Here.
Jicarilla Supreme Court Decision in Haiku
Here.
United States v. Jicarilla Apache Nation
SCOTUSblog on U.S. v. Jicarilla Apache
SCOTUSblog posted its summary of U.S. v. Jicarilla Apache today.
Andrew Cohen Criticizes Supreme Court over Jicarilla Decision
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:
SCOTUS Reverses & Remands in U.S. v. Jicarilla Apache Nation
The decision is here. It was authored by Justice Alito, and Justice Sotomayor is the lone dissent. Justices Ginsburg and Breyer filed a concurrence.
In this case, we consider whether the fiduciary exception applies to the general trust relationship between the United States and the Indian tribes. We hold that it does not. Although the Government’s responsibilities with re- spect to the management of funds belonging to Indian tribes bear some resemblance to those of a private trustee, this analogy cannot be taken too far. The trust obligations of the United States to the Indian tribes are established and governed by statute rather than the common law, and in fulfilling its statutory duties, the Government acts not as a private trustee but pursuant to its sovereign interest in the execution of federal law. The reasons for the fiduci- ary exception—that the trustee has no independent interest in trust administration, and that the trustee is subject to a general common-law duty of disclosure—do not apply in this context.
And from the dissent:
Federal Indian policy, as established by a network of federal statutes, requires the United States to act strictly in a fiduciary capacity when managing Indian trust fund accounts. The interests of the Federal Government as trustee and the Jicarilla Apache Nation (Nation) as beneficiary are thus entirely aligned in the context of Indian trust fund management. Where, as here, the governing statutory scheme establishes a conventional fiduciary relationship, the Government’s duties include fiduciary obligations derived from common-law trust principles. Because the common-law rationales for the fiduciary exception fully support its application in this context, I would hold that the Government may not rely on the attorney-client privilege to withhold from the Nation communications between the Government and its attorneys relating to trust fund management.
Preliminary Thoughts on Jicarilla Oral Argument
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)
Oral Argument Transcript in United States v. Jicarilla Apache Nation
Here.
No Decision Today in U.S. v. TON; Oral Arguments in Jicarilla Apache Today
We’ll post a link to the transcript of the oral argument for U.S. v. Jicarilla Apache Nation when it becomes available.
And just for the fun of it, here’s a poll based on yesterday’s post speculating on the reasons for delay in the U.S. v. TON decision:
Why Still No Opinion in U.S. v. TON?
As Acting SG Neal Katyal noted at Fed Bar, it’s the oldest argued case sitting on the Supreme Court’s list of pending cases, and he said that nearly three weeks ago.
Why no opinion yet (oral argument recap here)? Here are our speculative reasons….
- The Court is waiting for tomorrow’s oral argument in United States v. Jicarilla Apache Nation. Announcing an Indian law decision right before a second one is argued creates a sense of theatrics. Probably not.
- The Court doesn’t want to give too much away in its TON decision before the JAN argument. The cases are not all that similar, except they do involve to some extent the scope of the government’s trust responsibility to Indian tribes. Possible.
- The Court is split 4-4 and continues deliberation in hopes that one Justice will switch sides in order to reach a needed fifth vote. Possible, but the Court has issued a few 4-4 decisions already this Term. Just a few though.
- Justice Thomas, who is often assigned Indian law opinions in noncontroversial cases (also ones that tribal interests tend to lose 9-0 or 8-1), is working unusually slow this Term.
- A major earth-shattering change in Indian law. Not sure how the TON would generate such a result, but who knows?
SCOTUSblog/ABA Preview of United States v. Jicarilla Apache Nation
By a business law professor and an undergraduate senior from Western Carolina University. As to be expected, I suppose, there’s virtually no Indian law in the essay. And, under the “Significance” heading:
Although it is easy to conclude that this case is only applicable to discovery issues relating to tribal funds held in trust by the U.S. government, the case has broader implications, especially in the area of employee benefits and shareholder actions. This will be the Court’s first opportunity to address the fiduciary exception to the attorney- client privilege and it can easily have an impact beyond tribal funds.
The blog link is here. The preview is here. Oral arguments in the case will be heard on Wednesday in the Supreme Court.
I guess Friday is the day when Indian law is everywhere.
United States Reply Brief in U.S. v. Jicarilla Apache Nation
Here.
Turtle Talk 
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