fiduciary exception

United States v. Jicarilla Apache Nation

Issues

Can the United States invoke the attorney-client privilege to limit what information it is required to produce during discovery where an Indian tribe sues the government for its alleged mismanagement of Indian property held in trust?

 

In 2002, the Jicarilla Apache Nation (“Jicarilla,” “Jicarilla Tribe” or “Tribe”) filed a breach of trust action against the United States, alleging mismanagement of funds held in trust for the Tribe. In 2008, Jicarilla moved to compel the production of a few hundred documents exchanged between the government and its attorneys, but the government refused to disclose nearly 160 documents on the ground of attorney-client privilege. The Court of Federal Claims subsequently granted Jicarilla’s motion to compel production of the documents, and the Federal Circuit affirmed. Now, the United States argues that disclosure of the documents was unwarranted because no statute or regulation specifically requires the disclosure. The Jicarilla Tribe, however, contends that the government must be treated like an ordinary private trustee and forced to disclose information exchanged with its attorneys.

Questions as Framed for the Court by the Parties

Whether the attorney-client privilege entitles the United States to withhold from an Indian tribe confidential communications between the government and government attorneys implicating the administration of statutes pertaining to property held in trust for the tribe.

The Jicarilla Apache Nation’s reservation covers a 900,000-acre area in New Mexico. See Brief for Petitioner, United States at 2. By statute, the Department of the Interior oversees the development of the reservation’s timber, gravel, oil and gas resources. See 

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Acknowledgments

The authors would like to thank former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.

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