Today, the Court heard arguments in United States v. Jicarilla Apache Nation (transcript here). Pratik Shah (6 prior arguments before the Court) argued for the government, and Steven Gordon (1 prior oral argument) argued for the Nation.

Justice Sotomayor throughout the argument challenged the government on its claims. Early on she asked the government’s advocate on whether the government had a “competing sovereign interest” in not disclosing the relevant documents (tr. at 4). She also asked:

Just explain to me what’s the rationale that would permit a trustee of a trust fund to withhold from the beneficiary the kinds of documents that relate to the management of the trust fund? If the fund exist for the benefit of the Indian tribe, why aren’t they entitled to management documents? (tr. at 5)

At another point, when the government advocate noted that “when Congress uses the term ‘trust’ in the Indian context, that there must be specific statutory regulatory duties that the Court sets out.” (tr. at 7. To which Justice Sotomayot responded, :

You’re not seriously suggesting that if you’re a trustee of an Indian fund that you can breach your fiduciary duty by simply not exercising care in your investment strategies. (tr. at 7-8)

The government’s advocate then reiterated a key position of the government:

The two statutes you’re talking about, 161a and 162a, set forth specific investment duties. They don’t say anything about disclosure. … The United States must provide an account statement, a quarterly account statement; and the United States must provide the Indian tribes and individual Indians an annual audit. That is the extent of disclosure that Congress has set forth and that the Interior Department by regulation has implemented. (tr. at 8-9)

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