Media for United States v. Jicarilla Apache NationAudio Transcription for Opinion Announcement - June 13, 2011 in United States v. Jicarilla Apache Nation
Audio Transcription for Oral Argument - April 20, 2011 in United States v. Jicarilla Apache Nation
John G. Roberts, Jr.:
We will hear argument today in case 10-382, United States v. Jicarilla Apache Nation.
Pratik A. Shah:
Mr. Chief Justice, and may it please the Court:
Relying on common law trust principles applicable to private fiduciaries, the Federal Circuit imposed on the United States a duty to disclose attorney-client privileged communications to an Indian tribe.
That abrogation of the privilege should be reversed for at least three reasons.
First, reflecting the sovereign nature of the United States function, the Indian trust context lacks the factors essential to recognition of a private trust fiduciary exception.
Unlike in a private trust, government attorneys and other Federal officials owe an exclusive duty of loyalty to the United States, not to the beneficiary.
The government pays the cost of trust administration out of appropriated funds, not out of the trust corpus.
The government, not the trust, owns the resulting record, and the release of such governmental record, including to a tribe or individual Indian, is governed by specific statutes and regulations as well as the Freedom of Information Act, not the common law.
Second, the decision below conflicts with this Court's precedents that distinguish the United States from a private trustee and that reject enforcement of duties governing the administration of Indian property that are not set forth by specific statute or regulation.
The fiduciary exception to the attorney-client privilege is premised on a private trustee's general common law duty to disclose trust information, but no statute or regulation imposes such a duty on the United States.
Counsel, all of the statutes relating to these funds use the word "trust".
Not one statute defines trust and says in any way this is not a fiduciary relationship.
To the contrary, in fact, most of the statutes require what would be consistent with fiduciary obligations, and at least one of them that you rely on says "but not limited to".
So the issue before us doesn't involve a competing sovereign interest by the U.S. You've conceded that in your cert petition.
The circuit below said this is not a case where there is an independent sovereign issue governing the U.S. activities.
Just explain to me what's the rationale that would permit a trustee of a trust fund to withhold from the beneficiary the kinds of documents that relate to the management of the fund?
If the funds exist for the benefit of the Indian tribe, why aren't they entitled to management documents?
Pratik A. Shah:
That's the part that doesn't make -- that you're not explaining.
Ruth Bader Ginsburg:
Mr. Shah, you might want to make your third point.
You said you had three points preliminarily, so why don't you make your third point and then respond to the question.
Pratik A. Shah:
--Sure, Your Honor.
The third point is that the Federal Circuit's decision poses serious practical problems for the government because the general common law duty to disclose which undergirds the fiduciary exception extends to all trust information without regard to the existence of litigation; excepting it implies a broad and burdensome disclosure obligation.
For example, there are over 300,000 individual account holders, individual Indian account holders on top of the tribal, tribal account holders.
If this Court were to accept the fiduciary exception and thereby ratify the underlying rationale, presumably then any one of those or all of those 300-plus thousand individual account holders could simply call up the Interior Department and request all related trust records outside of the existing statutory and regulatory regime.
Now, Justice Sotomayor, let me turn back to your set of questions, and let me start with the first point that you made, which is the statutes here use the term trust; why doesn't that connote some sort of broad fiduciary relationship?
This Court has made clear in its precedents, and it dates back to the Mitchell 1, the first decision in Mitchell case, where Congress's use of the term "trust", the Court said, does not imply the full gamut of common law fiduciary obligations.
The dissent made precisely -- the dissent in Mitchell made precisely the argument that you're sketching out here, which is when Congress uses a term like trust, we would naturally assume that it implies fiduciary obligations.
The majority in Mitchell rejected that notion, and in fact in Mitchell 2 in the Navajo Nation decisions, the Court has continued to reject that proposition.