United States v. Jicarilla Apache Nation
564 U.S. 162, 131 S. Ct. 2313 (2011)
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Rule of Law:
The common-law fiduciary exception to the attorney-client privilege does not apply to the general trust relationship between the United States and Indian tribes, as this relationship is governed by statute and the government acts in its sovereign capacity, not as a private trustee.
Facts:
- The Jicarilla Apache Nation (Tribe) occupies a reservation in New Mexico, established by an 1887 Executive Order, containing valuable natural resources.
- Under federal statutes, including the American Indian Trust Fund Management Reform Act of 1994, the United States holds proceeds derived from these resources in trust for the Tribe.
- The Tribe alleged that between 1972 and 1992, the United States mismanaged these trust funds.
- Specifically, the Tribe claimed the government breached its fiduciary duties by failing to maximize investment returns, investing too heavily in short-term maturities, and failing to pool the Tribe's funds with other tribal trusts for better performance.
Procedural Posture:
- The Jicarilla Apache Nation sued the United States in the U.S. Court of Federal Claims (a trial-level court) for breach of trust.
- During discovery, the Tribe filed a motion to compel production of 226 documents the Government withheld, asserting attorney-client privilege.
- The Court of Federal Claims granted the Tribe's motion in part, holding that a 'fiduciary exception' to the privilege applied and ordered the government to produce many of the documents.
- The United States (petitioner) sought a writ of mandamus from the U.S. Court of Appeals for the Federal Circuit to vacate the production order.
- The Court of Appeals for the Federal Circuit denied the petition, agreeing that the fiduciary exception was correctly applied.
- The United States successfully petitioned the U.S. Supreme Court for a writ of certiorari.
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Issue:
Does the common-law fiduciary exception to the attorney-client privilege apply to the trust relationship between the United States and Indian tribes, thereby requiring the government to disclose otherwise privileged communications related to trust administration?
Opinions:
Majority - Justice Alito
No. The fiduciary exception to the attorney-client privilege does not apply to the trust relationship between the United States and Indian tribes. The government's trust obligations are established and governed by statute, not common law, and in fulfilling these duties, the government acts in a sovereign capacity with its own distinct interests. The two common-law justifications for the exception—that the beneficiary is the 'real client' and that the trustee has a broad duty of disclosure—do not apply. The government is not a mere representative of the tribe, as it must balance competing interests and implement federal policy, and its attorneys are paid by congressional appropriation, not trust funds. Furthermore, the government's disclosure duties are defined by specific statutes, which would be rendered superfluous if a general common-law duty were imposed.
Dissenting - Justice Sotomayor
Yes. The fiduciary exception to the attorney-client privilege should apply because the statutory scheme governing Indian trust fund management establishes a conventional fiduciary relationship where the government's interests are entirely aligned with the tribe's. In this specific context, the government's duty is to act solely for the tribe's benefit, making the tribe the 'real client' of any legal advice on trust administration. The Court has historically used common-law principles to define the scope of the government's trust obligations, and the statutes themselves state the listed duties are not exhaustive. Refusing to apply the exception undermines the tribes' ability to hold the government accountable for its well-documented history of trust mismanagement.
Concurring - Justice Ginsburg
No. The government is not an ordinary trustee because, unlike a private trustee, it has its own distinct sovereign interest in carrying out federal law, meaning it seeks legal advice in a 'personal' rather than a purely fiduciary capacity. Therefore, the attorney-client privilege protects its communications. However, the majority's opinion goes too far by suggesting the government's trust responsibilities are limited only to what is expressly detailed in statutes. The holding should be confined to the attorney-client privilege issue and not make a broader statement about the government's other disclosure obligations.
Analysis:
This decision significantly strengthens the U.S. government's position in breach-of-trust litigation with Indian tribes by shielding internal legal communications from discovery. It firmly rejects the analogy between the government as trustee and a private common-law trustee, emphasizing that the government's duties are defined and limited by statute. This ruling establishes a clear precedent that the government acts in a unique sovereign capacity, with its own interests, and cannot be held to the same broad disclosure standards as a private fiduciary, thereby increasing the difficulty for tribes seeking to prove mismanagement of their trust assets.
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