The Erosion of Tribal Rights Continues

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. As to that question, the Court proclaimed that the “trust obligations of the United States to the Indian tribes are established and governed by statute rather than the common law.”  Because, the Court held, no statute requires disclosure of the privileged documents, disclosure is not required. 

The Court’s restatement of the federal trust responsibility is beyond dubious. As Justice Sotomayor explained in her lone dissent, the Court’s reasoning is contrary to hundreds of years of precedent, which had repeatedly recognized “the undisputed existence of a general trust relationship between the United States and the Indian people.”  The general trust relationship undergirds federal Indian law (as the tribal amici explained here and here), and forces the political branches to act as fiduciaries when they’d rather not. That, at least, was Chief Justice Marshall’s understanding, as the Bureau of Indian Affairs discusses here. 

On one reading, the Court’s opinion holds that the United States has discretion to disregard the trust responsibility. Indian tribes entering into treaties with the United States rightfully expected more. As Justice Sotomayor put it, the “already-frayed relationship between the United States and Indian tribes” isn’t likely to improve with the Court’s restatement of federal Indian law.  And a victory of expedience over obligation in the management of trust funds may well harm tribes and tribal members, as it has so many times before.

Jicarilla Apache Nation may become just another case in the law of evidence. I hope so. Taken for all its rhetoric suggests, however, the decision complements the Court’s judicial termination of tribal sovereignty. On the one hand, the Court has imposed federal common law restrictions on the sovereignty of tribes. On the other, the Court won’t use the common law to force the political branches to respect tribal interests. The result is an anti-progressive combination of judicial activism and judicial restraint.                

This story is not unique to federal Indian law. As is well-known, the Court has recently eroded the rights of criminal defendants, hamstrung local governments attempting to integrate schools, and restricted access to the courts. Although the Court’s assault on Indian tribes is less well-known, it is no less harmful. Unless there is a congressional solution — for example, a “Jicarilla-fix” recognizing the courts’ duty to enforce a general trust responsibility — I fear the Court’s latest federal Indian law decision will further weaken the legal rights of Indian tribes.    

Fortunately, Congress has repeatedly recognized the trust responsibility. That may continue. It may not. If Jicarilla Apache Nationis any sign, the Court won’t care if it doesn’t.