[00:00:00] Speaker 01:
Next case is Deborah Jones et al.

[00:00:03] Speaker 01:
versus the United States, 2015, 5148.

[00:00:07] Speaker 01:
Mr. Rasmussen, when you're ready.

[00:00:11] Speaker 01:
Thank you, Your Honor.

[00:00:16] Speaker 03:
May it please the Court?

[00:00:18] Speaker 03:
My name is Jeffrey Rasmussen.

[00:00:19] Speaker 03:
I'm an attorney for the family of Mr. Murray.

[00:00:26] Speaker 03:
Mr. Murray is deceased.

[00:00:30] Speaker 03:
also is the state.

[00:00:34] Speaker 03:
In the District Court, or the Court of Claims, we also represented the Udindian tribe.

[00:00:42] Speaker 03:
The Udindian tribe did not appeal in this particular case, and so I'm not representing them here today.

[00:00:50] Speaker 03:
The issue, the primary issue in this case, the primary issues, I guess,

[00:00:58] Speaker 03:
But the primary issue is really related to the bad man clause in the Tribes Treaty, a very different sort of case than what we've been hearing today, all of which goes over my head.

[00:01:11] Speaker 03:
But what we have here is something that is very difficult for any court to do, which is to say, what did that treaty mean to youth Indians?

[00:01:26] Speaker 03:
in 1868.

[00:01:29] Speaker 03:
What did it mean to them?

[00:01:31] Speaker 03:
And we have really good briefs providing analysis of how we parse these sentences.

[00:01:42] Speaker 01:
Doesn't this statute require a criminal act to talk about being arrested?

[00:01:47] Speaker 03:
It does not require a criminal act.

[00:01:53] Speaker 03:
But in any case, we have criminal acts here.

[00:01:56] Speaker 01:
One of the issues here is- Then don't you run into issue preclusion because of the 10th Circuit case?

[00:02:06] Speaker 03:
No, then we do not run into issue preclusion.

[00:02:09] Speaker 03:
Thank you.

[00:02:10] Speaker 03:
We do not run into issue preclusion here.

[00:02:13] Speaker 03:
But what we've got, the statute, the bad man clause, refers to wrongs.

[00:02:23] Speaker 03:
And then it refers to criminal acts.

[00:02:26] Speaker 03:
But it is not limited to criminal acts.

[00:02:28] Speaker 03:
And this is where we need to go and not be trying to parse the sentences as attorneys would today.

[00:02:38] Speaker 03:
But the case law from this court and from the Supreme Court is very clear that what we need to do is say, what did the Ute Indians in 1868 understand here?

[00:02:51] Speaker 03:
Then from there,

[00:02:53] Speaker 03:
What this court has generally done is look back and say, what was this statute trying to remedy?

[00:03:01] Speaker 03:
And the United States has come in here repeatedly, usually after being victorious below, but come in here repeatedly and said, this statute, we don't have liability under this statute.

[00:03:16] Speaker 03:
That's what they always say.

[00:03:19] Speaker 03:
But every time it is,

[00:03:21] Speaker 03:
something different as to why they don't have liability under this statute, under this treaty provision.

[00:03:28] Speaker 04:
Can I ask you?

[00:03:29] Speaker 04:
Yeah.

[00:03:29] Speaker 04:
Could you have named either the federal officers that were involved in this process in Utah or the United States in the Utah action?

[00:03:43] Speaker 03:
I don't believe we could have named the United States.

[00:03:47] Speaker 04:
We did bring a- Under the Federal Tort Claims Act or no?

[00:03:50] Speaker 03:
I think what we're looking at here when we're talking about the bad man clause is... No, I wasn't talking about that.

[00:03:57] Speaker 04:
I'm going to assume that you agree that the only forum in which the bad man clause can be litigated is the Court of Federal Claims.

[00:04:05] Speaker 03:
Put that aside.

[00:04:05] Speaker 03:
Right.

[00:04:07] Speaker 03:
But whether we could have brought the officers in under a federal tort claim, I don't...

[00:04:21] Speaker 03:
It's the second time in my life that I haven't anticipated a question.

[00:04:27] Speaker 03:
I am not sure how we could have fought the United States on a federal tort claim in that particular court.

[00:04:38] Speaker 04:
Can I ask another question?

[00:04:40] Speaker 04:
The government says at a couple of places, and there's a red brief, that if one accepts

[00:04:47] Speaker 04:
an interpretation of the bad men clause that I know you dispute, namely that it requires some sort of criminal act.

[00:04:55] Speaker 04:
Then on that assumption, the only way you could prevail on your court of federal claims suit is by obtaining a finding that Mr. Murray did not, in fact, shoot himself.

[00:05:09] Speaker 04:
And that you don't, I did not see, at least in your gray brief, or maybe I think also in your blue brief,

[00:05:16] Speaker 04:
an argument that said, put aside whether he killed himself or was killed.

[00:05:23] Speaker 04:
We have an independent basis for recovery under the bad men clause, like the finger in the head as a criminal violation of a Utah statute on desecration or something like that.

[00:05:41] Speaker 04:
So that does, on the assumption of required criminal act,

[00:05:46] Speaker 04:
does the case narrow to the question, can the Utah and 10th Circuit determination on summary judgment that Mr. Murray killed himself and wasn't killed by somebody else?

[00:06:01] Speaker 04:
that that question is, could that be overturned?

[00:06:06] Speaker 03:
And there's two separate parts, because there's different claims here.

[00:06:13] Speaker 03:
And the one part of it is that it would not preclude claims for the wholesale failure of the United States to document what happened to Mr. Murray.

[00:06:28] Speaker 04:
Well here, let me just, there's a limited amount of time and unfortunately this is the one in which I have more than the usual number of different topic questions.

[00:06:37] Speaker 04:
Okay.

[00:06:38] Speaker 04:
It seems to me your primary contention, primary contention about the role of the federal officers was that they either did things like

[00:06:48] Speaker 04:
destroyed one of the two firearms, I guess with court approval, but destroyed one of the two firearms and then failed to do a bunch of things that, had they done, might have quite dramatically changed the adjudication of the question of whether Mr. Murray killed himself or was killed.

[00:07:09] Speaker 04:
Yes.

[00:07:09] Speaker 04:
And that as a result of that, which you

[00:07:13] Speaker 04:
didn't get a chance to litigate in the Utah court, there shouldn't be issue preclusion.

[00:07:18] Speaker 03:
Yes.

[00:07:19] Speaker 03:
On issue preclusion, and that was the other part of it, so the first part is whether what we are alleging against the United States, independent of the killing of Mr. Murray,

[00:07:31] Speaker 03:
whether there are criminal acts here.

[00:07:33] Speaker 03:
Failing to document the crime scene when it is part of a cover-up is a crime.

[00:07:40] Speaker 03:
It is not a failure to act.

[00:07:42] Speaker 03:
It is a crime.

[00:07:43] Speaker 03:
They did not do the things they needed to do.

[00:07:46] Speaker 03:
So that's the first part.

[00:07:47] Speaker 03:
But then the second part is, as you just mentioned, when we're dealing with an issue preclusion

[00:07:57] Speaker 03:
claim, the lower court or the 10th Circuit was very clear that it was making its decision based upon the actions of the state officers.

[00:08:11] Speaker 03:
And it was saying these federal officers were the ones that were responsible.

[00:08:18] Speaker 03:
And our view of it was that they were both responsible, because litigants have an independent duty

[00:08:27] Speaker 03:
outside of the criminal investigation, so in the litigants, so that the state officers had an independent duty.

[00:08:34] Speaker 00:
Are you conceding then the issue of preclusion to the extent that the bad men you are identifying are the state officers?

[00:08:44] Speaker 00:
And the wrongful acts you are identifying, are those by the state officers?

[00:08:49] Speaker 03:
Our view is that our claims against the state officers would not be precluded, but our claims against the federal officers much more easily would not be precluded.

[00:09:00] Speaker 03:
You go to the 10th Circuit's decision, and I'll quote it later, I guess, but you go to the 10th Circuit's decision and they repeatedly say, look, we're only looking at these state officers.

[00:09:13] Speaker 03:
The people who had the primary responsibility here were the federal officers.

[00:09:17] Speaker 00:
They don't make any findings against the federal officers.

[00:09:20] Speaker 00:
They don't make findings against the federal officers.

[00:09:22] Speaker 00:
They just say, to the extent that there's a claim that something more should have been done, that was within the bailiwick of the feds.

[00:09:28] Speaker 03:
Right.

[00:09:29] Speaker 03:
And that then should have been what would have occurred in the court below here, in the court of claims, would be for that court to say, OK, we have wholesale destruction

[00:09:43] Speaker 03:
the evidence here.

[00:09:45] Speaker 03:
We don't have the guns.

[00:09:46] Speaker 03:
This gun that supposedly Mr. Murray somehow did this and shot himself in the back of the head.

[00:09:53] Speaker 03:
And I can't even do it with my finger, let alone with a gun.

[00:09:56] Speaker 03:
Somehow he did that and shot himself in the back of the head.

[00:09:59] Speaker 03:
Well, if that had happened, the gun would have been covered in blood.

[00:10:03] Speaker 03:
We've got a picture.

[00:10:04] Speaker 03:
It doesn't look like it was.

[00:10:05] Speaker 03:
If he'd shot himself with his left hand, his left hand would have been covered in blood.

[00:10:09] Speaker 01:
And it wasn't.

[00:10:09] Speaker 01:
But that's a finding of another court that was affirmed.

[00:10:13] Speaker 03:
Right.

[00:10:13] Speaker 03:
But my point here is that if we had the gun that the United States did not test, the guns, both of them, which of these guns had blowback on it?

[00:10:26] Speaker 03:
Which of them had blood on it?

[00:10:27] Speaker 03:
One of those two guns had blood on it.

[00:10:29] Speaker 03:
The United States was responsible for determining that.

[00:10:32] Speaker 03:
They didn't do the test.

[00:10:34] Speaker 03:
They didn't do a test of either gun.

[00:10:37] Speaker 03:
And so we don't have that evidence.

[00:10:39] Speaker 03:
And so what the court below should have done was say, OK, we are in a different court.

[00:10:44] Speaker 03:
We are dealing with the United States.

[00:10:46] Speaker 03:
The 10th Circuit did what it did with regard to the state officers.

[00:10:52] Speaker 03:
But shouldn't there be a spoliation sanction against the United States?

[00:10:56] Speaker 03:
Because the 10th Circuit was very clear that they're the ones responsible.

[00:11:00] Speaker 03:
And if there was a spoliation sanction, then

[00:11:05] Speaker 03:
the result likely would have been different.

[00:11:07] Speaker 00:
But is foliation a criminal act?

[00:11:11] Speaker 00:
So you're saying that if it was in furtherance of a conspiracy, that it's a criminal act.

[00:11:17] Speaker 00:
But the question is, conspiracy to cover up what?

[00:11:20] Speaker 00:
To cover up the very improper shooting or murder, as you would have said, that the state officers engaged in.

[00:11:29] Speaker 00:
But the 10th Circuit has confirmed that there was no actual improper shooting.

[00:11:33] Speaker 03:
to cover up the facts of the case.

[00:11:37] Speaker 03:
That would make it a crime.

[00:11:38] Speaker 03:
It doesn't have to be to cover up a murder.

[00:11:40] Speaker 03:
It has to be to cover up the facts of the crime or of what happened so that we can have those adjudications.

[00:11:50] Speaker 03:
Destruction of evidence is a crime.

[00:11:54] Speaker 03:
It doesn't have to be, then.

[00:11:56] Speaker 03:
We can say it has to be destruction of evidence of this particular crime.

[00:12:00] Speaker 01:
But can a federal agency be bad men?

[00:12:04] Speaker 03:
Can a federal agency?

[00:12:05] Speaker 01:
Be bad men.

[00:12:07] Speaker 03:
You know, I think in our brief, we say they cannot be.

[00:12:09] Speaker 03:
And so I'm not going to alter from that.

[00:12:12] Speaker 03:
That's what we say in our brief.

[00:12:14] Speaker 03:
You don't need, certainly, to reach that issue in order to decide this case.

[00:12:18] Speaker 01:
You're well into your rebuttal crime, which I assume you'd like to say.

[00:12:21] Speaker 01:
Yes.

[00:12:22] Speaker 03:
Thank you, Your Honor.

[00:12:23] Speaker 01:
Mr. Masonette.

[00:12:24] Speaker 01:
Mr. Masonette.

[00:12:26] Speaker 02:
Yes.

[00:12:27] Speaker 02:
Good morning, Your Honors.

[00:12:28] Speaker 02:
James Masonette of the United States.

[00:12:29] Speaker 02:
And with me at counsel's table is Jody Schwartz, also from the Environment and Natural Resource Division.

[00:12:35] Speaker 02:
Let me begin by acknowledging that the facts of this case are serious and tragic.

[00:12:39] Speaker 02:
And there's no doubt that Mr. Murray's death is a profound loss for his family.

[00:12:43] Speaker 02:
The now legal issue before the court, though, is whether or not Mr. Murray's family can recover from that loss under the Bad Men's Clause.

[00:12:49] Speaker 02:
And the answer is no, for two reasons.

[00:12:52] Speaker 02:
The first reason is issue preclusion.

[00:12:54] Speaker 02:
The core of this place are the claims that Mr. Murray was shot by the police and that the police then conspired to cover that up.

[00:13:00] Speaker 04:
Is that merely the core or is that the entirety?

[00:13:04] Speaker 02:
Well, they make other allegations of other actions, right?

[00:13:07] Speaker 02:
That federal agents failed to perform a proper investigation.

[00:13:10] Speaker 02:
Those, as opposing counsel pointed out, have not been litigated yet.

[00:13:14] Speaker 02:
Those claims don't fall within the scope of the bad man clause.

[00:13:17] Speaker 02:
Now, the core of their case, the claim that Mr. Murray was shot by the police unlawfully,

[00:13:21] Speaker 04:
If they were... Well, here's what I guess.

[00:13:24] Speaker 04:
It seems to me there's more than a couple of things going on here.

[00:13:28] Speaker 04:
They say failure to investigate or conspiracy to not investigate is one kind of wrong making the federal agents bad men.

[00:13:42] Speaker 04:
They also say

[00:13:43] Speaker 04:
that the state officers, including the one that they say shot Mr. Murray, was a bad man, and he committed a wrong.

[00:13:52] Speaker 04:
And we do not take the Utah litigation as determinative of that, because that litigation would have been different had spoliation by the people they say spoliated, namely the federal agents,

[00:14:04] Speaker 04:
been litigable.

[00:14:05] Speaker 04:
It wasn't litigable.

[00:14:07] Speaker 04:
If it were litigable, they say there would have been spoliation.

[00:14:10] Speaker 04:
There might have been an adverse inference.

[00:14:11] Speaker 04:
There certainly wouldn't have been summary judgment.

[00:14:14] Speaker 04:
So no issue preclusion as to what you call the core issue, who shot Mr. Murray.

[00:14:20] Speaker ?:
Right.

[00:14:20] Speaker 02:
Well, first of all, we have to remember that the Utah District Court did look at issues of spoliation.

[00:14:25] Speaker 04:
But not as to the federal officials.

[00:14:28] Speaker 04:
It said if there's a problem, it was not the defendant's problem, namely the defendant's in the Utah case.

[00:14:35] Speaker 04:
And now the United States is the defendant here.

[00:14:40] Speaker 04:
And the question is, does the allegation that the federal officials committed spoliation, even if that was not itself wronged by a bad man,

[00:14:50] Speaker 04:
undermine the case for issue preclusion because the litigation over who shot Mr. Murray might have been very different had that spoliation not taken place or been litigable in Utah.

[00:15:03] Speaker 02:
I don't believe so, Your Honor, because fundamentally, even if issue preclusion didn't apply here, they've had a full... So you're asking whether or not

[00:15:17] Speaker 04:
If these issues were litigated in court photo claims... If Detective Norton actually did what they say he did, murdered Mr. Murray, shot him without cause or something, they would get to litigate, would they not, whether that is a criminal act under the bad man clause?

[00:15:33] Speaker 02:
Yes.

[00:15:34] Speaker 02:
Okay.

[00:15:35] Speaker 02:
So if they succeeded on those claims, then they would be entitled to compensation under the bad man clause.

[00:15:38] Speaker 04:
Right.

[00:15:38] Speaker 04:
So the only reason they don't get to litigate that would be issue preclusion, and that turns on whether they had

[00:15:45] Speaker 04:
the kind of full and fair opportunity to litigate that issue.

[00:15:49] Speaker 04:
And I think really their only contention is, no, we didn't, because potentially very important evidence that could have changed the result on that wasn't there.

[00:16:01] Speaker 04:
And the plaintiff didn't get the benefit of that absence, because the people who made it not be there are not defendants in the case.

[00:16:11] Speaker 02:
Right.

[00:16:13] Speaker 02:
The Utah District Court considered issues of collation with the state police.

[00:16:16] Speaker 02:
The full and fair opportunity part of the test for whether issue preclusion applies or not turns on whether or not the tribunal imposed significant limitations on their litigation of their claims in that court.

[00:16:27] Speaker 02:
And it didn't.

[00:16:27] Speaker 02:
And if you look at the cases that have found that a case wasn't issue precluded because the other side didn't have a full and fair opportunity to litigate the issues, there are cases like the 10th Circuit's decision in Burrell v. Armijo where it was a tribal court and the judge

[00:16:40] Speaker 02:
didn't explain his conclusions, and there was no court of appeals to go to.

[00:16:43] Speaker 02:
Here, they litigated those issues in front of a Utah district court and were heard by the 10th Circuit.

[00:16:48] Speaker 02:
And having these issues tried again by the Court of Federal Claims, whether or not evidence was lost, there's no more evidence for the Court of Federal Claims to consider.

[00:16:58] Speaker 02:
It's going to have to hear from the same witnesses and read the same evidence.

[00:17:01] Speaker 04:
But in the Court of Federal Claims, the tribunal might be entitled to say there is

[00:17:09] Speaker 04:
potentially crucial missing evidence, these defendants or the United States or the agency of the United States are responsible for it.

[00:17:16] Speaker 04:
When that happens in a case, there are a variety of spoliation remedies, adverse inference, permissive or compelled, directing a verdict on an issue, a number of things where they might actually be able to prevail in the absence of evidence that is determined to have been, to have had a serious potential to have mattered.

[00:17:36] Speaker 02:
Well, I don't think anything less than an adverse inference or a directed decision would get them anywhere, because there's, as I've said, no further evidence to review.

[00:17:46] Speaker 02:
I don't know that the allegations they've made of the conduct of the federal agents here rises to the level where they could show that there were.

[00:17:54] Speaker 04:
But that hasn't been litigated, right?

[00:17:56] Speaker 04:
The Court of Federal Claims did not say, even if everything they say about the federal agents is true, that wouldn't be spoliation, or it wouldn't

[00:18:04] Speaker 04:
generate a possibility, a real possibility of a kind of remedy that trial courts give when there is spoliation, any of those potential remedies?

[00:18:13] Speaker 02:
Yes, although of course the standards for those sorts of remedies are very high.

[00:18:19] Speaker 02:
But those issues were not litigated.

[00:18:21] Speaker 00:
That was true.

[00:18:21] Speaker 00:
What about other issues that weren't litigated, even as to the state officers?

[00:18:24] Speaker 00:
I don't see anything in the 10th Circuit decision that addresses what they would say, what they characterize as essentially filing a corpse.

[00:18:37] Speaker 00:
I mean, they argue that, in fact, these officers, even if you accept the proposition that they didn't kill this man,

[00:18:46] Speaker 00:
that they abused his body after the fact.

[00:18:49] Speaker 00:
Why wouldn't that be a crime?

[00:18:51] Speaker 02:
Well, whether it's a crime or not, it didn't occur on the reservation.

[00:18:54] Speaker 02:
And the Badman Clause has three elements that they have to satisfy.

[00:18:57] Speaker 02:
It has to be an affirmative act.

[00:18:58] Speaker 02:
It has to be a criminal act.

[00:18:59] Speaker 02:
It has to have occurred on the reservation.

[00:19:02] Speaker 00:
I understand the distinction between something that started off the reservation, ends off the reservation.

[00:19:09] Speaker 00:
But to have something that is a continuum,

[00:19:14] Speaker 00:
that begins on the reservation, that the heart of the activity is on the reservation, and it just simply, because the morgue happens to be off the reservation, that you somehow draw a line.

[00:19:25] Speaker 02:
But this activity didn't, I mean the incident of course began on the reservation, but whatever happened in the mortuary

[00:19:32] Speaker 02:
that didn't begin on the reservation.

[00:19:33] Speaker 02:
Those acts occurred entirely independently inside the mortuary off the reservation.

[00:19:37] Speaker 00:
But I guess I'm having a hard time with your entirely independently concept.

[00:19:41] Speaker 00:
I mean, it is a continuum of activity.

[00:19:43] Speaker 00:
These are the same officers that engaged in the arrest and seizure or attempted seizure and ultimately then were in charge of his body.

[00:19:56] Speaker 02:
Well, I can only say that

[00:19:58] Speaker 02:
To date, none of the case law has the court adopted that kind of what's called a nexus sort of theory of the bad men clause.

[00:20:05] Speaker 02:
In the past, the cases where this court or the court of federal claims has ordered compensation of bad men clause have all been for crimes like murder and assault that were committed by non-Indian on an Indian on the reservation.

[00:20:17] Speaker 00:
But we've never said that you have to draw a bright line that is not necessarily consistent with logic.

[00:20:26] Speaker 02:
Well, certainly the court has held that.

[00:20:28] Speaker 00:
We have never held that activity that starts on the reservation, if some portion of it ends off the reservation, that we have to draw a line the minute that they leave the reservation.

[00:20:40] Speaker 02:
No, you haven't reached that holding.

[00:20:41] Speaker 02:
I'm not sure that I agree, can see that this activity began on the reservation and somehow whatever happened with Mr. Murray's body didn't really begin on the reservation.

[00:20:52] Speaker 04:
While we're talking a little bit about locations,

[00:20:56] Speaker 04:
Since it's your position that the bad man clause applies only to criminal acts, one needs some sort of body of law to refer to as to what's criminal.

[00:21:07] Speaker 04:
Do you rely on, what is it, 18 USA, 1152, the Indian country, the one that says the general criminal laws of the United States apply in Indian country, which I think has also been held to include the Assimilative Crimes Act and therefore state?

[00:21:24] Speaker 04:
Where do you get this criminal law?

[00:21:26] Speaker 04:
Is it what, I mean it's not, I assume it's not what, I guess we never actually had common law crime at the federal level, but is it federal criminal law through the Indian Country Crimes Act?

[00:21:39] Speaker 02:
It's not, to be perfectly honest your honor, it's not an issue we briefed as far as I know.

[00:21:43] Speaker 02:
What you're saying makes sense to me, but whether there would be some other

[00:21:46] Speaker 02:
world of criminal activity that would be encompassed in that term in the sense that the Indians or the United States met at the time the treaty was signed.

[00:21:55] Speaker 04:
The Ute Reservation, well the Indian Country Crimes Act I think dates back to the first Congress or something.

[00:22:03] Speaker 04:
The Utah, the Ute Reservation is Indian country as far as you know?

[00:22:07] Speaker 04:
Yes.

[00:22:09] Speaker 00:
With respect to the question of the criminal acts, even if you accept the proposition that we need to talk about a criminal act, and I concede that there are not a lot of criminal acts that arise out of omission, there are some.

[00:22:26] Speaker 00:
And I don't understand where the Court of Federal Claims has gotten this notion that the criminal act has to be an affirmative act in addition to being criminal.

[00:22:35] Speaker 02:
Well, I think they've gotten it from the plain language of the treaty, which says commit a wrong.

[00:22:39] Speaker 02:
That is an act of commission, not an act of omission.

[00:22:42] Speaker 02:
But whether or not there's some world of criminal omissions that might fall within the bad men clause isn't really an issue that's before the court today.

[00:22:51] Speaker 02:
Maybe there are.

[00:22:52] Speaker 02:
That's not an issue that's really been tested.

[00:22:54] Speaker 02:
In the past, as I've said, you've had cases involving murder, death, and assault that were clearly affirmative acts.

[00:22:59] Speaker 02:
Here the problem isn't just whether or not it's an affirmative act, it's that you have those three elements and when you set aside their core claims about Mr. Murray's death and his alleged murder and you set aside for a moment the possibility of an adverse inference, then what you're left with are allegations about negligent acts or failures to act.

[00:23:19] Speaker 02:
And those don't, they're not just not affirmative acts, they're not criminal acts and many of them didn't occur on the reservation.

[00:23:25] Speaker 02:
So it's not just that they can't show that

[00:23:27] Speaker 02:
These aren't affirmative acts.

[00:23:28] Speaker 02:
So for example, if you take the 380 pistol, which is at the center of the case, Agent Ashdown took possession of that pistol at the scene.

[00:23:39] Speaker 02:
And then he secured it.

[00:23:40] Speaker 02:
And then he retired.

[00:23:42] Speaker 02:
And then his successor was involved in a prosecution of the straw purchaser that had bought that pistol.

[00:23:47] Speaker 02:
And then as a result of that prosecution, the pistol was forfeited and ultimately destroyed.

[00:23:55] Speaker 04:
straw purchase prosecution was a federal or a state prosecution?

[00:23:59] Speaker 04:
A federal.

[00:24:00] Speaker 04:
OK.

[00:24:00] Speaker 04:
And did the US attorney or the federal prosecutors tell the judge that this was a piece of potentially important evidence in a civil case?

[00:24:10] Speaker 02:
I don't know the answer to that question.

[00:24:11] Speaker 02:
I know at the time, they had not received the notice from Mr. Murray's family that they were intending to sue, which Mr. Murray's family had sent to the state and local police and not the FBI.

[00:24:19] Speaker 02:
Now, whether they should have known is one of the issues that was not litigated.

[00:24:25] Speaker 02:
So the question is, what parts of this occurred on the reservation?

[00:24:28] Speaker 02:
Agent Ashdown's failure to investigate things occurred on the reservation.

[00:24:35] Speaker 02:
That's not an affirmative act.

[00:24:36] Speaker 02:
It's not just not an affirmative act.

[00:24:37] Speaker 02:
It's not a criminal act.

[00:24:39] Speaker 02:
So then we have the destruction of the gun.

[00:24:40] Speaker 02:
That didn't occur on the reservation.

[00:24:42] Speaker 02:
It's not a criminal act.

[00:24:43] Speaker 00:
It was an affirmative act.

[00:24:44] Speaker 00:
Well, it's a criminal act if it's part of a cover-up.

[00:24:45] Speaker 02:
Well, if it's part of a cover-up.

[00:24:47] Speaker 02:
So there's a lot of allegations in their briefs that are somewhat vague.

[00:24:51] Speaker 02:
I mean, the Utah District Court did look at the allegations that there was a conspiracy here.

[00:24:55] Speaker 02:
It found that there were no conspiratorial acts between the state and local police.

[00:24:59] Speaker 02:
The FBI and other federal agents weren't on the scene at the time of the shooting.

[00:25:03] Speaker 02:
They arrived after Mr. Murray's body had already left the scene.

[00:25:06] Speaker 02:
So it's not clear to me what conspiracy FBI agent Ashdown could have engaged in just by securing the gun but failing to test it.

[00:25:18] Speaker 02:
What this all sounds like to me, Your Honor,

[00:25:20] Speaker 02:
These are allegations of negligent acts and wrongful omissions.

[00:25:24] Speaker 02:
This sounds like a Federal Tort Claims Act claim.

[00:25:27] Speaker 02:
This all fits very- Could they have brought that there?

[00:25:29] Speaker 02:
Well, it fits very badly in the bad man claims.

[00:25:31] Speaker 02:
It sounds like negligence or a wrongful omission by a federal employee.

[00:25:36] Speaker 02:
They did bring Federal Tort Claims Act claims down.

[00:25:39] Speaker 00:
But I mean, for purposes of issue preclusion,

[00:25:45] Speaker 00:
It's not a question of what you could have asserted.

[00:25:48] Speaker 00:
It's a question that was actually litigated, right?

[00:25:51] Speaker 02:
Well, I'll tell you.

[00:25:52] Speaker 02:
So they brought federal tort claims.

[00:25:54] Speaker 00:
Well, you can say yes or no first to that question.

[00:25:57] Speaker 00:
Yes.

[00:25:57] Speaker 00:
Yes.

[00:25:57] Speaker 00:
OK.

[00:25:57] Speaker 02:
Thank you.

[00:25:59] Speaker 02:
I was just going to give you the background, which is that those claims were brought a while ago, and they were denied in an administrative determination by the Department of the Interior and Mr. Murray's family.

[00:26:07] Speaker 02:
didn't appeal those.

[00:26:09] Speaker 02:
And I have to tell you that I do not know, we've been trying to run down all the documents related to this, but since it wasn't directly front and center in this case, I don't know the exact scope of those claims.

[00:26:17] Speaker 02:
And I don't know whether or not, based on these allegations, there's, you know, whether there are further federal tort claims, that claims they could bring at this point.

[00:26:24] Speaker 02:
They may be just, having not appealed it, may all be time barred at this point.

[00:26:28] Speaker 04:
As long as we're talking about the word tort, I have a question.

[00:26:31] Speaker 04:
Yes.

[00:26:32] Speaker 04:
What's the relation between the Tucker Act

[00:26:34] Speaker 04:
jurisdiction, which I gather is the jurisdictional grant under which the Bad Men Clause claim has been brought, and the final words of the Tucker Act about claims not sounding in tort.

[00:26:44] Speaker 02:
Well, as I understand it, and the Court's been through this since long discussions, the Bad Men Clause is that because the Bad Men claims run through treaty, it doesn't fall within the tort part of the second part of the Tucker Act.

[00:26:58] Speaker 02:
It's a contract kind of a claim.

[00:27:01] Speaker 02:
And this is one of the rare set of claims that

[00:27:05] Speaker 02:
be brought by individual Indians.

[00:27:15] Speaker 02:
We would agree that the federal agency can't be a bad man.

[00:27:17] Speaker 02:
I'd like to point out that opposing counsel has, he has noted, the tribe is not part of this appeal, which we believe, in addition to the other reasons set in our briefs, is also fatal to their breach of trust claims.

[00:27:29] Speaker 02:
And so at the end of the day, Your Honor, we think that there

[00:27:34] Speaker 02:
The core of their claims are barred by issue of preclusion.

[00:27:36] Speaker 02:
The remaining claims simply don't fall within the bad men clause.

[00:27:39] Speaker 02:
And for all those reasons, the court of federal claims decision should be affirmed.

[00:27:43] Speaker 01:
Thank you, Mr. Masonette.

[00:27:45] Speaker 01:
Mr. Rasmussen has almost three minutes for a vote.

[00:27:57] Speaker 03:
Thank you.

[00:27:57] Speaker 03:
Regarding issue of preclusion,

[00:28:02] Speaker 03:
I wanted to quote from the 10th Circuit's decision.

[00:28:05] Speaker 03:
On page 581, the court says, once Agent Ashdown, the federal agent, once Agent Ashdown arrived, the FBI had exclusive jurisdiction over the investigation and was entirely responsible for preserving the .380 caliber weapon as evidence and preventing its ultimate destruction.

[00:28:23] Speaker 03:
That's one of the things the 10th Circuit said.

[00:28:26] Speaker 03:
Then they went on and said, even if insufficient examination of Norton's gun may have prejudiced plaintiffs, the district court did not abuse its discretion in finding that none of the defendants here had a duty to preserve it.

[00:28:40] Speaker 03:
The person with the most obvious responsibility for preserving that evidence, Agent Ashdown and Chief Jensen, are not parties to this litigation and therefore cannot be the subject of sanctions.

[00:28:53] Speaker 03:
That's why they didn't impose

[00:28:55] Speaker 03:
Spoliation sanctions, even though it was pretty clear there was a substantial destruction of the evidence.

[00:29:04] Speaker 03:
What we have then is a case where in this court and in the court of claims, it can impose significant spoliation sanctions against the United States.

[00:29:20] Speaker 03:
And that would change the result.

[00:29:24] Speaker 03:
And that is something that the United States did a very good job in their briefs of discussing the Utah court saying Mr. Murray killed himself and then spoliation sanctions don't apply.

[00:29:44] Speaker 03:
But then in their brief, they then keep coming back to that and each time being a little stronger until they say that they've said

[00:29:54] Speaker 03:
Spoliation sanctions didn't apply to the United States.

[00:29:57] Speaker 03:
The 10th Circuit did not say that.

[00:29:59] Speaker 03:
They, in fact, pretty clearly indicated the exact opposite, that if there's spoliation sanctions, that would be for the court that is dealing with the United States, which was the Court of Claims.

[00:30:09] Speaker 03:
The spoliation sanctions then would have changed many of the things in this case.

[00:30:14] Speaker 03:
would have potentially given us the ability to prove criminal acts, would have given us the ability, we believe, to prove acts that come within the bad man clauses.

[00:30:25] Speaker 03:
I may be arguing against all three of you, but we would ask that you look carefully at what did this mean to people on the reservation in 1868.

[00:30:36] Speaker 03:
We don't believe it is limited to criminal acts.

[00:30:39] Speaker 03:
In fact, almost no crimes were ever prosecuted against Native Americans at this point in time.

[00:30:46] Speaker 03:
The bad man clause came out of the 1864 massacre

[00:30:50] Speaker 03:
of Native Americans.

[00:30:51] Speaker 03:
No one was prosecuted for those.

[00:30:53] Speaker 00:
When you say it doesn't relate to criminal acts, you've got both the arrested and punished language, but you also have the reference to under the laws of the United States.

[00:31:02] Speaker 00:
Most civil torts, other than something under the Federal Tort Claims Act, are state law, are governed by state law, correct?

[00:31:10] Speaker 00:
Yes.

[00:31:11] Speaker 00:
So what civil action would arise under the laws of the United States?

[00:31:19] Speaker 03:
The treaty is a law of the United States.

[00:31:22] Speaker 03:
And it's using a non-legal term, very vague terms about bad men.

[00:31:28] Speaker 03:
And that's what it's talking about.

[00:31:30] Speaker 03:
And the purpose of it, it is to say to Indians, don't go and do something yourself.

[00:31:37] Speaker 03:
Let us take care of it.

[00:31:38] Speaker 03:
We will compensate you.

[00:31:40] Speaker 03:
I don't see any reason that that would then be limited to criminal actions.

[00:31:43] Speaker 03:
It's limited to things that are wrong that the Indians at that time would have seen as wrong.

[00:31:49] Speaker 03:
And there were plenty of those going on that were not crimes or that were never prosecuted as crimes.

[00:31:55] Speaker 03:
And we believe that would include torts.

[00:31:57] Speaker 03:
It was wrongs that they agreed to compensate for.

[00:32:01] Speaker 03:
And it was wrongs as the tribe and its members at that time would have understood.

[00:32:06] Speaker 01:
Thank you, counsel.

[00:32:07] Speaker 01:
I think we have your argument.

[00:32:08] Speaker 01:
We'll take the case under revision.