Could Custer’s Men File A Personal Injury Lawsuit (If They Had Survived)?

General George Armstrong Custer has been nearly idolized by historians for decades — and perhaps for no good reason. By some, he is considered to be battle-hardened, prepared, and ambitious. To others, he is considered among the most fool-hardy commanders in the history of the United States’ armed forces. Which argument would hold the most merit in court? Or, rather, would such a case even make it into court before being dismissed?

Keep in mind that the Battle of Little Bighorn was fought on June 25, 1876. Custer himself and most of the men he brought into battle were slaughtered by the Native Americans they had been harassing for months. These weren’t “kind” killings. The men were butchered. But this wasn’t at a time when you could hire some random Koonz McKenney Johnson & Depaolis LLP law firm to sue the pants off the United States government for personal injury or wrongful death. It didn’t work that way.

So there are a few things to first consider: One, Feres v. United States resulted in a Supreme Court decision that created a precedent that any active duty military personnel cannot sue the United States government for injuries sustained during service. More significantly, it related to medical malpractice by the federal government — because soldiers could still hold the government liable for malpractice.

But that ruling landed in 1950, which means precedent had not yet been established by the time Custer led his men into their last battle. Hypothetically, any surviving servicemen or the families of the slain could have launched a lawsuit.

The reality might have been a little different. But regardless, let’s explore the type of argument that might have been made on behalf of the servicemen in court. Where did Custer go wrong? Well, an advocate would likely argue that George Custer’s lofty aspirations led him astray — and his men with him. You see, Custer had his eye on the presidency (and was known as a man for showmanship in the public eye).

And how does a man like Custer become president? Simple: he fights his way there from the battlefield. The bigger the victory, the bigger the public eye on the man. Custer fought battles no matter the odds for one reason and one reason only: political ambition.

His life outside of the military only serves to bolster the argument. He was an avid gambler who, because of his love of betting, went to the grave with an enormous $9,000 debt. 

This is why an advocate would likely have made the case that Custer’s men almost certainly lost their lives because of his bad decision-making both on and off the battlefield. They would argue that regardless of his significant victories, they had always come at a cost, and the risks were far from calculated to ensure those victories. They might even say that Custer should never have been so elevated in the first place — and that some of the blame should fall on those still living, the men who decided to put Custer in such a high position. Ultimately, they would argue, Custer’s men paid the price for this cascade of bad decisions.

These are reports based on findings following the Battle of Little Bighorn: