You Can't Verify The Trust, Supreme Court Tells Apache Nation

The United States Supreme Court Monday once again stuck it to Native American litigants. In a 7-1 opinion (Justice Elena Kagan recused), the Court sided with the U.S. government and against the Jicarilla Apache Nation in a fiduciary-duties case brought by the Nation to determine whether and to what extent federal officials mismanaged the tribe's money. The decision was hardly sweeping-- it involved a discovery dispute and the application of the attorney-client privilege-- but it's still worth a closer look.

The Nation sued the feds in 2002 asserting that the government breached its fiduciary duty to properly manage funds generated from the culling of timber, gravel and oil and gas resources from the Tribe's land in Northeastern New Mexico. As all plaintiffs do, the Nation sought through discovery access to government documents that its lawyers thought might help establish that federal officials "failed to maximize returns on trust funds, invested too heavily in short-term maturities, and failed to pool its trust funds with other tribal trusts."

For six years, the Tribe and the government futzed around in "alternative dispute resolution" trying to reach a settlement. During this time, the feds turned over thousands of relevant documents to Tribal attorneys but failed to produce 226 documents which government officials said were protected by the "attorney-client privilege, the work-product privilege, or the deliberative-process privilege." The tribe went to court seeking to compel the production of those documents, arguing that its interests fell under a widely-acknowleged exception to the general rule that such documents may lawfully be protected from disclosure.

The Court of Federal Claims, which handles disputes between Indian tribes and the government, sided mainly with the Nation. Here's how Justice Samuel Alito described how the lower court handled the matter:



The CFC held that communications relating to the management of trust funds  fall within a "fiduciary exception" to the attorney-client privilege. Under  that exception, which courts have applied in the context of common-law trusts,  a trustee who obtains legal advice related to the execution of fiduciary  obligations is precluded from asserting the attorney-client privilege against  beneficiaries of the trust. The CFC concluded that the trust  relationship between the United States  and the Indian tribes is sufficiently analogous to a common-law trust  relationship that the exception should apply. Accordingly, the CFC held,the  United States may not shield from the Tribe communications with attorneys  relating to trust matters.

The government appealed this ruling to the Federal Circuit Court. That court, too, sided with the Apache Nation. But not the Supreme Court. Because the government is not a "private trustee," Justice Alito wrote," it is not bound by the "exception" to the discovery rules, especially in the absence of any statutory language indicating that this should be so. We're not going to bend over backward to help the Nation, the Court's majority said Monday, unless Congress tells us we have to. The documents get to stay sealed, to the great detriment of the Apache Nation as it continues to pursue its mismanagement claims nine years after first bringing them.

Two unsettling themes emerge from Justice Alito's opinion. 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. "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," he wrote in Footnote 8 of the decision. "Rather, the trust relationship has been altered and administered as an instrument of federal policy "

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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