By Seth Davis, Climenko Fellow (2011-2013), Harvard Law School
For three decades the Rehnquist and Roberts Courts have worn away the foundations of Indian tribes’ sovereignty. Sometimes the signs of erosion are easy to spot. The Court recently held, for example, that tribes cannot prevent non-tribal banks from discriminating against tribal members.
But sometimes the signs of potential collapse are hidden. The Court’s most recent federal Indian law decision, United States v. Jicarilla Apache Nation, is no page-turner. Andrew Cohen, one of the few commentators to note its potential significance, concludes the case seems “hardly sweeping.” That’s correct, insofar as the question presented was whether Indian tribes can invoke a fiduciary exception when seeking federal documents that are otherwise attorney-client privileged. The Federal Circuit held that, by virtue of the fiduciary exception, tribes have the right to see what the government’s attorneys are telling it about management of Indian trust funds. In a 7-1 decision, the Supreme Court reversed, holding that the United States can withhold documents containing legal advice regarding trust management from the tribal beneficiaries of trust funds.
Given that the case came up through the United States’ mandamus petition, it’s questionable whether the Court should have heard it. At the least, the Court could have resolved the narrow question before it with a narrow ruling, as Justice Ginsburg suggested in a concurrence.
Instead, however, the Court turned a case about the common law of evidence into one about whether the United States owes tribes any common law duties.