Flying Horse v. United States ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOSEPH R. FLYING HORSE,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2017-1620
______________________
Appeal from the United States Court of Federal
Claims in No. 1:16-cv-00860-MCW, Judge Mary Ellen
Coster Williams.
______________________
Decided: June 13, 2017
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JOSEPH R. FLYING HORSE, Sioux Falls, SD, pro se.
JEFFREY D. KLINGMAN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, for
defendant-appellee. Also represented by CHAD A.
READLER, ROBERT E. KIRSCHMAN, JR., STEVEN J.
GILLINGHAM.
______________________
2 FLYING HORSE v. UNITED STATES
PER CURIAM.
Joseph R. Flying Horse, proceeding pro se, appeals
from the judgment of the United States Court of Federal
Claims (“Claims Court”) dismissing his suit for lack of
jurisdiction. Mr. Flying Horse, who is incarcerated in the
South Dakota State Penitentiary, brought this suit under
the “Bad Men” Clause of the 1868 Fort Laramie Sioux
Treaty (“Fort Laramie Treaty”) seeking declaratory
judgment, monetary damages, and release from incarcer-
ation. Although we have liberally construed Mr. Flying
Horse’s arguments on appeal, we conclude that he has not
exhausted his administrative remedies under the Fort
Laramie Treaty. We therefore affirm.
BACKGROUND
In May 2016, Mr. Flying Horse was arrested in Rapid
City, South Dakota, and placed in the Pennington County
Jail. In June 2016, he was transferred to the South
Dakota State Penitentiary, where he currently resides.
Mr. Flying Horse alleges that during his detainment at
the Pennington County Jail, his parole officer and De-
partment of Corrections supervising officials failed to
follow Department of Corrections policies by not complet-
ing paperwork required to continue his detention. Mr.
Flying Horse thus alleges that his continued incarceration
at the Pennington County Jail was unlawful, and that the
eventual rectification of the paperwork did not cure the
unlawful nature of his detention because he should have
already been released. He further alleges that the unlaw-
ful nature of his detention was due to a “conspired and
concerted effort” on the part of the corrections officials.
App’x 8.
In July 2016, Mr. Flying Horse filed a complaint in
the Claims Court pursuant to the “Bad Men” clause of the
Fort Laramie Treaty, the United States Constitution, and
various tort claims. He seeks declaratory judgment
against the corrections officials, monetary damages, and
FLYING HORSE v. UNITED STATES 3
injunctive relief allowing him to be released on parole.
The Claims Court dismissed Mr. Flying Horse’s case,
holding that it lacked jurisdiction over his claims. The
Claims Court first held that it lacked jurisdiction over his
constitutional claims because the relevant constitutional
provisions were not money-mandating. Next, the Claims
Court held that Mr. Flying Horse had not alleged facts
indicating that he was entitled to relief under the Fort
Laramie Treaty or alleged that he had exhausted his
administrative remedies under that treaty. Finally, it
held that it lacked jurisdiction to entertain Mr. Flying
Horse’s claims which sounded in tort.
Mr. Flying Horse now appeals to this court, contend-
ing that the “Bad Men” clause of the Fort Laramie Treaty
is money-mandating and is sufficient to support his
claims. Mr. Flying Horse further contends that he is not
“statutorily required” to exhaust administrative remedies.
Appellant Br. at 7. This court has jurisdiction over his
appeal pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
We review dismissal of a claim for lack of jurisdiction
by the Claims Court de novo. Richard v. United States,
677 F.3d 1141, 1144 (Fed. Cir. 2012). Underlying ques-
tions of treaty interpretation are questions of law re-
viewed de novo. Id. at 1144–45.
This court has found similar “Bad Men” provisions in
other Indian treaties to include at least a minimal ex-
haustion requirement. Jones v. United States, 846 F.3d
1343, 1348 (Fed. Cir. 2017) (“The 1868 [Ute] Treaty []
includes a requirement for a plaintiff seeking damages
under the bad men provision to exhaust administrative
remedies before filing a claim.”). And the “Bad Men”
clause at issue here requires the wronged person to sub-
mit “proof made to the agent and forwarded to the Com-
missioner of Indian Affairs at Washington city.” Fort
Laramie Treaty, 15 Stat. 635, 635, Art. I, ¶ 2. Other
4 FLYING HORSE v. UNITED STATES
courts have found similar provisions to be satisfied by
submitting a notice of claim or notice of intent to file suit
to the Assistant Secretary of the Interior for Indian Af-
fairs, the modern equivalent to the Commissioner of
Indian Affairs. See, e.g., Jones v. United States, 122 Fed.
Cl. 490, 515 (2015), vacated and remanded on other
grounds, 846 F.3d 1343 (Fed. Cir. 2017); Elk v. United
States, 70 Fed. Cl. 405, 411 (2006). As the Claims Court
correctly found, Mr. Flying Horse has not alleged that he
has filed such a notice with the Department of the Interi-
or.
Mr. Flying Horse relies on Elk and Begay v. United
States, 219 Ct. Cl. 599, 602–03 (1979), to establish that
exhaustion is not required. But in both of those cases, the
plaintiffs had filed claims with the Department of the
Interior. See Elk, 70 Fed. Cl. at 406 (“[The] plaintiff sent
a Notice of Claim to the Department of the Interior . . . .”);
Begay, 219 Ct. Cl. at 600–01 (“Plaintiffs allege, and de-
fendant does not contest, that such claims for damages
were made on September 30, 1977 to the federal Director
for the Navajo Reservation, and copies sent to the Assis-
tant Secretary of Interior.”). Thus, these cases do not
demonstrate that Mr. Flying Horse is not required to file
a claim with the Department of the Interior.
CONCLUSION
For the foregoing reasons, we hold that Mr. Flying
Horse has failed to exhaust his administrative remedies
under the “Bad Men” clause of the Fort Laramie Treaty
and, therefore, affirm.
AFFIRMED
COSTS
No Costs.