"The United States Supreme Court Monday once again stuck it to Native American litigants. In a 7-1 opinion (Justice Elena Kagan recused), the Court sided with the U.S. government and against the Jicarilla Apache Nation in a fiduciary-duties case brought by the Nation to determine whether and to what extent federal officials mismanaged the tribe's money. The decision was hardly sweeping-- it involved a discovery dispute and the application of the attorney-client privilege-- but it's still worth a closer look.

The Nation sued the feds in 2002 asserting that the government breached its fiduciary duty to properly manage funds generated from the culling of timber, gravel and oil and gas resources from the Tribe's land in Northeastern New Mexico. As all plaintiffs do, the Nation sought through discovery access to government documents that its lawyers thought might help establish that federal officials "failed to maximize returns on trust funds, invested too heavily in short-term maturities, and failed to pool its trust funds with other tribal trusts."

For six years, the Tribe and the government futzed around in "alternative dispute resolution" trying to reach a settlement. During this time, the feds turned over thousands of relevant documents to Tribal attorneys but failed to produce 226 documents which government officials said were protected by the "attorney-client privilege, the work-product privilege, or the deliberative-process privilege." The tribe went to court seeking to compel the production of those documents, arguing that its interests fell under a widely-acknowleged exception to the general rule that such documents may lawfully be protected from disclosure."

Get the Story:
Andrew Cohen: You Can't Verify The Trust, Supreme Court Tells Apache Nation (The Atlantic 6/13)

Supreme Court Decision:
US v. Jicarilla Apache Nation (June 13, 2011)

Oral Argument Transcript:
US v. Jicarilla Apache Nation (April 20, 2011)

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

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Supreme Court issues decision in Jicarilla Apache Nation case (6/13)
Supreme Court hears Jicarilla case without Justice Kagan (04/21)
Supreme Court takes up Jicarilla Apache Nation trust case (4/20)
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Supreme Court agrees to hear Jicarilla Apache Nation trust case (1/10)
Levi Pesata: Obama should withdraw appeal in tribal trust case (10/1)
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