Here.
An excerpt:
Sotomayor focused her dissent on the uncomfortable public policy implication of the majority opinion, namely, that the government could have legitimate reasons for managing the trust beyond, or perhaps even contrary to, the interests of the tribe without the obligation to turn over the evidence that proves it. But the majority didn’t flinch. “Congress has structured the trust relationship to reflect its considered judgment about how the Indians ought to be government,” Alito affirmed, “[I]t has been altered and administered as an instrument of federal policy.”
Forget ducks. For Sotomayor, this doesn’t even pass the smell test. The government acts as a trustee and calls itself a trustee, but it won’t abide by any of the traditional duties that go with being a trustee unless it affirmatively accepts them. In effect, the government is using the word trust without feeling obliged by its definition. “There’s no need to use the word,” Sotomayor tartly noted in oral arguments, “because it wouldn’t be a trust.”
The problem for Sotomayor is that the government can be a trustee, but it can’t only be a trustee, and the dual nature of its relationship undermines the trust law exception to attorney-client privilege. Her response is to say that the interests of the trustee and beneficiary should always be aligned; that justice cannot tolerate the casual discharge of a sacred trust, particularly one owed by the federal government to a vulnerable group of people. “Given the history of governmental mismanagement of Indian trust funds,” she says in her dissent, the “application of the fiduciary exception is, if anything, even more important in this context than in the private trustee context.” Maybe so, but that is a moral reply to a legal conundrum. As a matter of law, Sotomayor would have been better off joining Ginsburg’s concurrence, which tried to provide a single exception to the traditional trust relationship. That she did not says a lot about the jurisprudential prerogatives of one of the newest members of the Court.
Jurisprudential prerogatives, and the moral imperatives that underpin them, are the stuff of lonely dissents, which tend to be less about the law than its shortcomings. They are written accounts of a judge’s reckoning with the oldest dilemma of her profession: that what is legal is not necessarily just, and what is just is not necessarily legal. As Sotomayor attests, they can be telling in their despair.
Turtle Talk 
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