"The Jicarilla Apache Nation is one of dozens of tribes asserting claims against the United States for mismanaging tribally owned land and assets. The federal government has negotiated for years with the Jicarilla Apache Nation, yet it is now taking a hard line approach. Among other things, the government is refusing to turn over volumes of documents relevant to the Jicarilla Apache Nation’s claims of federal mismanagement. This position is at stark odds with the government’s stated policy of promoting transparency, accountability and proper trust management, and is certainly inconsistent with the pledge the president made directly to me and other tribal leaders who attended the historic White House Summit last November.

Indian tribes, like all other trust beneficiaries, are entitled to full disclosure of all information from the trustee about how trust assets are being managed. The government claims the documents it is withholding are protected by attorney-client privilege. Specifically, the documents contain advice given by the Department of the Interior Solicitor’s Office (and other federal legal offices) about acceptable investments for tribal trust assets.

In our case, the United States has argued that the “fiduciary exception” should not apply to it as our trustee, and that it should be entitled to keep secret any advice that it receives from government attorneys about managing Indian trust assets. Every federal court that has heard this argument has rejected it. Most recently, the Federal Circuit Court of Appeals ruled in our favor that the “fiduciary exception” applies to the U.S. just like other trustees.

Unfortunately, the United States has requested the U.S. Supreme Court to review and overrule the Federal Circuit’s decision. From our perspective, there is no good reason – legal or moral – for doing this. As many tribal leaders know, litigation is expensive, especially litigation against the federal government, which has an army of litigators and an unlimited budget. The “discovery” process is especially burdensome and having to fight for documents which relate directly to how our trust funds and assets were being managed is not only costly but insulting."

Get the Story:
Levi Pesata: Honoring the trust relationship (Indian Country Today 10/1)

Federal Circuit Decision:
In Re United States (December 30, 2009)

DC Circuit Decision:
Jicarilla Apache Nation v. DOI (July 16, 2010)

Related Stories:
Supreme Court approves extension in Jicarilla Apache trust case (8/18)
Supreme Court approves extension for Jicarilla Apache trust ruling (8/2)
Jicarilla Apache Nation hopes to recover $6M in royalty dispute (7/23)
Appeals court reopens Jicarilla Apache Nation gas royalty lawsuit (7/19)
Court says government must produce trust documents (1/13)
Judge rejects Jicarilla Apache gas royalty lawsuit (4/1)