Communications Between Trustees for Indian Tribes and Their Attorneys Are Privileged

Indian tribes lost another legal battle at the U.S. Supreme Court recently. In United States v. Jicarilla Apache Nation, docket # 10-382, decided June 13, 2011, the Supremes held that the fiduciary responsibilities the common law imposes on private trustees don’t necessarily apply to the United States’ as statutory trustee for the Indian tribes. Rather, the United States / Indian trust responsibilities are defined by statute.

The ruling is part of a trend. The U.S. Supreme Court has become decidedly hostile to tribal sovereignty in recent years. For example, in the past seven years,
since the Roberts court began, the Supremes have heard five Indian law case. Tribal interests have lost every time. In the last two cases, decided with the two new Obama appointees – Sotomayer and Kagan – on the bench, tribal interests
lost 9 – 0. (I got these statistics from a website called Turtle Talk, which is produced by attorneys and others who advocate for tribal interests).

The latest opinion brings the Robert’s court record to 0 of six.

United States v. Jicarilla Apache focused on the conflict between the attorney / client privilege and a trustee’s duty to his or her ward. Per the attorney / client privilege, communications between the attorney and his/her client are privileged, meaning that whatever a client tells an attorney is kept confidential, unless the client says otherwise. Per the trustee/ward relationship, a trustee has an absolute, fiduciary duty to act in the ward’s best interest, and the ward has an absolute right to know about anything the trustee has done or is doing on the ward’s behalf.

The conflict between these two legal principles arose in the context of the United
States alleged mismanagement of funds earned from the sale of tribal natural resources. Jicarilla Apache filed a breach of trust claim against the United States. During the course of that litigation, the Apaches demanded that the United States produce a number of documents. The United States produced most of
the documents, but refused to produce others, on the grounds of attorney /
client privilege.

The Tribe asserted that the attorney/client privilege did not apply in this case,
because of the fiduciary exception. The fiduciary exception holds that communications between the attorney and the client are not privileged when the client is acting as a fiduciary on behalf of the trust, but are privileged when the client is seeking advice in her/her personal capacity.

Here, the court held that the attorneys for the United States were wearing multiple hats. While they were attempting to help the trustees meet their duties as fiduciaries of the Indian trust accounts, they were also attempting to help the
trustees comply with any number of other duties towards the Indians. Thus,
the common-law rules regarding the trustee/ward relationship did not exist and
the trustees were only required to follow the statute. The relevant statutes did not create a fiduciary exception to the attorney/client privilege.

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One response to “Communications Between Trustees for Indian Tribes and Their Attorneys Are Privileged

  1. Halito,
    We are seeking a lawyer to help with an entry judgement in the court of claims. if you are willing work with us until this is filed and compensation received, we would appreciate it.

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