Understanding the Bad Men Clause and Tribal Members’ Rights to Sue

The “Bad Men” Treaties: A Federal Promise of Protection

Between 1867 and 1868, the United States entered into nine specific treaties with Native American Nations to end the “Indian Wars” and ensure peace on tribal lands. These are not just historical artifacts—they are active federal laws that provide a unique path to justice for tribal members today.

What is a “Bad Men” Provision?

Found in the very first article of these treaties, the “Bad Men Among the Whites” clause is a solemn pledge from the U.S. Government. It states that if any “bad men among the whites, or among other people subject to the authority of the United States” commit a wrong upon the person or property of a tribal member, the United States will:
1. Arrest and punish the offender under federal law.
2. Reimburse the injured person for the full loss sustained.

Who is Covered?

This specific legal right is reserved for members of the tribes that signed these 1867–1868 treaties, including:
• The Sioux Nation (Lakota, Dakota, and Nakota bands)
• The Navajo Nation (Diné)
• The Crow Tribe
• The Northern Cheyenne and Arapaho
• The Kiowa, Comanche, and Apache
• The Ute, Shoshone, and Bannock

What Counts as a “Wrong”?

Courts have ruled that “wrongs” are not limited to actions by federal employees or police. A “Bad Men” claim can be triggered by any non-Indian (“white or other person”) who causes harm while on reservation land, including:
• Physical or Sexual Assault (e.g., the landmark Lavetta Elk case)
• Serious Personal Injury (e.g., drunk driving accidents by non-Indians)
• Environmental Damage (e.g., contamination from pipelines or mining)
• Property Crimes (e.g., theft, destruction, or corporate fraud)

Why These Claims Matter Now?

For many victims of crimes on tribal land, the standard legal system is a “mush” of jurisdictional hurdles where “bad men” often slip through the cracks. A Bad Men Treaty Claim bypasses many of these obstacles by taking the fight directly to the Federal Government in the U.S. Court of Federal Claims.
The government signed a promise to keep the peace. When they fail to protect you from “bad men” on your own land, the Treaty of 1868 gives you the power to demand accountability.