Turtle Talk

Here is the article, from the Atlantic.

An excerpt or two:

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 theJicarilla 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.

And in a biting critique:

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 ”

Second, by highlighting the conflicting interests between the government and the Nation in these trustee cases, Justice Alito undercuts the entire statutory and administrative framework that bears the government’s relationship with the Apache Nation and other Indian tribes. “While one purpose of the Indian trust relationship is to benefit the tribes, the Government has its own independent interest in the implementation of federal Indian policy,” Justice Alito wrote. “For that reason, when the Government seeks legal advice related to the administration of tribal trusts, it establishes an attorney-client relationship related to its sovereign interest in the execution of federal law.”

In other words, the law may call the government a “trustee” over Indian tribes and may require the feds from time to time to undertake certain fiduciary obligations on behalf of the various Nations. But when push comes to shove, the law only rarely is going to force the feds to do something they don’t want to do in the first place for reasons of their own. Where, as here, a Tribe comes to court looking for monetary damages, well, you get a 7-1 ruling from the Court that transcends traditional ideological lines.