United States v. Jicarilla Apache Nation

2011-06-13

Headline: Court blocks tribes from using a trustee exception to force disclosure of government lawyers’ communications, preserving the Government’s attorney-client privilege in most federal Indian trust-management disputes.

Holding: The Court holds that the common-law fiduciary exception to the attorney-client privilege does not apply to the United States’ statutory trust relationship with Indian tribes, so the Government may often keep legal communications confidential.

Real World Impact:

Allows the Government to keep many legal communications about tribal trusts confidential.
Limits tribes’ access to internal government legal advice in trust-management lawsuits.
Affects discovery in numerous pending cases about tribal trust mismanagement.

Topics: tribal trust management, attorney-client privilege, discovery in lawsuits, Indian tribes

Summary

Background

The Jicarilla Apache Nation sued the United States in the Court of Federal Claims, accusing the Government of mismanaging tribal trust funds from about 1972 to 1992. During discovery the Government produced many documents but withheld 226 as privileged; the trial court applied a fiduciary exception used in private trusts and ordered most trust-related legal communications disclosed, and the Federal Circuit agreed. The dispute reached this Court to decide whether that exception applies to the federal trust relationship with Indian tribes.

Reasoning

The Court asked whether the common-law rule that lets beneficiaries see a trustee’s legal advice applies when the United States manages tribal funds. The majority held it does not. It explained that the United States acts under statutes and as a sovereign with its own public interests, not like a private trustee, so the two main justifications for the fiduciary exception — that the beneficiary is the “real client” and that private trustees owe a broad common-law duty to disclose — are absent here. The Court relied on the statutory scheme, implementing regulations, and the fact that certain records are the property of the United States.

Real world impact

As a result, many attorney-client communications about tribal trust administration can remain confidential and may be excluded from trial unless a statute or regulation requires disclosure. The decision will affect ongoing lawsuits about tribal trust mismanagement and discovery disputes and leaves lower courts to apply the ruling on remand. The Government had produced the documents under a protective order pending this review.

Dissents or concurrances

Justice Ginsburg concurred in the judgment but limited her view. Justice Sotomayor dissented, arguing the statutory trust and history of federal oversight create a conventional fiduciary relationship, so the fiduciary exception should apply and tribes need those communications to police mismanagement.