Skip to main content

Supreme Court May Have a Different Opinion About Cobell

The recent Jicarilla case saw a bare majority of five essentially turn back the accepted tenets of the Indian trust relationship to a version of the relationship that was first set forth by the court starting around the end of the 1890s, says columnist Harold A. Monteau.

Justice Sonia Sotomayor’s recent safari to New Mexico to meet the Pueblo people and to make a guest appearance at a student forum at the University of New Mexico School of Law, had all the indicia of an apologist diplomatic mission (although she has nothing for which to apologize.) Without ever mentioning the recent U.S. v. Jicarilla Supreme Court decision in which she was the lone dissent in a 5 to 2 to 1 split decision, she tacitly acknowledged the recent maltreatment of American Indians in Federal Courts in general and the need for more American Indian Judges in the federal system.

The Jicarilla case saw a bare majority of five essentially turn back the accepted tenets of the Indian trust relationship to a version of the relationship that was first set forth by the court starting around the end of the 1890s and culminating in the Supreme Court decision in Lone Wolf v. Hitchcock (1910). The Lone Wolf decision pretty much said that our federal trustee could do whatever it thought it should do with our trust corpus (land), as federal policy dictated. This included the “plenary power” of opening it up for homesteading, selling it and giving the proceeds to the Indians, whether the Indians wanted the money or not.

Justice Sotomayor is a “Lone Ranger” type hero in the Indian Law community for her courageous but singular attempt to mitigate the damage in what she saw as a Supreme Court decision that was and will prove to be damaging to tribal sovereignty and damaging to the definition of the Indian trust beneficiaries’ trust relationship with the U.S. which the Supreme Court had refined over the past 100 years.

Justice Alito wrote the majority opinion and was joined by Chief Justice Roberts and Justices Thomas, Kennedy and Scalia. Justice Ginsburg filed a dissent in which Justice Breyer joined agreeing only with the court’s judgment and not with the Court’s characterization of the trust responsibility. Justice Kagan recused herself. Perhaps because she had written or participated in the same or similar issues as Solicitor General.

Justice Sotomayor filed a dissent which attacked the majority opinion where they found that the trust responsibility was not governed by normal “fiduciary standards” under which a trustee must function in its relationship with the beneficiary. Justice Sotomayor would have defined the relationship by, and applied fiduciary standards, using the “common law“ that normally applies to a trustee/beneficiary relationship. She recognized Supreme Court precedent that found that the federal trustee must sometimes consider its trustee relationship with other parties of interest ( In Nevada v. U.S. in 1983 the Court said that the U.S. sometimes has to carry water for competing parties and the government's fiduciary responsibility with regard to the multiple parties could cause it to “balance the interests“.) However, as Justice Sotomayor pointed out, the Court had never recognized that the U.S. could escape its fiduciary responsibility to the Indian Tribes based on the United States’ own interests. That is, until this case. She now feared that the U.S.'s own interests, or “national interests” in enforcing Indian policy may trump the tribal interests every time.

At first glance the legal community at large will look at this case as just a “discovery” case that recognizes the Federal Government’s interest in shielding attorney/client internal opinion documents from being opened to another party. However, prior to this case, courts recognized that the Federal Government had no “personal” interest in such documents because the documents were done, supposedly, for the beneficiary’s interest and because of the U.S. trust responsibility towards Indians. Therefore the Attorneys for the U.S. could only have done such legal opinions on the Indian behalf. This Supreme Court (at least some of them) found that the U.S. had its “own interest” or a “national interest” that outweighed the interests of the Indian beneficiaries. This opinion may have turned back the clock one hundred years to a time when Indian policy was geared towards the eventual disappearance of the Indian Nations and thus the disappearance of Indians.

The Court ruled that Plaintiff Indians and Tribal Trust Account Holders could not “discover” documents pertaining to the claimed fiduciary trust violation the plaintiffs argued had resulted in much lower returns than are reasonable or straight out losses. The majority of 5 of the 9 Justices agreed that the documents were not “discoverable” by the Plaintiff beneficiary because they did not fall within the (trustee/beneficiary) exception to the normal “attorney client privilege” rules. The Court said because the U.S. had its own interests, and there was no “statutory based” fiduciary responsibility the Indians could point to, the U.S. Trustee did not have to give the documents to the plaintiffs to help plaintiffs prove mismanagement, under-investing and outright fraud and theft. The Court refused to apply the normal (common law) exception to the attorney-client privilege rule because Congress had never passed a statute recognizing an exception to attorney-client privilege pursuant to the trustee-beneficiary relationship between the tribes and the U.S.

The Court said that the U.S. could claim attorney-client privilege where the documents the tribes were after were prepared by the Department of Interior’s Attorneys in the course of their representing the United States and Department of Interior. This included opinions advising the government as to reasonableness of certain investments and the defenses the U.S. might have against future claims by the Indians and included opinions regarding U.S. liability for losses due to the department’s failure to properly invest tribal trust funds on deposit in trust accounts overseen by the BIA.

In other words, the Court found that even though the funds were invested for the benefit of the Indian beneficiaries and the Indians were the “owners” of the trust “corpus”, they had no right to see all of the documents pertaining to just what the Government did, and the legal advice upon which the trustee had relied in its mis-investing the tribal money and mismanaging the tribal funds.

Justice Ginsburg joined by Justice Breyer agreed with the result, that the documents did not have to be given to the Indian plaintiffs because the U.S. could properly claim attorney-client privilege. However, these two justices said that, where the Majority Opinion went beyond the attorney-client privilege analysis regarding the documents in question and holds that the Government “assumes Indian trust responsibilities only to the extent it expressly accepts those responsibilities by statute”, was unnecessary to reach its conclusion. Justices Ginsburg and Breyer said that where the majority “concludes that the trust relationship described in 25 U.S.C. section 162a does not include the usual “common law disclosure obligations” as between a trustee and beneficiary, it “is unnecessary to decide what information other than attorney-client communications the Government may withhold from the beneficiaries of tribal trust”. The point these two Justices were making is that, under normal constitutional law standards, an adjudication of a “case or controversy” is limited to its present facts and cannot address facts that may occur in the future, which is what the Majority was doing by going beyond just deciding that, under the facts present, that the opinions of the attorneys prepared for the Department of Interior were protected by Attorney-Client Privilege.

Under the normal rules of precedence, future opinions of Federal District Courts, Federal Circuit Courts of Appeal and opinions of the Supreme Court, that the surplus language pointed out by the Concurring Opinion of Justices Ginsburg and Breyer, and the Dissenting Opinion of Justice Sotomayor, this decision would not be used as precedent for anything other than what it says about whether internal attorney opinions prepared for the United States are subject to Attorney-Client Privilege. However, because of the present activist nature of this Supreme Court against Indian interests in Indian Law cases, that could be false hope.

One could reasonably wonder how the Cobell case would have fared under this court, and how future trust fund beneficiaries will fare, should their cases be heard by the U.S. Supreme Court. This Supreme Court Opinion also leaves one to wonder what boundaries, if any, exist under the U.S. Constitution with regard to Congress’ “plenary power”, as described a century ago, now revived by the Court. What boundaries would U.S. plenary power over Indian policy have under International Law? Especially in light of the individual states’ asserting that their courts can be banned from using anything resembling “foreign” law and the spill-over effect this may have on the Federal Courts and upon Congressional Indian Policy.

Harold A. Monteau is a Chippewa Cree attorney who resides in Albuquerque, New Mexico, and was the chairman of the National Indian Gaming Commission in the Clinton administration. He can be reached at