The US Supreme Court [official website, JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Wednesday in United States v. Jicarilla Apache Indian Nation [oral arguments transcript, PDF] on whether the attorney-client privilege entitles the US to withhold from an Indian tribe confidential communications between the government and government attorneys implicating the administration of statutes pertaining to property held in trust for the tribe. The US Court of Appeals for the Federal Circuit held [opinion, PDF] that the government cannot deny the tribe's request to discover such communications, adopting a fiduciary exception in tribal trust cases. Counsel for the petitioner, the US government argued that the tribal trust context does not meet the parameters for recognizing a private trust fiduciary exception. Counsel for the respondent noted:
The Jicarilla Apache Nation has sued the government for mismanaging millions of dollars of its trust monies. No trustee in this situation, including the government, is entitled to withhold the legal advice that it has received about managing the beneficiary's money. The beneficiary is entitled to see that legal advice, so that it can determine whether the trustee followed the advice.Chief Justice John Roberts expressed concerns over the policy implications of the respondent's position in terms of the impact it would have on the attorney-client privilege.