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Flute v. United States

United States District Court, D. Colorado

September 4, 2014

HOMER FLUTE, ROBERT SIMPSON, JR., THOMPSON FLUTE, JR., and DOROTHY WOOD, on behalf of themselves and all others similarly situated, Plaintiffs,

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For Homer Flute, Robert Simpson, Jr, Thompson Flute, Jr, Dorothy Wood on behalf of themselves and others similarly situated, Plaintiffs: Jason B. Aamodt, LEAD ATTORNEY, Aamodt Law Firm, Tulsa, OK; Dallas Lynn Dale Strimple, Krystina Elizabeth Phillips, Aamodt Law Firm, Tulsa, OK; David Arthur Lane, Killmer, Lane & Newman, LLP, Denver, CO; Larry Derryberry, Derryberry & Naifeh, LLP, Oklahoma City, OK; Michael David Goodstein, Hunsucker Goodstein, PC-DC, Washington, DC; Sarah Marie Morris, Civil Rights Education and Enforcement Center, Denver, CO; David Ford Askman, Hunsucker Goodstein, P.C., Denver, CO.

For The United States of America, The Department of the Interior, The Bureau of Indian Affairs, Defendants: Peter Kryn Dykema, U.S. Department of Justice, Washington, DC.

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PHILIP A. BRIMMER, United States District Judge.

This matter is before the Court on Defendants' Motion to Dismiss [Docket No. 17] filed by defendants the United States of America (" United States" ), the Department of the Interior (" DOI" ), and the Bureau of Indian Affairs (" BIA" ). This case arises from the United States Army's massacre of certain bands of the Cheyenne and Arapaho Indian Tribes along the banks of Colorado's Big Sandy Creek on November 29, 1864. The defendants acknowledge in their motion that " [i]n all of American history there is no episode more contemptible nor more abhorrent than the depredations of the United States cavalry on the banks of Sand Creek in Colorado Territory during the early morning hours of November 29, 1864. The 'Sand Creek Massacre' was a tragedy and a disgrace." Docket No. 17-1 at 8. Plaintiffs are descendants of the victims of the Sand Creek Massacre. Plaintiffs seek an accounting of the reparation payments promised to their ancestors in the 1865 Treaty of Little Arkansas and an award of funds found still owing.


A. Parties

The complaint alleges as follows. Plaintiffs Homer Flute, Robert Simpson, Jr., Thompson Flute, Jr., and Dorothy Wood descend from bands of the Cheyenne and Arapaho Indians who were victims of the Sand Creek Massacre. Docket No. 1 at 2, ¶ 2. Plaintiffs bring this case on behalf of themselves and all descendants of the massacre's victims. Id. at 14, ¶ 70. Plaintiffs reside in Oklahoma and are each members of a federally recognized Indian tribe. Id. at 2, ¶ 2.

The BIA was created in 1849 within the Department of the Army and subsequently moved to the DOI. Id. at 2, ¶ 4. In 1849, the DOI assumed responsibility for Indian affairs on behalf of the federal government. Id. at 2, ¶ 5. Plaintiffs allege that the DOI has, since 1866, controlled and held in trust reparation payments owed to plaintiffs. Id.

B. The Sand Creek Massacre

On February 18, 1861, the United States entered into the Treaty of Ft. Wise with the Arapaho and Cheyenne Tribes of the Upper Arkansas River (the " Tribes" ), ceding the Tribes a tract of land at the mouth of the Sandy Fork of the Arkansas River and promising to protect the tribes " in the quiet and peaceful possession of the said tract of land so reserved for their future home, and also their persons and property thereon, during good behavior on their part." Treaty between the United States of America and the Arapaho and Cheyenne Indians of the Upper Arkansas River, arts. 1 & 4, Feb. 18, 1861, 12 Stat. 1163.

In June 1864, Territorial Governor and Superintendent of Indian Affairs John Evans conspired with Colonel John Chivington of the U.S. Army to take action against the peaceful Tribes. Docket No. 1 at 4, ¶ 9. At a series of meetings in September and October 1864, tribal leaders Bull Bear,

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One-Eye, Left Hand, Little Raven, White Antelope, and Black Kettle expressed their peaceful intentions. Major Edward Wynkoop, Colonel Chivington, and Governor Evans told them that, to prove their good intentions, they should relocate their villages to Fort Lyon in the Colorado Territory. Id. at 4-5, ¶ ¶ 11-16. In late October 1864, the Tribes relocated to Fort Lyon. Id. at 5, ¶ 17.

The Cheyenne, led by Black Kettle, arrived at Fort Lyon, id. at ¶ 21, and were told they could set up camp at Sand Creek and hunt bison. Id. at ¶ 22. Black Kettle and his band of Cheyenne settled at the Smoky Hill Crossing of Sand Creek. Id. at ¶ 23.

On November 14, 1864, in preparation for the massacre, Colonel Chivington ordered the First and Third Colorado Cavalries to march from Denver to Fort Lyon. Id. at ¶ 24. At noon on November 28, 1864, Colonel Chivington and his troops arrived at Fort Lyon. Id. at ¶ 30. Between 675 and 700 soldiers then marched for Sand Creek, id. at 8, ¶ 36, arriving at the camp at sunrise on November 29, 1864. Id. at ¶ 37. Black Kettle, the chief of the camp, flew an American flag with a white flag beneath it, signaling that the camp was under a truce. Id. Nevertheless, the soldiers began firing on the Indians. Id. at 8-9. Chief White Antelope ran towards the troops to convince them to stop shooting. Id. at 9, ¶ 40. He was shot and killed. Indians who tried to flee were chased down and shot. The massacre lasted until 3:00 p.m. Id. at ¶ 43. The number of casualties is uncertain; eyewitnesses reported that the majority were women and children. Id. at ¶ 44.

C. Reparations

Once the federal government learned of the massacre, Major Wynkoop was ordered to retake command of Fort Lyon and to perform an investigation. Id. at 11, ¶ 54. He collected soldiers' eyewitness accounts. Id. On January 4, 1865, Colonel Chivington resigned his commission. He was mustered out of service on January 8, 1865 and, the following month, a military commission in Colorado launched an investigation into his conduct. Id. at ¶ ¶ 55, 58. On January 10, 1865, the United States House of Representatives ordered the Committee on the Conduct of War to inquire into and write a report on the facts of the massacre. Id. at ¶ 56.

In response to the massacre, the federal government signed the Treaty of Little Arkansas on October 14, 1865. Id. at 11-12, ¶ 60. The Treaty provides in pertinent part:

The United States being desirous to express its condemnation of, and, as far as may be, repudiate the gross and wanton out-rages perpetrated against certain bands of Cheyenne and Arapahoe Indians, on the twenty-ninth day of November, A.D. 1864, at Sand Creek, in Colorado Territory, . . . will grant three hundred and twenty acres of land by patent to each of the following-named chiefs of said bands, viz: Moke-ta-ve-to, or Black Kettle; Oh-tah-ha-ne-so-weel, or Seven Bulls; Alik-ke-home-ma, or Little Robe; Moke-tah-vo-ve-hoe, or Black White Man; and will in like manner grant to each other person of said bands made a widow, or who lost a parent upon that occasion, one hundred and sixty acres of land, the names of such persons to be ascertained under the direction of the Secretary of the Interior . . . . The United States will also pay in United States securities, animals, goods, provisions, or such other useful articles as may, in the discretion of the Secretary of the Interior, be deemed best adapted to the respective wants and conditions of the persons

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named in the schedule hereto annexed, . . . the sums set opposite their names, respectively, as a compensation for property belonging to them, and then and there destroyed or taken ...

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