The United States is exceptional: it needn't pay for its war crimes

Flute v. United States, No. 14-1405 (10th Cir. Dec. 22, 2015).

Here is one more Indian treaty that the United States has broken. This case arises from the Sand Creek Massacre of 1864, where government militia killed dozens of Arapaho and Cheyenne Indians, most of them women and children. The federal government, through a duly ratified treaty, promised to make “suitable reparation” for this atrocity, and even appropriated some money toward that end. But the money was never paid. 

Descendants of the Sand Creek victims have now sued the federal government for breach of trust, seeking what they were promised. In support of this claim, they invoke a 2009 law concerning funds that the government holds in trust for Indians. The Tenth Circuit concludes, I think correctly, that this law has not waived the government’s sovereign immunity, and so holds that the district court properly dismissed the plaintiffs’ claims. 

But the panel majority goes on to hold that even if the government had waived its sovereign immunity, it wouldn’t possess any fiduciary duties relevant to this case, and hence the plaintiffs wouldn’t have a claim for breach of trust. According to the majority, the nineteenth-century treaty and appropriations act that promised and appropriated money didn’t create a trust relationship. Judge Phillips, although agreeing that sovereign immunity bars this suit, believes that there is indeed a trust relationship here.

Notably, the plaintiffs don’t appear to be suing under the treaty between the federal government and the Arapaho and Cheyenne Tribes. Perhaps they lack standing to enforce the treaty? See United States v. Washington, 641 F.2d 1368, 1372–74 (9th Cir. 1981).