A court’s role is often similar to that of a dictionary: to define words. The current Supreme Court did just that last June. Here’s the latest addition to the Indian law lexicography, taken from a seven-justice majority in United States v. Jicarilla Apache Nation:
“Indian trust”: (n) not really a trust but rather a method of dealing with tribes that is whatever the federal government wants it to be.
Replace “trust” with “law” and you get the underpinnings of the Jicarilla decision:
“Indian law”: (n) not really law but rather a method of dealing with tribes that is whatever the federal government wants it to be.
This decision underscores the need for robust and independent tribal judiciaries. A well-maintained and independent tribal judiciary, exercising sovereign rights on sovereign land, helps build the foundations of a tribe’s civil government which in turn helps develop the settled expectations so necessary in a healthy economy. The Jicarilla ruling starkly exposes the lack of settled expectations or adherence to precedence or to the written or verbal word that has largely defined federal Indian law since the founding of the United States.
Jicarilla involved a claim against the United States for mismanaged trust funds related to proceeds from natural resources on the Jicarilla Apache Nation’s 900,000-acre reservation. During the course of litigation, the nation sought documents related to its claims that were withheld by the United States. The United States claimed the documents withheld were privileged and not discoverable because they were exchanged between it and its lawyers for the purpose of obtaining legal advice or were drafted by government attorneys, the so-called attorney-client and work-product privileges. The nation argued, on the other hand, that under the well-settled law of trusts, the documents had to be turned over because they related to the management of the nation’s money and were developed for the nation’s benefit. Basically, the nation argued, the documents, like the funds being managed, belong to us.
The Court of Federal Claims agreed with the nation and ordered disclosure of many of the documents that had been withheld. The United States immediately appealed, and the Court of Appeals, in denying review, stated that the lower court got it right: the “United States cannot deny an Indian tribe’s request to discover communications between the United States and its attorneys based on the attorney-client privilege when those communications concern management of an Indian trust.”
The federal circuit court applied clear common law to federal Indian law and held that the nature of the trust relationship between the nation and the United States as it relates to management of the nation’s resources requires disclosure of many of the documents withheld. The federal circuit court held in favor of the nation. That may be why the Supreme Court decided to review the case.
In its decision reversing the lower courts, the Supreme Court recognized that a trustee generally can not claim attorney-client privilege to withhold documents from the beneficiary which are related to the administration of the trust. This exception to the attorney-client privilege is grounded in the “real client” test: if “the advice was rendered for the benefit of the beneficiary [in this case the nation] and not for the trustee [the United States]…the ‘real client’ of the advice is the beneficiary” and the documents must be turned over. Additionally, because “more information [helps] the beneficiaries to police the trustees’ management of the trust, disclosure…[is] ‘a weightier public policy than the preservation of confidential attorney-client communications.”
This seems like the perfect case for the exception to apply and the documents sought by the nation be made available—the United States apparently received the advice from its lawyers for the benefit of the nation and the nation was certainly trying to police the management of the trust, claiming that the United States lost or mismanaged revenues.
However, there was something lurking under 200 years of precedent that resurfaced in this decision. Federal Indian law is not real law, reasoned the Supreme Court, and therefore tenets of real law do not apply to federal Indian law. Specifically, the difference between the trust relationship and the law surrounding that relationship and the Indian “trust” relationship lies in the “unique position of the government as sovereign.” The government can do whatever it wants in relation to tribes and often has. According to the court, because Congress has “chosen to structure” the federal/tribal relationship in so many different ways, ordinary doctrines of trust law do not apply to federal Indian law. Because the United States has “charged itself with moral obligations of the highest responsibility” toward tribes while at the same time “[disposing] of Indian property contrary to the wishes” of the Indians (which is a euphemism for “stealing their land”), the “law” of trusts as it relates to virtually everyone else does not apply to Indians. It’s almost refreshing to hear the court base a decision not on the law but on the absence thereof. Jicarilla confirms what many have suspected for a long time and embodies what tribes have dealt with for the past 200 years.
Because there is no federal Indian law, and because the Supreme Court has finally just started deciding cases based on that fact, it is all the more imperative that tribes develop a strong judiciary and pass laws with teeth that their judiciary can enforce. Garnishment codes will help provide the teeth to enforce money judgments obtained in tribal court and should be considered a key component of tribal law. Furthermore, experienced judges, knowledgeable in the history of the tribe or the area, who are law trained or experienced in the particular issue presented, will help establish reliable precedent on which the tribe and those dealing with the tribe can rely. Commercial courts for claims over a certain amount (e.g., $50,000) with especially experienced judges contracted on an “as-needed” basis will help develop confidence in the tribal judiciary. Finally, laws should be codified and, along with tribal court decisions, made readily available to the public and legal counsel. After a judiciary is firmly established, another consideration may be to define and limit the terms of waiver of immunity for suit brought against the tribe or its officials by placing jurisdiction for such claims exclusively in tribal court. This will help avoid policy making by activist judges seeking equity against a sovereign immunity defense. Such reforms, tailored, of course, to the particular tribe, will help move tribes off the shifting sands of federal Indian policy and allow for economic development and true self-determination.