564 U.S. ___ (2011)
The Jicarilla Apache Nation occupies a 900,000 acre reservation in northern New Mexico that was established by Executive Order in 1887.1 The land contains timber, gravel, and oil and gas reserves developed pursuant to statutes administered by the Department of the Interior.2 Proceeds derived from these natural resources are held by the United States in trust for the Tribe.3
In 2002 the Tribe commenced a breach-of-trust action against the United States in the Court of Federal Claims.4 The complaint seeks monetary damages for the Government's alleged mismanagement of funds held in trust for the Tribe and invokes the Tucker Act and the Indian Tucker Act.5 From December 2002 to June 2008 the Government and the Tribe participated in alternative dispute resolution.6 During that time the Government turned over thousands of documents but withheld 226 potentially relevant documents as protected by the attorney-client privilege, the attorney work-product doctrine, or the deliberative-process privilege.7
In 2008 the case was restored to the active litigation docket.8 The Court of Federal Claims divided the case into phases for trial and set a discovery schedule.9 The first phase concerns the Government's management of the Tribe's trust accounts from 1972 to 1992.10 During discovery the Tribe moved to compel production of the 226 withheld documents.11 The Government agreed to withdraw its claims of deliberative-process privilege and to produce 71 of the documents but continued to assert the attorney-client privilege and attorney work-product doctrine with respect to the remaining 155 documents.12 The court reviewed those documents in camera and classified them into five categories.13
The Court of Federal Claims granted the Tribe's motion to compel in part and ordered disclosure of almost all documents in the first two categories.14 The Government petitioned the Court of Appeals for the Federal Circuit for a writ of mandamus directing the Court of Federal Claims to vacate its production order.15 The Federal Circuit denied the petition.16 The Supreme Court granted certiorari.17
Whether the fiduciary exception to the attorney-client privilege applies to the United States in its trust relationship with Indian tribes?18
The attorney-client privilege is absolute and not subject to case-by-case balancing.19 The fiduciary exception derives from the common law of trusts and applies when the trustee obtains legal advice for the benefit of the trust, making the beneficiaries the real clients.20 However, the trust relationship between the United States and Indian tribes is established and governed by statute rather than the common law, and the Government acts pursuant to its sovereign interest in the execution of federal law.21
No. The two criteria justifying the fiduciary exception are absent in the trust relationship between the United States and Indian tribes.22 The Tribe is not the real client because Government attorneys are paid out of congressional appropriations and the Government seeks legal advice in its sovereign capacity to implement national policy rather than as a conventional fiduciary.23 The Government does not have the same common-law disclosure obligations as a private trustee.24 Its disclosure duties are defined by specific statutes such as 25 U.S.C. §162a(d) that set forth limited responsibilities including periodic statements of account performance.25
The fiduciary exception to the attorney-client privilege does not apply to the United States in its trust relationship with Indian tribes.26
Related opinions on this issue
Joined by Justice Breyer
Justice Ginsburg, concurring in the judgment, agreed that the Government is not an ordinary trustee.27 Unlike a private trustee, the Government has its own distinct interest in the faithful carrying out of the laws governing the conduct of tribal affairs.28 This unique national interest obligates Government attorneys to make their own independent evaluation of the law and facts in an effort to arrive at a single position of the United States.29
For that reason, the Government seeks legal advice in a personal rather than a fiduciary capacity, and the attorney-client privilege protects the communications from disclosure.30 She concurred only in the judgment because it was unnecessary to decide what information other than attorney-client communications the Government may withhold from the beneficiaries of tribal trusts.31
Justice Sotomayor dissented, arguing that 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.32 The interests of the Federal Government as trustee and the tribe as beneficiary are thus entirely aligned in the context of Indian trust fund management.33 Because the statutory scheme establishes a conventional fiduciary relationship, the Government's duties include fiduciary obligations derived from common-law trust principles.34
The twin rationales for the fiduciary exception fully support its application in this context.35 The majority's decision rests on false factual and legal premises that deprive the Nation and other Indian tribes of highly relevant evidence in scores of pending cases.36