants as the “bad men” 

provision. “Bad men” provisions are common in Native American treaties of this time 

period, and appear to have been fairly standard in Native American treaties during the 

19th century. As explained by the United States Court of Appeals for the Federal Circuit 

in Tsosie v. United States, 825 F.2d 393 (Fed. Cir. 1987): 

The treaty in question [the Navajo Treaty] is one of nine made in 1868, by and 

between commissioners representing the United States and chiefs of various 

previously hostile Indian tribes. The treaties were all duly ratified, proclaimed, and 

published in volume fifteen of the Statutes at Large. All say that peace is their 

object and all contain “bad men” articles in similar language.

Id. at 395; see also Elk v. United States, 87 Fed. Cl. 70, 81 & 81 n.16 (2009) (noting that 

other 1868 treaties “contain ‘bad men’ clauses identical to that in the Sioux Treaty, citing 

the Najavo Treaty and noting the earlier 1868 Ute Treaty), appeal dismissed, 449 F. App’x 

1 (Fed. Cir. 2010); Garreaux v. United States, 77 Fed. Cl. 726, 734 (2007).
17

As noted above, in the “bad men” provision of the 1868 Ute Treaty, the United 

States promised:

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.

Plaintiffs allege that on April 1, 2007, Todd Murray was “wronged” by “bad men,” 

under the terms of the 1868 Ute Treaty. Further, plaintiffs contend that “[t]he United States 

agreed to protect and reimburse the Ute Indians for all harm, injury, unjust, or unmerited 

treatment inflicted upon any tribal member or tribal property by non-whites on the 

reservation,” but that the United States failed to honor its obligations under the 1868 

Treaty by not investigating and prosecuting the alleged wrongdoers.

Jurisdiction

Defendant argues that this court lacks jurisdiction over plaintiffs’ case because 

plaintiffs have not complied with the terms of the 1868 Ute Treaty, and further argues that 

plaintiffs have not stated a cognizable claim under the “bad men” provision. It is well 

established that “‘subject-matter jurisdiction, because it involves a court’s power to hear 

a case, can never be forfeited or waived.’” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 

(2006) (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)). “[F]ederal courts have 

an independent obligation to ensure that they do not exceed the scope of their jurisdiction, 

and therefore they must raise and decide jurisdictional questions that the parties either

overlook or elect not to press.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 

434 (2011); see also Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012) (“When a 

requirement goes to subject-matter jurisdiction, courts are obligated to consider sua 

sponte issues that the parties have disclaimed or have not presented.”); Hertz Corp. v. 

Friend, 559 U.S. 77, 94 (2010) (“Courts have an independent obligation to determine 

whether subject-matter jurisdiction exists, even when no party challenges it.” (citing 

Arbaugh v. Y & H Corp., 546 U.S. at 514)); Special Devices, Inc. v. OEA, Inc., 269 F.3d 

1340, 1342 (Fed. Cir. 2001) (“[A] court has a duty to inquire into its jurisdiction to hear 

and decide a case.” (citing Johannsen v. Pay Less Drug Stores N.W., Inc., 918 F.2d 160, 

161 (Fed. Cir. 1990))); View Eng’g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963 

(Fed. Cir. 1997) (“[C]ourts must always look to their jurisdiction, whether the parties raise 

the issue or not.”). “Objections to a tribunal’s jurisdiction can be raised at any time, even 

by a party that once conceded the tribunal’s subject-matter jurisdiction over the 

controversy.” Sebelius v. Auburn Reg’l Med. Ctr., 133 S. Ct. 817, 824 (2013); see also

Arbaugh v. Y & H Corp., 546 U.S. at 506 (“The objection that a federal court lacks subjectmatter jurisdiction . . . may be raised by a party, or by a court on its own initiative, at any 

stage in the litigation, even after trial and the entry of judgment.”); Cent. Pines Land Co., 

L.L.C. v. United States, 697 F.3d 1360, 1364 n.1 (Fed. Cir. 2012) (“An objection to a 
18

court’s subject matter jurisdiction can be raised by any party or the court at any stage of 

litigation, including after trial and the entry of judgment.” (citing Arbaugh v. Y & H Corp., 

546 U.S. at 506–07)); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1346 

(Fed. Cir. 2008) (“[A]ny party may challenge, or the court may raise sua sponte, subject 

matter jurisdiction at any time.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506; Folden 

v. United States, 379 F.3d 1344, 1354 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. 

Cir. 2004), cert. denied, 545 U.S. 1127 (2005); and Fanning, Phillips & Molnar v. West, 

160 F.3d 717, 720 (Fed. Cir. 1998))); Mata v. United States, 118 Fed. Cl. 92, 95-96

(2014), recons. denied, 2015 WL 1000820 (Fed. Cl. Mar. 4, 2015); Pikulin v. United 

States, 97 Fed. Cl. 71, 76, appeal dismissed, 425 F. App’x 902 (Fed. Cir. 2011). In fact, 

“[s]ubject matter jurisdiction is an inquiry that this court must raise sua sponte, even where 

. . . neither party has raised this issue.” Metabolite Labs., Inc. v. Lab. Corp. of Am. 

Holdings, 370 F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods., Inc. v. Mead Corp., 134 

F.3d 1481, 1485 (Fed. Cir.), reh’g denied and en banc suggestion declined (Fed. Cir.), 

cert. denied, 525 U.S. 826 (1998)), reh’g and reh’g en banc denied (Fed. Cir. 2004), cert.

granted in part sub. nom Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 546 U.S. 

975 (2005), cert. dismissed as improvidently granted, 548 U.S. 124 (2006); see also Avid 

Identification Sys., Inc. v. Crystal Import Corp., 603 F.3d 967, 971 (Fed. Cir.) (“This court 

must always determine for itself whether it has jurisdiction to hear the case before it, even 

when the parties do not raise or contest the issue.”), reh’g and reh’g en banc denied, 614 

F.3d 1330 (Fed. Cir. 2010), cert. denied, 131 S. Ct. 909 (2011).

Pursuant to the RCFC and the Federal Rules of Civil Procedure, a plaintiff need 

only state in the complaint “a short and plain statement of the grounds for the court’s 

jurisdiction,” and “a short and plain statement of the claim showing that the pleader is 

entitled to relief.” RCFC 8(a)(1), (2) (2014); Fed. R. Civ. P. 8(a)(1), (2) (2015); see also

Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 555–57, 570 (2007)). “Determination of jurisdiction starts with the complaint, which 

must be well-pleaded in that it must state the necessary elements of the plaintiff’s claim, 

independent of any defense that may be interposed.” Holley v. United States, 124 F.3d 

1462, 1465 (Fed. Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 

U.S. 1 (1983)), reh’g denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. 

United States, 97 Fed. Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United 

States, 93 Fed. Cl. 710, 713 (2010). “Conclusory allegations of law and unwarranted 

inferences of fact do not suffice to support a claim.” Bradley v. Chiron Corp., 136 F.3d 

1317, 1322 (Fed. Cir. 1998); see also McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 

n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part, dissenting in part) (quoting C. Wright and 

A. Miller, Federal Practice and Procedure § 1286 (3d ed. 2004)). “A plaintiff’s factual 

allegations must ‘raise a right to relief above the speculative level’ and cross ‘the line from 

conceivable to plausible.’” Three S Consulting v. United States, 104 Fed. Cl. 510, 523 

(2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555), aff’d, 562 F. App’x 964 (Fed. 

Cir.), reh’g denied (Fed. Cir. 2014). As stated in Ashcroft v. Iqbal, “[a] pleading that offers 

‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will 

not do.’ 550 U.S. at 555. Nor does a complaint suffice if it tenders ‘naked assertion[s]’ 

devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell 

Atl. Corp. v. Twombly, 550 U.S. at 555).
19

When deciding a case based on a lack of subject matter jurisdiction or for failure 

to state a claim, this court must assume that all undisputed facts alleged in the complaint 

are true and must draw all reasonable inferences in the non-movant’s favor. See Erickson 

v. Pardus, 551 U.S. 89, 94 (2007) (“In addition, when ruling on a defendant’s motion to 

dismiss, a judge must accept as true all of the factual allegations contained in the 

complaint.” (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555–56 (citing Swierkiewicz v. 

Sorema N. A., 534 U.S. 506, 508 n.1 (2002)))); Scheuer v. Rhodes, 416 U.S. 232, 236 

(1974) (“Moreover, it is well established that, in passing on a motion to dismiss, whether 

on the ground of lack of jurisdiction over the subject matter or for failure to state a cause 

of action, the allegations of the complaint should be construed favorably to the pleader.”), 

abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982), recognized by

Davis v. Scherer, 468 U.S. 183, 190 (1984); United Pac. Ins. Co. v. United States, 464 

F.3d 1325, 1327–28 (Fed. Cir. 2006); Samish Indian Nation v. United States, 419 F.3d 

1355, 1364 (Fed. Cir. 2005); Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343 

(Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2002), cert. denied, 538 U.S. 906 

(2003). If a defendant or the court challenges jurisdiction or plaintiff’s claim for relief, 

however, the plaintiff cannot rely merely on allegations in the complaint, but must instead 

bring forth relevant, competent proof to establish jurisdiction. McNutt v. Gen. Motors 

Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936); see also Land v. Dollar, 330 U.S. 

731, 735 n.4 (1947); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. 

Cir. 1988); Catellus Dev. Corp. v. United States, 31 Fed. Cl. 399, 404–05 (1994). 

The Tucker Act grants jurisdiction to this court as follows:

The United States Court of Federal Claims shall have jurisdiction to render 

judgment upon 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.

28 U.S.C. § 1491(a)(1) (2012). As interpreted by the United States Supreme Court, the 

Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United 

States (1) founded on an express or implied contract with the United States, (2) seeking 

a refund from a prior payment made to the government, or (3) based on federal 

constitutional, statutory, or regulatory law mandating compensation by the federal 

government for damages sustained. See United States v. Navajo Nation, 556 U.S. 287, 

289–90 (2009) (Navajo Nation II);

16 United States v. Mitchell, 463 U.S. 206, 216 (1983)

(Mitchell II);

17 see also Greenlee Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed. 

Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2007), cert. denied, 552 U.S. 1142 (2008); 

Palmer v. United States, 168 F.3d 1310, 1314 (Fed. Cir. 1999).

 

16 The decision in Navajo Nation II was preceded by the Supreme Court decision in United 

States v. Navajo Nation, 537 U.S. 488 (2003) (Navajo Nation I).

17 The decision in Mitchell II was preceded by the Supreme Court decision in United 

States v. Mitchell, 445 U.S. 535 (1980) (Mitchell I). 
20

“Not every claim invoking the Constitution, a federal statute, or a regulation is 

cognizable under the Tucker Act. The claim must be one for money damages against the 

United States . . . .” Mitchell II, 463 U.S. at 216; see also United States v. White Mountain 

Apache Tribe, 537 U.S. 465, 472 (2003); Smith v. United States, 709 F.3d 1114, 1116 

(Fed. Cir.), cert. denied, 134 S. Ct. 259 (2013); RadioShack Corp. v. United States, 566 

F.3d 1358, 1360 (Fed. Cir. 2009); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 

at 1343 (“[P]laintiff must . . . identify a substantive source of law that creates the right to 

recovery of money damages against the United States.”). In Ontario Power Generation, 

Inc. v. United States, the United States Court of Appeals for the Federal Circuit identified 

three types of monetary claims for which jurisdiction is lodged in the United States Court 

of Federal Claims. See Ontario Power Generation, Inc. v. United States, 369 F.3d 1298, 

1301 (Fed. Cir. 2004). The court wrote: 

The underlying monetary claims are of three types. . . . First, claims alleging 

the existence of a contract between the plaintiff and the government fall 

within the Tucker Act’s waiver. . . . Second, the Tucker Act’s waiver 

encompasses claims where “the plaintiff has paid money over to the 

Government, directly or in effect, and seeks return of all or part of that sum.” 

Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599, 605–06,] 372 F.2d 

[1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims “in 

which ‘the Government has the citizen’s money in its pocket’” (quoting 

Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954)) 

. . . . Third, the Court of Federal Claims has jurisdiction over those claims 

where “money has not been paid but the plaintiff asserts that he is 

nevertheless entitled to a payment from the treasury.” Eastport S.S., 372 

F.2d at 1007. Claims in this third category, where no payment has been 

made to the government, either directly or in effect, require that the 

“particular provision of law relied upon grants the claimant, expressly or by 

implication, a right to be paid a certain sum.” Id.; see also [United States v. 

]Testan, 424 U.S. [392,] 401-02 [(1976)] (“Where the United States is the 

defendant and the plaintiff is not suing for money improperly exacted or 

retained, the basis of the federal claim-whether it be the Constitution, a 

statute, or a regulation-does not create a cause of action for money 

damages unless, as the Court of Claims has stated, that basis ‘in itself . . . 

can fairly be interpreted as mandating compensation by the Federal 

Government for the damage sustained.’” (quoting Eastport S.S., 372 F.2d 

at 1009)). This category is commonly referred to as claims brought under a 

“money-mandating” statute.

Ontario Power Generation, Inc. v. United States, 369 F.3d at 1301; see also Twp. of 

Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).

To prove that a statute or regulation is money-mandating, “the statute and 

regulations must be such that they ‘“can fairly be interpreted as mandating compensation 

by the Federal Government for the damage sustained.”’” Roberts v. United States, 745 

F.3d 1158, 1162 (Fed. Cir. 2014) (quoting United States v. White Mountain Apache Tribe, 

537 U.S. at 472 (quoting United States v. Testan, 424 U.S. 392, 400 (1976))); see also
21

Navajo Nation II, 556 U.S. at 290; United States v. White Mountain Apache Tribe, 537 

U.S. at 472; Mitchell II, 463 U.S. at 217; Blueport Co., LLC v. United States, 533 F.3d 

1374, 1383 (Fed. Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law 

granting monetary relief must be distinct from the Tucker Act itself. See Navajo Nation II, 

556 U.S. at 290 (The Tucker Act does not create “substantive rights; [it is simply a] 

jurisdictional provision[] that operate[s] to waive sovereign immunity for claims premised 

on other sources of law (e.g., statutes or contracts).”). “‘If the statute is not moneymandating, the Court of Federal Claims lacks jurisdiction, and the dismissal should be for 

lack of subject matter jurisdiction.’” Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 

525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cnty., Ariz. v. United States, 487 

F.3d at 876); Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (The absence 

of a money-mandating source is “fatal to the court's jurisdiction under the Tucker Act.”); 

Peoples v. United States, 87 Fed. Cl. 553, 565–66 (2009). 

If a defendant or the court challenges jurisdiction or a plaintiff’s claim for relief, 

however, the plaintiff cannot rely merely on allegations in the complaint, but must instead 

bring forth relevant, competent proof to establish jurisdiction. See McNutt v. Gen. Motors 

Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936); see also Reynolds v. Army & Air 

Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). Therefore, although the court must 

assume that the undisputed facts alleged in the complaint are true for the purposes of the 

motion to dismiss and draws all reasonable inferences in the plaintiffs' favor, the facts 

alleged in the complaint must be plausible and not merely naked assertions devoid of a 

factual basis. See Ashcroft v. Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements 

of a cause of action, supported by mere conclusory statements, do not suffice.”); see also

McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (mere allegations 

of law and conclusions of fact are insufficient to support a claim); SUFI Network Servs., 

Inc. v. United States, 102 Fed. Cl. 656, 660 (2012) (plaintiff “must provide more than mere 

‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” 

(citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 

286 (1986)))); Rack Room Shoes v. United States 718 F.3d 1370, 1376 (Fed. Cir.) reh’g

and reh’g en banc denied, (Fed. Cir. 2013) cert. denied, 134 S. Ct. 2287 (2014); KamAlmaz v. United States, 682 F.3d 1364, 1367-68 (Fed. Cir. 2012) (“[A] court is ‘“not bound 

to accept as true a legal conclusion couched as a factual allegation.”’” (quoting Twombly, 

550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)))). 

“It is well established that, in addition to the complaint itself and exhibits thereto, 

the court ‘must consider . . . documents incorporated into the complaint by reference, and 

matters of which a court may take judicial notice.’” Bell/Heery v. United States, 106 Fed. 

Cl. 300, 307-08 (2012) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 

308, 322 (2007) (citing 5B Wright & Miller § 1357 (3d ed. 2004 and Supp. 2007))), aff’d, 

739 F.3d 1324 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2014); see also

Fredericksburg Non-Profit Housing Corp. v. United States, 113 Fed. Cl. 244, 255 n.19 

(2013) (citing 5B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 

1357); Bristol Bay Area Health Corp. v. United States, 110 Fed. Cl. 251, 262 (2013). As 

also discussed further below, the “bad men” provision of the 1868 Ute Treaty provides a 

basis for jurisdiction in this court.
22

Administrative Exhaustion

Defendant argues that administrative exhaustion is a “jurisdictional prerequisite” to 

judicial review. The defendant relies on language in the 1868 Ute Treaty, which reads: 

In all cases of depredation on person or property, they shall cause the 

evidence to be taken in writing and forwarded, together with their finding, to 

the Commissioner of Indian Affairs, whose decision, subject to the revision 

of the Secretary of the Interior, shall be binding on the parties to this [1868]

treaty. 

1868 Treaty, Art. 5. Defendant contends that this language mandates full administrative 

review, allowing the Department of the Interior an opportunity to issue a “binding decision” 

before a plaintiff can seek relief from the courts. Defendant states that “throughout the six 

years following Mr. Murray’s death, Plaintiffs have had every opportunity to present a ‘bad 

men’ claim to the Department of the Interior (‘DOI’), as agreed upon by both the Tribe and 

the United States. See Treaty with the Ute Indians, 15 Stat. 619 (1868). Plaintiffs have 

not.” (internal citation omitted). According to defendant, “plaintiffs have not complied with 

the terms of the Treaty and have not exhausted the administrative remedies required by 

the express terms of the Treaty.” As a consequence, defendant argues, 

DOI has not been provided with an opportunity to “cause the evidence to be 

taken in writing and forwarded, together with [the government agent’s] 

finding, to the Commissioner of Indian Affairs, whose decision, subject to 

the revision of the Secretary of the Interior, shall be binding on the parties 

to this treaty.” Art. 5, 1868 Treaty. Having failed to exhaust their 

administrative remedies, Plaintiffs’ Amended Complaint should be 

dismissed.

(alterations in original). Defendant urges this court to dismiss plaintiffs’ claims in the 

United States Court of Federal Claims for lack of subject matter jurisdiction.

In response, plaintiffs argue they have satisfied the exhaustion requirements of the 

treaty by way of their March 12, 2013 letter to Department of the Interior officials, placing 

the Department of the Interior on notice of plaintiffs’ intention to file suit in this court.

Plaintiffs allege that the court “has previously analyzed this specific bad men treaty clause 

and has held that the only prerequisite required before suit is filed is that a notice of claim 

must be sent to the agency and a copy be sent to the Commissioner of Indian Affairs in 

Washington.” Moreover, plaintiffs argue that the exhaustion requirement is nonjurisdictional, maintaining that any requirement to exhaust administrative remedies is

purely prudential and, therefore, subject to the court’s discretion. 

“The doctrine of exhaustion of administrative remedies is one among related 

doctrines—including abstention, finality, and ripeness—that govern the timing of federalcourt decision making.” McCarthy v. Madigan, 503 U.S. 140, 144 (1992), superseded by

statute as recognized in Garrett v. Hawk, 127 F.3d 1263 (10th Cir. 1997). The Supreme 
23

Court has held “‘that no one is entitled to judicial relief for a supposed or threatened injury 

until the prescribed administrative remedy has been exhausted.’” McKart v. United States, 

395 U.S. 185, 194 (1969) (quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 

50—51 (1938)); see also Woodford v. Ngo, 548 U.S. 81, 88 (2006); Sandvik Steel Co. v. 

United States, 164 F.3d 596, 599 (Fed. Cir. 1998) (The general rule is that “no one is 

entitled to judicial relief for a supposed or threatened injury until the prescribed 

administrative remedy has been exhausted.”); Burlington N. R.R. Co. v. United States, 

752 F.2d 627, 629 (Fed. Cir. 1985).

“Exhaustion of administrative remedies serves two main purposes.” Woodford v. 

Ngo, 548 U.S. at 89; In re DBC, 545 F.3d 1373, 1378 (Fed. Cir. 2008). As described by 

the United States Supreme Court, the first, and primary, purpose is the development of a 

proper factual background:

A primary purpose is, of course, the avoidance of premature interruption of 

the administrative process. The agency, like a trial court, is created for the 

purpose of applying a statute in the first instance. Accordingly, it is normally 

desirable to let the agency develop the necessary factual background upon 

which decisions should be based. And since agency decisions are 

frequently of a discretionary nature or frequently require expertise, the 

agency should be given the first chance to exercise that discretion or to 

apply that expertise.

McKart v. United States, 395 U.S. at 193–94; see also Kappos v. Hyatt, 132 S. Ct. 1690, 

1692 (2012) (noting that “‘the avoidance of premature interruption of the administrative 

process’” is the “primary purpose” of the doctrine of administrative exhaustion). Under this 

theory, “[t]he administrative agency is created as a separate entity and invested with 

certain powers and duties. The courts ordinarily should not interfere with an agency until 

it has completed its action, or else has clearly exceeded its jurisdiction.” McKart v. United 

States, 395 U.S. at 194. “Exhaustion gives an agency ‘an opportunity to correct its own 

mistakes with respect to the programs it administers before it is hauled into federal court,’ 

and it discourages ‘disregard of [the agency's] procedures.’” Woodford v. Ngo, 548 U.S. 

at 89 (quoting McKart v. United States, 395 U.S. at 195) (alteration in original); In re DBC, 

545 F.3d at 1378; see also Kentucky v. United States, 62 Fed. Cl. 445, 453 (2004) 

(“‘When administrative remedies have not been exhausted, “judicial review of 

administrative action is inappropriate,” since it is “a general rule that courts should not 

topple over administrative decisions unless the administrative body not only has erred but 

has erred against objection made at the time appropriate under its practice.”’” (quoting 

Sandvik Steel Co. v. United States, 164 F.3d at 599 (quoting Sharp Corp. v. United States, 

837 F.2d 1058, 1062 (Fed. Cir. 1988))), aff’d, 424 F.3d 1222 (Fed. Cir. 2005); see also

McCarthy v. Madigan, 503 U.S. at 145 (“Correlatively, exhaustion principles apply with 

special force when ‘frequent and deliberate flouting of administrative processes’ could 

weaken an agency's effectiveness by encouraging disregard of its procedures.” (quoting

McKart v. United States, 395 U.S. at 195)).

The second purpose for requiring exhaustion of administrative remedies is judicial 

economy. “And of course it is generally more efficient for the administrative process to go 
24

forward without interruption than it is to permit the parties to seek aid from the courts at 

various intermediate stages.” McKart v. United States, 395 U.S. at 194. “Claims generally 

can be resolved much more quickly and economically in proceedings before an agency 

than in litigation in federal court. In some cases, claims are settled at the administrative 

level, and in others, the proceedings before the agency convince the losing party not to 

pursue the matter in federal court.” Woodford v. Ngo, 548 U.S. at 88; see also McCarthy 

v. Madigan, 503 U.S. at 145 (“When an agency has the opportunity to correct its own 

errors, a judicial controversy may well be mooted, or at least piecemeal appeals may be 

avoided.”). “And it can serve judicial efficiency by promoting development of an agency 

record that is adequate for later court review and by giving an agency a full opportunity to 

correct errors and thereby narrow or even eliminate disputes needing judicial resolution.” 

Itochu Bldg. Products v. United States, 733 F.3d 1140, 1145 (Fed. Cir. 2013); Kentucky 

v. United States, 62 Fed. Cl. at 459; Forest Products Nw., Inc. v. United States, 62 Fed. 

Cl. 109, 122 (2004), aff’d, 453 F.3d 1355 (Fed. Cir. 2006); see also Weinberger v. Salfi, 

422 U.S. 749 (1975) (the doctrine of administrative exhaustion may allow an agency “to 

compile a record which is adequate for judicial review”).

“Proper exhaustion demands compliance with an agency's deadlines and other 

critical procedural rules because no adjudicative system can function effectively without 

imposing some orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 

U.S. at 90-91; see also Arctic Slope Native Assoc., Ltd. v. Sebelius, 583 F.3d 785, 793 

(Fed. Cir. 2009) (“Statutory time restrictions on the submission of administrative claims 

are a part of the requirement that a party must satisfy to properly exhaust administrative 

remedies.”), reh’g and reh’g en banc denied (Fed. Cir.), cert. denied, 131 S. Ct. 144 

(2010); Kellogg Brown & Root Servs., Inc. v. United States, 115 Fed. Cl. 46, 51 (2014); 

Paradigm Learning, Inc. v. United States, 93 Fed. Cl. 465, 473 (2010). “The fact that the 

administrative remedy was provided by a regulation rather than by a statute does not 

make the exhaustion doctrine inapplicable or inappropriate.” Sandvik Steel Co. v. United 

States, 164 F.3d at 600; see also Itochu Bldg. Products v. United States, 733 F.3d at 

1145 n.1 (“Failure to exploit an available agency remedy, even if not specifically required, 

can constitute a failure to exhaust in appropriate circumstances.” (citing Corus Staal BV 

v. United States, 502 F.3d 1370, 1379 (Fed. Cir. 2007) (“The exhaustion requirement in 

this context is therefore not simply a creature of court decision, as is sometimes the case, 

but is a requirement explicitly imposed by the agency as a prerequisite to judicial 

review.")). 

The facts of a particular case, however, can call for an exception to otherwise 

requiring administrative exhaustion. See, e.g., McKart v. United States, 395 U.S. at 197 

(“We cannot agree that application of the exhaustion doctrine would be proper in the 

circumstances of the present case.”). “‘[A]dministrative remedies need not be pursued if 

the litigant's interests in immediate judicial review outweigh the government's interests in 

the efficiency or administrative autonomy that the exhaustion doctrine is designed to 

further.’” McCarthy v. Madigan, 503 U.S. at 146 (quoting West v. Bergland, 611 F.2d 710, 

715 (8th Cir.1979), cert. denied, 449 U.S. 821 (1980)); see also Shalala v. Illinois Council 

on Long Term Care, Inc., 529 U.S. 1, 13, reh'g denied, 529 U.S. 1095 (2000) (“Doctrines 

of ‘ripeness' and ‘exhaustion’ contain exceptions, however, which exceptions permit early 

review when, for example, the legal question is ‘fit’ for resolution and delay means 
25

hardship, or when exhaustion would prove ‘futile[.]’” (citing McCarthy v. Madigan, 503 

U.S. at 147–48)) (other citations omitted).

“Where the issue of exhaustion of administrative remedies is not governed by a 

particular statutory provision or an overall statutory scheme, the decision whether to 

require exhaustion in a particular case is a matter committed to the discretion of the trial 

court.” Corus Staal BV v. United States, 502 F.3d at 1381; Bernklau v. Principi, 291 F.3d 

795, 801 (Fed. Cir. 2002). 

Plaintiffs allege the exhaustion requirement has been satisfied by the notice of their 

intent to file suit against the United States indicated in the March 12, 2013 letter

addressed to senior officials at the Department of the Interior. The March 12, 2013 letter 

states:

Dear Messrs. Toulou, Smith, and Washburn and Secretary of the Interior: 

Our law firm represents the Ute Indian Tribe of the Uintah and Ouray 

Reservation (“Tribe” or “Ute Tribe”). We also represent tribal members 

Debra Jones and Arden Post who are the parents of Todd Murray, a tribal 

member who was shot to death in an encounter with Utah state and local 

police on the Uintah and Ouray Indian Reservation in Utah (“U&O 

Reservation”) in 2007. Please accept this letter as our notice of claim to 

your respective agencies of our intent to file a complaint against the United 

States based on breaches of the 1863 and 1868 Ute Treaties and the United 

States’ violation of its trust obligations to the Ute Tribe and its members.

We plan to file suit in the Federal Court of Claims and allege that the Federal 

Bureau of Investigation (FBI) and the Bureau of Indian Affairs (BIA), by and 

through their employees, committed wrongs upon the person or property of 

the Indians, namely decedent Todd Murray his family and the Ute Indian 

Tribe as a whole. Included with our letter are the Plaintiffs’ (i) Third 

Amended Complaint, (ii) motion for default judgment on liability based on 

tampering [sic] destruction of critical evidence, and (iii) motion for summary 

judgment under Counts 1, 3 and 5 filed in the parents’ private cause of 

action, DEBRA JONES, et al., v, VANCE NORTON, et al., Civil Case No. 

2:09-cv-00730, U.S. District Court, District of Utah, Central Division.

The attached filings give an overview of the sequence of events that 

transpired on April 1, 2007 as well as a clear indication of the egregious 

actions of the law enforcement officers who participated in this 

“investigation.” The FBI and the BIA representatives who were present on 

April 1, 2007 and who participated in the “investigation” contributed to the 

travesties by (1) failing to protect the Ute Tribe’s interests as a sovereign in 

the crime scene, (2) failing to properly preserve and protect evidence from 

being tampered with and destroyed, and (3) failing to conduct their own 

independent investigation into the death of Todd Murray. As a result of the 

aforementioned failures, the Murray family and the Ute Indian Tribe are 
26

seeking damages from the United States in the amount of $10 million, as 

well as reimbursement of litigation costs and attorney fees.

Attached to this letter is a summary of the relevant Treaty obligations that 

have been violated by the actions and inactions of the United States in this 

case. Under Article 6 of the 1863 Treaty, the Ute Indian bands agreed to 

forego “private revenge or retaliation” for injuries suffered by the Tribe and 

individual tribal members as the result of the “misconduct of individuals.” In 

return the United States guaranteed the Tribe and individual tribal members 

a right to legal redress for “any robbery violence, or murder” committed “on 

an Indian or Indians” belonging to the Ute Indian bands. Article 6 of the 1868 

Treaty promised that any person violating the territorial integrity of the 

Reservation and causing harm to the Tribe or its tribal members would be 

“punished according to the laws of the United States.” In violation of these 

treaty obligations, the United States has failed to investigate or to prosecute 

the individuals involved in the shooting death of 21 year-old Todd Murray in 

April 2007, and the subsequent conspiracy to suppress, alter, and destroy 

critical evidence.

Please feel free to contact our office should you require any additional 

information regarding this forthcoming claim.

Sincerely, 

Sandra L. Denton

(footnote omitted). As noted above, the March 12, 2013 letter attached almost four 

hundred pages of exhibits, including filings in the District Court such as the plaintiffs’ third 

amended complaint, plaintiffs’ motion for summary judgment, and plaintiffs’ motion for 

tampering and destruction of critical evidence.

In Elk v. United States, 70 Fed. Cl. 405 (2006), the United States Court of Federal 

Claims addressed a similar issue of exhaustion as is raised by defendants in the current 

case under review by this court, albeit under a different treaty, and found no jurisdictional 

requirement to exhaust administrative remedies. In Elk v. United States, a member of the 

Oglala Sioux Tribe brought suit after she was sexually assaulted by a United States Army 

recruiter in a remote area of the reservation. See id. at 406. The “bad men” provision of 

the 1868 Sioux treaty, served as the legal basis for the plaintiff’s complaint. As in the 

present action, the Elk plaintiff claimed to have been “wronged” by “bad men” and sought 

reimbursement from the United States. Id. at 405. The government in Elk moved to 

dismiss plaintiff’s claim, arguing that the treaty required “proof” to be “made to the agent 

and forwarded to the Commissioner of Indian Affairs at Washington City,” and that this, 

as a textual matter, plainly suggested a jurisdictional requirement to exhaust 

administrative remedies. See id. While recognizing the requirements that the language 

imposed, the court ultimately held that the plaintiff did not have to await a formal 
27

administrative decision from the agency before bringing suit. See id. at 407. After careful 

review of the relevant provisions of the 1868 Sioux treaty, the Elk court held that formal 

administrative exhaustion was not a prerequisite to bringing suit, concluding that “nothing

in the Sioux Treaty indicates that a claimant must await a decision from Interior before 

filing suit.” Id. The Elk court determined that “under well established principles, a statute 

or other Congressional enactment creates an independent duty to exhaust only when it 

contains ‘sweeping and direct’ statutory language indicating that there is no federal 

jurisdiction prior to exhaustion, or the exhaustion requirement is treated as an element of 

the underlying claim.” Id. Because the 1868 Sioux Treaty at issue contained no such 

language, the Elk court declined to require exhaustion as a prerequisite to judicial 

jurisdiction.18

A predecessor court to the Court of Federal Claims previously found, under the 

specific facts of the case, that exhaustion of administrative remedies was a jurisdictional 

requirement when specific treaty language both (1) unmistakably mandates 

administrative review by an executive agency and (2) sets forth a procedure for so doing. 

See Begay v. United States, 219 Ct. Cl. 599 (1979); see also Tsosie v. United States, 11 

Cl. Ct. 62 (1986), aff’d and remanded, 825 F.2d 393 (Fed. Cir. 1987). In Begay, the 

parents of female boarding school students administered by the BIA brought suit after 

discovering that their daughters had been sexually assaulted by some of the faculty. Id.

at 600. Plaintiffs claimed that the sexual assault was a “wrong” inflicted by “bad men” and, 

therefore, sought reimbursement from the United States. The “bad men” provision of the 

 

18 The court notes that defendant in the above captioned case, like the defendant in Elk, 

cites to the unpublished opinion in Zephier v. United States, No. 03-768L (Fed. Cl. Oct. 

29, 2004). The Elk court wrote as follows:

The other case cited by defendant, the unpublished opinion in Zephier, et 

al. v. United States, No. 03–768L (Fed. Cl. Oct. 29, 2004), concerned a 

situation in which the plaintiff did not file a claim with Interior under the Sioux 

Treaty before filing suit. This court dismissed the complaint for lack of 

jurisdiction, finding that “the courts either have found that the plain language 

of the treaties mandates exhaustion of administrative remedies or have 

accepted without question that such remedies are available.” Id. at 13. But, 

with all due respect, the latter statement does not flow from the analysis that 

precedes it, which, inter alia, overlooks several key distinctions. For 

example, while the court noted the significant differences between the 

Navajo and Sioux treaties, id. at 12 n.4, it freely cited cases involving the 

former as precedent for construing the latter—a non sequitur. And while it 

suggested that Begay II is not precedential, id. at 11, but rather only 

persuasive, id. at 11 n.3, it, nonetheless, proceeded to apply that case as if 

it had resolved definitively the precise issue before the court, doing so 

largely without further independent analysis of the exhaustion issue.

Elk v. United States, 70 Fed. Cl. at 411. Therefore, the Elk court determined, “[a]t best, 

then, Zephier is inapposite; at all events, its analysis is unpersuasive. Id.
28

Navajo Treaty of 1868, served as the legal basis for the plaintiffs’ complaint. After careful 

review of the treaty’s provisions, the court suspended litigation and granted the 

Department of Interior a period of ninety days to issue a decision on the matter. Id. at 

602-03. In making this determination, the court relied on a passage in the Navajo Treaty 

of 1868, which provided: 

[T]he President may prescribe such rules and regulations for ascertaining 

damages under this article as in his judgment may be proper; but no such 

damage shall be adjusted and paid until examined and passed upon by the 

Commissioner of Indian Affairs. 

Treaty with the Navajo, June 1, 1868, 15 Stat. 667, Art. 1.

The Begay court found this provision to be particularly dispositive. In light of the 

clear and unambiguous language, which withheld damages until “examined and passed 

upon” by the agency, the court found the requirement of exhaustion to be jurisdictional, 

and, therefore, the Begay court declined to assert jurisdiction over a “bad men” claim “in 

view of the specific references in [the treaty] to administrative consideration . . . .” Begay 

v. United States, 219 Ct. Cl. at 602. Likewise, in Tsosie v. United States, 11 Cl. Ct. 62, 

the court in reviewing the “bad men” provision of the Navajo Treaty of 1868 concluded 

that “there must first be an administrative decision by the Department of the Interior,” 

before submitting a claim to the judiciary. Id. at 75 (citing Begay v. United States, 219 Ct. 

Cl. at 602).

When comparing the Sioux and the Navajo Treaties side by side, the treaties differ 

with respect to an exhaustion requirement, as reflected in the decisions discussed above.

Compare Elk v. United States, 70 Fed. Cl. at 407, with Begay v. United States, 219 Ct. 

Cl. at 602, and, Tsosie v. United States, 11 Cl. Ct. at 75. The court in Elk addressed the 

differences, ultimately concluding that the Navajo Treaty is unique in precluding the 

payment of damages until the claim is “thoroughly examined and passed upon” by the 

agency. See Elk v. United States, 70 Fed. Cl. at 407.19 The Sioux Treaty contains no such 

limitation. Id. Furthermore, the court in Elk observed that the Sioux Treaty “neither 

specifies the particulars of the proof that should be supplied [to the agency] nor indicates 

that the claimant must wait any particular time for an agency to respond to her claim.” Id.

 

19 The court notes that the Elk court observed that:

[T]he court in Begay I, denied its motion to dismiss the plaintiffs' complaint 

and retained jurisdiction while ordering the Assistant Secretary of Interior to 

render an opinion within 90 days. Id. at 603. The Begay orders thus hardly 

stands [sic] for the proposition that a claimant must obtain an actual decision 

from Interior before bringing suit under the Tucker Act.

Elk v. United States, 70 Fed. Cl. at 411 (emphasis in original). 
29

The language of the 1868 Ute Treaty more closely resembles the language of the 

Sioux Treaty than the Navajo Treaty. The Ute Treaty also contains no “sweeping and 

direct language,” requiring administrative exhaustion. Unlike the Navajo Treaty, the Ute 

Treaty does not withhold damages until “passed upon” by the Department of the Interior. 

See Elk v. United States, 70 Fed. Cl. at 407. Nor does the Ute Treaty specify the manner 

and means for bringing a claim in court. Article 5 of the Ute Treaty states only:

In all cases of depredation on person or property, they shall cause the 

evidence to be taken in writing and forwarded, together with their finding, to 

the Commissioner of Indian Affairs, whose decision, subject to the revision 

of the Secretary of the Interior, shall be binding on the parties to this treaty. 

As noted above, although the 1868 Ute Treaty requires evidence of any depredation or 

wrong “to be taken in writing and forwarded together with their finding to the

Commissioner of Indian Affairs,” 1868 Treaty, Art. 5, forwarding such evidence is the “only 

prerequisite to suit required by the treaty.” Hebah v. United States, 428 F.2d 1334, 1340, 

192 Ct. Cl. 785 (1970) (Hebah I). 

In the March 12, 2013 letter, plaintiffs specifically identified the 1868 Ute Treaty, 

and indicated “[p]lease accept this letter as our notice of claim to your respective agencies 

of our intent to file a complaint against the United States based on breaches of the 1863 

and 1868 Ute Treaties and the United States’ violation of its trust obligations to the Ute 

Tribe and its members.” The March 12, 2013 letter also indicated, “[a]ttached to this letter 

is a summary of the relevant Treaty obligations that have been violated by the actions 

and inactions of the United States in this case.”

In addition, the March 12, 2013 letter identified the wrong plaintiffs alleged, with 

plaintiffs’ counsel indicating “[w]e also represent tribal members Debra Jones and Arden 

Post who are the parents of Todd Murray, a tribal member who was shot to death in an 

encounter with Utah state and local police on the Uintah and Ouray Indian Reservation in 

Utah (U&O Reservation) in 2007.” Plaintiffs identified the agencies which allegedly had

committed the improper acts, and stated that the “Bureau of Investigation (FBI) and the 

Bureau of Indian Affairs (BIA), by and through their employees, committed wrongs upon 

the person or property of the Indians, namely decedent Todd Murray.” The March 12, 

2013 letter, while not providing additional details about the death of Mr. Murray, included 

as attachments selected filings from the District Court litigation, which, as plaintiffs 

indicated, “give an overview of the sequence of events that transpired on April 1, 2007 as 

well as a clear indication of the egregious actions of the law enforcement officers who 

participated in this ‘investigation.’”

Although plaintiffs’ counsel could have provided more narrative detail about the 

death of Mr. Murray in the March 12, 2013 letter to more fully amplify on the “proof” 

requirement, the court believes the letter labelled “notice of claim” sent to the Department 

of Interior, together with the exhibits attached to the letter, satisfied the plaintiffs’ 

exhaustion requirements under the specific facts presented in the above captioned case. 

Moreover, the United States was aware of the death of Mr. Murray in 2007, and the record 
30

reflects that no criminal prosecutions of Special Agent Rex Ashdown and David Ryan of 

the FBI or the various officials present at the scene from the BIA occurred, suggesting the 

decision not to prosecute reflects the view of the United States. There was a “federal 

criminal matter involving the [Mr. Murray’s] firearm,” in which “[t]he purchaser pled guilty 

in federal court to a charge of making a false statement in connection with the purchase 

of the firearm.” Jones et al. v. Norton, et al., 2014 WL 909569, at *4. In addition, on 

February 1, 2011, one of the attorneys from plaintiffs’ counsel’s firm sent the Department 

of Justice, specifically, the Director of the Office of Tribal Justice and the Chief of the Civil 

Rights Division, a letter titled: “The Shooting Death of Todd Murray, Ute Indian tribal 

member Jones v. Norton, et al., Case No. 2:09-cv-00730 U.S. District Court for the District 

of Utah, Central Division And the Continued Violation of Criminal Law Enforcement 

Jurisdiction on the Uintah and Ouray Indian Reservation, and the Continued Harassment, 

Racial Targeting, and Violation of Tribal Members’ Civil Rights by Utah State, County, 

and Local Law Enforcement Officers.” The letter provided background information to the 

Department of Justice about Mr. Murray’s death and noted that “no officer-involved 

shooting investigation was conducted by the Federal Bureau of Investigation, the State 

of Utah, the County of Uintah, Vernal City, or any disinterested party.” The letter 

concluded:

In summary, by this letter we are requesting that the Department of Justice 

conduct an investigation into the actions of Utah state/county/local law 

enforcement agencies and officers for violations of the Ute Treaty of 1868 

and any other applicable federal law. Unfortunately, this is not the Tribe’s 

first request for a federal investigation. See attached letters dated February 

14, 2011, and March 18, 2011. In the year since these letters were sent, the 

conduct of Utah state, county and local police has only gotten worse. I would 

appreciate communication from your respective offices on our investigation 

requests.

(internal citation omitted).

Even when exhaustion requirements have not been met, the United States 

Supreme Court has found exceptions to the exhaustion doctrine in “at least three broad 

sets of circumstances in which the interests of the individual weigh heavily against 

requiring administrative exhaustion.” See McCarthy v. Madigan, 503 U.S. at 146.20 The 

United States Court of Appeals for the Federal Circuit, in Wilson ex rel. Estate of Wilson 

v. United States, summarized the three exceptions articulated by the United States 

Supreme Court, as follows:

The [United States Supreme] Court went on to explain three sets of 

circumstances in which the interests of the individual weigh heavily against 

requiring administrative exhaustion: (1) where there is an unreasonable or 

 

20 The Supreme Court, noted, however “this Court has declined to require exhaustion in 

some circumstances even where administrative and judicial interests would counsel 

otherwise.” McCarthy v. Madigan, 503 U.S. at 146.
31

indefinite timeframe for administrative action; (2) where there is some doubt 

as to whether the agency is empowered to grant effective relief; and (3) 

where the administrative body is shown to be biased or has otherwise 

predetermined the issue before it.

Wilson ex rel. Estate of Wilson v. United, 405 F.3d 1002, 1011 (Fed. Cir. 2005). The 

determination of when and how to apply an exception to the general exhaustion doctrine 

is highly case specific and emphasizes practicality, keeping in mind the overall balance

of “‘the interest of the individual in retaining prompt access to a federal judicial forum,’” 

with “deciding when exhaustion is demanded in order to protect ‘institutional interests.’” 

See Itochu Bldg. Products v. United States, 733 F.3d at 1145 (quoting McCarthy v. 

Madigan, 503 U.S. at 146 (“In determining whether exhaustion is required, federal courts 

must balance the interest of the individual in retaining prompt access to a federal judicial 

forum against countervailing institutional interests favoring exhaustion. . . . Application of 

this balancing principle is ‘intensely practical,’” (quoting Bowen v. City of New York, 476 

U.S. 467, 484 (1986))); Rollock Co. v. United States, 115 Fed. Cl. 317, 322 (2014); Elk v. 

United States, 70 Fed. Cl. at 408.

“First, exhaustion may not be required when exhaustion of the administrative 

remedy may prejudice the plaintiff,” such as “‘from an unreasonable or indefinite 

timeframe for administrative action.’” See Itochu Bldg. Products v. United States, 733 F.3d 

at 1145 (quoting McCarthy v. Madigan, 503 U.S. at 147). “Even where the administrative 

decisionmaking schedule is otherwise reasonable and definite, a particular plaintiff may 

suffer irreparable harm if unable to secure immediate judicial consideration of his claim.” 

McCarthy v. Madigan, 503 U.S. at 147. In Gibson v. Berryhill, 411 U.S. 564, 575 n.14 

(1973), although discussing state administrative remedies, the United States Supreme 

Court wrote: “State administrative remedies have been deemed inadequate by federal 

courts and hence not subject to the exhaustion requirement . . . [m]ost often . . . because 

of delay by the agency . . . .” Such delay is not characterized by any specific time limit in 

which to respond to claims. See, e.g., Walker v. Southern Ry. Co., 385 U.S. 196, 198 

(1966), reh'g denied, 385 U.S. 1020 (1967) (holding that plaintiffs are not required to wait 

ten years or more on the administrative board to decide their claim); Smith v. Illinois Bell 

Tel. Co., 270 U.S. 587, 591–592 (1926) (finding that an injured public service company 

“is not required indefinitely to await a decision of the rate-making tribunal before applying

to a federal court . . . .”). 

“Second, an administrative remedy may be inadequate ‘because of some doubt as 

to whether the agency was empowered to grant effective relief.’” McCarthy v. Madigan, 

503 U.S. at 147 (quoting Gibson v. Berryhill, 411 U.S. at 575 n.14); Elk v. United States, 

70 Fed. Cl. at 408; see also McNeese v. Bd. of Ed. for Cmty. Unit Sch. Dist. 187, 373 

U.S. 668, 675 (1963) (finding that student plaintiffs did not have to exhaust administrative 

remedies when the school superintendent did not have authority to grant the requested 

relief).

“Third, an administrative remedy may be inadequate where the administrative body 

is shown to be biased or has otherwise predetermined the issue before it.” McCarthy v. 

Madigan, 503 U.S. at 148; Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000); Rollock 

Co. v. United States, 115 Fed. Cl. at 322; Elk v. United States, 70 Fed. Cl. at 408; White 
32

& Case LLP v. United States, 67 Fed. Cl. 164, 171, recons. denied, 2005 WL 6124102 

(2005). For example, the United States Supreme Court in Houghton v. Shafer held that it 

would be futile to require the petitioner to exhaust the administrative remedy of appeal to 

the Attorney General of Pennsylvania, or another officer, in light of the Attorney General's 

submission that the rules were “validly and correctly applied to petitioner” and “strictly 

enforced throughout the entire correctional system . . . .” See Houghton v. Shafer, 392 

U.S. 639, 640 (1968); see also Aldrich v. United States, 31 Fed. Cl. 554, 557 (1994)

(holding that “the interests of the individual ‘weigh heavily against requiring administrative 

exhaustion’ . . . where the administrative body is shown to have predetermined the issue.” 

(quoting McCarthy v. Madigan, 503 U.S. at 140)), aff’d, 56 F.3d 83 (Fed. Cir. 1995). In 

such a circumstance, continuing with the agency process is often termed “futile.” See

Itochu Bldg. Products v. United States, 733 F.3d at 1146 (“For example, a party often is 

permitted to bypass an available avenue of administrative challenge if pursuing that route 

would clearly be futile, i.e., where it is clear that additional filings with the agency would 

be ineffectual.” (citing Corus Staal BV v. United States, 502 F.3d at 1378–79 (futility 

applies in situations where plaintiffs “‘would be “required to go through obviously useless 

motions in order to preserve their rights”’” (quoting Walsh v. United States, 151 Ct. Cl. 

507, 511 (1960))))). 

Plaintiffs only urge the first exception to the exhaustion doctrine would apply if 

plaintiffs did not otherwise meet the exhaustion requirements, based on when there is an 

unreasonable or indefinite timeframe for administrative action. Plaintiffs argue that “it is 

clear that Plaintiffs would be unduly prejudiced by having to embark upon an ill-defined 

administrative process with a potentially indefinite timeframe for action.” Plaintiffs claim 

that the “events in question occurred more than seven years ago, and what little evidence 

was not spoliated by federal/state/local law enforcement officers is in danger of 

disappearing as memories fade with the passage of time. Plaintiffs have been litigating 

for years in an effort to get their day in court and they would be unduly prejudiced by an 

administrative decision that could take years and might get them no closer to a remedy 

than where they are today.” Plaintiffs also allege that “it is questionable whether the 

Department of the Interior can adequately grant effective relief in this case in light of the 

complex and multiple constitutional issues that are play in the case.” (internal citation 

omitted).

Defendant responds that “Plaintiffs’ extensive litigation in the district court of Utah, 

where Plaintiffs fully, fairly, and forcefully presented their case, further ameliorates any 

concern that additional time spent adjudicating this matter before DOI may prejudice 

Plaintiffs. Indeed, Plaintiffs have not explained what they would present here that they 

have not already presented to that court.” Defendant also claims that the plaintiffs’ 

argument that this case is complex and has multiple constitutional issues “does not 

square with their request for relief that is far more straightforward than the premise of their 

argument suggests: They seek monetary damages pursuant to the ‘bad men’ clause of 

the 1868 Treaty.” The court agrees with defendant that plaintiffs’ claims in this court do 

not involve “complex and multiple constitutional issues.” There is no certainty as to how

long the Department of the Interior might take in responding to plaintiffs’ claims. Plaintiffs’

lengthy litigation history, however, does not mean a further delay at the Department of 

the Interior would not have a negative impact on plaintiffs. Plaintiffs’ exhaustion 
33

requirements may well have been met under the 1868 Treaty by virtue of the March 12, 

2013 letter. Even, however, for the sake of argument, if the exhaustion requirements were 

not met, because the facts of the case stem from the April 1, 2007 death of Mr. Murray,

and because the previous litigation has continued since 2009, the court concludes that a 

requirement to force plaintiffs now to exhaust administrative remedies at the Department 

of the Interior presents a further unreasonable or “indefinite timeframe for administrative 

action.” Therefore, this court concludes that, on one or both grounds, the exhaustion

doctrine does not preclude this court from taking jurisdiction over plaintiffs’ claims.

“Bad Men” Provision

Defendant argues in its motion to dismiss that “Plaintiffs’ do not state a cognizable 

claim under the ‘bad men’ provision.” Plaintiffs allege in their complaint that “Todd Murray, 

Todd Murray’s family, and the Ute Indian Tribe suffered ‘injuries’ at the hands of ‘bad 

men’ as those terms are used in the Ute Treaties of 1863 and 1868.” As indicated above, 

the “bad men” provision at issue in the 1868 Treaty provides: 

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 Indian, 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. 

1868 Treaty, Art. 6. Defendant contends that many of plaintiffs’ alleged wrongs are not 

contemplated by the terms of the treaty and, therefore, plaintiffs fail to state a claim with 

respect to the “bad men” provision.

In examining what must be pled in order to state a claim, under both RCFC 8(a)(2) 

and Rule (8)(a)(2) of the Federal Rules of Civil Procedure, a plaintiff need only state in 

the complaint “a short and plain statement of the claim showing that the pleader is entitled 

to relief.” RCFC 8(a)(2); Fed. R. Civ. P. 8(a)(2) (2015); see also Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 555 (2007). The United States Supreme Court stated:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not 

need detailed factual allegations, [Conley v. Gibson, 355 U.S. 41, 47 

(1957)]; Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 

247, 251 (7th Cir. 1994), a plaintiff’s obligation to provide the “grounds” of 

his “entitle[ment] to relief” requires more than labels and conclusions, and a 

formulaic recitation of the elements of a cause of action will not do, see

Papasan v. Allain, 478 U.S. 265, 286 (1986) (on a motion to dismiss, courts 

“are not bound to accept as true a legal conclusion couched as a factual 

allegation”). Factual allegations must be enough to raise a right to relief 

above the speculative level, see 5 C. Wright & A. Miller, Federal Practice 

and Procedure § 1216, pp. 235-36 (3d ed. 2004) (hereinafter Wright & 

Miller) (“[T]he pleading must contain something more . . . than . . . a 
34

statement of facts that merely creates a suspicion [of] a legally cognizable 

right of action”), on the assumption that all the allegations in the complaint 

are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N.A., 

534 U.S. 506, 508, n.1 (2002); Neitzke v. Williams, 490 U.S. 319, 327 

(1989) (“Rule 12(b)(6) does not countenance . . . dismissals based on a 

judge’s disbelief of a complaint’s factual allegations”); Scheuer v. Rhodes, 

416 U.S. 232, 236 (1974) (a well-pleaded complaint may proceed even if it 

appears “that a recovery is very remote and unlikely”) . . . . [W]e do not 

require heightened fact pleading of specifics, but only enough facts to state 

a claim to relief that is plausible on its face.

Bell Atl. Corp. v. Twombly, 550 U.S. at 555–56, 570 (footnote and other citations omitted; 

omissions in original); see also Ashcroft v. Iqbal, 556 U.S. at 678 (2009) (citing Bell Atl. 

Corp. v. Twombly, 550 U.S. at 555–57, 570); A&D Auto Sales, Inc. v. United States, 748 

F.3d 1142, 1157 (Fed. Cir. 2014); Bell/Heery v. United States, 739 F.3d 1324, 1330 (Fed. 

Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2014); Kam-Almaz v. United States, 682 

F.3d 1364, 1367 (Fed. Cir. 2012) (“The facts as alleged ‘must be enough to raise a right 

to relief above the speculative level, on the assumption that all the allegations in the 

complaint are true (even if doubtful in fact).’” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 

at 557)); Totes-Isotoner Corp. v. United States, 594 F.3d 1346, 1354–55 (Fed. Cir.), cert.

denied, 131 S. Ct. 92 (2010); Bank of Guam v. United States, 578 F.3d 1318, 1326 (Fed. 

Cir.) (“In order to avoid dismissal for failure to state a claim, the complaint must allege 

facts ‘plausibly suggesting (not merely consistent with)’ a showing of entitlement to relief.” 

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 557)), reh’g and reh’g en banc denied

(Fed. Cir. 2009), cert. denied, 561 U.S. 1006 (2010); Cambridge v. United States, 558 

F.3d 1331, 1335 (Fed. Cir. 2009) (“[A] plaintiff must plead factual allegations that support 

a facially ‘plausible’ claim to relief in order to avoid dismissal for failure to state a claim.” 

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570)); Cary v. United States, 552 F.3d 

1373, 1376 (Fed. Cir.) (“The factual allegations must be enough to raise a right to relief 

above the speculative level. This does not require the plaintiff to set out in detail the facts 

upon which the claim is based, but enough facts to state a claim to relief that is plausible 

on its face.” (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 570)), reh’g denied (Fed. 

Cir.), cert. denied, 557 U.S. 937 (2009); Vargas v. United States, 114 Fed. Cl. 226, 232 

(2014); Fredericksburg Non-Profit Housing Corp. v. United States, 113 Fed. Cl. 244, 253 

(2013), aff’d, 579 F. App’x 1004 (Fed. Cir. 2014); Peninsula Grp. Capital Corp. v. United 

States, 93 Fed. Cl. 720, 726–27 (2010), appeal dismissed, 454 F. App’x 900 (Fed. Cir. 

2011); Legal Aid Soc’y of New York v. United States, 92 Fed. Cl. 285, 292, 298, 298 n.14 

(2010).

As when deciding a case based on a lack of subject matter jurisdiction, when 

deciding a case for failure to state a claim, this court must assume that all undisputed 

facts alleged in the complaint are true and must draw all reasonable inferences in the 

non-movant's favor. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“In addition, when 

ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual 

allegations contained in the complaint.” (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555-

56 (citing Swierkiewicz v. Sorema N. A., 534 U.S. at 508 n.1))); Scheuer v. Rhodes, 416 

U.S. at 236 (“Moreover, it is well established that, in passing on a motion to dismiss, 
35

whether on the ground of lack of jurisdiction over the subject matter or for failure to state 

a cause of action, the allegations of the complaint should be construed favorably to the 

pleader.”), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982), 

recognized by Davis v. Scherer, 468 U.S. 183, 190 (1984); United Pac. Ins. Co. v. United 

States, 464 F.3d 1325, 1327–28 (Fed. Cir. 2006); Samish Indian Nation v. United States, 

419 F.3d at 1364; Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343 (Fed. Cir.), 

reh’g and reh’g en banc denied (Fed. Cir. 2002), cert. denied, 538 U.S. 906 (2003). 

The “bad men” provision of the 1868 Ute Treaty, if applicable, provides a basis for 

jurisdiction in this court, as it is money mandating. The plaintiff in Garreaux v. United 

States, 77 Fed. Cl. at 734, argued that “[t]he ‘bad men’ provision should be construed to 

allow a private right of action by individual Indians against the United States,” noting that 

jurisdiction has been found “under ‘bad men’ provisions of this or similar treaties, 

including: Tsosie v. United States, 11 Cl. Ct. 62 (1986) (Tsosie I); Tsosie v. United States, 

825 F.2d 393 (Fed. Cir. 1987) (Tsosie II); Hebah v. United States, 192 Ct. Cl. 785, 428 

F.2d 1334 (1970) (Hebah I); Hebah v. United States, 197 Ct. Cl. 729, 456 F.2d 696 (1972) 

(Hebah II); Begay v. United States, 219 Ct. Cl. 599, 1979 WL 10173 (1979) (Begay I); 

Begay v. United States, 224 Ct. Cl. 712, 650 F.2d 288 (1980) (Begay II); and Elk v. United 

States, 70 Fed. Cl. 405 (2006).” Garreaux v. United States, 77 Fed. Cl. at 734. The court 

notes, however, that the 1863 Ute Treaty, standing alone, is not money mandating and 

cannot provide an alternate basis for jurisdiction in this court over plaintiffs’ claims.

Specifically, to state a cognizable claim under the “bad men” provision of a treaty,

the plaintiffs must clear several hurdles. “At least two inquiries are required to determine 

whether a claim fits within the ‘bad men’ provision: [(1)] whether the man is a ‘bad man’

within the meaning of the treaty; and [(2)] whether he committed a ‘wrong’ within the 

meaning of the treaty.” Garreaux v. United States, 77 Fed. Cl. at 736 (citing Hebah v. 

United States, 456 F.2d 696, 702, 197 Ct. Cl. 729, cert. denied, 409 U.S. 870 (1972)

(Hebah II)); see also Hernandez v. United States, 93 Fed. Cl. 193, 200 (2010) (citing Ex 

parte Kan-gi-shun-ca, 109 U.S. 556, 567–68 (1883) (“[I]n order to constitute a cause of 

action under this provision, ‘bad men’ must have ‘committed a wrong’ within the sense of 

the treaty.”). A “wrong,” as defined by the 1868 treaty, encompasses affirmative criminal 

acts, but not omissions or acts of negligence. See Garreaux v. United States, 77 Fed. Cl. 

at 736 (discussing the Fort Laramie Treaty of April 29, 1868 between the United States 

and Sioux); Hernandez v. United States, 93 Fed. Cl. at 200 (“In order to bring action under 

the Fort Laramie Treaty a Native American must be a victim of an affirmative criminal act, 

and the person committing the act must be a specific white man or men.”).

The first question for the purposes of the motion to dismiss is whether the individual 

defendants named in the amended complaint by plaintiffs qualify as “bad men.” To 

properly bring a “bad men” claim, the plaintiff first must identify particular individuals as 

“bad men.” See Garreaux v. United States, 77 Fed. Cl. at 737. The most recent decision 

by the Federal Circuit on “bad men” provisions, Richard v. United States, interpreting the

Fort Laramie Treaty of 1868, concluded that the “bad men” provisions “are not limited to 

‘an agent, employee, representative, or otherwise acting in any other capacity for or on 

behalf of the United States.’” Richard v. United States, 677 F.3d 1141, 1153 (Fed. Cir. 
36

2012).

21 Federal agencies, however, are not “bad men” under the language of the treaty.

See id. In Garreaux, an elderly Indian tenant brought suit against the Department of 

Housing and Urban Development (HUD) for the negligent supervision and administration 

of a Mutual Help and Occupancy Agreement, alleging that the HUD’s negligence caused 

her to lose her home Garreaux v. United States, 77 Fed. Cl. at 734. Because it was “not 

a claim against specified white men, but against the federal government or HUD as an 

entity,” the court declined to hear the tenant’s claim. Id. at 737. The court explained that 

the “plaintiff ha[d] not alleged sufficient facts stating who the ‘bad men’ are.” Id. In light of 

this and other deficiencies, the Garreaux court granted the defendant’s motion to dismiss. 

See id.

In specifically naming the allegedly responsible parties, plaintiffs pass the first 

hurdle. The plaintiffs’ complaint names FBI agents Rex Ashdown and David Ryan, BIA 

officials James Beck, Terrance Cuch, and Kevin Myore, and all of the Utah 

state/county/municipal law enforcement officers involved in the events of April 1, 2007,

22

as “bad men.” Plaintiffs further name the owners and employees of the ThomsonBlackburn Vernal Mortuary, the State of Utah, Uintah County, and Vernal City as “bad 

men.” Excepting the mention of the State of Utah, Uintah County, and Vernal City, the 

plaintiffs successfully identify specific individuals as alleged “bad men,” and, therefore,

satisfy the first phase of the analysis.

As to the second hurdle, accepting the facts of the complaint as true for the 

purpose of defendant’s motion to dismiss, plaintiffs allege possible cognizable “wrongs,”

if properly proven, as to certain allegations, but not as to others. Plaintiffs allege a host of 

injuries, encompassing both actions and omissions, as follows:

By their actions and inactions, the FBI and BIA officers committed wrongs 

to Todd Murray, the Murray family and the Ute Tribe (i) by acting in concert 

with state/county/municipal officers, expressly or impliedly, in concocting, or 

 

21 The Federal Circuit in Richard noted that the Fort Laramie Treaty “‘is one of nine made 

in 1868. . . . The treaties were all duly ratified, proclaimed, and published in volume fifteen 

of the Statutes at Large. All say that peace is their object and all contain “bad men” articles 

in similar language.’” Richard v. United States, 677 F.3d at 1142 n.2 (quoting Tsosie v. 

United States, 825 F.2d at 395) (emphasis in original). One of the 1868 treaties is the 

1868 Ute Treaty. As identified in Elk, the Choctaw treaty “contained a host of other 

provisions like those found in the 1867–68 Indian Peace Commission treaties, including 

the Fort Laramie treaty with the Sioux. Indeed, all of the latter treaties [including the Ute 

1868 Treaty] contain ‘bad men’ clauses identical to that in the Sioux Treaty.” Elk v. United 

States, 87 Fed. Cl. at 80-81.

22 As noted in the District Court litigation, the Utah officials include: Vernal City Police 

Officer Vance Norton, Vernal City, Vernal City Police Department, the Utah Highway 

Patrol, the State of Utah, Blackburn Mortuary, Uintah County, State Troopers Dave 

Swenson, Craig Young, Rex Olsen, and Jeff Chugg, Uintah County Sherriff’s Sergeant 

Bevan Watkins and Deputy Troy Slaugh, and Utah Division Wildlife Officer Sean Davis.
37

permitting to be concocted, a false story that Todd Murray shot himself in 

the back of his head, execution style, above and behind his left ear; (ii) by 

failing to take custody of Murray’s body and to secure the body against 

desecration and spoliation of evidence; [sic] (iv) by participating in, 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 OME; (v) the 

failure to insure that a proper autopsy was performed on Murray’s body; (vi)

by failing to conduct any kind of investigation into Todd Murray’s murder; 

and (vii) by failing to protect the territorial integrity of the Tribe’s reservation 

boundary and the Tribe’s sovereign interests in the crime scene where 

Murray was shot.

Defendant argues that “[t]he Bad men clause is limited to affirmative criminal acts.” 

In Hebah II, the Court of Claims construed “wrong” according to its common or plain 

meaning. See Hebah II, 456 F.2d at 704, 197 Ct. Cl. 729. In Hebah II, the Court of Claims 

addressed the death by shooting of plaintiff's husband by tribal policeman Norman Moss. 

Id. at 699.23 With the help of a dictionary, the court defined a wrong as “[a]ction or conduct 

which inflicts harm without due provocation or just cause; serious injury wantonly inflicted 

or undeservedly sustained; unjust or unmerited treatment.” Id. Plaintiffs in the above 

captioned case argue that this definition is particularly broad and encompasses omissions 

of the sort alleged in the amended complaint. The court notes, however, that defendant 

in Hebah II argued that “the plain language of the Treaty of 1868 requires that no 

reimbursement be made to one who sustains a loss while violating the laws of the United 

States, and that deceased was violating the laws of the United States when he suffered 

his ‘loss.’” Id. at 705. Defendant in Hebah II also argued that the shooting officer 

“committed no wrong upon deceased because the arrest attempt was lawfully made and, 

under the circumstances, the shooting of deceased was justified,” and the court agreed 

that it “was regrettable but reasonable for Moss to shoot to kill decedent. Having 

determined that the killing of deceased was reasonable under the circumstances herein, 

it follows that the killing was with reason or just cause. Therefore, Moss did not commit a 

“wrong” within the meaning of the Treaty of 1868 [between the United States and the 

Eastern Band of Shoshonees and the Bannack Tribe of Indians].” Id. at 705, 710.

In Garreaux v. United States, 77 Fed. Cl. at 736, however, the United States Court 

of Federal Claims narrowed its understanding of the term, “wrong.” The court observed a 

long line of precedent in which bad men claims were “rooted” in behavior that was

 

23 The Court of Claims further explained, the “Decedent returned to Apartment 18 at Tigee 

Village about midnight on March 13, 1968. He was drunk, angry and carrying a one pint 

bottle and a one-half pint bottle of whisky,” and “[s]hortly after going to bed, Mr. Hebah 

started to choke Mrs. Hebah,” who eventually fled to a neighbor’s house who called Wind 

River Reservation police station. Hebbah II, 456 F.2d at 699. “Mrs. Hebah explained to 

Officer Moss that her husband was drunk, armed with a rifle, had plenty of ammunition, 

that he had chased her brother and son out of the apartment, that he had threatened her 

with bodily harm, and that she and her daughter had fled from the apartment.” Id. at 700.
38

“criminal in nature.” Id. The Garreaux court emphasized its unwillingness to “stretch the 

bounds of the ‘bad men’ provision to encompass not a criminal claim, but a claim for 

negligence,” and noted that the “primary intent” of the provision was to “guard against 

affirmative criminal acts.” Id. Furthermore, the court in Garreaux observed that the 

punishment for inflicting a “wrong” is arrest and prosecution. See id. at 734. 

In Hernandez v. United States, 93 Fed. Cl. at 199, this court again adopted a 

narrow interpretation of the term “wrong,” resolving the ambiguity in light of the treaty’s

overall purpose. In Hernandez, a tribal prisoner at the Tecumseh State Correctional 

Facility in Nebraska brought suit, claiming, inter alia, that the United States violated the

guarantees of the bad men provision by “fail[ing] to arrest suspected ‘wrongdoers’” Id. at 

198. The Hernandez court observed that the provision, typically, is only applied to 

affirmative criminal acts and not omissions. Ultimately, the court rested its determination 

on the “primary intent” of the “bad men” clause, which “was to keep the peace between 

Native Americans and non-Native Americans.” Id. “[A]s such, the Fort Laramie Treaty has 

been applied to affirmative criminal acts and not mere acts of negligence.” Id. Because 

arresting and criminally prosecuting individuals for civil wrongs does not logically follow, 

“wrongs,” as defined by the 1868 Treaty, are only allegations of criminal wrongs. A more 

expansive interpretation would render the remedy provided for inappropriate. Thus, in 

order for the provision to maintain its coherence, the court concludes that “wrongs” is 

limited to criminal wrongs. In sum, the 1868 Treaty language and the relevant case law 

supports a narrow understanding of what constitutes a “wrong,” one that encompasses 

only affirmative criminal acts.

Applying an affirmative acts test, most of the plaintiffs’ alleged wrongs fail to state 

a cognizable claim under the “bad men” provision of a treaty. While, as plaintiffs note, it 

is doubtless true that “a person can be wronged by the inaction of another,” inaction is 

not a recognized harm under the 1868 Treaty. Since allegations (ii), (v), (vi), and (vii)

allege only omissions, they do not qualify as “wrongs” for purposes of a “bad men” claim 

under the provision of the 1868 Treaty. Accordingly, allegations (ii), (v), (vi), and (vii),

therefore, are dismissed for failure to state a claim. 

Nevertheless, accepting plaintiffs’ allegations as true, allegations (i) and (iv) qualify 

as potential, cognizable “wrongs” under the 1868 Treaty. In fact, in Hebah II the court 

explicitly recognized that “the killing of an Indian without just cause or reason would be a 

wrong within the meaning of the Treaty of 1868.” Hebah II, 456 F.2d at 704, 197 Ct. Cl. 

729. Therefore, because plaintiffs allege that the FBI and BIA, “by acting in concert with 

state/county/municipal officers, expressly or impliedly, in concocting, or permitting to be 

concocted, a false story that Todd Murray shot himself in the back of his head, execution 

style, above and behind his left ear,” and “by participating in, 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 OME,” the court denies the defendant’s motion to dismiss as to allegations (i) and 

(iv) of the amended complaint. The court also notes, however, that defendant is correct 

that the “bad men” provision “does not include, as plaintiffs, suggest the universe of offreservation activities that would have occurred ‘but for’ the initial conduct on the 
39

reservation.” Therefore, to the extent allegation (iv), which includes “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 OME,” includes 

the desecration of Mr. Murray’s body and spoliation of critical evidence that did not take 

place on the reservation, but at the medical center and mortuary, those allegations are

not covered by the “bad men” provision of the 1868 Treaty. For example, as explained in 

the District Court’s spoliation order, ”[a]fter the completion of the federal criminal matter 

involving the [Mr. Murray’s] firearm, the judge hearing the case signed, on November 14, 

2008, an order forfeiting the firearm to the government. Shortly thereafter, the firearm was 

destroyed. Agent Ryan did not notify any of the Defendants that the firearm would be 

destroyed.” Jones et al. v. Norton et al., 2014 WL 909569, at *4 (footnote omitted).

Therefore, the destruction of Mr. Murray’s weapon did not take place not on Tribal lands.

Although the court recognizes allegations (i) and (iv) qualify as potential cognizable 

wrongs under the 1868 Treaty, implicit in Hebah II, is the conclusion that, as defendant 

argues, “actions permissibly taken by law enforcement officers are not ‘wrong’ and cannot 

support a finding of liability under the ‘bad men’ provision.”24 See Hebah II, 456 F.2d at 

708, 710, 197 Ct. Cl. 729. As noted above, the record does not reflect any criminal 

prosecutions of Special Agent Rex Ashdown and David Ryan of the FBI or the various 

officials present from the BIA, suggesting that the decision not to prosecute indicates the 

actions taken by the federal officers were considered permissible by the appropriate 

authorities. The court, however, cannot infer from the absence of prosecutions that all the 

FBI and BIA actions were taken permissibly. Therefore, the court addresses allegations 

(i) and (iv) of the amended complaint.

Issue Preclusion

Accepting the plaintiffs’ factual allegations as true and that parts of allegations (i) 

and (iv) in plaintiffs’ complaint qualify as potentially cognizable “wrongs,” defendant, 

nevertheless, argues that “[t]he doctrine of issue preclusion prevents the re-litigation of 

Plaintiffs’ only cognizable claim for relief under the Bad Men clause.” Defendant argues:

The district court of Utah entered an order in Plaintiffs’ lawsuit against the 

state law enforcement officers and mortuary that rejects with finality the 

keystone of Plaintiffs’ argument that they constructed over the course of five 

years of litigation: that the state defendants allegedly trespassed on tribal 

lands, executed Mr. Murray, and subsequently engaged in a conspiracy to 

thwart any investigation into his murder.

Therefore, defendant contends that “[p]laintiffs’ lawsuit in the Court of Federal Claims 

does not provide them with an additional opportunity to litigate the ultimate facts of this 

 

24 Defendant further argues that “[t]he text and history of the treaty also indicates that the 

United States and the tribe were primarily concerned with criminal acts that injured either 

the individual tribal members or their property, such as robbery, assault, and murder,” 

and, therefore, not claims of conspiracy to destroy evidence. 
40

central thesis that the Utah district court concluded was without merit.” (internal citation 

omitted). “This is no less true,” defendant argues, “even though Plaintiffs’ appeal to the 

Tenth Circuit remains pending.” Defendant argues there is no question that “the issues 

currently at stake are identical, were actually litigated in the Utah district court, and that 

Plaintiffs had a full and fair opportunity to litigate those issues. That Plaintiffs’ bring 

different claims is immaterial. The fundamental point of contention—Mr. Murray’s cause 

of death—has been resolved.” In response, plaintiffs argue that “[i]ssue 

preclusion/collateral estoppel does not apply to Plaintiffs’ action in the Court of Claims 

because Plaintiffs have challenged the district court’s purely legal rulings on appeal. 

Accordingly, not only does [sic] the Utah district court’s rulings lack finality, but, more 

importantly, the Plaintiffs have not been afforded a full and fair opportunity in which to 

conclusively litigate their claims in Norton.”

The rule of issue preclusion precludes a party from re-litigating an issue that was 

“litigated and resolved in a valid court determination essential to the prior judgment.” New 

Hampshire v. Maine, 532 U.S. 742, 748-49 (2001). In addition, “[u]nder collateral 

estoppel, once a court has decided an issue of fact or law necessary to its judgment, that 

decision may preclude relitigation of the issue in a suit on a different cause of action 

involving a party to the first case.” Allen v. McCurry, 449 U.S. 90, 94 (1980); see also

United States v. Mendoza, 464 U.S. 154, 158 (1984) (“Under the judicially-developed 

doctrine of collateral estoppel, once a court has decided an issue of fact or law necessary 

to its judgment, that decision is conclusive in a subsequent suit based on a different cause 

of action involving a party to the prior litigation.”). “When an issue of ultimate fact has 

once been determined by a valid and final judgment, that issue cannot again be litigated 

between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443 

(1970). The United States Supreme Court has explained that issue preclusion guards 

against “the expense and vexation attending multiple lawsuits, conserves judicial 

resources, and fosters reliance on judicial action by minimizing the possibility of 

inconsistent decisions.” Montana v. United States, 440 U.S. 147, 153–54 (1979) (footnote 

omitted). The Supreme Court has indicated clearly that:

Issue preclusion bars successive litigation of “an issue of fact or law” that 

“is actually litigated and determined by a valid and final judgment, and . . . 

is essential to the judgment.” Restatement (Second) of Judgments § 27 

(1980) (hereinafter Restatement). If a judgment does not depend on a given 

determination, relitigation of that determination is not precluded. Id., § 27, 

Comment h.

Bobby v. Bies, 556 U.S. 825, 834 (2009).

25

The United States Court of Appeals for the Federal Circuit has directed that: 

 

25 The Supreme Court has explained that “[i]ssue preclusion refers to the effect of a 

judgment in foreclosing relitigation of a matter that has been litigated and decided. This 

effect also is referred to as direct or collateral estoppel.” Migra v. Warren City Sch. Dist. 

Bd. of Educ., 465 U.S. 75, 77 n.1 (1984).
41

Collateral estoppel is generally appropriate if “(1) an issue is identical to one 

decided in the first action; (2) the issue was actually litigated in the first 

action; (3) the resolution of the issue was essential to a final judgment in the 

first action; and (4) the party defending against issue preclusion had a full 

and fair opportunity to litigate the issue in the first action.” 

Biafora v. United States, 773 F.3d 1326, 1333 (Fed. Cir. 2014) (quoting Shell Petroleum, 

Inc. v. United States, 319 F.3d 1334, 1338 (Fed. Cir. 2003)). The Federal Circuit, 

however, has indicated that “[o]n procedural issues not unique to this circuit's exclusive 

jurisdiction, we apply the law of the regional circuit. . . .” Dana v. E.S. Originals, Inc., 342 

F.3d 1320, 1323 (Fed. Cir. 2003); see also Aspex Eyewear, Inc. v. Zenni Optical Inc., 713 

F.3d 1377, 1380 (Fed. Cir. 2013). Because the District Court’s decision is from the District 

of Utah, the court applies the law of the Tenth Circuit.

The Tenth Circuit has explained that “[c]ollateral estoppel, or issue preclusion, is 

designed to prevent needless relitigation and bring about some finality to litigation.” Moss 

v. Kopp, 559 F.3d 1155, 1161 (10th Cir. 2009) (footnote omitted). The Tenth Circuit has 

determined along the same lines that issue preclusion applies when:

(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 invoked was a party, or in 

privity with a party, to the prior adjudication, and (4) the party against whom 

the doctrine is raised had a full and fair opportunity to litigate the issue in 

the prior action.

Park Lake Res. Ltd. Liab. Co. v. United States Dep't of Agric., 378 F.3d 1132, 1136 (10th 

Cir. 2004); see also Stan Lee Media, Inc. v. Walt Disney Co., 774 F.3d 1292, 1297 (10th 

Cir. 2014); Bushco v. Shurtleff, 729 F.3d 1294, 1301 (10th Cir. 2013); Murdock v. Ute 

Indian Tribe of Uintah and Ouray Reservation, 975 F.2d 683, 687 (10th Cir. 1992) (“In the 

Tenth Circuit, collateral estoppel requires that four elements be 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 invoked was a party or in privity with a party to the prior adjudication, and (4) 

the party against whom the doctrine is raised had a full and fair opportunity to litigate the 

issue in the prior action.”) (internal quotations omitted), cert. denied, 507 U.S. 1042 

(1993). The Tenth Circuit also has held that “[i]ssue preclusion “bars a party from 

relitigating an issue once it has suffered an adverse determination on the issue, even if 

the issue arises when the party is pursuing or defending against a different claim.” Bushco 

v. Shurtleff, 729 F.3d at 1301; see also Moss v. Kopp, 559 F.3d at 1161; Burrell v. Armijo, 

456 F.3d 1159, 1172 (10th Cir. 2006), cert. denied, 549 U.S. 1167 (2007). Quoting the 

United States Supreme Court, the Tenth Circuit has indicated, “‘once an issue is actually 

and necessarily determined by a court of competent jurisdiction, that determination is 

conclusive in subsequent suits based on a different cause of action involving a party to 
42

the prior litigation.’” Estate of True v. Comm’r, 290 F.3d 1210, 1222 (10th Cir. 2004) 

(quoting Montana v. United States, 440 U.S. at 153).

Both parties agree that the decisions from the Tenth Circuit govern the collateral 

estoppel inquiry. Both parties further agree on the Tenth Circuit’s four part standard for

determining the applicability of collateral estoppel: (1) an issue is identical to one decided 

in the first action; (2) the prior action has been finally adjudicated on the merits; (3) the 

party against whom the doctrine is invoked was a party or in privity with a party to the 

prior adjudication, the resolution of the issue was essential to a final judgment in the first 

action; and (4) the party defending against issue preclusion had a full and fair opportunity 

to litigate the issue in the first action. See, e.g., Park Lake Res. Ltd. Liab. Co. v. United 

States Dep't of Agric., 378 F.3d at 1136. Finally, both parties agree that collateral estoppel 

is available as a defense by the United States, even though the United States was not a 

party to the original suit, assuming the party who will be bound by the preclusion had a 

full and fair opportunity to litigate the precluded issue.26

Defendant claims that the decision of the United States District Court for the District 

of Utah in Jones et al. v. Norton et al., 3 F.Supp.3d 1170 is a valid and final judgment as 

to Mr. Murray’s cause of death, one that precludes re-litigation.

27 Plaintiffs respond that 

“Collateral estoppel can only apply if all four requirements are met,” and according to 

plaintiffs, “[t]hat is not the case here. Three out of the four collateral estoppel factors are 

not satisfied. Plaintiffs acknowledge, however, that the third requirement for collateral 

estoppel is met, because they were parties to the district court adjudication in Norton.” 

Regarding the first element of collateral estoppel, whether an issue is identical to 

one decided in the first action, plaintiffs argue that there is “no identity of issues” between 

 

26 Because the United States was not a party to the Norton suit in the United States District 

Court for the District of Utah, but the plaintiffs were, the use of collateral estoppel would 

be defensive, non-mutual issue preclusion. See Parklane Hoisery Co. v. Shore, 439 U.S. 

322, 326 n.4 (1979). Relatedly, the parties agree that 28 U.S.C § 1500 (2012) does not 

apply to the above captioned case, because the District Court case was not against the 

United States or an agent of the United States, even though this case was filed after the 

District Court was filed. See United States v. Tohono O'Odham Nation, 131 S. Ct. 1723, 

1727-28 (2011). Further, the parties also agree that doctrine of law of the case is 

inapplicable here as this case is distinct from the Norton case and was filed in a different 

court.

27 Defendant also argues that “Plaintiffs likewise miss the mark with their argument that 

the supposed ‘mass spoliation of critical evidence’ deprived them of a full and fair 

opportunity to litigate. As an initial matter, their argument goes to the underlying 

investigation. And the matter of spoliation was intensely litigated over the course of five 

years in the district court of Utah, with extensive discovery, briefing, and an evidentiary 

hearing.” Defendant also argues, “[t]hat Plaintiffs disagree with Judge Campbell’s 

conclusion is clear. But this lawsuit provides them with no occasion to rely on the same 

evidence or introduce new evidence in an attempt to reach a different result.”
43

the present suit and the one litigated in the United States District Court for the District of 

Utah. Plaintiffs also claim that the issues before the District Court related to allegations of 

illegal seizure, excessive force, and conspiracy, whereas the issue before this court 

involve the breach of federal treaties, the “wrongs” of various law enforcement officials 

and trust obligations. Defendant argues that the “issues currently at stake are identical,” 

and the “identity of issues in both cases is similarly made apparent in the Utah district 

court’s rejection of Plaintiffs’ conspiracy theory, that is, that the individuals involved in that 

day’s events engaged in a conspiracy to cover up Mr. Murray’s ‘execution.’” Defendant

states “[i]ndeed, Plaintiffs’ suggestion that this Court ‘review the same evidence and come 

to a different conclusion,’ highlights the very necessity of issue preclusion: to prevent 

needless relitigation and bring about some finality to litigation.” (internal citation omitted). 

Defendant also points to plaintiffs’ response to the motion to dismiss to support their point:

The difference between the original Complaint and the proposed First 

Amended Complaint is that the Amended Complaint makes explicit what is 

only implicit in the original Complaint. The Utah state, county, and municipal 

officers committed a wrong by pursuing Murray at gunpoint without 

jurisdiction and without probable cause, by shooting Murray execution-style, 

and by then conspiring to cover-up the execution-style shooting and to 

obstruct justice.

(emphasis in original).

On March 7, 2014 the District Court of Utah granted the defendant’s motion for 

summary judgment, and denied plaintiffs’ cross motion. See generally Jones et al. v. 

Norton et al., 3 F. Supp. 3d 1170. On April 1, 2014, plaintiffs appealed the District Court’s 

decision to the United State Court of Appeals for the Tenth Circuit. See Jones et al. v. 

Norton et al., No. 14-4040 (10th Cir. appeal docketed Apr. 1, 2014).28 The District Court 

in Norton concluded that “[t]he evidence clearly shows that Mr. Murray shot himself.” Id.

at 1190. This conclusion comes up in several contexts in the Distrct Court case, including

whether Mr. Murray was “seized” for Fourth Amendment purposes by the defendants.

Plaintiffs in the District Court action argued Mr. Murray was seized, and further claimed

that Detective Norton shot Mr. Murray execution style. The District Court, however, 

determined:

the Plaintiffs’ evidence is sparse, circumstantial, subject to more than one 

interpretation, and, at times, very speculative. Moreover, evidence to the 

contrary is strong and is consistent with a self-inflicted gunshot wound. 

Deputy Byron testified that he did not see Detective Norton next to Mr. 

Murray when Mr. Murray dropped to the ground. Detective Norton testified 

that he was up on a hill when he saw Mr. Murray shoot himself.

 

28 As noted above, on November 18, 2014, plaintiffs filed another appeal to the United 

State Court of Appeals for the Tenth Circuit, appealing the amended judgment entered 

by the District Court. See Jones et al. v. Norton et al., No. 14-4144 (filed 10th Cir. Nov. 

18, 2014).
44

The Deputy Chief Medical Examiner Dr. Edward Leis, who conducted the 

physical examination of Mr. Murray's body, concluded in his report that the 

wound was caused by a gun shot “in close proximity to the skin surface 

when it was discharged.” He based his conclusion on “abundant soot at the 

inferior margin of the defect [the wound] and some marginal abrasion is also 

noted at the inferior margin.” In his testimony, he elaborated on his 

conclusion that the gun was in contact with Mr. Murray’s head when it was 

fired: 

At the perimeter, there are several triangular shaped tears of 

the wound. That's a result of the gun being pressed up against 

the skin surface when it's discharged and gases causing the 

scalp to be separated from the underlying skull. When the 

scalp lifts up, it stretches and it tears and gets its characteristic 

stellae appearance.

The smaller wound on the right side of Mr. Murray’s head was, in Dr. Leis’

opinion, the exit wound. After Dr. Leis certified that Mr. Murray’s death was 

a suicide resulting from a gunshot wound to the head, he added an 

additional cause of death (based on results from testing of Mr. Murray’s 

bodily fluids). Because the tests showed the presence of drugs and alcohol 

in Mr. Murray's system, Dr. Leis issued an amended death certificate which 

added “Acute alcohol intoxication; recent methamphetamine use” as 

contributing to Mr. Murray’s death.

Detective Norton was more than 100 yards away when Mr. Murray was 

shot. Dr. Leis testified that there was no evidence that the wound could have 

been caused by a shot coming from that far away. Plaintiffs maintain that 

Detective Norton was not 100 yards away, but was right next to Mr. Murray 

and so he had the capability of inflicting the contact wound. But the actual 

evidence in the record (that is, testimony by Detective Norton and Deputy 

Byron) shows that Detective Norton was not right next to Mr. Murray when 

the fatal shot was fired.

Id. at 1190-91 (footnotes omitted). Therefore, the District Court concluded that “[a]ll of the 

direct evidence presented by the Defendants, including Dr. Leis’ testimony and report, 

supports the conclusion that Mr. Murray shot himself. Plaintiffs offer no more than 

speculation and no reasonable jury could find that Detective Norton shot Mr. Murray in 

the head at point-blank range.” The District Court also determined that Mr. Murray’s death 

was a suicide. See id. at 1191. The District Court stated, “[b]ased on the facts as detailed 

and explained in its spoliation order, the court concludes that no reasonable jury could 

conclude that Defendants conspired to ‘effectively eliminate[ ] all probative evidence’ and 

‘clean the closet of evidence that would have allowed Plaintiffs to build their case.’” Id. at 

1204 (quoting various plaintiffs’ briefs; omissions in original; footnote omitted).
45

Addressing plaintiffs’ conspiracy theory, the District Court indicated, “[s]ummed up, 

Plaintiffs’ argument is that Defendants engaged in ‘[a] conspiracy to cover up a killing.’

Plaintiffs’ theory is that Detective Norton shot and killed Mr. Murray, and that the rest of 

the Defendants conspired to cover-up that killing and protect Detective Norton.” Id. at 

1197 (footnotes omitted). Explaining the conspiracy, the court noted that, “[t]he focus of 

the Plaintiffs’ conspiracy theory is the failure to give aid and their spoliation argument 

about the destruction of evidence.” Id. at 1202. Turning to plaintiffs’ claims of the 

defendants’ failure to give medical aid to Mr. Murray, and the defendants’ “interference 

with Mr. Murray's due process right of access to courts via the failure to preserve critical 

evidence and the affirmative destruction of critical evidence,” the District Court 

determined “[n]one of that testimony could allow a reasonable jury to conclude that 

Individual Defendants were deliberately indifferent to Mr. Murray’s situation, or that they 

knew that there was a substantial risk of significant harm to Mr. Murray if they did not 

provide first aid. If anything, the evidence shows that at least three of the Individual 

Defendants (Young, Davis, and Slaugh) were concerned that attempts to provide any kind 

of aid to Mr. Murray would do more harm than good.” Id. at 1210. The court determined, 

“[i]n sum, there is no evidence before the court to support a finding that the inaction by 

each individual defendant was part of a conspiracy to let Mr. Murray die.” Id. at 1203.

The thoroughness of the District Court’s findings and decision, after years of 

discovery and multiple briefings, demonstrates a comprehensive review of the 

circumstances of the death of Mr. Murray and the actions of the officials in the aftermath 

of his death. Nonetheless plaintiffs claim that:

The district court’s statements and rulings concerning the manner of 

Murray’s death, the desecration of Murray’s body, the sufficiency of 

evidence showing a conspiracy, the extra-jurisdictional pursuit of Murray, 

and the handcuffing of Murray are not preclusive in this action because the 

issues to be litigated here—whether the actions and omissions of the Utah 

and federal law enforcement officers violated the 1863 and 1868 Ute 

Treaties—are not identical to the issues adjudicated by the district court in 

that court’s dispositive rulings.

The court agrees with defendant that the issues identified in the amended 

complaint filed in this court, namely the allegations that officials committed “a wrong by 

pursuing Murray at gunpoint without jurisdiction and without probable cause, by shooting 

Murray execution-style, and by then conspiring to cover-up the execution-style shooting 

and to obstruct justice,” presents identical issues with those decided in the District Court 

litigation.

Regarding the second element of the collateral estoppel test, whether the prior 

action has been finally adjudicated on the merits, defendant contends that the District 

Court’s “order on summary judgment is final for purposes of issue preclusion, even though 

Plaintiffs’ appeal remains pending.” In response, plaintiffs declare that the decisions by 

the District Court “have not been conclusively adjudicated on the merits because those 

rulings are being challenged on appeal and are currently pending de novo review by the 
46

Tenth Circuit.” (emphasis in original). The Tenth Circuit has made clear that “[t]he 

appealability of a judgment, however, does not hinder its preclusive effect.” MACTEC, 

Inc. v. Gorelick, 427 F.3d 821, 832 (10th Cir. 2005) (citing 15A Charles Alan Wright et al., 

Federal Practice and Procedure § 4433, at 78–85 (2d ed. 1992)), cert. denied, 547 U.S. 

1040 (2006). Wright & Miller emphasize that, as a general rule, a final judgment from a 

lower court carries res judicata effect even though it is still subject to review by an 

appellate court. See 15A Charles Alan Wright et al., Federal Practice and Procedure § 

4433, at 78–85; see also Leo v. Garmin Int’l, Inc., 464 F. App’x 737, 740 (10th Cir.) 

(unpublished), cert. denied, 133 S. Ct. 484 (2012). Moreover, as noted by the United 

States Court of Appeals for the Federal Circuit, prior adjudications are considered final 

when they are “sufficiently firm to be accorded conclusive effect.” Dana v. E.S. Originals, 

Inc., 342 F.3d at 1323 (quoting Restatement (Second) of Judgments § 13 (1982))

(applying 11th Circuit law).

29 The District Court’s decision in Jones et al. v. Norton et al., 

3 F. Supp. 3d 1170, was issued after years of discovery and more than four and a half 

years after the case was removed to Federal Court. The District Court judge issued a 

spoliation order and a 71 page decision granting the defendant’s motion for summary 

judgment, which fully reviewed the factual circumstances and legal issues raised in the 

case.

Plaintiffs also allege that “to be considered adjudicated on the merits, the previous 

issues adjudicated must have been necessary to the judgment.” As determined when 

considering the first element of collateral estoppel, all of the issues defendant raises as 

bearing on estoppel were necessary to the District Court’s decision to grant summary 

judgment to the defendant. The District Court carefully considered the allegations of 

murder, as well as the spoliation claims in determining that there were no constitutional 

violations by the officials. Each were a necessary element of the summary judgment 

decision. Therefore, for purposes of collateral estoppel, the careful and thorough

summary judgment decision issued by the District of Utah should be considered a final 

judgment on the issue adjudicated on its merits by this court.

30

Regarding the third element of the collateral estoppel test, whether the party 

against whom the doctrine is invoked was a party or was in privity with a party to the prior 

adjudication, “Plaintiffs acknowledge that the third requirement for collateral estoppel is 

 

29 The Federal Circuit has interpreted this to mean decisions that are “adequately 

deliberated” in which the “parties were fully heard in the prior proceeding.” Dana v. E.S. 

Originals, Inc., 342 F.3d at 1323.

30 Although not clearly established by the Tenth Circuit, other federal appellate courts 

have made clear that issue preclusion applies to summary judgment decisions, and the 

summary judgment decision by the District Court in Norton thorough and detailed on the 

relevant issues. See Exhibitors Poster Exch., Inc. v. Nat’l Screen Serv. Corp., 421 F.2d 

1313, 1319 (5th Cir. 1970); see also Shoup v. Bell & Howell Co., 872 F.2d 1178, 1181 

(4th Cir. 1989); Hubicki v. ACF Indus., Inc., 484 F.2d 519, 524 (3rd Cir. 1973); 18A 

Charles Alan Wright et al., Federal Practice and Procedure § 4444.
47

met, because they were parties to the district court adjudication in Norton.” Therefore, the 

third element is not in dispute.31

Finally, for the fourth element of the collateral estoppel test, whether the party 

defending against issue preclusion had a full and fair opportunity to litigate the issue in 

the first action, defendant contends that “[t]he district court provided Plaintiffs with a full 

and fair opportunity to litigate the matters involved in Norton.” Plaintiffs respond that they 

have not been afforded a full and fair opportunity to litigate the issue in the first action as 

“Plaintiffs have not yet been heard on appeal.” Plaintiffs also argue that “[c]ritical in this 

case is that the Plaintiffs, through no fault of their own, were deprived of crucial evidence 

in Norton due to the mass spoliation of critical evidence that occurred as a result of the 

State and federal officers’ intentional tampering with, destruction and/or loss of, and 

failure to collect and preserve evidence.” 

For a full and fair opportunity, the Tenth Circuit has indicated “as to the ‘“inquiry 

into whether a party had a full and fair opportunity to litigate an issue . . . [we] focus on 

whether there were significant procedural limitations in the prior proceeding, whether the 

party had the incentive to litigate fully the issue, or whether effective litigation was limited 

by the nature or relationship of the parties.”’” Burrell v. Armijo, 456 F.3d at 1172 (quoting 

Murdock v. Ute Indian Tribe of Uintah & Ouray Reservation, 975 F.2d 683, 689 (10th Cir. 

1992) (internal citations omitted)). As noted above, plaintiffs originally filed their case in 

Norton with the Uintah County Court on July 17, 2009, and then the case was removed 

to the United States District Court for the District of Utah on August 20, 2009. The District 

Court, more than four and a half years after the removal to federal court, after issuing a 

spoliation order, issued a 71 page decision, granting the defendant’s motion for summary 

 

31 The Court notes that the Ute Tribe was not a party to the District Court action. No one, 

however, has suggested to the court that the plaintiffs are in privity with the Tribe. 

Moreover, the court notes that the Ute Tribe, independent of the other plaintiffs, cannot 

sustain a claim under the “bad men” provision of the 1868 Treaty. Article 6 of the Treaty 

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, 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.

Id. Art. 6 (emphasis added). The Tribe is not an “injured person,” Mr. Murray was the 

injured person, and his parents brought suit on his behalf. See Hernandez v. United 

States, 93 Fed. Cl. at 200 (“In order to bring action under the Fort Laramie Treaty a Native 

American must be a victim of an affirmative criminal act, and the person committing the 

act must be a specific white man or men.”) (emphasis added). The Tribe alone cannot 

prosecute a claim under the “bad men” provision of the 1868 Treaty.
48

judgment. As noted by defendant, in the District Court litigation, “Plaintiffs’ expert report 

summarize[ed] the nearly 1,000 pages of documents then available, including an 

extensive list of depositions.” Although plaintiffs argue they “have not yet been heard on 

appeal,” this court determines that plaintiffs have not demonstrated a proper reason to

prevent preclusion following the District Court’s final judgment. Nor, in the court’s view, 

does the existence of an appeal speak to the plaintiffs’ ability to have had a full and fair 

opportunity to litigate the facts of what occurred before the federal District Court, which it 

appears plaintiffs have been afforded.

Regarding the argument that plaintiffs “were deprived of crucial evidence in Norton

due to the mass spoliation of critical evidence that occurred,” defendant argues that “[a]s 

an initial matter, their argument goes to the underlying investigation, not the district court 

proceeding. The matter of spoliation was intensely litigated over the course of five years 

in the district court of Utah, with extensive discovery, briefing, and an evidentiary hearing.”

The District Court determined, “[b]ased on the facts as detailed and explained in its 

spoliation order, the court concludes that no reasonable jury could conclude that 

Defendants conspired to ‘effectively eliminate[ ] all probative evidence’ and ‘clean the 

closet of evidence that would have allowed Plaintiffs to build their case.’” Jones et al. v. 

Norton et al., 3 F. Supp. 3d at 1204 (footnote omitted; omissions in original). The District 

Court concluded that there was no failure on the part of the defendants to preserve

evidence. Plaintiffs appear to be arguing that the District Court’s decision was wrong and 

that demonstrates plaintiffs did not have a full and fair opportunity to litigate. As discussed

above, the District Court’s decision was thorough and comprehensive. Plaintiffs had a fair 

and full opportunity to litigate the spoliation issues.

32

As all four elements of the collateral estoppel test have been met, plaintiffs are 

estopped from litigating the factual circumstances of Todd Murray’s death, and the 

allegations of the destruction of evidence. Therefore, for allegation (i), that the FBI or the

BIA officers committed wrongs to Todd Murray, the Murray family and the Ute Tribe “by 

acting in concert with state/county/municipal officers, expressly or impliedly, in 

concocting, or permitting to be concocted, a false story that Todd Murray shot himself in 

the back of his head, execution style, above and behind his left ear,” plaintiffs have failed 

to state a claim. Likewise, for allegation (iv), that the FBI or the BIA officers committed 

wrongs to Todd Murray, the Murray family and the Ute Tribe “by participating in, tacitly 

allowing, or failing to prevent, the desecration of Murray’s body and the spoliation of 

 

32 Although the District Court decision addressed only the state and local officers named 

in the suit, in the District Court’s spoliation order, the District 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 performed. But 

Agent Ashdown is not a named Defendant.” Jones et al. v. Norton, et al., 2014 WL 

909569, at *7. As determined above, however, only affirmative 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.
49

critical evidence both at the shooting scene and afterwards at the Medical Center, 

Blackburn Mortuary, and at the Utah OME,” plaintiffs have failed to state a claim. The 

remaining portions of plaintiffs’ allegations (i) and (iv) in the amended complaint for 

violation of the 1863 and 1868 Treaties and other federal laws are dismissed for failure 

to state a claim.33

Breach of Trust

Regarding Count II of plaintiffs’ amended complaint, “BREACH OF TRUST IN 

VIOLATION OF THE UTE TREATIES AND OTHER FEDERAL LAW defendant argues 

that this court lacks subject matter jurisdiction. (capitalization in original).

The plaintiffs’ amended complaint states, in part:

By failing to investigate Todd Murray’s death and by taking no action to 

promote justice in Indian Country, Special Agent Rex Ashdown and David 

Ryan and BIA Officers James Beck, Terrance Cuch and Kevin Myore 

breached their duties to the Ute Tribe, to Todd Murray, and to Murray’s 

 

33 As noted above, plaintiffs also included a separate, additional list of allegations in the 

amended complaint against the defendant claiming:

In April 2007, Todd Murray, Todd Murray’s family, and the Ute Indian Tribe 

suffered “injuries” at the hands of “bad men” as those terms are used in the 

Ute Treaties of 1863 and 1868. These injuries include (i) the extra-territorial

police pursuit, assault upon and murder of Todd Murray, (ii) the conspiracy 

to cover up Todd Murray’s murder, (iii) the failure of federal officers to take 

custody of Murray’s body and to secure the body against desecration and 

spoliation of evidence; (iv) 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 OME; (v) the 

failure to insure that a proper autopsy was performed on Murray’s body; 

[sic] (vii) failure of federal officers to conduct any kind of investigation into 

Todd Murray’s murder; and (vi) the failure of federal officers to protect the 

territorial integrity of the Tribe’s reservation boundary and the Tribe’s 

sovereign interests in the crime scene where Murray was shot. 

The court notes that of these additional claims, numbers (ii), (iii), (iv), (v), (vi), and (viii),

overlap with the allegations in the amended complaint addressed above. For claim (i), 

from the separate list of claims, “the extra-territorial police pursuit, assault upon and 

murder of Todd Murray,” the extra-territorial pursuit also is not covered by the “bad men” 

provision of the 1868 Treaty. For the remaining elements of claim (i) from the separate, 

additional list of claims, “assault upon and murder of Todd Murray,” the United States 

District Court for the District of Utah determined that the Mr. Murray’s injury is consistent 

with a self-inflicted gunshot wound, and, in this court, plaintiffs are estopped from claiming 

otherwise. Therefore, if the court were to consider the additional claims, additional claim

(i) also fails to state a claim.
50

family under the Ute Treaties of 1863 and 1868 and under the various 

federal laws listed under Paragraph 10 above.[

34]

. . .

In violation of federal law and its treaty obligations, the United States has 

failed to investigate or prosecute the individuals involved in the shooting 

death of 21 year-old Todd Murray on April 1, 2007, or the subsequent 

conspiracy to suppress, alter, and destroy critical evidence related to the 

shooting death.

The United States has also breached its trust obligations to the Tribe and 

Murray’s family by failing to protect the territorial integrity of the Tribe’s 

reservation and the Tribe’s sovereign interest in the shooting site, thus 

allowing unauthorized persons to trespass on the Ute homeland and cause 

harm to tribal members with complete impunity.

 

34 The federal laws listed in paragraph include “the Treaty of Guadalupe Hidalgo in 1848, 

including, without limitation, the Indian Country Crimes Act, 18 U.S.C. §§ 1151, 1152; the 

Major Crimes Act, 18 U.S.C. §§ 1153, 2343; the Assimilative Crimes Act, 18 U.S.C. § 13; 

Public Law 280, U.S.C. §1162; the Indian Civil Rights Act, 25 U.S.C. §§ 1301, 1302, 1321; 

and 42 U.S.C. §§ 1981, 1983, 1985.” Plaintiffs do not explain how any of the citations 

listed establish money-mandating statutes to invoke jurisdiction in this court. Moreover, 

this court specifically does not have jurisdiction under the Civil Rights Acts inclusive of 42 

U.S.C. §§ 1981, 1983, 1985. See Pikulin v. United States, 97 Fed. Cl. 71, 77 (2011). 

Furthermore, the Federal Circuit has held that the Indian Civil Rights Act “does not impose 

duties upon the federal government or its officials.” Wopsock v. Natchees, 454 F.3d 1327, 

1333 (Fed. Cir. 2006). In addition, to the extent plaintiffs seek to raise claims based on 

tortious behavior by invoking these or other statutes separate from their claims of 

violations of the 1863 and 1868 Treaties, this court lacks jurisdiction to adjudicate those 

claims. The Tucker Act expressly excludes tort claims, including those committed by 

federal officials, from the jurisdiction of the United States Court of Federal Claims. See

28 U.S.C. § 1491(a) (“The United States Court of Federal Claims shall have jurisdiction 

to render judgment upon 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.”); see also Keene Corp. v. United 

States, 508 U.S. 200, 214 (1993); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 

at 1343. Moreover, to the extent, plaintiffs seek to raise claims of criminal behavior by 

invoking these or other statutes, separate from their claims of violations of the 1863 and 

1868 Treaties, this court also lacks jurisdiction to adjudicate those claims. See Joshua v. 

United States, 17 F.3d 378, 379 (Fed. Cir. 1994); see also Cooper v. United States, 104 

Fed. Cl. 306, 312 (2012) (holding that “this court does not have jurisdiction over [plaintiff’s] 

claims because the court may review neither criminal matters, nor the decisions of district 

courts.”) (internal citations omitted); Mendes v. United States, 88 Fed. Cl. 759, 762, 

appeal dismissed, 375 F. App’x 4 (Fed. Cir. 2009); Hufford v. United States, 87 Fed. Cl. 

696, 702 (2009) (holding that the United States Court of Federal Claims lacked jurisdiction 

over claims arising from the violation of a criminal statute).
51

Plaintiffs contend that the 1863 and 1868 Ute Treaties created, and impose, 

specific fiduciary duties on the United States, namely to protect Indian lands from 

“unauthorized state intrusion” and to prosecute and “punish any ‘bad man’ that commits 

any wrong upon the person or property of the Indians.” Plaintiffs claim that the United 

States “promised” these guarantees to the Ute people, and allege that in failing to prevent 

trespass onto tribal lands and in neglecting to investigate and prosecute the alleged “bad 

men,” the United States has breached its duties under the treaty agreement.

As noted above, the Tucker Act grants jurisdiction to this court as follows:

The United States Court of Federal Claims shall have jurisdiction to render 

judgment upon 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.

28 U.S.C. § 1491(a)(1). As interpreted by the United States Supreme Court, and as 

discussed above, the Tucker Act waives sovereign immunity to allow jurisdiction over 

claims against the United States (1) founded on an express or implied contract with the 

United States, (2) seeking a refund from a prior payment made to the government, or (3) 

based on federal constitutional, statutory, or regulatory law mandating compensation by 

the federal government for damages sustained. See Navajo Nation II, 556 U.S. at 289–

90; Mitchell II, 463 U.S. at 216; see also Greenlee Cnty., Ariz. v. United States, 487 F.3d 

at 875; Palmer v. United States, 168 F.3d at 1314.

To prove that a statute or regulation is money-mandating, a plaintiff must 

demonstrate that an independent source of substantive law relied upon “‘can fairly be 

interpreted as mandating compensation by the Federal Government.’” Navajo Nation II, 

556 U.S. at 290 (quoting United States v. Testan, 424 U.S. at 400); see also United States 

v. White Mountain Apache Tribe, 537 U.S. at 472; Mitchell II, 463 U.S. at 217; Blueport 

Co., LLC v. United States, 533 F.3d at 1383. The source of law granting monetary relief 

must be distinct from the Tucker Act itself. See Navajo Nation II, 556 U.S. at 290 (The 

Tucker Act does not create “substantive rights; [it is simply a] jurisdictional provision[] that 

operate[s] to waive sovereign immunity for claims premised on other sources of law (e.g., 

statutes or contracts).”).

As explained by the Supreme Court in Navajo Nation II:

Neither the Tucker Act nor the Indian Tucker Act creates substantive rights; 

they are simply jurisdictional provisions that operate to waive sovereign 

immunity for claims premised on other sources of law (e.g., statutes or 

contracts). United States v. Testan, 424 U.S. 392, 400, 96 S. Ct. 948, 47 

L.Ed.2d 114 (1976); United States v. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 

1349, 63 L.Ed.2d 607 (1980) (Mitchell I). The other source of law need not 

explicitly provide that the right or duty it creates is enforceable through a 
52

suit for damages, but it triggers liability only if it “‘can fairly be interpreted as 

mandating compensation by the Federal Government.’” Testan, supra, at 

400, 96 S. Ct. 948 (quoting Eastport S.S. Corp. v. United States, 178 Ct. Cl. 

599, 607, 372 F.2d 1002, 1009 (1967)); see also United States v. Mitchell, 

463 U.S. 206, 218, 103 S. Ct. 2961, 77 L.Ed.2d 580 (1983) (Mitchell II); 

Navajo I, 537 U.S., at 503, 123 S. Ct. 1079.

As we explained in Navajo I, there are thus two hurdles that must be cleared 

before a tribe can invoke jurisdiction under the Indian Tucker Act. First, the 

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.” Id., at 506, 123 S. Ct. 1079. “If that threshold is 

passed, the court must then determine whether the relevant source of 

substantive law ‘can fairly be interpreted as mandating compensation for 

damages sustained as a result of a breach of the duties [the governing law] 

impose[s].’” Ibid. (alteration in original). At the second stage, principles of 

trust law might be relevant “in drawing the inference that Congress intended 

damages to remedy a breach.” United States v. White Mountain Apache 

Tribe, 537 U.S. 465, 477, 123 S. Ct. 1126, 155 L.Ed.2d 40 (2003).

Navajo Nation II, 556 U.S. at 290-91; see also Mitchell II, 463 U.S. at 216. The Supreme 

Court in Mitchell II also noted that the existence of “a general trust relationship between 

the United States and the Indian people” is undisputed. See Mitchell II, 463 U.S. at 225.

In the Navajo Nation I, the Supreme Court noted that

To state a claim cognizable under the Indian Tucker Act, Mitchell I and 

Mitchell II thus instruct, 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. See 463 U.S., at 

216–217, 219, 103 S. Ct. 2961. If that threshold is passed, the court must 

then determine whether the relevant source of substantive law “can fairly 

be interpreted as mandating compensation for damages sustained as a 

result of a breach of the duties [the governing law] impose[s].” Id., at 219, 

103 S. Ct. 2961. Although “the undisputed existence of a general trust 

relationship between the United States and the Indian people” can 

“reinforc[e]” the conclusion that the relevant statute or regulation imposes 

fiduciary duties, id., at 225, 103 S. Ct. 2961, that relationship alone is 

insufficient to support jurisdiction under the Indian Tucker Act. Instead, the 

analysis must train on specific rights-creating or duty-imposing statutory or 

regulatory prescriptions. Those prescriptions need not, however, expressly 

provide for money damages; the availability of such damages may be 

inferred.

Navajo Nation I, 537 U.S. at 506; see also Round Valley Indian Tribes v. United States, 

97 Fed. Cl. 500, 510 (2011) (quoting Navajo Nation I, 537 U.S. at 490) (“The ‘general 
53

trust relationship between the United States and the Indian people’ alone . . . is insufficient 

to establish jurisdiction” in the Court of Federal Claims.).

In describing the “two hurdles, the Navajo Nation court explained that “[f]irst, the 

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.’” Id.

at 290 (quoting United States v. Navajo Nation, 537 U.S. at 506). Regarding the second 

hurdle, the Navajo Nation II court noted 

“If that threshold is passed, the court must then determine whether the 

relevant source of substantive law ‘can fairly be interpreted as mandating 

compensation for damages sustained as a result of a breach of the duties 

[the governing law] impose[s].’” Ibid. (alteration in original). At the second 

stage, principles of trust law might be relevant “in drawing the inference that 

Congress intended damages to remedy a breach.” United States v. White 

Mountain Apache Tribe, 537 U.S. 465, 477, 123 S. Ct. 1126, 155 L.Ed.2d 

40 (2003).

Navajo Nation II, 556 U.S. at 290-91. Specifically, “[t]he Government . . . is not a private

trustee.” United States v. Jicarilla Apache Nation, 131 S. Ct. 2313, 2323 (2011). As such, 

the Indian trust relationship “is defined and governed by statutes rather than the common 

law,” id. and “[t]he Government assumes Indian trust responsibilities only to the extent it 

expressly accepts those responsibilities by statute.” Id. at 2325. The Supreme Court in 

Jicarilla Apache Nation, determined, therefore, “Congress may style its relations with the 

Indians a ‘trust’ without assuming all the fiduciary duties of a private trustee, creating a 

trust relationship that is ‘limited’ or ‘bare’ compared to a trust relationship between private 

parties at common law.” Id. at 2323 (quoting Mitchell I, 445 U.S. at 542). The trust 

relationship, therefore, is limited to the management of tribal lands and assets. 

In its motion to dismiss, defendant contends that the plaintiffs’ breach of trust claim 

“fail[s] to identify a substantive source of law that establishes specific fiduciary duties.” 

Defendant argues that “a fiduciary duty only arises if it is plain from the relevant statutes 

or regulations that the government has accepted such a responsibility.” Defendant 

contends that because plaintiffs’ claims have no foundation in any substantive body of 

law, it fails to acquire subject-matter jurisdiction under the Tucker Act and therefore 

warrants dismissal pursuant to RCFC 12(b)(1).

Plaintiffs correctly note that the Supreme Court has held that “any ambiguities in 

the language of an Indian treaty must be resolved in favor of the Indians and courts must 

endeavor to ‘give effect to the terms as the Indians themselves would have understood 

them.’” (quoting Mille Lacs Band of Chippewa Indians v. Minnesota, 526 U.S. 172, 196-

203 (1999)). Defendant argues, however, “Plaintiffs fail to identify any specific, 

unambiguous language in the Treaties that impose a fiduciary duty on the United States 

to guard against the assertion of state criminal jurisdiction.” Plaintiffs respond that Article 

10 of the 1863 Treaty and Article 2 and Article 6 of the 1868 Treaty confer upon the Ute 

tribe the substantive source of law that establishes specific fiduciary or other duties.
54

Article 10 of the 1863 Treaty provides:

Each family that shall announce through its head to the agent of the band a 

willingness and determination to begin and follow the pursuits of agriculture, 

by farming or raising stock and growing wool, upon such lands and 

according to such regulations as the Secretary of the Interior may prescribe, 

shall receive the following donations of stock to aid them in their endeavor 

to gain a livelihood by such new pursuits, viz.:

Of cattle, one head annually during five years, beginning with the ratification 

of this treaty.

Of sheep, ten head annually during the first two years after the ratification 

of this treaty, and five head annually during the three years thereafter.

The Secretary of the Interior may also direct that their share of annuity 

goods and provisions shall be of a character suited to such change of life: 

Provided, however, That such stock shall only be donated as long as such 

family shall in good faith keep and use the same for the purpose indicated 

in this article.

All the Indians of said band who may adopt and conform to the provisions 

of this article shall be protected in the quiet and peaceable possession of 

their said lands and property.

1863 Treaty, Art. 10 (emphasis in original). Plaintiffs also contend generally that the 

United States, “due to its absolute jurisdiction and control over Indian lands . . . has a 

specific fiduciary duty to protect the reservation from the imposition of state criminal 

jurisdiction over tribal members.” Plaintiffs, however, only cite to Navajo Tribe of Indians, 

624 F.2d at 989, and 25 U.S.C. § 200 (2012), which requires “a report or record” be 

submitted to the superintendent of the reservation whenever an Indian is confined or 

imprisoned on lands held in reserve. Plaintiffs do not elaborate how this creates the 

existence of specific fiduciary duties between the United States and the Ute Indians, or 

any duties that are money-mandating regarding the alleged imprisonment or confinement.

Moreover, Article 10 only addresses the land allotment for the Ute Indians who wish to 

“begin and follow agricultural or pastoral pursuits by farming or raising stock and growing 

wool, upon such lands and according to such regulations as the Secretary of the Interior 

may prescribe” Id. Article 10 of the 1863 Treaty does not provide a specific fiduciary 

money mandating duty. 

Plaintiffs also allege that Article 2 of the 1868 Ute Treaty establishes a duty to 

prevent trespass. In relevant part, Article 2 reads:

[N]o persons, except those authorized so to do, and except such officers, 

agents, and employes [sic] of the Government as may be authorized to 
55

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 

described in this article, except as herein otherwise provided.

1868 Treaty, Art. 2. Defendant, notes, however, that “[p]laintiffs admit that ‘some courts 

have held that the duty of the United States to ensure the quiet enjoyment of reservation 

lands does not make the government liable for general trespasses by third parties.’” 

Moreover, defendant notes that “[c]onspicuously absent in the events that constitute the 

alleged trespass of state law enforcement officials on the Reservation is the presence of 

any federal law enforcement officer.” In the amended complaint, the plaintiffs specifically 

identify state officers, but not the federal officers, as having no right to be on the 

reservation. The amended complaint states: “Murray was shot after being pursued at gunpoint by two Utah state Highway Troopers, a Uintah County Sheriff’s Deputy, and an offduty Vernal City, Utah, police officer. The pursuit took place over tribal trust lands more 

than 25 miles inside the northern boundary of the U&O Reservation. The four shootinginvolved officers had no criminal jurisdiction over Indians inside the U&O Reservation.” 

For each of the four state officers, the amended complaint also alleges they are “not 

cross-deputized by the federal government or the Ute Tribe to exercise law enforcement 

powers over Native Americans inside the Ute Tribe’s Reservation.” The plaintiffs, do not, 

however, make a cross-deputized claim against any of the federal officials.

Finally, according to plaintiffs, the United States’ failure to prosecute the bad men

who murdered Mr. Murray and conspired to cover up the murder on April 1, 2007

represents a breach of trust. Article 6 of the 1868 Treaty promises that “the United States 

will . . . proceed at once to cause the offender to be arrested and punished according to 

the laws of the United States.” 1868 Treaty, Art. 6. Plaintiffs argue that 

The “bad men” clause of the 1868 Treaty, further expands the duty of the 

U.S. to protect not only the Ute Tribe as a whole in its quiet possession of 

the reservation lands, but also the individual Ute Indians against “any 

wrong” perpetrated on them by any non-Indian.

Defendant contends that the 1868 Ute Treaty provision is not trust-creating, but 

rather bestows discretionary power upon the United States to prosecute bad men. 

Moreover, defendant states “[w]e do not question that the Treaty requires payment to 

individuals under the ‘Bad Men’ clause, if the requirements of the Treaty are met. The 

Treaties, however, impose a duty upon the government to only pay individual members, 

not the Tribe, in the event that unauthorized persons cause harm to person or property.”

(emphasis in original). Moreover, for count one, this court did not find the United States 

had violated the “bad men” provision as a result of the actions involving Mr. Murray’s 

death, and for count two, plaintiffs’ claims are repetitive of count one, as they specifically 

repeat and re-allege the claims in count two.

None of the citations to the 1863 and 1868 Treaties provide a source of jurisdiction 

for the breach of trust claims alleged by plaintiffs. Furthermore, none of the plaintiffs’ 

breach of trust claims identify any substantive law containing the “express language of a 
56

trust.” See Samish Indian Nation v. United States, 419 F.3d at 1368. Moreover, plaintiffs 

have not demonstrated how “[t]he United States has also breached its trust obligations to 

the Tribe and Murray’s family by failing to protect the territorial integrity of the Tribe’s 

reservation and the Tribe’s sovereign interest in the shooting site, thus allowing 

unauthorized persons to trespass on the Ute homeland and cause harm to tribal members 

with complete impunity,” or that “[t]he Defendant’s breach of its trust and treaty obligations 

has resulted in substantial loss to the Tribe.” The court agrees with defendant that, “[i]n 

fact, Plaintiffs have not identified 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. (quoting Navajo I, 537 U.S. 

at 506).

The court also agrees with defendant that “authority to institute both civil and 

criminal litigation on behalf of the United States is committed to the discretion of the 

Attorney General.” (citing 28 U.S.C. § 516 (2012). The defendant further argues that “[t]he 

Attorney General’s exercise of his discretion to file litigation on behalf of the United States 

is ‘presumptively immune from judicial review.’” (quoting Shoshone Bannock Tribes v. 

Reno, 56 F.3d 1476, 1480 (D.C. Cir. 1995)). Article 6 of the 1868 Treaty provides that the 

United States will “reimburse the injured person for the loss sustained,” however, payment 

is contingent on the “bad men” “offender” being “arrested and punished according to the 

laws of the United States. . . .” 1868 Treaty, Art. 6. As noted above, the record does not 

reflect any prosecutions were initiated against any individuals named by the plaintiffs in 

the above captioned case. Moreover, the decision issued by the United States District 

Court for the District of Utah did not find any culpability on the part of any individual

accused by plaintiffs in the death of Mr. Murray, further suggesting no reimbursement to

the plaintiffs is warranted. For the foregoing reasons, defendant’s motion to dismiss 

plaintiffs’ breach of trust claims for lack of subject-matter jurisdiction is granted.

CONCLUSION

Because plaintiffs have failed to state a claim and have not demonstrated 

jurisdiction is proper in this court, defendant’s motion to dismiss is GRANTED. Plaintiffs’

amended complaint is DISMISSED. The Clerk's Office shall enter JUDGMENT consistent 

with this opinion.

IT IS SO ORDERED.

s/Marian Blank Horn 

MARIAN BLANK HORN

 Judge