Court will decide if federal government can withhold information about how it manages Indian assets.
WASHINGTON, D.C. – April 19, 2011 – Holland & Knight is currently representing the Jicarilla Apache Nation before the U.S. Supreme Court in a high-profile breach of trust case against the United States. The main issue is whether the federal government can claim "attorney-client privilege" to withhold from an Indian tribe information regarding the government’s administration of money that it holds in trust for the tribe.
The outcome of the case will have major repercussions for Indian tribes who believe that the U.S. Government has mismanaged their assets. There are currently about 90 other similar cases within the court system that could be affected by the final ruling.
The Jicarilla Apache Nation is seeking damages for the government's failure to invest the Nation's trust funds properly. During the discovery process, the government withheld a number of documents based on a claim of attorney-client privilege. In response, Jicarilla invoked the "fiduciary exception" to the privilege, which requires a trustee to disclose to the beneficiary legal advice regarding the management of trust assets.
Both the Court of Federal Claims and the Federal Circuit agreed that this exception applies to the government with respect to its management of Indian trust assets.
Although there is no division among the lower federal courts on this issue, the government sought review by the Supreme Court, primarily on the ground that there are a number of pending Indian breach of trust cases in which its potential liability may total billions of dollars.
The argument will occur on April 20 and the Court will issue a decision before the end of June when it recesses. Holland & Knight Partner Steve Gordon is set to argue the case. He is being assisted by Partner Shenan Atcitty. Both attorneys are located in the firm's Washington, D.C. office.
"We believe that the High Court will agree with both lower courts that Indians are entitled to the same information as other trust beneficiaries about how their trust monies were managed," said Levi Pesata, President of the Jicarilla Apache Nation. In addition to Pesata, Jicarilla Legislative Council Members Ernest Petago, A. Roy Velarde, Danny Garcia, and Merlin Cassador will be in D.C. attending the Oral Argument on Wednesday.
The Jicarilla Apache Nation is a federally recognized Indian Tribe. The Jicarilla Apache Reservation consists of approximately one (1) million acres in beautiful North-Central New Mexico. There are over four thousand (4,000) Jicarilla Apache Nation tribal members, and eight-five (85) percent of tribal membership lives on the Reservation in the town of Dulce, New Mexico which serves as tribal headquarters.
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