High Court Overturns Tribe’s Discovery Order

     (CN) – Attorney-client privilege shields documents that may show how the government mismanaged the Jicarilla Apache Nation’s trust assets, the Supreme Court ruled Monday.

     The decision reverses two lower court’s orders that directed the United States to produce the documents under the “fiduciary exception” for tribal trust cases.
     Monday, the justices held that the fiduciary exception does not apply to the general trust relationship between the United States and the Indian tribes.
     “Although the Government’s responsibilities with respect to the management of funds belonging to Indian tribes bear some resemblance to those of a private trustee, this analogy cannot be taken too far,” Justice Samuel Alito wrote for the majority opinion. “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.”
     In December 2009, the Federal Circuit held that the government failed to prove that it had “considered a specific competing interest in those communications.”
     The Jicarilla Apache Nation, which occupies a 900,000-acre reservation in northern New Mexico, had sued the government in federal claims court and later won a motion to compel discovery of trust-related documents.
     Proceeds from the development of timber, gravel, and oil and gas reserves on the tribe’s land remain in trust by the United States for the tribe.
     The government produced thousands of documents, but withheld 226 under the doctrine of attorney-client privilege and then released 71 of those documents. Those remaining 155 documents can stay shielded under the Supreme Court’s latest holding.
     Ultimately, the tribe failed to point to a legally conferred right to obtain otherwise privileged information from the government, according to the 24-page decision, which five justices supported in full.
     “The two features justifying the fiduciary exception – the beneficiary’s status as the ‘real client’ and the trustee’s common-law duty to disclose information about the trust – are notably absent in the trust relationship Congress has established between the United States and the Tribe,” Alito wrote.
     Justice Ruth Bader Ginsburg, joined by Justice Stephen Breyer, wrote an opinion concurring in the judgment, saying that the majority went a bit too far in its holding.
     “Going beyond attorney-client communications, the Court holds that the Government ‘assumes Indian trust responsibilities only to the extent it expressly accepts those responsibilities by statute,'” Ginsburg wrote. “The Court therefore concludes that the trust relationship described by [certain statutes] does not include the usual ‘common-law disclosure obligations.’ Because it is unnecessary to decide what information other than attorney-client communications the Government may withhold from the beneficiaries of tribal trusts, I concur only in the Court’s judgment.” (Emphasis in original.)
     Justice Sonia Sotomayor authored a 21-page dissenting opinion. “Because the common-law rationales for the fiduciary exception fully support its application in this context, I would hold that the Government may not rely on the attorney-client privilege to withhold from the Nation communications between the Government and its attorneys relating to trust fund management,” Sotomayor wrote.
     “The Court’s decision to the contrary rests on false factual and legal premises and deprives the Nation and other Indian tribes of highly relevant evidence in scores of pending cases seeking relief for the Government’s alleged mismanagement of their trust funds,” she continued. “But perhaps more troubling is the majority’s disregard of our settled precedent that looks to common-law trust principles to define the scope of the Government’s fiduciary obligations to Indian tribes. Indeed, aspects of the majority’s opinion suggest that common-law principles have little or no relevance in the Indian trust context, a position this Court rejected long ago. Although today’s holding pertains only to a narrow evidentiary issue, I fear the upshot of the majority’s opinion may well be a further dilution of the Government’s fiduciary obligations that will have broader negative repercussions for the relationship between the United States and Indian tribes.”
     Justice Elena Kagan took no part in the court’s consideration or decision of the case.

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