U.S. Supreme Court Holds That Fiduciary Exception to Attorney-Client Privilege Does Not Apply to Trust Relationship Between United States and Indian Tribes, Bloomberg Law Reports®
On June 13, 2011, the U.S. Supreme Court held that the fiduciary exception to the attorney-client privilege does not apply to the trust relationship between the U.S. Government and Indian tribes. The Court reasoned that the rationale justifying the fiduciary exception in the private context does not apply when the Government is serving as the trustee for tribal funds.
Jicarilla Apache Nation and Its Trust
Jicarilla Apache Nation’s (Tribe) reservation in New Mexico contained natural resources, including oil and gas reserves, which were developed pursuant to statutes administered by the U.S. Department of the Interior. The U.S. Government held proceeds derived from the resources in trust for the Tribe under the American Indian Trust Fund Management Reform Act of 1994, 25 U.S.C. §§ 4001 – 61, and other statutes.
In 2002, the Tribe filed a breach-of-trust action in the U.S. Court of Federal Claims (CFC), alleging that the Government mismanaged its trust funds in violation of 25 U.S.C. §§ 161 – 162a. During discovery, the Tribe moved to compel the production of certain documents that the Government asserted were protected by the attorney-client privilege.
The CFC granted the Tribe’s motion in part, concluding that departmental communications relating to the management of trust funds fell within the “fiduciary exception” to the attorney-client privilege. Under the exception, which typically applies to common law trusts, a trustee who obtains legal advice related to his exercise of fiduciary duties cannot withhold attorney-client communications from the beneficiary of the trust. According to the CFC, the trust relationship between the United States and the Tribe was sufficiently similar to a common-law trust relationship, and thus the exception applied. As such, the CFC held that the Government was not permitted to withhold from the Tribe communications with attorneys related to the trust. The CFC ordered the Government to disclose documents that involved “matters regarding the administration of tribal trusts, either directly or indirectly implicating the investments that benefit[ed] Jicarilla” and that contained “legal advice relating to trust administration.”
The Government petitioned the U.S. Court of Appeals for the Federal Circuit for a writ of mandamus directing the CFC to vacate its order. The Federal Circuit denied the Government’s request because it believed that the CFC correctly applied the fiduciary exception.
The Fiduciary Exception Did Not Apply to the Trust Relationship between the Government and the Tribe
The Supreme Court granted certiorari to “consider the bounds of the fiduciary exception and the nature of the trust relationship between the United States and the Indian tribes.” It reasoned that the fiduciary exception was grounded in the notion that the trustee had no independent interest in trust administration and was subject to a general common-law duty of disclosure. The Court explained that this rationale does not apply when the United States is serving as trustee for tribal trusts.
In particular, the Court observed that in a private context, a trustee has no stake in the advice it provides regarding a trust. In contrast, however, when the Government serves as trustee for an Indian tribe’s trust, it has its own independent interest in implementing federal Indian policy. When the Government seeks legal advice related to the administration of tribal trusts, it establishes an attorney-client relationship related to its sovereign interest in the execution of federal law. That is, “the Government seeks legal advice in a ‘personal’ rather than a fiduciary capacity.” Moreover, the Court explained that the Government must represent “multiple interests” and thus it cannot follow the standards of a private fiduciary:
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 fiduciary exception . . . do not apply in this context.
The Court further elaborated that because the Government exercises its trust responsibilities “in a sovereign capacity to implement national policy respecting the Indian tribes[,] . . . [t]he two features justifying the fiduciary exception—the beneficiary’s status as the ‘real client’ and the trustee’s common-law duty to disclose information about the trust—are notably absent” from the trust relationship between the Government and tribes.
Accordingly, the Court reversed the judgment of the Court of Appeals and remanded the case for a determination of whether, in light of the Court’s opinion, the standards for granting a writ of mandamus were met.
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