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Lost Trust: Jicarilla Apache Nation Loses at Supreme Court

WASHINGTON – Continuing its trend of ruling against Indian interests in the Chief Justice John Roberts era, the Supreme Court ruled against the Jicarilla Apache Nation in a 7 - 1 decision handed down June 13.

The case, U.S. v. Jicarilla Apache Nation, centered on whether the federal government can claim attorney-client privilege in withholding information from a tribe involving the government’s management of money that it holds in trust. The tribe had long been arguing that it should be allowed to view certain trust-related documents held by the Department of the Interior. But the U.S. countered that due to the federal government’s special situation as both sovereign and trustee exempted it from the tribe’s privilege-to-see and entitled it to claim the attorney-client privilege.

During the discovery phase of the case, which has been ongoing for 9 years, the government withheld a number of documents from the tribe based on a claim of attorney-client privilege. In response, the tribe invoked the “fiduciary exception” to the privilege, which requires a trustee to disclose to the beneficiary legal advice regarding the management of trust assets.

At the heart of the case, the tribe was seeking damages related to the government’s failure to invest the tribe’s trust funds properly. The tribe’s reservation in New Mexico contains natural resources that are developed under laws administered by Interior, and the money generated from the resources are held in trust by the agency.

In the end, the high court said that due to attorney-client privilege, Interior does not have to disclose the information to the tribe, unless Congress says so. “The trust obligations of the United States to the Indian tribes are established and governed by statute rather than the common law, and in fulfilling its statutory duties, the Government acts not as a private trustee but pursuant to its sovereign interest in the execution of federal law,” wrote Justice Samuel Alito in the court’s majority opinion. “Throughout the history of the Indian trust relationship, we have recognized that the organization and management of the trust is a sovereign function subject to the plenary authority of Congress.”

Justice Ruth Bader Ginsburg issued a concurring opinion, along with Justice Stephen Breyer, indicating that the decision was right, but that they thought it went too far in deciding that the federal government can withhold a wide range of documents from tribes.

The decision ran contrary to tribal understandings of where tribes stand under U.S. common law, which says a beneficiary of a trust has the privilege to see documents reflecting what was said between the trustee and the trustee's lawyer, and this right supersedes the trustee's right to claim the attorney-client privilege.

Lower federal courts had agreed with tribal opinion.Both the Court of Federal Claims and the Federal Circuit previously ruled that Indians are entitled to the same information as other trust beneficiaries about how their trust monies were managed.

The federal government sought review by the Supreme Court partially on the grounds that there are a number of pending Indian breach of trust cases in which its potential liability may total billions of dollars.

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Andrew Cohen, former chief legal analyst and legal editor for CBS News, in an article written for The Atlantic, described the Supreme Court’s ruling as such: “We’re not going to bend over backward to help the [tribal] Nation, the Court's majority said Monday, unless Congress tells us we have to.”

“Two unsettling themes emerge from Justice Alito’s opinion,” Cohen wrote. “First, he reminds us that the ‘trust" relationship between the federal government and our nation’s Indian Tribes is less about trust; and more about the exercise of our sovereign authority over a vanquished people.” (Wrote Alito: “The control over the Indian tribes that has been exercised by the United States pursuant to the trust relationship—forcing the division of tribal lands, restraining alienation—does not correspond to the fiduciary duties of a common law trustee. Rather, the trust relationship has been altered and administered as an instrument of federal policy.”)

“Second, by highlighting the conflicting interests between the government and the [tribal] Nation in these trustee cases, Justice Alito undercuts the entire statutory and administrative framework that bears the government's relationship with the Apache Nation and other Indian tribes.” (Wrote Alito: “While one purpose of the Indian trust relationship is to benefit the tribes, the Government has its own independent interest in the implementation of federal Indian policy. For that reason, when the Government seeks legal advice related to the administration of tribal trusts, it establishes an attorney-client relationship related to its sovereign interest in the execution of federal law.”)

In a lone dissent, Justice Sonia Sotomayor wrote that the majority’s opinion will lead to further erosion of federal-tribal relations and will weaken the government’s trust obligations.

“We have never held that all of the Government’s trust responsibilities to Indians must be set forth expressly in a specific statute or regulation,” Sotomayor wrote. “To the contrary, where, as here, the statutory framework establishes that the relationship between the Government and an Indian tribe 'bears the hallmarks of a conventional fiduciary relationship,' we have consistently looked to general trust principles to flesh out the Government’s fiduciary obligations.”

Of Sotomayor’s view, Cohen wrote: “Justice Sotomayor's perception of the existing relationship between the federal government and Native American tribes is far less Machievellian (and perhaps far less realistic) than the majority's view.”

The decision is expected to have ramifications for other tribes that are involved in ongoing trust disputes with the United States. Lawyer Charles A. Hobbs wrote in a memo earlier this year that a negative decision “could easily be extended to the details of all of the government’s trust duties, which would be an important narrowing of Mitchell II.”

The Holland & Knight law firm, which represented the tribe in the case, offered a press release in April stating that the “outcome of the case will have major repercussions for Indian tribes who believe that the U.S. Government has mismanaged their assets.” The firm said that there are currently about 90 other similar cases within the court system that could be affected by the final ruling.

Justice Elena Kagan did not take part in the case because she served as Solicitor General at the Department of Justice when the case was underway.