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.


Tribal Court Has Inherit Authority Over Disputes Arising From Tribal Land

The Ninth Circuit recently affirmed tribal court jurisdiction over a non-member.  Water Wheel Camp Recreational Area and Robert Johnson v. Gary LaRance and Jolene Marshall, 09-17349 & 09-17357 (9th Cir. June 10, 2011). Water Wheel was a corporation that operated a campground and resort on a river bank within the Reservation of the Colorado River Indian Tribe. Johnson, a non-tribal ember, was the owner/operator/and alter ego of the resort. Gary LaRance and Jolene Marshall were tribal court judges.

Water Wheel had a thirty-two year lease on the property. Per the terms of the lease, the base rent was to be re-adjusted at year twenty-five to better reflect market conditions. However, when year twenty-five came around, the parties were unable to agree on a new base rent. Water wheel eventually stopped making the lease payments. When the lease expired, Water Wheel refused to vacate the property.

The tribe then brought an action in tribal court to evict Water Wheel. Water Wheel contested jurisdiction, asserting that the tribal court lacked jurisdiction
under U.S. v. Montana. Montana held that tribal court lacks jurisdiction over non-members unless: 1) the non-member had a consensual relationship with the tribe, or 2) the non-member’s conduct threatens the health and welfare, political integrity, or economic security of the tribe.

Johnson asserted that he did not have a consensual relationship with the Tribe because he did not understand that he, personally, would be dealing with the Tribe when he took over the lease and that he did not consent to tribal court
jurisdiction. However, the Court of Appeals held that Montana did not apply because tribal court jurisdiction rested on the Tribe’s inherent authority to exclude, not on Montana. The court reasoned that Montana and progeny, with one narrow exception, involved disputes between non-members and the Tribe arising from activity on non-tribal land within the Reservation. This dispute arose from activity on tribal land within the Reservation.  Therefore, Montana did not apply. Tribal court jurisdiction flowed from its power to exclude and its inherent sovereignty over tribal land.

All Affiliated Tribes Must Receive Notice Before Termination of Parental Rights

The Court of Appeals, Division II, In Re: ADB-L & LNB-L; JB-L.& KL v. DSHS, dkt No. 38850-2 held recently that the notice requirements of state law were more expansive than those of the U.S. Indian Child Welfare Act (“ICWA”).

ICWA is designed to prevent the break-up of the Indian family.  It applies to a proceeding to terminate parental rights to an Indian child, where the child is enrolled, or eligible for enrollment, in a federally recognized Indian tribe.

Per ICWA, the party seeking to terminate parental rights must notify the child’s tribe.  State law is broader.  The dependency statute requires the party seeking termination to provide notice to all tribes the petitioner has reason to know may be affiliated with the child.

Here, the party seeking termination of parental rights was the State of Washington, Department of Social and Health Services (“DSHS”).  DSHS sent notice to the Nooksack tribe, where one of the children was enrolled and the other was enrollable.  However, it did not send notice to three other tribes that may have some kind of affiliation with the children.

The mother, who was enrolled Nooksack, was also enrolled in the Squamish Nation out of Canada.  The Father claimed Cherokee and Blackfoot ancestry, though he was not enrolled in either of those tribes.

The Court of Appeals held that the Squamish, Cherokee, and Blackfoot tribes should have been notified of the termination proceedings.  Otherwise, the appellate court affirmed the trial court’s ruling terminating parental rights.

To address the notice issue, the Court of Appeals instructed the trial court to ensure that DSHS provided the requisite notice.  If one or more of the three tribes then chose to intervene, the trial court would have to re-open the proceedings.  On the other hand, if each of the three tribes chose not to intervene, the termination orders would stand.

Custody Dispute Between Parent & Indian Custodian

A recent case from division one, Custody of CCM, gives me the unique opportunity to blog my own case. I represented the appellants in this case. We won. CCM pitted a non-Indian father against the Indian grandparents. I had the grandparents. Thus, the facts lay in the intersection between two sometimes contradictory statutes: the U.S. Indian Child Welfare Act and Washington’s third-party custody statute. The case raised several issues: 1) Notice to the child’s Indian tribe, 2) Cure for defective notice, 3) The standard for determining where to place the child, and 4) Child support. We won on three of the four issues. In terms of notice, the court held that ICWA requires that the child’s Indian tribe needs formal notice of any custody proceeding regarding the child. Formal notice means certified mail, return receipt requested, to the proper tribal authority. If the notice is defective in any way, the Tribe gets a new trial. In terms of the placement standard, in a custody dispute between two parents, the state-law standard is best interest of the child. However, in a custody dispute between a parent and a non-parent, the standard for placing with the non-parent is much higher. The child is placed with the parent unless 1) the parent is unfit or 2) moving the child from the non-parent to the parent would cause the child actual detriment to his health and well-being. I argued that this standard didn’t apply to the grandparents because they were the Indian custodians. Since ICWA treats parents and Indian custodians the same, the standard should be the same – best interest. I still think it is a good argument, but it lost. The court held that, where federal law – ICWA – treats the parties the same, the standard for which party gets the child is the state law standard.

Public Law 280 on the Quinalt Reservation

A recent case from the Court of Appeals, Div. 2, State of Washington v. William Pink, Docket # 36485-9, reaffirms the scope of tribal sovereignty over criminal activity by tribal members on tribal land.

In this particular case, the state of Washington asserted criminal jurisdiction over an enrolled tribal member of the Quinault Reservation for possession of an illegal firearm on a state highway within the exterior boundaries of the Quinalt Reservation. According to the state, the fact that the crime occurred on the state highway gave the state jurisdiction to prosecute it.
The court of appeals disagreed, reasoning that the tribe had subject matter jurisdiction over the crime because it had jurisdiction over the land on which the crime occurred, per the Treaty of Olympia, which created the Reservation in 1859. The fact that the Tribe granted the state an easement for the highway did not vitiate this jurisdiction.
This decision contains a primer on state jurisdiction over Indians and Indian Reservations in Washington. This primer is worth summarizing here.
PL 280

In 1953, the US Congress passed legislation, Public Law 280, authorizing any state to assert concurrent jurisdiction over any Reservation within the territorial jurisdiction of the state, with or without tribal consent. The Washington State Legislature then elected to assert this jurisdiction but only over those Reservations that requested it.

Ten years later, in 1963, however, the Legislature elected to assert jurisidiction on the Reservation, with or without tribal consent, in eight different subject areas: 1. compulsory school attendance, 2. public assistance, 3. domestic relations, 4. mental illness, 5. juvenile delinquency, 6. adoption, 7. dependencies, 8. operation of motor vehicles on public streets.

This rather complicated set of laws was applied to the Quinalt Reservation as follows: in 1957, the Quinalt Tribe granted the State of Washington a right-of-way-easement over the Reservation so the State could build the highway.

In 1958, the Quinalt Tribe requested that the governor assert criminal and civil jurisdiction over the Reservation. A month later, in the same year, the governor obliged.

However, in 1965, the Quinalt Tribe petitioned the US Secretary of the Interior for retrocession of state jurisdiction. The Secretary granted the request.

Therefore, from 1965 through the present, the state of Washington lacks original criminal or civil jurisdiction over a tribal member for any matter arising on the Reservation. However, it does have concurrent jurisdiction over a tribal member for a matter arising on the reservation regarding one of the eight areas mentioned previously.

If this sounds complicated, it is because it is. The discussion above pertains only to tribal members and only to land within the exterior boundaries of the Reservation held in trust by the United States for the benefit of the Tribe or named tribal members.


This decision contains a good summary of how p.l. 280 applies to Indian Reservations in Washington State. It should be useful to anyone who advocates for tribal sovereignty and a cautionary tale for non-Indians who wish to do business with an Indian Tribe. If a non-tribal member wishes to do business in Indian country, that person must carefully consider not only what might go wrong, but also what remedies and what courts may be available for redress of grievances.

State Has Authority Over Individual Fisherman To Impose On-Reservation Sentence For Off-Reservation Illegal Fishing

A recent state Supreme Court case, State v. Cayenne, docket no. 80499-1, held that a state trial court could restrict a Chehalis tribal member’s right to own a gillnet, on or off the reservation, as part of his sentence for illegal fishing.

Cayenne, a member of the Chehalis Tribe, was fishing off the reservation and convicted of felony illegal use of a net. The Chehalis Tribe does not have off-reservation treaty fishing rights because it never signed a treaty.

Part of Cayenne’s sentence was an eight-month prohibition on owning a gillnet. Cayenne argued that the trial court lacked the authority to impose this sentence on the Reservation, because the state does not have authority to regulate on-Reservation fishing, except for reasonable and necessary conservation measures.

However, the court reasoned that the sentence was against Cayenne, not against the entire Tribe, and that the state did have jurisdiction over Cayenne.

Sovereign Immunity Does Not Apply To Quiet Title Action Regarding Real Property Subject To Continuing State Court Jurisdiction

A new case from division I, Stillaguamish Tribe of Indians v. Smale, docket # 6239-4, held that the state, not the tribe, had continuing jurisdiction over a piece of real property, even after the property was deeded to the tribe.

In this case, the plaintiffs filed a quiet title action in state court claiming they had acquired the property through adverse possession from the previous non-Indian owners.
The defendants then transferred ownership of the land to the Stillaguamish Tribe through a statutory warranty deed. The plaintiffs then joined the Tribe as a defendant. The defendants claimed sovereign immunity.
The doctrine of sovereign immunity states that an Indian tribe is immune from suit unless: 1) it has expressly waived its immunity; or 2) the US Congress has expressly abrogated the tribe’s sovereign immunity.
The Tribe argued that, because of the tribe’s sovereign immunity, the state court had no jurisdiction over the tribe, and therefore the tribe could not be sued.
The plaintiffs, on the other hand, argued that the basis of the state court’s jurisdiction over the matter was not personal, or in personam, jurisdiction over the tribe. Rather, it was in rem jurisdiction over the property. Sovereign immunity, therefore, did not apply.
The trial court found for the plaintiffs. The appellate court affirmed.