United States Court of Appeals 

for the Federal Circuit ______________________ 

DEBRA JONES, AS PERSONAL 

REPRESENTATIVE OF THE ESTATE OF TODD R. 

MURRAY, DECEASED, FOR AND ON BEHALF OF 

THE HEIRS OF TODD R. MURRAY, ARDEN C. 

POST, INDIVIDUALLY AND AS THE NATURAL 

PARENTS OF TODD R. MURRAY, UTE INDIAN 

TRIBE OF THE UINTAH AND OURAY 

RESERVATION,

Plaintiffs-Appellants

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2015-5148

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 1:13-cv-00227-MBH, Judge Marian Blank 

Horn.

______________________ 

Decided: January 27, 2017

______________________ 

JEFFREY S. RASMUSSEN, Fredericks Peebles & Morgan 

LLP, Louisville, CO, argued for plaintiffs-appellants. Also 

represented by FRANCES C. BASSETT. 

 
2 JONES v. US

JAMES MAYSONETT, Environment and Natural Resources Division, United States Department of Justice, 

Washington, DC, argued for defendant-appellee. Also 

represented by JOHN C. CRUDEN. 

______________________ 

Before LOURIE, O’MALLEY, and TARANTO, Circuit Judges.

O’MALLEY, Circuit Judge

Debra Jones, Arden C. Post, and the Ute Indian Tribe 

of the Uintah and Ouray Reservations (collectively, 

“Jones”), appeal the judgment of the United States Court 

of Federal Claims (“CFC”) dismissing (1) Jones’s claims 

for damages against the United States for failure to state 

a claim under the 1868 Treaty between the United States 

and the Ute Tribe, and (2) a breach of trust claim for 

failure to state a claim under the 1868 Treaty and an 

1863 Treaty between the same parties. Jones v. United 

States, 122 Fed. Cl. 490 (Fed. Cl. 2015) (“Jones II”). We 

hold that the CFC erred in dismissing Jones’s claims by 

improperly limiting the scope of claims cognizable under 

the bad men provision of the 1868 Treaty.1 The CFC also 

erred in applying issue preclusion without considering an 

essential spoliation issue. We vacate and remand.

I. BACKGROUND

A. Circumstances Surrounding Murray’s Death

On April 1, 2007, Utah State Trooper Dave Swenson 

(“Swenson”) attempted to stop a car for speeding near to, 

but outside of, the Uncompahgre Ute Reservation in 

Utah. The car did not stop but turned into the reservation. About twenty-five miles into the reservation, the car 

stopped and the driver, seventeen-year-old Uriah Kurip

(“Kurip”), and the passenger, twenty-one-year-old Todd R. 

Murray (“Murray”), exited the car. Swenson exited his 

 

1 See infra p. 7 for text.
JONES v. US 3

patrol car with his gun drawn, and ordered Kurip and 

Murray to the ground. Murray and Kurip ran in different 

directions. Swenson caught and arrested Kurip without 

further incident.

At some point during the pursuit, Swenson requested 

back-up. Vernal City Police Officer Vance Norton (“Norton”), Utah Highway Patrol Trooper Craig Young

(“Young”), and Uintah County Deputy Anthoney Byron

(“Byron”) responded. Norton pursued Murray on foot and 

ordered Murray to the ground. According to Norton, 

Murray raised a gun and fired two shots towards Norton, 

and Norton fired two shots at Murray. All of the shots 

missed. Norton testified that Murray then turned his 

own gun on himself and pulled the trigger. Norton called 

dispatch, indicated that shots had been fired, and explained that Murray had shot himself. Meanwhile, Byron 

and Young approached the scene with their guns drawn. 

Neither witnessed the shot that brought down Murray. 

Byron and Young handcuffed Murray. 

The officers found an illegally-purchased .380 caliber 

gun and two bullet casings near Murray. Investigators 

found two other bullet casings some distance away. A 

third casing was also found inside the chamber of Norton’s gun. An ambulance arrived on the scene thirty-two 

minutes after the shooting, while Murray was still alive. 

No officer administered medical assistance to Murray in 

that time. By the time the ambulance arrived, additional 

police officers had arrived from various police departments and had “commandeered the site and were asserting state jurisdiction over the site.” Complaint at 9, Jones 

II, 122 Fed. Cl. 490 (Fed. Cl. 2013) (No. 1:13-cv-00227).

Federal Bureau of Investigation (“FBI”) special 

Agents Rex Ashdown and David Ryan and Bureau of 

Indian Affairs (“BIA”) Officers James Beck and Terrance 

Cuch (collectively, “federal officers”) then arrived and 

“ostensibly assumed [federal] jurisdiction of the scene.” 

Id. Ashdown took charge of the investigation. The com-
4 JONES v. US

plaint alleges that the federal and local officers prevented 

Raymond Wissiup—a member of the Ute tribe, a law 

enforcement officer, and the Director of the Tribe’s Fish 

and Wildlife Department—from accessing the crime 

scene. 

An ambulance took Murray off the reservation to the 

Ashley Regional Medical Center (“Medical Center”) in 

Vernal, Utah, where was declared dead at 1:19 pm. At 

the Medical Center, one of the officers allegedly disrobed

Murray, photographed him nude, and manipulated his 

remains. For example, Byron was photographed with his 

finger in Murray’s head wound. A sample of Murray’s 

blood was also taken. Jones alleges that BIA Officer 

Kevin Myore “condoned and participated in, or failed to 

prevent” these actions. Complaint at 11, Jones II, 122 

Fed. Cl. 490 (Fed. Cl. Dec. 3, 2013) (No. 1:13-cv-00227).

The local officers then took Murray’s body to the offreservation Thomson-Blackburn Mortuary (“Mortuary”) 

in Vernal, Utah to await an autopsy. There, Vernal City 

Police Chief Gary Jensen inserted a needle with syringe 

into Murray’s heart and directed a mortuary employee to 

make an incision into Murray’s jugular vein to collect two 

vials of blood. No one ever accounted for the blood or 

provided any reason for the necessity of collecting additional blood, the use of a jugular incision, or the insertion 

of a needle into Murray’s heart. 

Murray’s body was then transferred to the offreservation Office of the Medical Examiner (“OME”), 

where the medical examiner declined to perform an 

autopsy. Jones alleges that this was done either at the 

direction of the FBI, or with the FBI’s tacit approval. 

After an external examination, the medical examiner 

concluded that the bullet entered the back of Murray’s 

head, above and behind his left ear, and exited on the 

right side of his head. Murray was right-handed. The 

medical examiner did not find soot on Murray’s hands, 
JONES v. US 5

but noted that his right hand was bloodied while his left 

was clean. The medical examiner considered Murray’s 

death a suicide, but later testified that he could not rule 

out the possibility that Murray was shot in the back of the 

head, execution-style.

The federal officers secured the .380 gun, which became the subject of a federal investigation into its illegal 

sale. In the course of the investigation, Ashdown retired 

and was replaced by Special Agent Ryan. Jones v. Norton, No. 2:09-cv-730-TC, 2014 WL 909569 at *4 (D. Utah 

Mar. 7, 2014) (unpublished) (“Spoliation Order”). When 

the criminal investigation into the illegal sale of the gun 

concluded, the judge hearing the case signed an order 

forfeiting the gun to the government. Id. The FBI thereafter destroyed the firearm. Id.

Jones alleges that Murray was shot execution-style in 

the back of the head and that the gaps in the investigation were part of a conspiracy to cover-up this fact. Jones 

argues that the United States is liable for the actions of 

the federal and local officers under two treaties negotiated 

between the United States and the Ute Indians.

B. The Ute Treaties

The predecessor to the modern Ute Tribe entered into 

two treaties with the United States, one in 1863 and one 

in 1868. See Treaty with the Utah Tabeguache Band, Oct. 

7, 1863, 13 Stat. 673 (hereinafter “1863 Treaty”); Treaty 

with the Ute, Mar. 2, 1868, 15 Stat. 619 (hereinafter 

“1868 Treaty”). 

The Ute Tribe and the United States had a particularly acrimonious relationship prior to the 1863 Treaty, with 

several rounds of stalled treaty implementations and 

several skirmishes occurring between the parties. Ned 

Blackhawk, Violence Over the Land 215–16 (2008) (hereinafter, “Blackhawk”). A Ute War Council decided to forgo 

war in 1863 after being persuaded by Ouray, a leader of 

the Tabeguache Ute Tribe, that armed resistance to the 
6 JONES v. US

United States would be futile. Id. Ouray led the Ute 

negotiations, which resulted in the Ute Tribe ceding to 

the United States “among the largest and most valuable 

tracts of land ever ceded to the United States,” according 

to Commissioner of Indian Affairs Dole. Id. at 216. The 

Tabeguache Band admitted that they reside within the 

United States, acknowledged the United States’ supremacy, and claimed their protection, 1863 Treaty, art. 1; the 

United States agreed to send monthly payments in goods 

and provisions, id., art. 2; and the Treaty set the stage for 

the creation of a large Ute reservation in Colorado’s 

mountain valleys in the 1868 Treaty. Blackhawk at 216.

The 1868 Treaty established the Ute reservation. In 

common with the 1863 Treaty, its goal was peace between 

the Ute Tribe and white settlers. See Tsosie v. United 

States, 825 F.2d 393, 395 (Fed. Cir. 1987) (noting nine 

treaties made in 1868 containing bad men provisions with 

“peace as their object”). 

The 1868 Treaty included the following particularly 

relevant provisions. Article 2 reads: 

[T]he United States now solemnly agree that no 

persons, except those herein authorized so to do, 

and except such officers, agents, and employees of 

the Government as may be authorized to enter 

upon Indian reservations in discharge of duties 

enjoined by law shall ever be permitted to pass 

over, settle upon, or reside in the Territory described in this article, except as herein otherwise 

provided.

1868 Treaty, art. 2. Article 6, the primary provision at 

issue in this case, reads as follows:

If bad men among the whites or among other 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 
JONES v. US 7

Commissioner of Indian Affairs at Washington 

City, proceed at once to cause the offender to be 

arrested and punished according to the laws of the 

United States, and also reimburse the injured 

person for the loss sustained.

Id. at art. 6. We refer to this provision as the “bad men

provision” throughout this opinion. 

The 1868 Treaty also includes a requirement for a 

plaintiff seeking damages under the bad men provision to 

exhaust administrative remedies before filing a claim. 

See 1868 Treaty, Art. 5; Jones II, 122 Fed. Cl. at 510. 

This provision is not at issue on appeal.

C. Procedural History

Jones2 first brought suit in state court in Utah, alleging Constitutional violations committed by the local

officers against Murray and the Ute Tribe. The case was 

removed to the United States District Court for the District of Utah. Jones v. Norton, 3 F. Supp. 3d 1170 (D. 

Utah 2014) (“Jones I”). 

Jones alleged that the state, county, and city officers 

in various combinations were responsible for various 

Constitutional violations under 42 U.S.C. § 1983—illegal 

seizure, excessive use of force, failure to intervene and call 

for medical attention, assault/battery, and wrongful 

death—conspiracy to violate civil rights under 42 U.S.C. 

§ 1985, and additional state law tort claims. Id. at 1177. 

On summary judgment, the district court held against 

Jones, concluding that he failed to establish that the state 

officers violated the Constitution. It concluded that there 

was no seizure, that the pursuit was reasonable, and that 

Murray had, in fact, fired at Norton. Id. at 1189. The 

 

2 The reference to “Jones” in this section includes 

all the Plaintiffs here except the Ute Tribe, which was not 

a party to the earlier action.
8 JONES v. US

court also concluded that “Plaintiffs offer no more than 

speculation and no reasonable jury could find that Norton 

shot Murray in the head at point-blank range.” Id. at 

1191. The court relied primarily on the testimony of 

Young and Byron that Norton was not near Murray when 

Murray went down, Norton’s testimony that Murray shot 

himself in the head after exchanging shots with Norton, 

and the testimony of the medical examiner that the bullet 

came from point-blank range. Id. at 1189—92. 

In the course of the litigation, Jones alleged that the 

local officers spoliated evidence by (1) failing to give aid to 

Murray after the shooting (thus failing to preserve Murray’s life); (2) failing to test Murray’s gun for residue and 

destroying the gun pursuant to a court order; (3) failing to 

test Norton’s gun; (4) failing to preserve the crime scene 

evidence (e.g., swabbing Murray and Norton’s fingers, 

examining their clothing, searching for bullets, performing blood splatter analysis, or searching Norton);

(5) desecrating Murray’s body at the Medical Center and 

Mortuary; and (6) failing to perform a full autopsy. 

Spoliation Order, 2014 WL 909569 at *3–10. The district 

court concluded that there was no spoliation of evidence 

by any of the parties to the suit. Id. at *1. In particular, 

the court found that there was no evidence that Murray’s 

wound was survivable and that the failure to give aid was 

a cause of Murray’s death. Id. at *3. The court also found

that the destruction of Murray’s gun was performed on 

the orders of a judge in a separate investigation, and the 

state, county, and local officers (collectively, “local officers”) did not know about the FBI’s imminent destruction 

of the gun. Id. at *4–7. Because the state, county, and 

local officers did not know about the imminent destruction 

of the gun, they did not have a duty to request a test of 

the gun from the FBI. Id. The court found that the state, 

county, and local officials also had no obligation to inquire 

about the testing of the gun or preserve the crime scene 

evidence because they were not in charge of the investigation. Id. at *7–9. Finally, the court found there was no 
JONES v. US 9

prejudice to the plaintiffs for the potential desecration of 

the body at the Medical Center and Mortuary. Id. at *9–

10. 

The district court’s spoliation decision was predicated 

on the local officers’ lack of supervisory authority over 

several key pieces of evidence, which the court determined 

were either in the charge of the federal officers, including 

Ashdown, or the medical examiner. See id. at *3 (“Because the shooting took place on the Uintah and Ouray 

Indian Reservation (the Reservation), the FBI had jurisdiction over the investigation.”); id. at *7 (“As part of his 

investigation, Agent Ashdown possibly should have taken 

Detective Norton’s firearm to have necessary tests performed. But Agent Ashdown is not a named Defendant.”); 

id. at *8 (“[N]one of the named Defendants can be held 

liable for these alleged misdeeds, because Agent Ashdown 

and Keith Campbell were in charge of the investigation.”). 

“No one from the federal government ha[d] been named as 

a Defendant,” and no member of the federal government 

was a party to the district court litigation. Id. at *3 n.3.

The Tenth Circuit affirmed the district court’s conclusions with respect to both spoliation and the substantive 

Constitutional violations. Jones v. Norton, 809 F.3d 564, 

573-582 (10th Cir. 2015). 

D. Court of Federal Claims 

After filing in the district court, but before the Tenth 

Circuit’s affirmance, Jones filed suit in the Court of 

Federal Claims against the United States, alleging violations of the bad men provision of the 1868 Treaty and a 

violation of the United States’ trust obligations, arising 

out of the same circumstances surrounding Murray’s 

shooting death. Jones predicated jurisdiction on the 

Indian Tucker Act and the 1868 Treaty. 

The CFC first considered which of Jones’s claims were 

cognizable under the bad men provision. The court relied 

on two of its previous decisions, Garreaux v. United 
10 JONES v. US

States, 77 Fed. Cl. 726 (2007), and Hernandez v. United 

States, 93 Fed. Cl. 193 (2010), to conclude that “any 

wrong” in the bad men provision was limited to affirmative criminal acts committed on reservation lands. Jones 

II, 122 Fed. Cl. at 522. Applying these limitations, the 

CFC dismissed several of Jones’s allegations as not cognizable under the bad men provision. Id. at 522. These 

allegations included the failure to take custody of Murray’s body and secure the body against desecration and 

spoliation of evidence, the failure to ensure a proper 

autopsy was performed, the failure to conduct an investigation into Murray’s death, and the failure to protect the 

territorial integrity of the Tribe’s reservation boundary 

and sovereign interest in maintaining the crime scene. 

Id. 

The CFC split Jones’s remaining claims—allegations 

that the federal agents acted in concert with state, county, 

and local officers to concoct a false story that Murray shot 

himself, and allegations that some of those officials participated in, allowed, or failed to prevent the desecration of 

Murray’s body and spoliation of critical evidence—into 

those that occurred off-reservation and those that occurred on the reservation. The court held that acts occurring outside the reservation were not cognizable under 

the bad men provision, id. at 522, and that those on the 

reservation, although cognizable, were barred by issue 

preclusion. Id. at 529. 

With regard to issue preclusion, the court explained 

that the issues presented in this case and those in the 

district court were identical—“namely the allegations that 

officials committed a wrong by pursuing Murray at gunpoint without jurisdiction and without probable cause, by 

shooting Murray execution-style, and then conspiring to 

cover-up the execution-style shooting and to obstruct 

justice.” Id. at 527 (internal citation omitted). The CFC 

also held that Jones had a full and fair opportunity to 

litigate in the district court, explaining that the parties 
JONES v. US 11

thoroughly litigated both the substantive determination of 

whether Norton killed Murray and the underlying spoliation issues. Id. at 529. In a footnote, the CFC explained:

Although the District Court decision addressed 

only the state and local officers named in the suit, 

in the District Court's spoliation order, the 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.” [Spoliation Order], 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.

Jones II, 122 Fed. Cl. at 529 n.32. The CFC did not 

consider the effect of the federal officers’ actions on either 

the spoliation issues or the substantive issues.

The CFC also rejected Jones’s breach of trust claims, 

concluding that Jones failed to “identif[y] any ‘specificright-creating or duty-imposing statutory or regulatory 

prescriptions,’ that establish ‘specific fiduciary or other 

duties’ that the United States allegedly has failed to fulfill 

as part of its trust duties.” Id. at 535 (quoting United 

States v. Navajo Nation, 537 U.S. 488, 506 (2003) (“Navajo Nation I”)). The court therefore dismissed all of Jones’s 

claims. Jones timely appealed. We have jurisdiction over 

appeals from the Court of Federal Claims under 28 U.S.C. 

§ 1295(a)(3) and the Indian Tucker Act, 28 U.S.C. § 1505. 
12 JONES v. US

II. DISCUSSION

A. Standard of Review

We review the CFC’s dismissal for failure to state a 

claim de novo. Frankel v. United States, 842 F.3d 1246, 

1249 (Fed. Cir. 2016). We take all factual allegations in 

the complaint as true and construe the facts in the light 

most favorable to the non-moving party. Laguna Hermosa Corp. v. United States, 671 F.3d 1284, 1288 (Fed. Cir. 

2012).

We review the CFC’s interpretation of treaties de novo, Richard, 677 F.3d at 1144–45, and the application of 

issue preclusion de novo. Shell Petroleum, Inc. v. United 

States, 319 F.3d 1334, 1338 (Fed. Cir. 2003).

B. Rules of Interpretation of Indian Treaties

In interpreting treaties, we must “attempt to determine what the parties meant by the treaty.” Northwestern Band of Shoshone Indians v. United States, 324 U.S. 

335, 353 (1945). The United States and the Native American Tribes have a “unique trust relationship.” Cty. Of 

Oneida v. Oneida Indian Nation, 470 U.S. 226, 247 

(1985). In light of this relationship, we “interpret Indian 

treaties to give effect to the terms as the Indians themselves would have understood them,” Minn. v. Mille Lacs 

Band of Chippewa Indians, 526 U.S. 172, 196 (1999), and 

“construe[] [them] liberally in favor of the Indians with 

ambiguous provisions interpreted for their benefit.” Cty. 

Of Oneida, 470 U.S. at 247; Cty. of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 

251, 261 (1992). See also Richard, 677 F.3d at 1145, 1149 

n.14 (explaining that “[t]he intent of the parties is of 

particular importance” when interpreting treaties with 

Indians, and considering the understanding of the Sioux 

Nation during negotiations to determine their intent).

Determining the way that the Ute Tribe understood 

the 1868 Treaty presents many complications, owing 
JONES v. US 13

primarily to the fundamental differences between the 

Native societies’ oral tradition and the United States

society’s written tradition. See Whitefoot v. United States, 

293 F.2d 658, 667 n.15 (Ct. Cl. 1961) (“A great and unbridgeable void existed between the language and culture 

of the two races.”). When determining a non-written 

culture’s understanding of written words, we must be 

careful to avoid reasoning that holds strictly to our laterestablished understanding of those words. See, e.g.,

Worcester v. Georgia, 31 U.S. 515, 552–53 (1832), overruled on other grounds by Nevada v. Hicks, 533 U.S. 353, 

361–62 (2001) (interpreting “allotted” to mean “marked 

out” and not according to its technical meaning of conveying ownership interest). The Treaty was written in English, however, and we must honor any unambiguous 

language in the treaty. Northwestern Band of Shoshone 

Indians, 324 U.S. at 353 (“We stop short of varying [the 

Treaty’s] terms to meet alleged injustices.”); Chickasaw 

Nation v. United States, 534 U.S. 84, 88–89 (2001) (rejecting application of liberal-construction canon where Court 

found no ambiguity).

C. Claims Cognizable Under 

the Bad Men Provision

Jones’s primary contention is that the actions (and 

inactions) of the federal officers are the type of wrongs 

cognizable under the bad men provision and that the CFC 

erred in limiting the realm of cognizable wrongs to affirmative criminal acts occurring on reservation land. To 

state a claim for relief under the bad men provision

requires the identification of particular “bad men,” and an 

allegation that those men committed a wrong within the 

meaning of the treaty. Hernandez, 93 Fed. Cl. at 200 

(citing Ex parte Kan-gi-shun-ca, 109 U.S. 556, 567–68 

(1883)). Jones identifies the federal officers as “bad men,” 

who have committed several wrongs: 

i. Acting in concert with state/county/municipal 

officers, expressly or impliedly, in concocting, or 
14 JONES v. US

permitting to be concocted, a false story that Todd 

Murray shot himself in the back of his head

ii. Failing to take custody of Murray’s body and 

to secure the body against desecration and spoliation of evidence

iii. [skipped in the complaint]

iv. Participating, tacitly allowing, or failing to 

prevent, the desecration of Murray’s body and the 

spoliation of critical evidence both at the shooting 

scene and afterwards at the Medical Center, 

Blackburn Mortuary, and at the Utah Office of the 

Medical Examiner

v. Failing to insure that a proper autopsy was 

performed on Murray’s body

vi. Failing to conduct any kind of investigation 

into Todd Murray’s murder

vii. Failing to protect the territorial integrity of 

the Tribe’s reservation boundary and the Tribe’s 

sovereign interests in the crime scene where Murray was shot. 

See Complaint at 18, Jones II, 122 Fed. Cl. 490 (Fed. Cl. 

2013) (No. 1:13-cv-00227); Jones II, 122 Fed. Cl. at 520–

21.

In addition to the allegations above, Jones also alleges 

that Murray suffered “injuries at the hands of bad men,” 

including “the extra-territorial police pursuit, assault 

upon, and murder of Todd Murray,” and “the conspiracy 

to cover up Todd Murray’s murder.” Complaint at 17-18, 

Jones II, 122 Fed. Cl. 490 (Fed. Cl. 2013) (No. 1:13-cv00227). Jones does not identify the particular officers 

responsible for each of those injuries. Nevertheless, we 

read paragraphs 67 and 69 liberally in conjunction with 

paragraph 70, which states, “In addition, or alternatively, 

the bad men include (i) the Utah state/county/municipal 
JONES v. US 15

enforcement officers who were involved in the illegal 

extraterritorial pursuit and execution-style shooting of 

Todd Murray, the conspiracy to cover up Murray’s execution-style shooting, and the desecration of Murray’s body 

and spoliation of critical evidence.” Id. at 19. Jones also 

identifies as bad men “the owners and employees of [the 

Mortuary] in Vernal, Utah, who permitted and participated in the desecration of Todd Murray’s body at the Mortuary.” Id. For purposes of the appeal from the CFC’s 

motion to dismiss, we consider the alleged actions of all 

the identified bad men, including the local officers, the 

mortuary employees, and the federal officers. See Richard, 677 F.3d at 1153 (holding that bad men need not be 

agents of the federal government).

The interpretation of the cognizable claims under the 

bad men provision of the Ute Treaty requires consideration of three issues: (1) the nature of the cognizable 

wrongs, (2) the universe of applicable “laws of the United 

States,” and (3) the geographic location of the wrongs. We 

address each in turn below.

i. The Bad Men Provision is Limited

 to Criminal Wrongs

This court has not defined the types of alleged wrongs 

cognizable under the bad men provisions of this and 

similar treaties. To perform this analysis, we begin with 

the text of the 1868 Treaty and consider the “larger 

context that frames the Treaty,” its “history, purpose, and 

negotiations.” Mille Lacs, 526 U.S. at 196, 202; see Richard, 677 F.3d at 1145. The bad men provision in the 1868 

Treaty reads:

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 . . . proceed at once to cause the offender to be arrested 

and punished according to the laws of the United 
16 JONES v. US

States, and also reimburse the injured person for 

the loss sustained.

1868 Treaty, 15 Stat. 619 (emphasis added). The 1868 

Treaty does not define “any wrong.” The CFC previously

limited the cognizable wrongs under similar bad men

provisions to affirmative criminal acts. See generally 

Garreaux, 77 Fed. Cl. 726; Hernandez, 93 Fed. Cl. 193.

In Garreaux, a Native-American plaintiff alleged that 

the United States was liable under a different treaty’s bad 

men provision because agents of the Bureau of Indian 

Affairs and the Department of Housing and Urban Development failed to administer her land lease properly, 

causing her to lose her home. 77 Fed. Cl. at 734. The 

CFC explained that these wrongs were not cognizable 

under the bad men provision because prior cases brought 

under that provision were uniformly “criminal in nature,”

id. at 737, and the primary intent of the bad men provision “was to guard against affirmative criminal acts, 

primarily murder, assault, and theft of property,” id. at 

736 (citing Kan-gi-shun-ca, 109 U.S. at 567–68).

The plaintiff in Hernandez was indicted for drugrelated offenses and brought suit in the CFC under a

different treaty’s bad men provision, alleging that a 

narcotics officer bribed a witness to acquire perjured 

testimony, a judge committed judicial misconduct, the 

county prosecutor committed prosecutorial misconduct, 

and the court-appointed counsel provided ineffective 

assistance. 93 Fed. Cl. at 196. The CFC explained that 

the “primary intent of [the bad men provision] was to 

keep the peace between Native Americans and non-Native 

Americans, and, as such, the Fort Laramie Treaty has 

been applied to affirmative criminal acts and not mere 

acts of negligence.” Id. at 199 (citing Kan-gi-shun-ca, 109 

U.S. 556 and Janis v. United States, 32 Ct. Cl. 407, 409 

(1897)). Even as to alleged affirmative criminal acts, the 

CFC concluded that, although Plaintiff “makes many 

claims that might result in criminal punishment,” none of 
JONES v. US 17

those alleged acts “would have threatened the peace that 

the Fort Laramie Treaty was intended to protect.” Id. 

The court reasoned that none of the alleged acts could be 

“considered a crime of moral turpitude that the ‘Bad Men’

clause purports to cover.” Id. at 199 n.5 (citing Kan-gishun-ca, 109 U.S. at 567; Elk v. United States, 70 Fed. Cl. 

405, 405–06 (2006)). 

The CFC here applied Hernandez and Garreaux to 

dismiss most of the alleged wrongs for failure to meet the 

“affirmative criminal acts test” because “inaction is not a 

recognized harm under the 1868 Treaty.” Jones II, 

122 Fed. Cl. at 522. Specifically, the Court explained 

that, “[b]ecause arresting and criminally prosecuting 

individuals for civil wrongs does not logically follow, 

‘wrongs,’ as defined by the 1868 Treaty, are only allegations of criminal wrongs.” Id. 

Jones argues that both the text and context of the 

treaty compel a reading of the bad men provision that 

would encompass the officers’ actions here. Jones argues 

that the Native Americans in 1868 would not have understood “any wrong” as limited to affirmative criminal acts 

because: (1) on its face, the bad men provision recognizes 

the commission of “any wrong,” without a limitation such 

as “any [criminal] wrong”; (2) in 1868, the ordinary meaning of “wrong” was not limited to acts that violate criminal laws, but meant “deviates from moral rectitude; any 

injury done to another; a trespass; a violation of right,” 

Noah Webster, AN AMERICAN DICTIONARY OF THE ENGLISH 

LANGUAGE (1828); (3) the United States’ duty to “arrest[]

and punish[]” wrongdoers is separate from—and does not 

limit the scope of—cognizable wrongs; (4) the distinction 

between civil and criminal wrongs is an Anglo-American 

import, and the Ute leaders would not have understood a 

distinction between wrongs worthy of redress through 

criminal law, and those admitting solely to civil penalties; 

and (5) the context of the 1868 Treaty manifests an intent 

to protect Native Americans’ right to be free from a broad 
18 JONES v. US

array of injuries caused by non-Indians, because tribal 

members were not afforded the same rights as U.S. citizens, and that policy would not be served by an affirmative acts limitation to cognizable wrongs. 

In addition, Jones argues that the CFC wrongly decided Hernandez and Garreaux based on an overbroad 

reading of the Supreme Court’s decision in Kan-gi-shunca, and the United States’ commitment to “arrest” wrongdoers should be read as “stopping the motion of” wrongdoers, and not as criminal arrest. Any other reading, 

according to Jones, “judicially nullifies the justifiable 

expectations of the Ute Tribe and its tribal members.” 

Appellant Reply Br. 24.

The Government first argues that the Treaty unambiguously obligates the United States to “arrest[] and 

punish[]” those who commit the “wrong,” which necessarily limits the scope of cognizable wrongs to those for which 

arrest is an appropriate punishment. The Government 

notes that every case of a cognizable wrong has involved 

an affirmative and aggressive criminal act. Second, the 

Government argues that the bad men provision says 

“commit any wrong,” and a bad man can only “commit” 

affirmative acts—as distinguished from omitting to act. 

The Government argues that we have so held in Hebah II, 

where we defined a wrong as an “[a]ction or conduct 

which inflicts harm.” 456 F.2d at 704. To support both of 

these limitations, the Government argues that the bad 

men provision was intended to prevent crime or aggression by whites against the Native Americans, Indian 

Peace Commission, H. Exec. Doc. No. 40-90 (1868); Conditions of the Indian Tribes: Report of the Joint Special 

Committee Appointed Under Joint Resolution of March 3, 

1865, S. Rep. No. 39-156 at 5 (1867) (“The committee are 

[sic] of [the] opinion that in a large majority of cases 

Indian wars are to be traced to the aggressions of lawless 

white men.”), a purpose which would not be served by 
JONES v. US 19

including omissions or non-criminal action into the cognizance of the bad men provision. 

We agree with the Government that only acts that 

could be prosecutable as criminal wrongdoing are cognizable under the bad men provision. We turn first to the 

text of the 1868 Treaty itself. Mille Lacs, 526 U.S. at 206. 

The text unambiguously commits the United States to 

arrest and punish those who commit a wrong. This 

commitment to arrest is express, 1868 Treaty, 15 Stat. 

619 (“[T]he United States will . . . proceed at once to cause 

the offender to be arrested”), and is in addition to the 

commitment to “punish[]” the wrong-doer and to reimburse the injured person, id. (“[T]he United States will . . . 

cause the offender to be arrested and punished according 

to the laws of the United States, and also reimburse the 

injured person for the loss sustained.”) (emphases added). 

The definition of “any wrong” is thus tied to the concept 

that the United States would at least have the authority 

to make an arrest with respect to such wrongs. 

There are only two internally consistent ways of interpreting the bad men provision. Either (1) “any wrong” 

is limited to criminal wrongdoing, or (2) the United States 

agreed to arrest non-criminal wrongdoers where the 

victim was a Native. Jones argues that the second interpretation is correct because, “[t]o construe it otherwise 

would require Natives to endure harm to their person or 

property from, for example, the reckless behavior of nonIndians not rising to the level of a federal crime such as, 

for example, constitutional torts.” Appellant Br. 22. We 

disagree. 

“An arrest is the initial stage of a criminal prosecution.” Terry v. Ohio, 392 U.S. 1, 26 (1968). In most circumstances, “[w]hether [an] arrest was constitutionally 

valid depends in turn upon whether, at the moment the 

arrest was made, the officers had probable cause to make 

it—whether at that moment the facts and circumstances 

within their knowledge . . . were sufficient to warrant a 
20 JONES v. US

prudent man in believing that the petitioner had committed or was committing an offense.” Beck v. State of Ohio, 

379 U.S. 89, 91 (1964). Even the limited circumstances 

that fall outside this rule require some connection with 

criminal wrongdoing. See generally 1 Charles Alan 

Wright et al., Federal Practice and Procedure § 58 (4th ed. 

2016) (explaining circumstances of allowable warrantless 

arrest). 

Jones has not argued that proof of a non-criminal 

wrong justifies an arrest. Absent explicit language to the 

contrary, we cannot reasonably read the bad men provision to obligate the United States to disregard the structure of our jurisprudential system so blatantly by 

compelling arrest for non-criminal acts. If the bad men

provision is not limited to criminal wrongs, moreover, its 

scope would be largely indefinite, placing on the United 

States government the duty to arrest individuals and 

reimburse injured parties for anything that might be 

considered a “wrong.” The breadth of such a provision 

could extend to simple negligence or breach of contract 

claims without a principled distinction between cognizable and non-cognizable claims.

Jones argues that the commitment to “arrest” does 

not require criminal arrest, but should be read in the 

sense of “to obstruct; to stop; to check or hinder motion.” 

Noah Webster, AN AMERICAN DICTIONARY OF THE ENGLISH 

LANGUAGE (1828). In this context, Jones’s definition 

would mean that the United States agreed to remove nonIndian wrong-doers from the reservation. This argument 

is unconvincing. First, Jones offers no evidence that this 

was the understanding of the Ute Tribe. Second, it is 

unclear what mechanism the United States could use to 

“stop the motion” of wrongdoers on the Reservation other 

than to arrest the wrongdoers. 

We reject Jones’s argument that limiting the bad men

provision to criminal wrongdoing fails to read the 1868 

Treaty in the way the Indian leaders would have under-
JONES v. US 21

stood it. In interpreting a treaty, we “attempt to determine what the parties meant by the treaty[, but w]e stop 

short of varying its terms to meet alleged injustices.” 

Northwestern Band of Shoshone Indians, 324 U.S. at 353. 

Even if the Ute leaders may not have appreciated the 

complex distinction between American civil and criminal 

law, we may not interpret the 1868 Treaty in a way that 

the United States would not reasonably have agreed to

adopt at the time of the signing. In other words, the 

extent of our interpretive deference to the perspective of 

the Native leaders cannot extend past the meeting of the 

minds between the parties. See Confederated Bands of 

Ute Indians v. United States, 330 U.S. 169, 179 (1947)

(“While it has long been the rule that a treaty with Indians is to be construed so as to carry out the Government's 

obligations in accordance with the fair understanding of 

the Indians, we cannot, under the guise of interpretation . 

. . rewrite congressional acts so as to make them mean 

something they obviously were not intended to mean.”);

South Carolina v. Catawba Indian Tribe, 476 U.S. 498, 

506 (1986) (“The canon of construction regarding the 

resolution of ambiguities in favor of Indians, however, 

does not permit reliance on ambiguities that do not exist; 

nor does it permit disregard of the clearly expressed 

intent of Congress.”). We therefore hold that only wrongs

that could give rise to arrest and potential criminal prosecution are cognizable under the 1868 Treaty’s bad men

provision.3

 

3 As the CFC correctly explained, it is not a prerequisite to maintaining a claim under the bad men provision 

that criminal charges actually be brought against the 

alleged bad men. Jones II, 122 Fed. Cl. at 523 (“The 

court, however, cannot infer from the absence of prosecutions that all the FBI and BIA actions were taken permissibly.”).
22 JONES v. US

ii. The Universe of “Laws of the United States”

The CFC had no cause to address the source of the 

“laws of the United States” for purposes of the bad men

provision, and as such, we do not have the benefit of 

either a trial court opinion or the parties’ briefing. We 

thus restrict ourselves to a general discussion and remand 

to the CFC to consider in the first instance the application 

of these principles to the case at bar.

As of 1817, “any crime, offense, or misdemeanor” 

committed “within any town, district, or territory belonging to any nation or nations, tribe or tribes, of Indians” 

was punishable in like manner to how it would be punished on non-Native land under the sole and exclusive 

jurisdiction of the United States. Indian Country Crimes 

Act, 3 Stat. 383 (1817). At the time of the 1868 Treaty, 

there was a body of federal criminal law understood to 

apply to Indian country beyond that limited number of 

laws explicitly addressing actions on the reservation. 

That law has since evolved into 18 U.S.C. § 1152

(2006) (emphasis added): “Except as otherwise expressly 

provided by law, the general laws of the United States as 

to the punishment of offenses committed in any place 

within the sole and exclusive jurisdiction of the United 

States, except the District of Columbia, shall extend to 

the Indian country.” Indian Reservations are “Indian 

country” for purposes of § 1152. 18 U.S.C. § 1151 (2006). 

The “general laws of the United States” in § 1152, as 

it existed in 2007, included what is now the Assimilative 

Crimes Act, 18 U.S.C. § 13 (2006),4 Williams v. United 

 

4 This Act also has a long history. Beginning in 

1824, it was applied primarily to naval and military 

bases, see United States v. Press Pub. Co., 219 U.S. 1, 10 

(1911); 30 Stat. 717 (1898); 4 Stat. 115 (1824), and it later 

extended to Indian Country.
JONES v. US 23

States, 327 U.S. 711, 713 & n.3 (1946), which makes 

federally punishable any act or omission committed on 

“[a]ny lands reserved or acquired for the use of the United 

States, and under the exclusive or concurrent jurisdiction 

thereof,” where that act or omission would be punishable 

under state law if committed within the state’s jurisdiction.5 18 U.S.C. § 7 (2006).

We leave it to the CFC in the first instance to determine whether any of the “wrongs” Jones alleges would 

subject the alleged bad men to arrest under the “laws of 

the United States,” and as such, are cognizable under the 

bad men provision. 

iii. Whether The Bad Men Provision Is Limited

to Affirmative Acts Should Be Explored

on Remand If Necessary

The CFC also limited the cognizable claims under the 

bad men provision to those that alleged affirmative acts, 

rejecting claims premised on alleged omissions. We do 

not decide whether the bad men provision is limited to 

affirmative acts. At present, Jones has not yet explained 

what particular crimes each alleged omission constituted, 

so we do not have concrete criminal-law duties to analyze. 

We also have not been provided with sufficient briefing to 

decide the question in the abstract. If, on remand, Jones 

establishes that any of the alleged omissions constitute 

crimes (under the laws of the United States, as discussed 

above), the CFC should reconsider the affirmative-acts 

issue in the context of a specific crime or crimes, with 

more complete briefing by the parties.

We limit our discussion here to only certain aspects of 

the issue. We begin with the language of the bad men 

 

5 Subject to the limitation that Congress has not 

made that same act or omission independently punishable. 18 U.S.C. § 13 (2006).
24 JONES v. US

provision. The provision applies to bad men who 

(a) “commit any wrong” (b) “upon the person or property 

of the Indians.”

The first phrase, notably, is not “commit any act” or 

even “commit any wrongful act.” Rather, it is “commit 

any wrong.” That phrase is closely akin to “commit any 

crime,” or “commit any offense,” phrases that in familiar 

legal usage appear to cover committing a crime by a 

failure to act in the (comparatively few) circumstances in 

which there is a criminal-law duty to act. See 1 Wayne R. 

LaFave, Subst. Crim. L. § 6.2 (2d ed. 2016) (“Most crimes 

are committed by affirmative action rather than by nonaction. But there are a number of statutory crimes which 

are specifically defined in terms of failure to act, and 

other crimes which, though not specifically so defined, 

may be committed either by affirmative action or by 

failure to act under circumstances giving rise to a legal 

duty to act.”); Model Penal Code § 2.01(3) (2015) (“Liability for the commission of offense may not be based on an 

omission unaccompanied by action unless: (a) the omission is expressly made sufficient by the law defining the 

offense; or (b) a duty to perform the omitted act is otherwise imposed by law.”). Even as to that phrase, however, 

we have not been presented a full historical analysis of 

the common usage of it at the time. 

The Treaty provision also does not stop at the first 

phrase. The second phrase requires that the wrong be 

committed “upon the person or property of the Indians.” 

That phrase might suggest a focus on affirmative acts. 

Again, however, we do not know enough to so hold. We 

lack briefing on a proper historical understanding of that 

phrase, in general or in the relevant context. That context plainly includes a focus on keeping the peace and 

preventing retaliation for wrongs. Richard, 677 F.3d at 

1154–55 (Lourie, J., dissenting); Tsosie, 825 F.2d at 395; 

Hernandez, 93 Fed. Cl. at 199. It is possible the particular criminal failures to act would be so generally under-
JONES v. US 25

stood to be injurious that they would provoke the retaliation the Treaty meant to prevent. We cannot at present 

say.

In short, we currently lack the context or historical 

analysis required to determine whether the language of 

the bad men provision covers criminal omissions—or 

perhaps only some criminal omissions—as well as commissions. Indeed, we do not currently have enough information to decide definitively even whether the 

provision ultimately involves an ambiguity to be resolved 

in favor of the Indians under established canons of construction. See Seufert Bros. Co. v. United States, 249 U.S. 

194, 198 (1919) (“We will construe a treaty with the 

Indians . . . as justice and reason demand in all cases 

where power is exerted by the strong over those to whom 

they owe care and protection, and counterpoise the inequality by the superior justice which looks only to the 

substance of the right without regard to technical rules.”)

(quoting United States v. Winan, 198 U.S. 371, 380 

(1905)); Worcester v. Georgia, 31 U.S. 515, 547, 552–53 

(1832), distinguished on other grounds by Nevada v. 

Hicks, 533 U.S. 353, 361–62 (2001) (interpreting the 

Hopewell Treaty with the Cherokee Indians, which included a provision whereby the United States “allotted” 

land for Native hunting grounds. There, “allotted” meant 

simply “marked out,” and was not used as a technical 

indicator of ownership, because the focus of the Hopewell 

Treaty was the location of the line being drawn, and the 

Cherokee would not have recognized the legal import of 

the word “allotted” beyond that of “marked out”). 

Governing case law, contrary to the Government’s assertion, does not resolve the issue. To date, all of the 

cases that are precedent in this court involved affirmative 

acts; none presented the question whether some omissions 

could come within the bad men provision. Accordingly, 

we have never held that a wrong under the bad men 

provision must be an affirmative act.
26 JONES v. US

In Hebah II, we defined a wrong broadly as an 

“[a]ction or conduct which inflicts harm.” 456 F.2d at 704. 

But as in every other pertinent case that this court, its 

predecessor, or the Supreme Court has heard, the alleged 

wrong—a killing—was indisputably cognizable under the 

bad men provision as both a criminal wrong and an 

affirmative act. Nothing in the Hebah II definition dictates the affirmative-acts limitation the Government 

proffers.

The CFC in this case relied on its earlier decisions in 

Garreaux and Hernandez to support its affirmative-acts 

limitation, but those cases are not binding precedent for 

us, and they relied on overbroad readings of the Supreme 

Court’s decision in Kan-gi-shun-ca and the Court of 

Claims’ decisions in Janis, Elk, and Hebah v. United 

States, 428 F.2d 1334, 1338 (Ct. Cl. 1970) (“Hebah I”). 

The nature of wrongs cognizable under the bad men 

provision was never at issue in Kan-gi-shun-ca, an action 

brought by the family of a murder victim against an 

alleged bad man from the same tribe, 109 U.S. at 567, or 

in Janis, an action brought by a non-Native citizen who 

had been adopted into a tribe against members of that 

tribe for cattle theft, 32 Ct. Cl. at 408. The alleged acts in 

both were unquestionably “wrongs.” Elk, which dealt 

with the scope of administrative exhaustion, is likewise 

inapposite. See 70 Fed. Cl. at 405. Hebah I addressed 

whether a claim under a bad men provision could be 

brought by an individual (the widow of a Native American) or must be brought on behalf of the tribe itself. 428 

F.2d at 1337. These cases do not compel finding an 

affirmative-acts limitation in the bad men provision.

It is unnecessary and inadvisable to go further at this 

stage. On remand, Jones may or may not identify applicable crimes covering the alleged omissions. If Jones does 

so, the legal analysis can be both more focused (on those 

crimes) and more developed than it currently is. We 

therefore vacate the CFC’s ruling that the alleged omis-
JONES v. US 27

sions are not cognizable under the bad men provision, and 

we include those omissions, to be addressed anew if 

necessary, in the remand.

iv. Territoriality of the Bad Men Provision

Without citing any authority, the CFC added the further limitation that any actions or omissions performed 

off the reservation are necessarily outside the scope of the 

bad men provision. Jones II, 122 Fed. Cl. at 522 (“The 

court also notes, however, that defendant is correct that 

the ‘bad men’ provision does not include, as plaintiffs[] 

suggest[,] the universe of off-reservation activities that 

would have occurred but for the initial conduct on the 

reservation.”). The court thus dismissed all the claims of 

“wrongs” occurring at the Medical Center, the Mortuary, 

and at the OME as not cognizable under the bad men

provision. For the reasons explained below, we find that 

the CFC erred in dismissing all the off-reservation actions 

as not cognizable.

The text of the bad men provision itself does not limit 

cognizable wrongs to those occurring wholly on reservation lands. Indeed, the bad men language broadly protects against wrongs “upon the person or property of the 

Indians.” 1868 Treaty, 15 Stat. 619. Nothing in the 

remainder of the 1868 Treaty explicitly limits the geographic scope of where cognizable wrongs may be committed. Compare id. with Treaty With the Navajo, June 1, 

1868, 15 Stat. 667 (“[I]f any Navajo Indian or Indians 

shall leave the reservation herein described to settle 

elsewhere, he or they shall forfeit all the rights, privileges, and annuities conferred by the terms of this treaty.”) 

(discussed in Herrera v. United States, 39 Fed. Cl. 419, 

420 (1997), aff'd, 168 F.3d 1319 (Fed. Cir. 1998)). 

This court and its predecessor have commented on the 

territorial scope of similar bad men provisions. See Richard, 677 F.3d at 1153 n.22 (“[C]laims under this provision 

are limited to the clear geographic limits found in the 
28 JONES v. US

Treaties.”); Campbell v. United States, 44 Ct. Cl. 488, 

491–92 (1909) (applying a provision similar to the bad 

men provision, and explaining that the treaty “contemplates such injuries as result from invasion or aggression 

on the territory or reservation of the [Indians]”); Janis, 32 

Ct. Cl. at 410 (discussing the general purpose of the bad 

men provision as “contemplat[ing] that the Indians shall 

be responsible for what Indians do within the white man’s 

territory and that the Government will be responsible for 

what white men do within the Indian’s territory.”); Pablo 

v. United States, 98 Fed. Cl. 376, 382 (2011) (no compensation awarded under a bad men provision for wrongs 

suffered outside the boundaries of the reservation recognized by a Treaty). None of these decisions, however, 

created a strict territorial line at the reservation boundary for cognizable wrongs under the bad men provision. In 

Richard, for example, the only issue was whether government liability under the bad men provision was limited to actions performed by government actors, or 

whether it could extend to a drunk driver who killed two 

Sioux men on land indisputably within the Sioux reservation. 677 F.3d at 1142, 1153. The footnote in Richard

that the provision at issue was “limited to the clear geographic limits found in the Treaties,” id. at 1153 n.22, 

does not define where a wrong actually occurred or the

implications for wrongs physically committed off the 

reservation following on-reservation acts. Janis similarly 

failed to address the geographic location issue and was 

primarily concerned with whether a white man who had 

been adopted into the Sioux nation could bring a claim 

under a bad men provision for injuries done to him by an 

Indian. 32 Ct. Cl. at 408–411. 

Pablo does not help the Government either—that action was brought by a Plaintiff who had no permanent 

address on the reservation and was not a registered 

member of the Tribe that was party to the treaty includ-
JONES v. US 29

ing the bad men provision. 98 Fed. Cl. at 382.6 The Fort 

Sumner Treaty that gave rise to the bad men provision at 

issue in Pablo included a provision that is arguably 

geographically-limiting, unlike the 1868 Treaty at issue 

here. See id. at 378 (“[I]t is further agreed and understood by the parties to this treaty, that if any Navajo 

Indian or Indians shall leave the reservation herein 

described to settle elsewhere, he or they shall forfeit all 

the rights, privileges, and annuities conferred by the 

terms of this treaty”). Finally, Campbell, 44 Ct. Cl. 488, 

does not support a strict geographic limitation because 

there was no bad men provision at issue and our predecessor court held that cognizable injuries were those that 

“result from invasion or aggression on the territory or 

reservation,” not simply ones that physically and wholly 

occurred on the reservation. Id. at 491 (emphasis added).

Jones does not argue that the bad men provision is 

unlimited in geographic scope, but argues that a wrong 

committed on reservation land and continuing offreservation land is cognizable. We agree with this general principle. Even assuming, without deciding, that the 

bad men provision includes some form of geographic 

boundary, the bad men provision may take cognizance of 

off-reservations activities that are a clear continuation of 

activities that took place on-reservation. For a general 

discussion of the treatment of territoriality issues in 

criminal law, which we do not suggest applies in any 

given particular here, see 4 Wayne R. LaFave et al., Crim. 

Proc. § 16.4(b), (c) (4th ed. 2016).

 

6 The attack in Pablo occurred on, and the victim 

was a resident of, a reservation of another Tribe that was 

not within the scope of the treaty at issue. 38 Fed. Cl. at 

381. The tribe on whose land the attack occurred was a 

party to a different treaty that also included a bad men 

provision, but this was held not to change the geographic 

limitation of the actual treaty at issue. Id. at 382.
30 JONES v. US

Like the alleged affirmative acts limitation, a geographic limitation would ill-serve the peace-creating and 

peace-maintaining policy of the 1868 Treaty. Wrongs 

occurring off-reservation that occur as a direct result of 

wrongs occurring on-reservation may be as injurious to 

peace as those same acts occurring wholly on reservation. 

For example, it would make little sense to treat a kidnapping and murder wholly on reservation land as a cognizable wrong, but exclude from the bad men provision offreservation damages resulting from a kidnapping on the 

reservation. This is not to say that all off-reservation 

wrongs fall within the cognizance of the bad men provision, only that the geographic line is not as bright as that 

drawn by the CFC.

Here, Jones alleges that bad men committed wrongs 

after Murray was taken from the site of the shooting on 

the reservation to the off-reservation Medical Center, the 

Mortuary, and the OME, and that at least some of these 

wrongs were a continuation of the conspiracy to cover-up 

Murray’s on-reservation killing. Jones also alleges that 

the off-reservation destruction of the gun and the offreservation failure to preserve evidence and investigate 

were wrongs directly tied to the circumstances of his 

death. 

The inquiry into which off-reservation acts are a clear 

continuation of on-reservation activities is heavily factdependent. The CFC erred in summarily dismissing 

Jones’s allegations of off-reservation wrongs without 

considering the connection those alleged wrongs had, if 

any, to the alleged on-reservation wrongs. We leave it to 

the sound judgment of the CFC to determine, in the first 

instance, whether any of these off-reservation acts 

demonstrate the alleged continuation of on-reservation 

acts so as to be cognizable under the bad men provision.
JONES v. US 31

D. Issue Preclusion

Issue preclusion is available as a defense when the 

following four elements are met: 

1. The issue previously decided is identical with 

the one presented in the action in question.

2. The prior action has been finally adjudicated 

on the merits.

3. The party against whom the doctrine is invoked was a party, or in privity with a party, to 

the prior adjudication.

4. The party against whom the doctrine is raised 

had a full and fair opportunity to litigate the issue 

in the prior action.

See Park Lake Res. Ltd. Co. v. United States Dep’t of Ag., 

378 F.3d 1132, 1136 (10th Cir. 2004).7 The party asserting issue preclusion bears the burden to establish each of 

these elements. Stan Lee Media, Inc. v. Walt Disney Co., 

774 F.3d 1292, 1297 (10th Cir. 2014). 

The CFC held that the district court’s factual findings—i.e., that Murray had indeed killed himself and that 

there was no conspiracy to cover-up the culpability of the 

local officers—and the legal determination of no spoliation, met each of the elements for issue preclusion. Jones 

II, 122 Fed. Cl. at 525–30. The CFC thus dismissed all of 

 

7 The CFC here applied the issue preclusion law as 

framed by the Tenth Circuit, and neither party contests 

this choice of law. The elements of issue preclusion are 

essentially the same under Federal Circuit and Tenth 

Circuit law. Compare Park Lake, 378 F.3d at 1135 with

Biafora v. United States, 773 F.3d 1326, 1333 (Fed. Cir. 

2014). We do not believe the choice of law is dispositive, 

and we follow the parties and the CFC in applying Tenth 

Circuit law.
32 JONES v. US

Jones’s claims that it deemed potentially cognizable under 

the bad men provision. Id. at 530.

 Jones concedes that the Government satisfied elements two and three of issue preclusion, but argues that 

the issues are not identical, and that she did not receive a 

full and fair opportunity to litigate these issues in the 

district court. Jones frames her objections in various 

ways. First, Jones argues that the issues raised in the 

CFC—primarily, whether the state and federal officers 

were bad men—are distinct from the Constitutional tort 

issues against the state and local officials decided in the 

district court. Second, Jones argues that she did not have 

a full and fair opportunity to litigate in the district court 

because the absence of the federal officers created significant procedural limitations in asserting spoliation. Finally, Jones argues that the district court’s spoliation 

decision did not decide whether the federal officers spoliated evidence, but only that state and local officials could 

not be charged with that spoliation. 

The Government argues that the “core” of the case—

which the government defines as the alleged extrajudicial pursuit of Murray, the execution-style killing of 

Murray, and the conspiracy to cover-up the killing—has 

already been fully litigated. In particular, the Government cites the district court’s conclusion that the evidence 

“clearly shows that Mr. Murray shot himself” and that “no 

reasonable jury could find that Detective Norton inflicted 

the mortal blow to Mr. Murray.” See Jones I, 3 F. Supp. 

3d at 1191–92. The Government argues that the district 

court also definitively held that there was no spoliation of 

evidence. In response to Jones’s argument with respect to 

the failure of the district court to rule on the federal 

officers’ failure to investigate the scene or Norton’s gun, or 

their destruction of the gun, the Government argues that 

those claims are not cognizable under the bad men provision. 
JONES v. US 33

We agree with Jones that the CFC erred in issue precluding Jones’s claims against the United States. In the 

district court, Jones argued that the local officers spoliated evidence by: 1) failing to render aid to Murray after the 

shooting; 2) failing to secure the evidence on the scene; 3)

failing to test or secure Norton’s gun for blowback (potentially indicative of it being used to shoot Murray from 

close-range); 4) failing to test the gun found near Murray

(potentially exculpatory evidence that Murray did not

shoot himself from close range); 5) destroying the gun 

found near Murray; and 6) failing to perform a full autopsy on Murray. Because the federal officers were not 

parties to the suit, the district court excluded the actions 

of the federal officers in determining whether to issue 

spoliation sanctions. See Spoliation Order, 2014 WL 

909569, at *7. The district court explained that the local

officers could not be liable for several alleged acts of 

spoliation because the duty to preserve the evidence was 

not on them, but on the non-party federal officers. See id. 

For example, with respect to Norton’s firearm, the district 

court noted that “Plaintiffs have possibly been prejudiced 

by the lack of evidence that testing might have uncovered,” but held that none of the Defendants (the local

officers) were spoliators. Id. This was because, in part,

the state, county, and local officers “had no responsibility 

to ensure that Detective Norton’s firearm was tested,” and 

although “Agent Ashdown possibly should have taken 

Detective Norton’s firearm to have necessary tests performed,” “Agent Ashdown is not a named Defendant.” Id. 

The district court did not decide whether Jones was, in 

fact, prejudiced, or whether Ashdown’s failure to test the 

firearm justified spoliation sanctions. 

Similarly, the district court did not decide whether 

spoliation sanctions would be appropriate for (1) the 

federal officers’ failure to test or preserve the .380 firearm 

found near Murray, see id. at *6, and (2) the federal 

officers’ failure to investigate and preserve the scene of 

the shooting—such as testing for gunshot residue on 
34 JONES v. US

Murray’s and Norton’s hands, and testing Norton and 

Murray’s clothes for blood or tissue. Id. at *8–9 (“None of 

the named Defendants can be held liable for these alleged 

misdeeds, because Agent Ashdown and Keith Campbell 

were in charge of the investigation”; “Agent Ashdown and 

Officer Campbell were in charge of documenting the 

physical evidence for the investigation. . . . None of the 

named Defendants had the responsibility or duty to 

investigate and document the actual scene of the shooting 

. . . . [so] the court will not impose sanctions on any of the 

Defendants.”). 

The absence of the federal officers as defendants in 

the district court litigation fundamentally undermines the 

preclusive effect of several of the district court’s ultimate 

conclusions, including the key conclusion that Murray

shot himself. But for the destruction of the cited evidence, 

Jones may have shown that Murray was, in fact, shot by 

Norton. Though the lost evidence may not be retrieved—

and, even if retrieved, may have corroborated Norton’s 

testimony—a determination of spoliation may trigger a 

sanction that could provide sufficient evidence for Jones’s 

claims to survive a motion to dismiss or for summary 

judgment. To allow the application of issue preclusion 

here would, by implication, decide that issue for the first 

time without any substantive debate. “[T]he rules of issue 

preclusion do not purport to prohibit litigation of matters 

that never have been argued or decided.” 18 Charles Alan 

Wright et al., Federal Practice and Procedure § 4416 (2d 

ed. 2016). Notably, the question we consider is not 

whether claims against the local officials are barred by 

claim preclusion—surely they are—but whether the 

claims against the United States under the bad men 

provision are barred by issue preclusion—they are not. 

Applying issue preclusion here would undercut the 

district court’s explicit statements that it was not deciding 

the federal officers’ liability for spoliation. “Courts in 

subsequent actions have honored express statements by 
JONES v. US 35

the court deciding the first action that a particular issue 

was not being decided.” Id. at § 4417. Though the district 

court did ultimately decide that Murray shot himself and 

that there was no conspiracy, the preclusive effect of that 

conclusion is explicitly limited to situations where no 

additional evidence (possibly in the form of spoliation 

sanctions) arises out of the federal officers’ actions with 

respect to the evidence.

The culpability of the federal officers for spoliation 

has never been decided, and to assume the resolution of 

such a central issue ipse dixit without substantive consideration “depriv[es] litigants of their first chance[] to 

litigate an issue,” see Levi Strauss & Co. v. Abercrombie & 

Fitch Trading Co., 719 F.3d 1367, 1371 (Fed. Cir. 2013), 

and is an improper application of issue preclusion.

We thus vacate the CFC’s dismissal on the basis of 

issue preclusion, and remand for consideration, in the 

first instance, of Jones’s spoliation assertions and the 

appropriate sanction, if any. If the CFC concludes on 

remand that spoliation sanctions are not appropriate, or 

that the appropriate sanctions would not change the 

evidentiary landscape for particular issues,8 the CFC may 

reconsider the application of issue preclusion. If it determines that sanctions are appropriate and do change the 

evidentiary landscape, the CFC should independently 

consider Jones’s substantive allegations of bad men

violations. 

E. Breach of Trust

On appeal, Jones presses a claim that the United 

States assumed a fiduciary duty to the Ute Tribe mem-

 

8 If the CFC determines that the federal officer spoliated evidence, we leave it to the sound discretion of the 

CFC to decide, in the first instance, which of its findings, 

if any, were affected by the spoliation and which were not.
36 JONES v. US

bers, and that it violated that duty. “To state a claim 

cognizable under the Indian Tucker Act . . . a Tribe must 

identify a substantive source of law that establishes 

specific fiduciary or other duties, and allege that the 

Government has failed faithfully to perform those duties.” 

Navajo Nation I, 537 U.S. at 506. 

On appeal, Jones points only to the bad men provision 

of the 1868 Treaty as the substantive source of law. Jones 

therefore must show a breach of the bad men provision as 

a condition precedent to state a claim for breach of trust. 

As such, the inquiry into the breach of trust violation 

collapses into the bad men inquiry. 

If the CFC decides on remand that the United States 

has not violated the bad men provision, then Jones’s 

failure to show a breach of that provision also compels 

dismissal of the breach of trust claim. If the CFC decides 

on remand that the United States has violated the bad 

men provision, Jones will be entitled to compensation 

directly under the bad men provision, and the trust claim 

will be cumulative to that provision. 

VACATED AND REMANDED

COSTS

No costs.