Category Archives: US fiduciary duty to Indian tribes

Indian Child Welfare Act: Supreme Court Rules in Favor of Pre-Existing Family Doctrine

The U.S. Supreme Court issued a new opinion on the Indian Child Welfare Act (“ICWA”) last month.  The Court held that ICWA did not apply in cases where the Indian parent had no existing relationship with the child, other than biological.  Adoptive Couple v. Baby Girl, June 25, 2013, S. Ct. 12-399

Those of us who believe that orphaned Indian children, like the baby girl here, should be treated just like any other orphaned child, will be heartened by the decision.  Those of us who believe that all orphaned Indian children should be sent to the Reservation, regardless of how tenuous their ties to the Reservation may be, will be chastened by the decision.

I personally fall into the former category.  Most of my Indian Child Welfare Act clients are non-tribal members attempting to gain custody of infants who may be Indian by virtue of their blood line, but who have never had any contact with the Reservation or their Indian parent(s).  In my view, if an infant is thriving in a stable, loving home she should be allowed to stay there, regardless of any Indian ancestry.  This case will help those clients.

The case pitted a prospective adoptive couple against an Indian father.  I happen to know something about the prospective couple because I met the mother when I was giving a presentation on ICWA in Washington DC last year.  They appeared to be ideal parents.  They both had stable jobs, Ph.Ds, (I’m pretty sure they were both psychologists) and seemed like excellent parents.

In addition, per the Supreme Court, the prospective adoptive parents provided financial and emotional support to the mother during and after her pregnancy.  The father even cut the umbilical cord in the delivery room at the hospital.  They also let the mother have contact with Baby Girl after she was born.

The biological father, on the other hand, was a deadbeat.  The Supreme Court found the following facts about him.

  • He provided absolutely no financial or emotional support to the mother during or after her pregnancy, even though he had the means to do so;
  • He never saw the child or had any contact with her;
  • While pregnant, the mother sent him a text message asking if he would prefer to pay child support or to relinquish his parental rights.  His return text message: relinquish parental rights;
  • After the child was born, he signed papers indicating he was “not contesting the adoption;”
  • He did not allow Baby girl any contact with the prospective adoptive parents after she was delivered to him.

However, when push came to shove, the father contested the adoption in state court.  The state court, South Carolina, denied the adoption petition and awarded custody of the child to the father.  The South Carolina Supreme Court affirmed.

Thus, at the age of 27 months, Baby Girl was removed from the only home she ever had and placed with a complete stranger.

The U.S. Supreme Court reversed and remanded.  Now the South Carolina Court will have to determine if, based on state law, the child should be removed from her current home and returned to her previous home.


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.