Reparations for 1864 Tribal Massacre Denied

     DENVER (CN) – The U.S. government has immunity from Native Americans seeking the reparations promised after the Army slaughtered their ancestors in 1864, the 10th Circuit ruled.
     Homer Flute and three others brought the federal class action at issue two years ago, seeking an accounting or reparation funds held in trust for their ancestors for the last century and a half since the Sand Creek Massacre in Colorado.
     The ruling gives a thorough description of the “ignominious” chapter of U.S. history, saying the United States was in the process of yet another relocation of the Arapaho and Cheyenne tribes on the day of the attack in fall 1864.
     Though the tribes had been promised peaceful habitation of a tract of land by the Arkansas River called the Sandy Fork in 1861, officials conspired to move them to Fort Lyon in 1864.
     After disarming the tribes of everything but some rudimentary hunting weapons, the Army gave them permission to make camp at Sandy Creek and hunt bison.
     At sunrise on Nov. 29, 700 U.S. troops marched on the tribes’ camp, where the Indians were flying both an American flag and white flag of truce. They hunted down those who fled, killed them, and mutilated their bodies. Most of those who died were women and children, but an exact number remains unknown.
     There are an estimated 15,000 descendants of the 70 to 163 people killed that morning.
     Though the government laid out reparations for the deadly attack in the 1866 Treaty of Little Arkansas, the descendants say those funds were paid directly to the tribes instead of specific, affected individuals.
     Some of the money was also allegedly returned as a surplus in 1872.
     Though the class contends that the reparations were “insufficient to compensate all the victims of the massacre,” a federal judge dismissed the lawsuit for lack of subject-matter jurisdiction.
     A three-person panel of the 10th Circuit affirmed on Oct. 22
     “Plaintiffs argue that the treaty, in combination with the appropriation of funds, created an enforceable trust relationship such that they are now entitled to an accounting from the secretary,” Judge Carolyn McHugh wrote for the court, referring to the head of the U.S. Department of Interior. “But neither the treaty nor the 1866 Appropriations Act contains any express trust language. At best, plaintiffs point to language appropriating a sum of money for the secretary’s use in paying reparations to specific individuals according to the secretary’s assessment of that individual’s ‘wants and conditions.’ This language represents only an obligation to make a onetime payment to specific individuals who were directly injured by the loss of family members or property during the massacre.” (Emphasis in original.)
     Though the decision was unanimous, Judge Gregory Phillips wrote in a concurring opinion that the descendants did demonstrate a trust relationship between the tribes and the United States.
     “The existence of fiduciary obligations and the presence of common-law trust elements can suffice to create an enforceable trust,” Phillips wrote. “Here, the relationship between the United States and the Tribes established by the treaty and the 1866 Appropriations Act has ‘all of the necessary elements of a common law trust.'”
     Nevertheless, the court got it write in finding that the United States has not waived its sovereign immunity, rendering it immune to legal penalty, Phillips said.
     The land on which the battle took place has since been designated the Sand Creek Massacre National Historic Site by the National Park Service.

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