UNITED STATES v. JICARILLA APACHE NATION
In 2002, the Jicarilla Apache Nation of New Mexico sued the federal government for allegedly mismanaging financial interests and funds, which are held in trust for the tribe's benefit. The tribe is seeking access to attorney-client communications about the trust operation. The Court of Federal Claims denied a petition by the United States to vacate its orders requiring the government to produce the documents.
Does the attorney-client privilege entitle the United States 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?
Legal provision: Attorney-Client Privilege
Yes. The Supreme Court reversed and remanded the lower court order in an opinion by Justice Samuel Alito. "The fiduciary exception to the attorney-client privilege does not apply to the general trust relationship between the United States and the Indian tribes," Alito wrote. Justice Sonia Sotomayor dissented, arguing that the majority decision "rests on false factual and legal premises and deprives the Nation and other Indian tribes of highly relevant evidence in scores of pending cases seeking relief for the Government's alleged mismanagement of their trust funds." Justice Elena Kagan did not take part in consideration of the case.
Opinion of the Court
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SUPREME COURT OF THE UNITED STATES
UNITED STATES, PETITIONER v. JICARILLA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
[June 13, 2011]
JUSTICE ALITO delivered the opinion of the Court.
The attorney-client privilege ranks among the oldest and most established evidentiary privileges known to our law. The common law, however, has recognized an exception to the privilege when a trustee obtains legal advice related to the exercise of fiduciary duties. In such cases, courts have held, the trustee cannot withhold attorneyclient communications from the beneficiary of the trust.
In this case, we consider whether the fiduciary exception applies to the general trust relationship between the United States and the Indian tribes. We hold that it does not. Although the Government’s responsibilities with respect to the management of funds belonging to Indian tribes bear some resemblance to those of a private trustee, this analogy cannot be taken too far. The trust obligations of the United States to the Indian tribes are established and governed by statute rather than the common law, and in fulfilling its statutory duties, the Government acts not as a private trustee but pursuant to its sovereign interest in the execution of federal law. The reasons for the fiduciary exception—that the trustee has no independent interest in trust administration, and that the trustee is subject to a general common-law duty of disclosure—do not apply in this context.
The Jicarilla Apache Nation (Tribe) occupies a 900,000acre reservation in northern New Mexico that was established by Executive Order in 1887. The land contains timber, gravel, and oil and gas reserves, which are developed pursuant to statutes administered by the Department of the Interior. Proceeds derived from these natural resources are held by the United States in trust for the Tribe pursuant to the American Indian Trust Fund Management Reform Act of 1994, 108 Stat. 4239, and other statutes.
In 2002, the Tribe commenced a breach-of-trust action against the United States in the Court of Federal Claims (CFC). The Tribe sued under the Tucker Act, 28 U. S. C. §1491 (2006 ed. and Supp. III), and the Indian Tucker Act, §1505, which vest the CFC with jurisdiction over claims against the Government that are founded on the Constitution, laws, treaties, or contracts of the United States. The complaint seeks monetary damages for the Government’s alleged mismanagement of funds held in trust for the Tribe. The Tribe argues that the Government violated various laws, including 25 U. S. C. §§161a and 162a, that govern the management of funds held in trust for Indian tribes. See 88 Fed. Cl. 1, 3 (2009).
From December 2002 to June 2008, the Government and the Tribe participated in alternative dispute resolution in order to resolve the claim. During that time, the Government turned over thousands of documents but withheld 226 potentially relevant documents as protected by the attorney-client privilege, the attorney work-product doctrine, or the deliberative-process privilege.
In 2008, at the request of the Tribe, the case was restored to the active litigation docket. The CFC divided the case into phases for trial and set a discovery schedule. The first phase, relevant here, concerns the Government’s management of the Tribe’s trust accounts from 1972 to 1992. The Tribe alleges that during this period the Government failed to invest its trust funds properly. Among other things, the Tribe claims the Government failed to maximize returns on its trust funds, invested too heavily in short-term maturities, and failed to pool its trust funds with other tribal trusts. During discovery, the Tribe moved to compel the Government to produce the 226 withheld documents. In response, the Government agreed to withdraw its claims of deliberative-process privilege and, accordingly, to produce 71 of the documents. But the Government continued to assert the attorney-client privilege and attorney work-product doctrine with respect to the remaining 155 documents. The CFC reviewed those documents in camera and classified them into five categories: (1) requests for legal advice relating to trust administration sent by personnel at the Department of the Interior to the Office of the Solicitor, which directs legal affairs for the Department, (2) legal advice sent from the Solicitor’s Office to personnel at the Interior and Treasury Departments, (3) documents generated under contracts between Interior and an accounting firm, (4) Interior documents concerning litigation with other tribes, and (5) miscellaneous documents not falling into the other categories.
The CFC granted the Tribe’s motion to compel in part. The CFC held that communications relating to the management of trust funds fall within a “fiduciary exception” to the attorney-client privilege. Under that exception, which courts have applied in the context of common-law trusts, a trustee who obtains legal advice related to the execution of fiduciary obligations is precluded from asserting the attorney-client privilege against beneficiaries of the trust. The CFC concluded that the trust relationship between the United States and the Indian tribes is sufficiently analogous to a common-law trust relationship that the exception should apply. Accordingly, the CFC held, the United States may not shield from the Tribe communications with attorneys relating to trust matters.
The CFC ordered disclosure of almost all documents in the first two categories because those documents “involve matters regarding the administration of tribal trusts, either directly or indirectly implicating the investments that benefit Jicarilla” and contain “legal advice relating to trust administration.” Id., at 14–15. The CFC allowed the Government to withhold most of the documents in the remaining categories as attorney work product,1 but the court identified some individual documents that it determined were also subject to the fiduciary exception. Id., at 18–19.
The Government sought to prevent disclosure of the documents by petitioning the Court of Appeals for the Federal Circuit for a writ of mandamus directing the CFC to vacate its production order. The Court of Appeals denied the petition because, in its view, the CFC correctly applied the fiduciary exception. The court held that “the United States cannot deny an Indian tribe’s request to discover communications between the United States and its attorneys based on the attorney-client privilege when those communications concern management of an Indian trust and the United States has not claimed that the government or its attorneys considered a specific competing interest in those communications.” In re United States, 590 F. 3d 1305, 1313 (CA Fed. 2009). In qualifying its holding, the court recognized that sometimes the Government may have other statutory obligations that clash with its fiduciary duties to the Indian tribes. But because the Government had not alleged that the legal advice in this case related to such conflicting interests, the court reserved judgment on how the fiduciary exception might apply in that situation. The court rejected the Government’s argument that, because its duties to the Indian tribes were governed by statute rather than the common law, it had no general duty of disclosure that would override the attorney-client privilege. The court also disagreed with the Government’s contention that a case-by-case approach made the attorney-client privilege too unpredictable and would impair the Government’s ability to obtain confidential legal advice.
We granted certiorari, 562 U. S. ___ (2011),2 and now reverse and remand for further proceedings.
The Federal Rules of Evidence provide that evidentiary privileges “shall be governed by the principles of the common law . . . in the light of reason and experience.” Fed. Rule Evid. 501. The attorney-client privilege “is the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U. S. 383, 389 (1981) (citing 8 J. Wigmore, Evidence §2290 (J. McNaughton rev. 1961)). Its aim is “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” 449 U. S., at 389; Hunt v. Blackburn, 128 U. S. 464, 470 (1888).
The objectives of the attorney-client privilege apply to governmental clients. “The privilege aids government entities and employees in obtaining legal advice founded on a complete and accurate factual picture.” 1 Restatement (Third) of the Law Governing Lawyers §74, Comment b, pp. 573–574 (1998). Unless applicable law provides otherwise, the Government may invoke the attorney-client privilege in civil litigation to protect confidential communications between Government officials and Government attorneys. Id., at 574 (“[G]overnmental agencies and employees enjoy the same privilege as nongovernmental counterparts”). The Tribe argues, however, that the common law also recognizes a fiduciary exception to the attorney-client privilege and that, by virtue of the trust relationship between the Government and the Tribe, documents that would otherwise be privileged must be disclosed. As preliminary matters, we consider the bounds of the fiduciary exception and the nature of the trust relationship between the United States and the Indian tribes.
English courts first developed the fiduciary exception as a principle of trust law in the 19th century. The rule was that when a trustee obtained legal advice to guide the administration of the trust, and not for the trustee’s own defense in litigation, the beneficiaries were entitled to the production of documents related to that advice. Wynne v. Humberston, 27 Beav. 421, 423–424, 54 Eng. Rep. 165, 166 (1858); Talbot v. Marshfield 2 Dr. & Sm. 549, 550– 551, 62 Eng. Rep. 728, 729 (1865). The courts reasoned that the normal attorney-client privilege did not apply in this situation because the legal advice was sought for the beneficiaries’ benefit and was obtained at the beneficiaries’ expense by using trust funds to pay the attorney’s fees. Ibid.; Wynne, supra, at 423–424, 54 Eng. Rep., at 166.
The fiduciary exception quickly became an established feature of English common law, see, e.g., In re Mason, 22 Ch. D. 609 (1883), but it did not appear in this country until the following century. American courts seem first to have expressed skepticism. See In re Prudence-Bonds Corp., 76 F. Supp. 643, 647 (EDNY 1948) (declining to apply the fiduciary exception to the trustee of a bondholding corporation because of the “important right of such a corporate trustee . . . to seek legal advice and nevertheless act in accordance with its own judgment”). By the 1970’s, however, American courts began to adopt the English common-law rule. See Garner v. Wolfinbarger, 430 F. 2d 1093, 1103–1104 (CA5 1970) (allowing shareholders, upon a showing of “good cause,” to discover legal advice given to corporate management).3
The leading American case on the fiduciary exception is Riggs Nat. Bank of Washington, D. C. v. Zimmer, 355 A. 2d 709 (Del. Ch. 1976). In that case, the beneficiaries of a trust estate sought to compel the trustees to reimburse the estate for alleged breaches of trust. The beneficiaries moved to compel the trustees to produce a legal memorandum related to the administration of the trust that the trustees withheld on the basis of attorney-client privilege. The Delaware Chancery Court, observing that “American case law is practically nonexistent on the duty of a trustee in this context,” looked to the English cases. Id., at 712. Applying the common-law fiduciary exception, the court held that the memorandum was discoverable. It identified two reasons for applying the exception.
First, the court explained, the trustees had obtained the legal advice as “mere representative[s]” of the beneficiaries because the trustees had a fiduciary obligation to act in the beneficiaries’ interest when administering the trust. Ibid. For that reason, the beneficiaries were the “real clients” of the attorney who had advised the trustee on trust-related matters, and therefore the attorney-client privilege properly belonged to the beneficiaries rather than the trustees. Id., at 711–712. The court based its “real client” determination on several factors: (1) when the advice was sought, no adversarial proceedings between the trustees and beneficiaries had been pending, and therefore there was no reason for the trustees to seek legal advice in a personal rather than a fiduciary capacity; (2) the court saw no indication that the memorandum was intended for any purpose other than to benefit the trust; and (3) the law firm had been paid out of trust assets. That the advice was obtained at the beneficiaries’ expense was not only a “significant factor” entitling the beneficiaries to see the document but also “a strong indication of precisely who the real clients were.” Id., at 712. The court distinguished between “legal advice procured at the trustee’s own expense and for his own protection,” which would remain privileged, “and the situation where the trust itself is assessed for obtaining opinions of counsel where interests of the beneficiaries are presently at stake.” Ibid. In the latter case, the fiduciary exception applied, and the trustees could not withhold those attorney-client communications from the beneficiaries.
Second, the court concluded that the trustees’ fiduciary duty to furnish trust-related information to the beneficiaries outweighed their interest in the attorney-client privilege. “The policy of preserving the full disclosure necessary in the trustee-beneficiary relationship,” the court explained, “is here ultimately more important than the protection of the trustees’ confidence in the attorney for the trust.” Id., at 714. Because more information helped the beneficiaries to police the trustees’ management of the trust, disclosure was, in the court’s judgment, “a weightier public policy than the preservation of confidential attorney-client communications.” Ibid.
The Federal Courts of Appeals apply the fiduciary exception based on the same two criteria. See, e.g., In re Long Island Lighting Co., 129 F. 3d 268, 272 (CA2 1997); Wachtel v. Health Net, Inc., 482 F. 3d 225, 233–234 (CA3 2007); Solis v. Food Employers Labor Relations Assn., 2011 U. S. App. LEXIS 9110, *12 (CA4, May 4, 2011); Wildbur v. Arco Chemical Co., 974 F. 2d 631, 645 (CA5 1992); United States v. Evans, 796 F. 2d 264, 265–266 (CA9 1986) (per curiam). Not until the decision below had a federal appellate court held the exception to apply to the United States as trustee for the Indian tribes.
In order to apply the fiduciary exception in this case, the Court of Appeals analogized the Government to a private trustee. 590 F. 3d, at 1313. We have applied that analogy in limited contexts, see, e.g., United States v. Mitchell, 463 U. S. 206, 226 (1983) (Mitchell II), but that does not mean the Government resembles a private trustee in every respect. On the contrary, this Court has previously noted that the relationship between the United States and the Indian tribes is distinctive, “different from that existing between individuals whether dealing at arm’s length, as trustees and beneficiaries, or otherwise.” Klamath and Moadoc Tribes v. United States, 296 U. S. 244, 254 (1935) (emphasis added). “The general relationship between the United States and the Indian tribes is not comparable to a private trust relationship.” Cherokee Nation of Okla. v. United States, 21 Cl. Ct. 565, 573 (1990) (emphasis added).
The Government, of course, is not a private trustee. Though the relevant statutes denominate the relationship between the Government and the Indians a “trust,” see, e.g., 25 U. S. C. §162a, that trust is defined and governed by statutes rather than the common law. See United States v. Navajo Nation, 537 U. S. 488, 506 (2003) (Navajo I) (“[T]he analysis must train on specific rightscreating or duty-imposing statutory or regulatory prescriptions”). As we have recognized in prior cases, Congress may style its relations with the Indians a “trust” without assuming all the fiduciary duties of a private trustee, creating a trust relationship that is “limited” or “bare” compared to a trust relationship between private parties at common law. United States v. Mitchell, 445 U. S. 535, 542 (1980) (Mitchell I); Mitchell II, supra, at 224.4
The difference between a private common-law trust and the statutory Indian trust follows from the unique position of the Government as sovereign. The distinction between “public rights” against the Government and “private rights” between private parties is well established. The Government consents to be liable to private parties “and may yield this consent upon such terms and under such restrictions as it may think just.” Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 283 (1856). This creates an important distinction “between cases of private right and those which arise between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments.” Crowell v. Benson, 285 U. S. 22, 50 (1932).
Throughout the history of the Indian trust relationship, we have recognized that the organization and management of the trust is a sovereign function subject to the plenary authority of Congress. See Merrion v. Jicarilla Apache Tribe, 455 U. S. 130, 169, n. 18 (1982) (“The United States retains plenary authority to divest the tribes of any attributes of sovereignty”); United States v. Wheeler, 435 U. S. 313, 319 (1978) (“Congress has plenary authority to legislate for the Indian tribes in all matters, including their form of government”); Winton v. Amos, 255 U. S. 373, 391 (1921) (“Congress has plenary authority over the Indians and all their tribal relations, and full power to legislate concerning their tribal property”); Lone Wolf v. Hitchcock, 187 U. S. 553, 565 (1903) (“Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government”); Cherokee Nation v. Hitchcock, 187 U. S. 294, 308 (1902) (“The power existing in Congress to administer upon and guard the tribal property, and the power being political and administrative in its nature, the manner of its exercise is a question within the province of the legislative branch to determine, and is not one for the courts”); see also United States v. Candelaria, 271 U. S. 432, 439 (1926); Tiger v. Western Investment Co., 221 U. S. 286, 315 (1911).
Because the Indian trust relationship represents an exercise of that authority, we have explained that the Government “has a real and direct interest” in the guardianship it exercises over the Indian tribes; “the interest is one which is vested in it as a sovereign.” United States v. Minnesota, 270 U. S. 181, 194 (1926). This is especially so because the Government has often structured the trust relationship to pursue its own policy goals. Thus, while trust administration “relat[es] to the welfare of the Indians, the maintenance of the limitations which Congress has prescribed as a part of its plan of distribution is distinctly an interest of the United States.” Heckman v. United States, 224 U. S. 413, 437 (1912); see also Candelaria, supra, at 443–444.
In Heckman, the Government brought suit to cancel certain conveyances of allotted lands by members of an Indian tribe because the conveyances violated restrictions on alienation imposed by Congress. This Court explained that the Government brought suit as the representative of the very Indian grantors whose conveyances it sought to cancel, and those Indians were thereby bound by the judgment. 224 U. S., at 445–446. But while it was formally acting as a trustee, the Government was in fact asserting its own sovereign interest in the disposition of Indian lands, and the Indians were precluded from intervening in the litigation to advance a position contrary to that of the Government. Id., at 445. Such a result was possible because the Government assumed a fiduciary role over the Indians not as a common-law trustee but as the governing authority enforcing statutory law.
We do not question “the undisputed existence of a general trust relationship between the United States and the Indian people.” Mitchell II, 463 U. S., at 225. The Government, following “a humane and self imposed policy . . . has charged itself with moral obligations of the highest responsibility and trust,” Seminole Nation v. United States, 316 U. S. 286, 296–297 (1942), obligations “to the fulfillment of which the national honor has been committed,” Heckman, supra, at 437. Congress has expressed this policy in a series of statutes that have defined and redefined the trust relationship between the United States and the Indian tribes. In some cases, Congress established only a limited trust relationship to serve a narrow purpose. See Mitchell I, 445 U. S., at 544 (Congress intended the United States to hold land “ ‘in trust’ ” under the General Allotment Act “simply because it wished to prevent alienation of the land and to ensure that allottees would be immune from state taxation”); Navajo I, 537 U. S., at 507–508 (Indian Mineral Leasing Act imposes no “detailed fiduciary responsibilities” nor is the Government “expressly invested with responsibility to secure ‘the needs and best interests of the Indian owner’ ”).
In other cases, we have found that particular “statutes and regulations . . . clearly establish fiduciary obligations of the Government” in some areas. Mitchell II, supra, at 226; see also United States v. White Mountain Apache Tribe, 537 U. S. 465, 475 (2003). Once federal law imposes such duties, the common law “could play a role.” United States v. Navajo Nation, 556 U. S. ___, ___ (2009) (Navajo II) (slip op., at 14). We have looked to common-law principles to inform our interpretation of statutes and to determine the scope of liability that Congress has imposed. See White Mountain Apache Tribe, supra, at 475–476. But the applicable statutes and regulations “establish [the] fiduciary relationship and define the contours of the United States’ fiduciary responsibilities.” Mitchell II, supra, at 224. When “the Tribe cannot identify a specific, applicable, trust-creating statute or regulation that the Government violated, . . . neither the Government’s ‘control’ over [Indian assets] nor common-law trust principles matter.” Navajo II, supra, at ___ (slip op., at 14).5 The Government assumes Indian trust responsibilities only to the extent it expressly accepts those responsibilities by statute.6
Over the years, we have described the federal relationship with the Indian tribes using various formulations. The Indian tribes have been called “domestic dependent nations,” Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831), under the “tutelage” of the United States, Heckman, supra, at 444, and subject to “the exercise of the Government’s guardianship over . . . their affairs,” United States v. Sandoval, 231 U. S. 28, 48 (1913). These concepts do not necessarily correspond to a common-law trust relationship. See, e.g., Restatement 2d, §7 (“A guardianship is not a trust”). That is because Congress has chosen to structure the Indian trust relationship in different ways. We will apply common-law trust principles where Congress has indicated it is appropriate to do so. For that reason, the Tribe must point to a right conferred by statute or regulation in order to obtain otherwise privileged information from the Government against its wishes.
In this case, the Tribe’s claim arises from 25 U. S. C. §§161–162a and the American Indian Trust Fund Management Reform Act of 1994, §4001 et seq. These provisions define “the trust responsibilities of the United States” with respect to tribal funds. §162a(d). The Court of Appeals concluded that the trust relationship between the United States and the Indian tribes, outlined in these and other statutes, is “sufficiently similar to a private trust to justify applying the fiduciary exception.” 590 F. 3d, at 1313. We disagree.
As we have discussed, the Government exercises its carefully delimited trust responsibilities in a sovereign capacity to implement national policy respecting the Indian tribes. The two features justifying the fiduciary exception—the beneficiary’s status as the “real client” and the trustee’s common-law duty to disclose information about the trust—are notably absent in the trust relationship Congress has established between the United States and the Tribe.
The Court of Appeals applied the fiduciary exception based on its determination that the Tribe rather than the Government was the “real client” with respect to the Government attorneys’ advice. Ibid. In cases applying the fiduciary exception, courts identify the “real client” based on whether the advice was bought by the trust corpus, whether the trustee had reason to seek advice in a personal rather than a fiduciary capacity, and whether the advice could have been intended for any purpose other than to benefit the trust. Riggs, 355 A. 2d, at 711–712. Applying these factors, we conclude that the United States does not obtain legal advice as a “mere representative” of the Tribe; nor is the Tribe the “real client” for whom that advice is intended. See ibid.
Here, the Government attorneys are paid out of congressional appropriations at no cost to the Tribe. Courts look to the source of funds as a “strong indicator of precisely who the real clients were” and a “significant factor” in determining who ought to have access to the legal advice. Id., at 712. We similarly find it significant that the attorneys were paid by the Government for advice regarding the Government’s statutory obligations.
The payment structure confirms our view that the Government seeks legal advice in its sovereign capacity rather than as a conventional fiduciary of the Tribe. Undoubtedly, Congress intends the Indian tribes to benefit from the Government’s management of tribal trusts. That intention represents “a humane and self imposed policy” based on felt “moral obligations.” Seminole Nation, 316 U. S., at 296–297. This statutory purpose does not imply a full common-law trust, however. Cf. Restatement 2d, §25, Comment b (“No trust is created if the settlor manifests an intention to impose merely a moral obligation”). Congress makes such policy judgments pursuant to its sovereign governing authority, and the implementation of federal policy remains “distinctly an interest of the United States.” Heckman, 224 U. S., at 437.7 We have said that “the United States continue[s] as trustee to have an active interest” in the disposition of Indian assets because the terms of the trust relationship embody policy goals of the United States. McKay v. Kalyton, 204 U. S. 458, 469 (1907).
In some prior cases, we have found that the Government had established the trust relationship in order to impose its own policy on Indian lands. See Mitchell I, 445 U. S., at 544 (Congress “intended that the United States ‘hold the land . . . in trust’ . . . because it wished to prevent alienation of the land”). In other cases, the Government has invoked its trust relationship to prevent state interference with its policy toward the Indian tribes. See Minnesota v. United States, 305 U. S. 382, 386 (1939); Candelaria, 271 U. S., at 442–444; United States v. Kagama, 118 U. S. 375, 382–384 (1886). And the exercise of federal authority thereby established has often been “left under the acts of Congress to the discretion of the Executive Department.” Heckman, supra, at 446. In this way, Congress has designed the trust relationship to serve the interests of the United States as well as to benefit the Indian tribes. See United States v. Rickert, 188 U. S. 432, 443 (1903) (trust relationship “ ‘authorizes the adoption on the part of the United States of such policy as their own public interests may dictate’ ” (quoting Choctaw Nation v. United States, 119 U. S. 1, 28 (1886))).8
We cannot agree with the Tribe and its amici that “[t]he government and its officials who obtained the advice have no stake in [the] substance of the advice, beyond their trustee role,” Brief for Respondent 9, or that “the United States’ interests in trust administration were identical to the interests of the tribal trust fund beneficiaries,” Brief for National Congress of American Indians et al. as Amici Curiae 5. The United States has a sovereign interest in the administration of Indian trusts distinct from the private interests of those who may benefit from its administration. Courts apply the fiduciary exception on the ground that “management does not manage for itself.” Garner, 430 F. 2d, at 1101; Wachtel, 482 F. 3d, at 232 (“[O]f central importance in both Garner and Riggs was the fiduciary’s lack of a legitimate personal interest in the legal advice obtained”). But the Government is never in that position. While one purpose of the Indian trust relationship is to benefit the tribes, the Government has its own independent interest in the implementation of federal Indian policy. For that reason, when the Government seeks legal advice related to the administration of tribal trusts, it establishes an attorney-client relationship related to its sovereign interest in the execution of federal law. In other words, the Government seeks legal advice in a “personal” rather than a fiduciary capacity. See Riggs, 355 A. 2d, at 711.
Moreover, the Government has too many competing legal concerns to allow a case-by-case inquiry into the purpose of each communication. When “multiple interests” are involved in a trust relationship, the equivalence between the interests of the beneficiary and the trustee breaks down. Id., at 714. That principle applies with particular force to the Government. Because of the multiple interests it must represent, “the Government cannot follow the fastidious standards of a private fiduciary, who would breach his duties to his single beneficiary solely by representing potentially conflicting interests without the beneficiary’s consent.” Nevada v. United States, 463 U. S. 110, 128 (1983).
As the Court of Appeals acknowledged, the Government may be obliged “to balance competing interests” when it administers a tribal trust. 590 F. 3d, at 1315. The Government may need to comply with other statutory duties, such as the environmental and conservation obligations that the Court of Appeals discussed. See id., at 1314– 1315. The Government may also face conflicting obligations to different tribes or individual Indians. See, e.g., Nance v. EPA, 645 F. 2d 701, 711 (CA9 1981) (Federal Government has “conflicting fiduciary responsibilities” to the Northern Cheyenne and Crow Tribes); Hoopa Valley Tribe v. Christie, 812 F. 2d 1097, 1102 (CA9 1986) (“No trust relation exists which can be discharged to the plaintiff here at the expense of other Indians”). Within the bounds of its “general trust relationship” with the Indian people, we have recognized that the Government has “discretion to reorder its priorities from serving a subgroup of beneficiaries to serving the broader class of all Indians nationwide.” Lincoln v. Vigil, 508 U. S. 182, 195 (1993); see also ibid. (“Federal Government ‘does have a fiduciary obligation to the Indians; but it is a fiduciary obligation that is owed to all Indian tribes’ ” (quoting Hoopa Valley Tribe, supra, at 1102)). And sometimes, we have seen, the Government has enforced the trust statutes to dispose of Indian property contrary to the wishes of those for whom it was nominally kept in trust. The Government may seek the advice of counsel for guidance in balancing these competing interests. Indeed, the point of consulting counsel may be to determine whether conflicting interests are at stake.
The Court of Appeals sought to accommodate the Government’s multiple obligations by suggesting that the Government may invoke the attorney-client privilege if it identifies “a specific competing interest” that was considered in the particular communications it seeks to withhold. 590 F. 3d, at 1313. But the conflicting interests the Government must consider are too pervasive for such a case-by-case approach to be workable. We have said that for the attorney-client privilege to be effective, it must be predictable. See Jaffee v. Redmond, 518 U. S. 1, 18 (1996); Upjohn, 449 U. S., at 393. If the Government were required to identify the specific interests it considered in each communication, its ability to receive confidential legal advice would be substantially compromised. The Government will not always be able to predict what considerations qualify as a “specific competing interest,” especially in advance of receiving counsel’s advice. Forcing the Government to monitor all the considerations contained in each communication with counsel would render its attorney-client privilege “little better than no privilege at all.” Ibid.
The Court of Appeals also decided the fiduciary exception properly applied to the Government because “the fiduciary has a duty to disclose all information related to trust management to the beneficiary.” 590 F. 3d, at 1312. In general, the common-law trustee of an irrevocable trust must produce trust-related information to the beneficiary on a reasonable basis, though this duty is sometimes limited and may be modified by the settlor. Restatement (Third) of Trusts §82 (2005) (hereinafter Restatement 3d); Bogert §§962, 965.9 The fiduciary exception applies where this duty of disclosure overrides the attorney-client privilege. United States v. Mett, 178 F. 3d 1058, 1063 (CA9 1999) (“[T]he fiduciary exception can be understood as an instance of the attorney-client privilege giving way in the face of a competing legal principle”).
The United States, however, does not have the same common-law disclosure obligations as a private trustee. As we have previously said, common-law principles are relevant only when applied to a “specific, applicable, trustcreating statute or regulation.” Navajo II, 556 U. S., at ___ (slip op., at 14). The relevant statute in this case is 25 U. S. C. §162a(d), which delineates “trust responsibilities of the United States” that the Secretary of the Interior must discharge. The enumerated responsibilities include a provision identifying the Secretary’s obligation to provide specific information to tribal account holders: The Secretary must “suppl[y] account holders with periodic statements of their account performance” and must make “available on a daily basis” the “balances of their account.” §162a(d)(5). The Secretary has complied with these requirements by adopting regulations that instruct the Office of Trust Fund Management to provide each tribe with a quarterly statement of performance, 25 CFR §115.801 (2010), that identifies “the source, type, and status of the trust funds deposited and held in a trust account; the beginning balance; the gains and losses; receipts and disbursements; and the ending account balance of the quarterly statement period,” §115.803. Tribes may request more frequent statements or further “infortransactions and balances.” mation about account §115.802.
The common law of trusts does not override the specific trust-creating statute and regulations that apply here. Those provisions define the Government’s disclosure obligation to the Tribe. The Tribe emphasizes, Brief for Respondent 34, that the statute identifies the list of trust responsibilities as nonexhaustive. See §162a(d) (trust responsibilities “are not limited to” those enumerated). The Government replies that this clause “is best read to refer to other statutory and regulatory requirements” rather than to common-law duties. Brief for United States 38. Whatever Congress intended, we cannot read the clause to include a general common-law duty to disclose all information related to the administration of Indian trusts. When Congress provides specific statutory obligations, we will not read a “catchall” provision to impose general obligations that would include those specifically enumerated. Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134, 141–142 (1985). “As our cases have noted in the past, we are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law.” Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 837 (1988). Reading the statute to incorporate the full duties of a private, common-law fiduciary would vitiate Congress’ specification of narrowly defined disclosure obligations.10 By law and regulation, moreover, the documents at issue in this case are classed “the property of the United States” while other records are “the property of the tribe.” 25 CFR §115.1000 (2010); see also §§15.502, 162.111, 166.1000. Just as the source of the funds used to pay for legal advice is highly relevant in identifying the “real client” for purposes of the fiduciary exception, we consider ownership of the resulting records to be a significant factor in deciding who “ought to have access to the document.” See Riggs, 355 A. 2d, at 712. In this case, that privilege belongs to the United States.11
* * *
Courts and commentators have long recognized that “[n]ot every aspect of private trust law can properly govern the unique relationship of tribes and the federal government.” Cohen §5.02, at 434–435. The fiduciary exception to the attorney-client privilege ranks among those aspects inapplicable to the Government’s administration of Indian trusts. The Court of Appeals denied the Government’s petition for a writ of mandamus based on its erroneous view to the contrary. We leave it for that court to determine whether the standards for granting the writ are met in light of our opinion.12 We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
JUSTICE KAGAN took no part in the consideration or decision of this case. It is so ordered.
1 The CFC held that there is no fiduciary exception to the workproduct doctrine. 88 Fed. Cl. 1, 12 (2009). The Court of Appeals did not address that issue, In re United States, 590 F. 3d 1305, 1313 (CA Fed. 2009), and it is not before us.
2 After the Federal Circuit denied the Government’s mandamus petition, the Government produced the documents under a protective order that prevents disclosure to third parties until the case is resolved by this Court. App. to Pet. for Cert. 93a–97a. The Government’s compliance with the production order does not affect our review. Our decision may still provide effective relief by preventing further disclosure and by excluding the evidence from trial. See Mohawk Industries, Inc. v. Carpenter, 558 U. S. ___, ___ (2009) (slip op., at 8).
3 Today, “[c]ourts differ on whether the [attorney-client] privilege is available for communications between the trustee and counsel regarding the administration of the trust.” A. Newman, G. Bogert & G. Bogert, Law of Trusts and Trustees §962, p. 68 (3d ed. 2010) (hereinafter Bogert). Some state courts have altogether rejected the notion that the attorney-client privilege is subject to a fiduciary exception. See, e.g., Huie v. DeShazo, 922 S. W. 2d 920, 924 (Tex. 1996) (“The attorney-client privilege serves the same important purpose in the trustee-attorney relationship as it does in other attorney-client relationships”); Wells Fargo Bank v. Superior Ct., 22 Cal. 4th 201, 208–209, 990 P. 2d 591, 595 (2000) (“[T]he attorney for the trustee of a trust is not, by virtue of this relationship, also the attorney for the beneficiaries of the trust” (internal quotation marks omitted)). Neither party before this Court disputes the existence of a common-law fiduciary exception, however, so in deciding this case we assume such an exception exists.
4 “There are a number of widely varying relationships which more or less closely resemble trusts, but which are not trusts, although the term ‘trust’ is sometimes used loosely to cover such relationships. It is important to differentiate trusts from these other relationships, since many of the rules applicable to trusts are not applicable to them.” Restatement (Second) of Trusts §4, Introductory Note, p. 15 (1957) (hereinafter Restatement 2d); see also Begay v. United States, 16 Cl. Ct. 107, 127, n. 17 (1987) (“[T]he provisions relating to private trustees and fiduciaries, while useful as analogies, cannot be regarded as finally dispositive in a government-Indian trustee-fiduciary relationship”).
5 Thus, the dissent’s reliance on the Government’s “managerial control,” post, at 8 (opinion of SOTOMAYOR, J.), is misplaced.
6 Cf. Restatement 2d, §25, Comment a (“[A]lthough the settlor has called the transaction a trust[,] no trust is created unless he manifests an intention to impose duties which are enforceable in the courts”).
7 Chief Justice Hughes, writing for a unanimous Court, insisted that the “national interest” in the management of Indian affairs “is not to be expressed in terms of property, or to be limited to the assertion of rights incident to the ownership of a reversion or to the holding of a technical title in trust.” Heckman, 224 U. S., at 437.
8 Congress has structured the trust relationship to reflect its considered judgment about how the Indians ought to be governed. For example, the Indian General Allotment Act of 1887, 24 Stat. 388, was “a comprehensive congressional attempt to change the role of Indians in American society.” F. Cohen, Handbook of Federal Indian Law §1.04, p. 77 (2005) (hereinafter Cohen). Congress aimed to promote the assimilation of Indians by dividing Indian lands into individually owned allotments. The federal policy aimed “to substitute a new individual way of life for the older Indian communal way.” Id., at 79. The Indian Reorganization Act of 1934, 48 Stat. 984, marked a shift away “from assimilation policies and toward more tolerance and respect for traditional aspects of Indian culture.” Cohen §1.05, at 84. The Act prohibited further allotment and restored tribal ownership. Id., at 86. The Indian Self-Determination and Education Assistance Act of 1975, 88 Stat. 2203, and the Tribal Self-Governance Act of 1994, 108 Stat. 4270, enabled tribes to run health, education, economic development, and social programs for themselves. Cohen §1.07, at 103. This strengthened self-government supported Congress’ decision to authorize tribes to withdraw trust funds from Federal Government control and place the funds under tribal control. American Indian Trust Fund Management Reform Act of 1994, 108 Stat. 4239, 4242–4244; see 25 U. S. C. §§4021–4029 (2006 ed. and Supp. III). The control over the Indian tribes that has been exercised by the United States pursuant to the trust relationship—forcing the division of tribal lands, restraining alienation—does not correspond to the fiduciary duties of a commonlaw trustee. Rather, the trust relationship has been altered and administered as an instrument of federal policy.
9 We assume for the sake of argument that an Indian trust is properly analogized to an irrevocable trust rather than to a revocable trust. A revocable trust imposes no duty of the trustee to disclose information to the beneficiary. “[W]hile a trust is revocable, only the person who may revoke it is entitled to receive information about it from the trustee.” Bogert §962, at 25, §964; Restatement 3d, §74, Comment e, at 31 (“[T]he trustee of a revocable trust is not to provide reports or accountings or other information concerning the terms or administration of the trust to other beneficiaries without authorization either by the settlor or in the terms of the trust or a statute”). In many respects, Indian trusts resemble revocable trusts at common law because Congress has acted as the settlor in establishing the trust and retains the right to alter the terms of the trust by statute, even in derogation of tribal property interests. See Winton v. Amos, 255 U. S. 373, 391 (1921) (“It is thoroughly established that Congress has plenary authority over the Indians . . . and full power to legislate concerning their tribal property”); Cohen §5.02, at 401–403. The Government has not advanced the argument that the relationship here is similar to a revocable trust, and the point need not be addressed to resolve this case.
10 Our reading of 25 U. S. C. §162a(d) receives additional support from another statute in which Congress expressed its understanding that the Government retains evidentiary privileges allowing it to withhold information related to trust property from Indian tribes. The Indian Claims Limitation Act of 1982, 96 Stat. 1976, addressed Indian claims that the claimants desired to have litigated by the United States. If the Secretary of the Interior decided to reject a claim for litigation, he was required to furnish a report to the affected Indian claimants and, upon their request, to provide “any nonprivileged research materials or evidence gathered by the United States in the documentation of such claim.” Id., at 1978. That Congress authorized the withholding of information on grounds of privilege makes us doubt that Congress understood the Government’s trust obligations to override so basic a privilege as that between attorney and client.
11 The dissent tells us that applying the fiduciary exception is even more important against the Government than against a private trustee because of a “history of governmental mismanagement.” Post, at 21. While it is not necessary to our decision, we note that the Indian tribes are not required to keep their funds in federal trust. See 25 U. S. C. §4022 (authorizing tribes to withdraw funds held in trust by the United States); 25 CFR pt. 1200(B). If the Tribe wishes to have its funds managed by a “conventional fiduciary,” post, at 10, it may seek to do so.
12 If the Court of Appeals declines to issue the writ, we assume that the CFC on remand will follow our holding here regarding the applicability of the fiduciary exception in the present context.
GINSBURG, J., concurring in judgment
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
UNITED STATES, PETITIONER v. JICARILLA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
[June 13, 2011]
JUSTICE GINSBURG, with whom JUSTICE BREYER joins, concurring in the judgment.
I agree with the Court that the Government is not an ordinary trustee. See ante, at 17–19. Unlike a private trustee, the Government has its own “distinc[t] interest” in the faithful carrying out of the laws governing the conduct of tribal affairs. Heckman v. United States, 224 U. S. 413, 437 (1912). This unique “national interest,” ibid., obligates Government attorneys, in rendering advice, to make their own “independent evaluation of the law and facts” in an effort “to arrive at a single position of the United States,” App. to Pet. for Cert. 124a (Letter from Attorney General Griffin B. Bell to Secretary of the Interior Cecil D. Andrus (May 31, 1979)). “For that reason,” as the Court explains, “the Government seeks legal advice in a ‘personal’ rather than a fiduciary capacity.” Ante, at 18. The attorney-client privilege thus protects the Government’s communications with its attorneys from disclosure.
Going beyond attorney-client communications, the Court holds that the Government “assumes Indian trust responsibilities only to the extent it expressly accepts those responsibilities by statute.” Ante, at 14. The Court therefore concludes that the trust relationship described by 25 U. S. C. §162a does not include the usual “common-law disclosure obligations.” Ante, at 21. Because it is unnecessary to decide what information other than attorneyclient communications the Government may withhold from the beneficiaries of tribal trusts, I concur only in the Court’s judgment.
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
UNITED STATES, PETITIONER v. JICARILLA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
[June 13, 2011]
JUSTICE SOTOMAYOR, dissenting.
Federal Indian policy, as established by a network of federal statutes, requires the United States to act strictly in a fiduciary capacity when managing Indian trust fund accounts. The interests of the Federal Government as trustee and the Jicarilla Apache Nation (Nation) as beneficiary are thus entirely aligned in the context of Indian trust fund management. Where, as here, the governing statutory scheme establishes a conventional fiduciary relationship, the Government’s duties include fiduciary obligations derived from common-law trust principles. Because the common-law rationales for the fiduciary exception fully support its application in this context, I would hold that the Government may not rely on the attorney-client privilege to withhold from the Nation communications between the Government and its attorneys relating to trust fund management.
The Court’s decision to the contrary rests on false factual and legal premises and deprives the Nation and other Indian tribes of highly relevant evidence in scores of pending cases seeking relief for the Government’s alleged mismanagement of their trust funds. But perhaps more troubling is the majority’s disregard of our settled precedent that looks to common-law trust principles to define the scope of the Government’s fiduciary obligations to Indian tribes. Indeed, aspects of the majority’s opinion suggest that common-law principles have little or no relevance in the Indian trust context, a position this Court rejected long ago. Although today’s holding pertains only to a narrow evidentiary issue, I fear the upshot of the majority’s opinion may well be a further dilution of the Government’s fiduciary obligations that will have broader negative repercussions for the relationship between the United States and Indian tribes.
Federal Rule of Evidence 501 provides in relevant part that “the privilege of a . . . government . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” Rule 501 “was adopted precisely because Congress wished to leave privilege questions to the courts rather than attempt to codify them.” United States v. Weber Aircraft Corp., 465 U. S. 792, 804, n. 25 (1984).
As the majority notes, the purpose of the attorney-client privilege “is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U. S. 383, 389 (1981). But the majority neglects to explain that the privilege is a limited exception to the usual rules of evidence requiring full disclosure of relevant information. See 8 J. Wigmore, Evidence §2192, p. 64 (3d ed. 1940) (common law recognizes “fundamental maxim that the public . . . has a right to every man’s evidence” and that “any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule”). Because it “has the effect of withholding relevant information from the factfinder,” courts construe the privilege narrowly. Fisher v. United States, 425 U. S. 391, 403 (1976). It applies “only where necessary to achieve its purpose,” ibid.; “[w]here this purpose ends, so too does the protection of the privilege,” Wachtel v. Health Net, Inc., 482 F. 3d 225, 231 (CA3 2007).
The fiduciary exception to the attorney-client privilege has its roots in 19th-century English common-law cases holding that, “when a trustee obtained legal advice relating to his administration of the trust, and not in anticipation of adversarial legal proceedings against him, the beneficiaries of the trust had the right to the production of that advice.” Ibid. (collecting cases). The fiduciary exception is now well recognized in the jurisprudence of both federal and state courts,1 and has been applied in a wide variety of contexts, including in litigation involving common-law trusts, see, e.g., Riggs Nat. Bank of Washington, D. C. v. Zimmer, 355 A. 2d 709 (Del. Ch. 1976), disputes between corporations and shareholders, see, e.g., Garner v. Wolfinbarger, 430 F. 2d 1093 (CA5 1970), and ERISA enforcement actions, see, e.g., United States v. Doe, 162 F. 3d 554 (CA9 1999).
The majority correctly identifies the two rationales courts have articulated for applying the fiduciary exception, ante, at 8–9, but its description of those rationales omits a number of important points. With regard to the first rationale, courts have characterized the trust beneficiary as the “real client” of legal advice relating to trust administration because such advice, provided to a trustee to assist in his management of the trust, is ultimately for the benefit of the trust beneficiary, rather than for the trustee in his personal capacity. See, e.g., United States v. Mett, 178 F. 3d 1058, 1063 (CA9 1999) (“ ‘[A]s a representative for the beneficiaries of the trust which he is administering, the trustee is not the real client in the sense that he is personally being served’ ” (quoting United States v. Evans, 796 F. 2d 264, 266 (CA9 1986) (per curiam))); Riggs, 355 A. 2d, at 713 (same). The majority places heavy emphasis on the source of payment for the legal advice, see ante, at 8, 15, but it is well settled that who pays for the legal advice, although “potentially relevant,” “is not determinative in resolving issues of privilege.” Restatement (Third) of Trusts §82, Comment f, p. 188 (2005) (hereinafter Third Restatement). Instead, the lynchpin of the “real client” inquiry is the identity of the ultimate beneficiary of the legal advice. See Wachtel, 482 F. 3d, at 232 (“[O]f central importance . . . [i]s the fiduciary’s lack of a legitimate personal interest in the legal advice obtained”). If the advice was rendered for the benefit of the beneficiary and not for the trustee in any personal capacity, the “real client” of the advice is the beneficiary.
As to the second rationale for the fiduciary exception— rooted in the trustee’s fiduciary duty to disclose all information related to trust management—the majority glosses over the fact that this duty of disclosure is designed “to enable the beneficiary to prevent or redress a breach of trust and otherwise to enforce his or her rights under the trust.” Third Restatement §82, Comment a(2), at 184. As the leading American case on the fiduciary exception explains, “[i]n order for the beneficiaries to hold the trustee to the proper standards of care and honesty and procure for themselves the benefits to which they are entitled, their knowledge of the affairs and mechanics of the trust management is crucial.” Riggs, 355 A. 2d, at 712. Courts justifying the fiduciary exception under this rationale have thus concluded that “[t]he policy of preserving the full disclosure necessary in the trustee-beneficiary relationship is . . . ultimately more important than the protection of the trustees’ confidence in the attorney for the trust.” Id., at 714; see Mett, 178 F. 3d, at 1063 (under this rationale, “the fiduciary exception can be understood as an instance of the attorney-client privilege giving way in the face of a competing legal principle”). The majority fails to appreciate the important oversight and accountability interests that underlie this rationale for the fiduciary exception, or explain why they operate with any less force in the Indian trust context.
The question in this case is whether the fiduciary exception applies in the Indian trust context such that the Government may not rely on the attorney-client privilege to withhold from the Nation communications between the Government and its attorneys relating to the administration of the Nation’s trust fund accounts. Answering that question requires a proper understanding of the nature of the Government’s trust relationship with Indian tribes, particularly with regard to its management of Indian trust funds.
Since 1831, this Court has recognized the existence of a general trust relationship between the United States and Indian tribes. See Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831) (Marshall, C. J.). Our decisions over the past century have repeatedly reaffirmed this “distinctive obligation of trust incumbent upon the Government” in its dealings with Indians. Seminole Nation v. United States, 316 U. S. 286, 296 (1942); see United States v. Mitchell, 463 U. S. 206, 225–226 (1983) (Mitchell II) (collecting cases and noting “the undisputed existence of a general trust relationship between the United States and the Indian people”). Congress, too, has recognized the general trust relationship between the United States and Indian tribes. Indeed, “[n]early every piece of modern legislation dealing with Indian tribes contains a statement reaffirming the trust relationship between tribes and the federal government.” F. Cohen, Handbook of Federal Indian Law §5.04[a], pp. 420–421 (2005 ed.) (hereinafter Cohen).2
Against this backdrop, Congress has enacted federal statutes that “define the contours of the United States’ fiduciary responsibilities” with regard to its management of Indian tribal property and other trust assets. Mitchell II, 463 U. S., at 224. The Nation’s claims as relevant in this case concern the Government’s alleged mismanagement of its tribal trust fund accounts. See ante, at 3.
The system of trusteeship and federal management of Indian funds originated with congressional enactments in the 19th century directing the Government to hold and manage Indian tribal funds in trust. See, e.g., Act of June 9, 1837, 5 Stat. 135; see also Misplaced Trust: The Bureau of Indian Affairs’ Mismanagement of the Indian Trust Fund, H. R. Rep. No. 102–449, p. 6 (1992) (hereinafter Misplaced Trust). Through these and later congressional enactments, the United States has come to manage almost $3 billion in tribal funds and collects close to $380 million per year on behalf of tribes. Cohen §5.03[b], at 407.3 Today, numerous statutes outline the Federal Government’s obligations as trustee in managing Indian trust funds. In particular, the Secretary of the Treasury, at the request of the Secretary of the Interior, must invest “[a]ll funds held in trust by the United States . . . to the credit of Indian tribes” in certain securities “suitable to the needs of the fund involved.” 25 U. S. C. §161a(a). The Secretary of the Interior may deposit in the Treasury and pay mandatory interest on Indian trust funds when “the best interests of the Indians will be promoted by such deposits, in lieu of investments.” §161. Similarly, the Secretary of the Interior may invest tribal trust funds in certain public debt instruments “if he deems it advisable and for the best interest of the Indians.” §162a(a). And Congress has set forth a nonexhaustive list of the Secretary of the Interior’s “trust responsibilities” with respect to Indian trust funds, which include a series of accounting, auditing, management, and disclosure obligations. §162a(d). These and other statutory provisions4 give the United States “full responsibility to manage Indian [trust fund accounts] for the benefit of the Indians.” Mitchell II, 463 U. S., at 224.
“[A] fiduciary relationship necessarily arises when the Government assumes such elaborate control over [trust assets] belonging to Indians.” Id., at 225. Under the statutory regime described above, the Government has extensive managerial control over Indian trust funds, exercises considerable discretion with respect to their investment, and has assumed significant responsibilities to account to the tribal beneficiaries. As a result, “[a]ll of the necessary elements of a common-law trust are present: a trustee (the United States), a beneficiary (the Indian [Tribe]), and a trust corpus (Indian . . . funds).” Ibid. Unlike in other contexts where the statutory scheme creates only a “bare trust” entailing only limited responsibilities, United States v. Navajo Nation, 537 U. S. 488, 505 (2003) (Navajo I) (internal quotation marks omitted),5 the statutory regime governing the United States’ obligations with regard to Indian trust funds “bears the hallmarks of a conventional fiduciary relationship,” United States v. Navajo Nation, 556 U. S. ___, ___ (2009) (Navajo II ) (slip op., at 14) (internal quotation marks omitted); see Lincoln v. Vigil, 508 U. S. 182, 194 (1993) (“[T]he law is ‘well established that the Government in its dealings with Indian tribal property acts in a fiduciary capacity’ ” (quoting United States v. Cherokee Nation of Okla., 480 U. S. 700, 707 (1987)).
In light of Federal Rule of Evidence 501 and the Government’s role as a conventional fiduciary in managing Indian trust fund accounts, I would hold as a matter of federal common law that the fiduciary exception is applicable in the Indian trust context, and thus the Government may not rely on the attorney-client privilege to withhold communications related to trust management. As explained below, the twin rationales for the fiduciary exception fully support its application in this context. The majority’s conclusion to the contrary rests on flawed factual and legal premises.
When the Government seeks legal advice from a government attorney on matters relating to the management of the Nation’s trust funds, the “real client” of that advice for purposes of the fiduciary exception is the Nation, not the Government. The majority’s rejection of that conclusion is premised on its erroneous view that the Government, in managing the Nation’s trust funds, “has its own independent interest in the implementation of federal Indian policy” that diverges from the interest of the Nation as beneficiary. Ante, at 18; see also ante, at 1 (GINSBURG, J., concurring in judgment).
The majority correctly notes that, as a general matter, the Government has sovereign interests in managing Indian trusts that distinguish it from a private trustee. See, e.g., United States v. Minnesota, 270 U. S. 181, 194 (1926). Throughout the history of the Federal Government’s dealings with Indian tribes, Congress has altered and administered the trust relationship “as an instrument of federal policy.” Ante, at 17, n. 8 (detailing shifts in policy); see generally Cobell v. Norton, 240 F. 3d 1081, 1086–1088 (CADC 2001) (same, and describing that history as “contentious and tragic”).
In the specific context of Indian trust fund management, however, federal Indian policy entirely aligns the interests of the Government as trustee and the Indian tribe as beneficiary. As explained above, Congress has enacted an extensive network of statutes regulating the Government’s management of Indian trust fund accounts. That statutory framework establishes a “conventional fiduciary relationship” in the context of Indian trust fund administration. Navajo Nation II, 556 U. S., at ___ (slip op., at 14) (internal quotation marks omitted); see supra, at 7–9.
As a conventional fiduciary, the Government’s management of Indian trust funds must “be judged by the most exacting fiduciary standards.” Seminole Nation, 316 U. S., at 296–297. Among the most fundamental fiduciary obligations of a trustee is “to administer the trust solely in the interest of the beneficiaries.” 2A A. Scott & W. Fratcher, Law of Trusts §170, p. 311 (4th ed. 1987); see Meinhard v. Salmon, 249 N. Y. 458, 464, 164 N. E. 545, 546 (1928) (Cardozo, C. J.) (“Not honesty alone, but the punctilio of an honor the most sensitive,” is “the standard of behavior” for trustees “bound by fiduciary ties”). Although Indian trust funds are deposited in the United States Treasury, “they are not part of the federal government’s general funds and can be used only for the benefit of the tribe.” Cohen §5.03[b], at 408, and n. 140 (citing Quick Bear v. Leupp, 210 U. S. 50, 80–81 (1908)).
Because federal Indian policy requires the Government to act strictly as a conventional fiduciary in managing the Nation’s trust funds, the Government acts in a “representative” rather than “persona[l]” capacity when managing the Nation’s trust funds. Riggs, 355 A. 2d, at 713. By law, the Government cannot pursue any “independent” interest, ante, at 18, distinct from its responsibilities as a fiduciary. See Cohen §5.03[b], at 408, and n. 141 (“Federal statutes forbid use of Indian tribal funds in any manner not authorized by treaty or express provisions of law” (citing 25 U. S. C. §§122, 123)). In other words, any uniquely sovereign interest the Government may have in other contexts of its trust relationship with Indian tribes does not exist in the specific context of Indian trust fund administration. It naturally follows, then, that when the Government seeks legal advice from government attorneys relating to the management of the Nation’s trust funds, the “real client” of the advice for purposes of the fiduciary exception is the Nation, not the Government.
This conclusion holds true even though government attorneys are “paid out of congressional appropriations at no cost to the [Nation].” Ante, at 15. As noted above, although the source of funding for legal advice may be relevant, the ultimate inquiry is for whose benefit the legal advice was rendered. See supra, at 4. And, for all the emphasis the majority places on the funding source here, see ante, at 8, 15, the majority never suggests that the fiduciary exception would apply if Congress amended federal law to permit Indian tribes to pay government attorneys out of their own trust funds.6
The majority also suggests that, even if the interests of the United States and Indian tribes may be equivalent in some contexts, that “equivalence” “breaks down” when there are “multiple interests” involved in a trust relationship. Ante, at 18. According to the majority, “the Government has too many competing legal concerns to allow a case-by-case inquiry into the purpose of each communication.” Ibid. As a result, the majority concludes that the fiduciary exception should not be applied at all in the Indian trust context. Ibid.
Preliminarily, while the Government in certain circumstances may have sovereign obligations that conflict with its duties as a fiduciary for Indian tribes, see, e.g., Nevada v. United States, 463 U. S. 110 (1983),7 the existence of competing interests is not unique to the Government as trustee. Indeed, the issue of competing interests arises frequently in the private trust context. See, e.g., Third Restatement §78, Comment c, at 97–103 (describing duties of trustee with respect to “transactions that involve conflicting fiduciary and personal interests”); id., §79, Comment b, at 128–129 (describing trustee’s duty of impartiality in “balancing . . . competing interests” of multiple beneficiaries). In such circumstances, “a trustee—and ultimately a court—may need to provide some response that offers a compromise between the confidentiality or privacy concerns of some and the interest-protection needs of others.” Id., §82, Comment f, at 188. The majority provides no reason why federal courts applying the fiduciary exception in the Indian trust context could not similarly adopt a workable framework that adequately takes into account any unique governmental interests that bear on the application of the fiduciary exception in any given circumstance. See Fed. Rule Civ. Proc. 26(b)(2)(C) (authorizing courts to set limits on discovery based on equitable concerns).
The majority’s categorical rejection of the fiduciary exception in the Indian trust context sweeps far broader than necessary. This case involves only the Government’s alleged mismanagement of the Nation’s trust fund accounts, and the Government did not claim below that the attorney-client communications at issue relate to any competing governmental obligations. See App. to Pet. for Cert. 18a–19a. To the extent the United States in other contexts has competing interests, the Government and its attorneys already have to identify those interests in determining how to balance them against their obligations to Indian tribes, and attorney-client communications relating to those interests may properly be withheld or redacted consistent with application of the fiduciary exception. See 88 Fed. Cl. 1, 13 (2009) (observing that redactions “allo[w] the privilege and exception to reign supreme within their respective spheres”).
The majority’s categorical approach fails to appreciate that privilege determinations are by their very nature made on a case-by-case—indeed, document-by-document— basis. Government attorneys, like private counsel, must review each requested document and make an individualized assessment of privilege, and courts reviewing privilege logs and challenges must do the same. “While such a ‘case-by-case’ basis may to some slight extent undermine desirable certainty in the boundaries of the attorney-client privilege, it obeys the spirit of” of Rule 501, Upjohn, 449 U. S., at 396–397, which “ ‘provide[s] the courts with the flexibility to develop rules of privilege on a case-by-case basis,’ ” Trammel v. United States, 445 U. S. 40, 47 (1980) (quoting 120 Cong. Rec. 40891 (1974) (statement of Rep. Hungate)); see S. Rep. No. 93–1277, p. 13 (1974) (“[T]he recognition of a privilege based on a confidential relationship . . . should be determined on a case-by-case basis”).
Rather than fashioning a blanket rule against application of the fiduciary exception in the Indian trust context, I would, consistent with Rule 501 and principles of judicial restraint, decide the question solely on the facts before us. See Upjohn, 449 U. S., at 386 (noting that “we sit to decide concrete cases and not abstract propositions of law” and “declin[ing] to lay down a broad rule or series of rules to govern all conceivable future questions in this area”). On those facts, the fiduciary exception applies to the communications in this case.
Like the “real client” rationale, the second rationale for the fiduciary exception, rooted in a trustee’s fiduciary duty to disclose all matters relevant to trust administration to the beneficiary, fully supports disclosure of the communications in this case. As explained above, courts relying on this second rationale have recognized that “[t]he policy of preserving the full disclosure necessary in the trusteebeneficiary relationship is . . . ultimately more important than the protection of the trustees’ confidence in the attorney for the trust.” Riggs, 355 A. 2d, at 714. Because the statutory scheme requires the Government to act as a conventional fiduciary in managing the Nation’s trust funds, the Government’s fiduciary duty to keep the Nation informed of matters relating to trust administration includes the concomitant duty to disclose attorney-client communications relating to trust fund management. See Third Restatement §82, Comment f, at 187–188; Restatement of the Law (Third) Governing Lawyers §84, pp. 627– 628 (1998).
Notably, the majority does not suggest that the Nation needs less information than a private beneficiary to exercise effective oversight over the Government as trustee. Instead, the majority contends that the Nation is entitled to less disclosure because the Government’s disclosure obligations are more limited than a private trustee. In particular, the majority states that the Government “assumes Indian trust responsibilities only to the extent it expressly accepts those responsibilities by statute,” and thus the Nation “must point to a right conferred by statute or regulation in order to obtain otherwise privileged information from the Government against its wishes.” Ante, at 14. The majority cites a single statutory provision and its implementing regulations as “defin[ing] the Government’s disclosure obligation to the [Nation].” Ante, at 22; see ante, at 21–22 (citing 25 U. S. C. §162a(d)(5) and 25 CFR §§115.801–115.803 (2010)). Because those “narrowly defined disclosure obligations” do not provide Indian tribes with a specific statutory right to disclosure of attorneyclient communications relating to trust administration, ante, at 22, the majority concludes that the Government has no duty to disclose those communications to the Nation.
The majority’s conclusion employs a fundamentally flawed legal premise. We have never held that all of the Government’s trust responsibilities to Indians must be set forth expressly in a specific statute or regulation. To the contrary, where, as here, the statutory framework establishes that the relationship between the Government and an Indian tribe “bears the hallmarks of a conventional fiduciary relationship,” Navajo II, 556 U. S., at __ (slip op., at 14) (internal quotation marks omitted), we have consistently looked to general trust principles to flesh out the Government’s fiduciary obligations. For example, in United States v. White Mountain Apache Tribe, 537 U. S. 465 (2003), we construed a statute that vested the Government with discretionary authority to “use” trust property for certain purposes as imposing a concomitant duty to preserve improvements that had previously been made to the land. Id., at 475 (quoting 74 Stat. 8). Even though the statute did not “expressly subject the Government to duties of management and conservation,” we construed the Government’s obligations under the statute by reference to “elementary trust law,” which “confirm[ed] the commonsense assumption that a fiduciary actually administering trust property may not allow it to fall into ruin on his watch.” 537 U. S., at 475. Similarly, in Seminole Nation, we relied on general trust principles to conclude that the Government had a fiduciary duty to prevent misappropriation of tribal trust funds by corrupt members of a tribe, even though no specific statutory or treaty provision expressly imposed such a duty. See 316 U. S., at 296.8 Accordingly, although the “general ‘contours’ of the government’s obligations” are defined by statute, the “interstices must be filled in through reference to general trust law.” Cobell, 240 F. 3d, at 1101 (quoting Mitchell II, 463 U. S., at 224). This approach accords with our recognition in other trust contexts that “the primary function of the fiduciary duty is to constrain the exercise of discretionary powers which are controlled by no other specific duty imposed by the trust instrument or the legal regime.” Varity Corp. v. Howe, 516 U. S. 489, 504 (1996) (emphasis deleted); cf. Central States, Southeast & Southwest Areas Pension Fund v. Central Transport, Inc., 472 U. S. 559, 570 (1985) (“[R]ather than explicitly enumerating all of the powers and duties of trustees and other fiduciaries, Congress invoked the common law of trusts to define the general scope of their authority and responsibility”). Indeed, “[i]f the fiduciary duty applied to nothing more than activities already controlled by other specific legal duties, it would serve no purpose.” Howe, 516 U. S., at 504.
The majority pays lip service to these precedents, acknowledging that “[w]e have looked to common-law principles to inform our interpretation of statutes and to determine the scope of liability that Congress has imposed.” Ante, at 13. But despite its assurance that it “will apply common-law trust principles where Congress has indicated it is appropriate to do so,” ante, at 14, the majority inexplicably rejects the application of common-law trust principles in this case. In doing so, the majority states that “[t]he common law of trusts does not override the specific trust-creating statute and regulations that apply here.” Ante, at 21–22 (referring to §162a(d)(5) and 25 CFR §§115.801–115.803). That statement evidences the majority’s fundamental misunderstanding of the way in which common-law principles operate in the context of a conventional fiduciary relationship. Contrary to the majority’s view, the Government’s disclosure obligations are not limited solely to the “narrowly defined disclosure obligations” set forth in §162a(d)(5) and its implementing regulations, ante, at 22; rather, given that the statutory regime requires the Government to act as a conventional fiduciary in managing Indian trust funds, the Government’s disclosure obligations include those of a fiduciary under common-law trust principles. See supra, at 15–17. Instead of “overrid[ing]” the specific disclosure duty set forth in §162a(d)(5) and its implementing regulations, general trust principles flesh out the Government’s disclosure obligations under the broader statutory regime, consistent with its role as a conventional fiduciary in this context.
This conclusion, moreover, is supported by the plain text of the very statute cited by the majority. Section 162a(d), which was enacted as part of the American Indian Trust Fund Management Reform Act of 1994 (1994 Act), 108 Stat. 4239, sets forth eight “trust responsibilities of the United States.” But that provision also specifically states that the Secretary of the Interior’s “proper discharge of the trust responsibilities of the United States shall include (but are not limited to)” those specified duties. 25 U. S. C. §162a(d) (emphasis added). By expressly including the italicized language, Congress recognized that the Government has pre-existing trust responsibilities that arise out of the broader statutory scheme governing the management of Indian trust funds.9 Indeed, Title I of the 1994 Act is entitled “Recognition of Trust Responsibility,” 108 Stat. 4240 (emphasis added), and courts have similarly observed that the Act “recognized and reaffirmed . . . that the government has longstanding and substantial trust obligations to Indians.” Cobell, 240 F. 3d, at 1098; see also H. R. Rep. No. 103–778, p. 9 (1994) (“The responsibility for management of Indian Trust Funds by the [Government] has been determined through a series of court decisions, treaties, and statutes”). That conclusion accords with common sense as not even the Government argues that it had no disclosure obligations with respect to Indian trust funds prior to the enactment of the 1994 Act.10
The majority requires the Nation to “point to a right conferred by statute” to the attorney-client communications at issue, ante, at 14, and finding none, denies the Nation access to those communications. The upshot of that decision, I fear, may very well be to reinvigorate the position of the dissenting Justices in White Mountain Apache and Mitchell II, who rejected the use of commonlaw principles to inform the scope of the Government’s fiduciary obligations to Indian tribes. See White Mountain Apache, 537 U. S., at 486–487 (THOMAS, J., dissenting); Mitchell II, 463 U. S., at 234–235 (Powell, J., dissenting). That approach was wrong when Mitchell II was decided nearly 30 years ago, and it is wrong today. Under our governing precedents, common-law trust principles play an important role in defining the Government’s fiduciary duties where, as here, the statutory scheme establishes a conventional fiduciary relationship. Applying those principles in this context, I would hold that the fiduciary exception is fully applicable to the communications in this case.11 III
We have described the Federal Government’s fiduciary duties toward Indian tribes as consisting of “moral obligations of the highest responsibility and trust,” to be fulfilled through conduct “judged by the most exacting fiduciary standards.” Seminole Nation, 316 U. S., at 297; see also Mitchell II, 463 U. S., at 225–226 (collecting cases). The sad and well-documented truth, however, is that the Government has failed to live up to its fiduciary obligations in managing Indian trust fund accounts. See, e.g., Cobell, 240 F. 3d, at 1089 (“The General Accounting Office, Interior Department Inspector General, and Office of Management and Budget, among others, have all condemned the mismanagement of [Indian] trust accounts over the past twenty years”); Misplaced Trust 8 (“[T]he [Government’s] indifferent supervision and control of the Indian trust funds has consistently resulted in a failure to exercise its responsibility and [to meet] any reasonable expectations of the tribal and individual accountholders, Congress, and taxpayers”); id., at 56 (“[H]ad this type of mismanagement taken place in any other trust arrangements such as Social Security, there would be war”).
As Congress has recognized, “[t]he Indian trust fund is more than balance sheets and accounting procedures. These moneys are crucial to the daily operations of native American tribes and a source of income to tens of thousands of native Americans.” Id., at 5. Given the history of governmental mismanagement of Indian trust funds, application of the fiduciary exception is, if anything, even more important in this context than in the private trustee context. The majority’s refusal to apply the fiduciary exception in this case deprives the Nation—as well as the Indian tribes in the more than 90 cases currently pending in the federal courts involving claims of tribal trust mismanagement, App. to Pet. for Cert. 126a–138a—of highly relevant information going directly to the merits of whether the Government properly fulfilled its fiduciary duties. Its holding only further exacerbates the concerns expressed by many about the lack of adequate oversight and accountability that has marked the Government’s handling of Indian trust fund accounts for decades.
But perhaps even more troubling than the majority’s refusal to apply the fiduciary exception in this case is its disregard of our established precedents that affirm the central role that common-law trust principles play in defining the Government’s fiduciary obligations to Indian tribes. By rejecting the Nation’s claim on the ground that it fails to identify a specific statutory right to the communications at issue, the majority effectively embraces an approach espoused by prior dissents that rejects the role of common-law principles altogether in the Indian trust context. Its decision to do so in a case involving only a narrow evidentiary issue is wholly unnecessary and, worse yet, risks further diluting the Government’s fiduciary obligations in a manner that Congress clearly did not intend and that would inflict serious harm on the alreadyfrayed relationship between the United States and Indian tribes. Because there is no warrant in precedent or reason for reaching that result, I respectfully dissent.
1 See, e.g., Solis v. Food Employers Labor Relations Assn., __ F. 3d __, 2011 WL 1663597, *4–5 (CA4 2011); Wachtel v. Health Net, Inc., 482 F. 3d 225, 232–234 (CA3 2007); Bland v. Fiatallis North America, Inc., 401 F. 3d 779, 787–788 (CA7 2005); United States v. Mett, 178 F. 3d 1058, 1062–1064 (CA9 1999); In re Long Island Lighting Co., 129 F. 3d 268, 271–272 (CA2 1997); Wildbur v. ARCO Chemical Co., 974 F. 2d 631, 645 (CA5 1992); Fausek v. White, 965 F. 2d 126, 132–133 (CA6 1992); see also Restatement (Third) of Trusts §82, Comment f and Reporter’s Notes on §82, pp. 187–188, 198–204 (2005); Restatement of Law (Third) Governing Lawyers §84 (1998).
2 See, e.g., 25 U. S. C. §458cc(a) (directing Secretary of the Interior to enter into funding agreements with Indian tribes “in a manner consistent with the Federal Government’s laws and trust relationship to and responsibility for the Indian people”); §3701 (finding that the Government “has a trust responsibility to protect, conserve, utilize, and manage Indian agricultural lands consistent with its fiduciary obligation and its unique relationship with Indian tribes”); 20 U. S. C. §7401 (“It is the policy of the United States to fulfill the Federal Government’s unique and continuing trust relationship with and responsibility to the Indian people for the education of Indian children”).
3 Trust fund accounts are “comprised mainly of money received through the sale or lease of trust lands and include timber stumpage, oil and gas royalties, and agriculture fees,” as well as “judgment funds awarded to tribes.” H. R. Rep. No. 103–778, p. 9 (1994). The Nation’s claims involve proceeds derived from the Government’s management of the Nation’s timber, gravel, and other resources and leases of reservation lands. The Government has held these funds in trust for the Nation since the late 1880’s. See App. to Pet. for Cert. 98a–100a, 105a.
4 See, e.g., 25 U. S. C. §4011(a) (requiring Secretary of the Interior to account “for the daily and annual balance of all funds held in trust by the United States for the benefit of an Indian tribe”); §4041(1) (creating the Office of Special Trustee for American Indians “to provide for more effective management of, and accountability for the proper discharge of, the Secretary’s trust responsibilities to Indian tribes”).
5 For example, in United States v. Mitchell, 445 U. S. 535 (1980) (Mitchell I), this Court held that a federal statute which authorized the President to allot a specified number of acres to individual Indians residing on reservation lands did not “provide that the United States has undertaken full fiduciary responsibilities as to the management of allotted lands.” Id., at 542. Under the statute, “the Indian allottee, and not a representative of the United States, is responsible for using the land for agricultural or grazing purposes.” Id., at 542–543. Accordingly, we concluded that Congress did not intend to “impose upon the Government all fiduciary duties ordinarily placed by equity upon a trustee” because the statute “created only a limited trust relationship between the United States and the allottee.” Id., at 542; see also Navajo I, 537 U. S., at 507–508 (concluding that Secretary of the Interior did not assume “fiduciary duties” under the relevant statutory scheme because “[t]he Secretary is neither assigned a comprehensive managerial role nor, . . . expressly invested with responsibility to secure the needs and best interests of the Indian owner and his heirs” (internal quotation marks omitted)).
6 The majority also states that ownership of the requested documents is “a significant factor” in deciding whether the fiduciary exception applies, ante, at 23, but the only case it cites as support deals with the source of payment for the legal advice, not the ownership of the documents. See ibid. (citing Riggs Nat. Bank of Washington, D. C. v. Zimmer, 355 A. 2d 709, 712 (Del. Ch. 1976)).
7 In Nevada, the Government represented certain tribes in litigation involving water rights even though it was also required by statute to represent the water rights of a reclamation project. See 463 U. S., at 128 (noting that Congress delegated to the Secretary of the Interior “both the responsibility for the supervision of the Indian tribes and the commencement of reclamation projects in areas adjacent to reservation lands”). Because of this dual litigating responsibility, we noted that “it is simply unrealistic to suggest that the Government may not perform its obligation to represent Indian tribes in litigation when Congress has obliged it to represent other interests as well.” Ibid. We thus observed in the context of that case that “the Government cannot follow the fastidious standards of a private fiduciary, who would breach his duties to his single beneficiary solely by representing potentially conflicting interests without the beneficiary’s consent.” Ibid. We expressly distinguished the context “where only a relationship between the Government and the tribe is involved.” Id., at 142. In that context, we acknowledged that “the law respecting obligations between a trustee and a beneficiary in private litigation will in many, if not all, respects adequately describe the duty of the United States.” Ibid.
8 To be sure, in decisions involving the jurisdiction of the Court of Federal Claims under the Tucker Act, we have explained that the jurisdictional analysis “must train on specific rights-creating or dutyimposing statutory or regulatory prescriptions.” Navajo I, 537 U. S., at 506. But even assuming arguendo that those jurisdictional decisions have relevance here, they do not stand for the proposition that the Government’s fiduciary duties are defined exclusively by express statutory provisions. Indeed, those decisions relied specifically on general trust principles to determine whether the relevant statutory scheme permitted a damages remedy, a prerequisite for jurisdiction under the Tucker Act. See, e.g., Mitchell II, 463 U. S., at 226 (noting that common-law trust sources establish that “a trustee is accountable in damages for breaches of trust” and that, “[g]iven the existence of a trust relationship, it naturally follows that the Government should be liable in damages for the breach of its fiduciary duties”); see also Navajo II, 556 U. S., at ___ (slip op., at 14) (affirming that general “trust principles . . . could play a role in inferring that the trust obligation is enforceable by damages” (internal quotation marks and brackets omitted)).
9 The majority invokes the canon against superfluity and argues that the “catchall” phrase (by which it means the “shall include (but are not limited to)” language) cannot be read to “include a general common-law duty to disclose all information related to the administration of Indian trusts” because doing so would “impose general obligations that would include those specifically enumerated.” Ante, at 22. But the flaw in the majority’s argument is that it misperceives the function of the relevant language. Rather than serving as a “catchall” provision that affirmatively “incorporate[s]” common-law trust duties into §162a(d), ante, at 22, that language simply makes clear that §162a(d) does not set forth an exhaustive list of the Government’s trust responsibilities in managing Indian trust funds; nothing in that language itself imports any substantive obligations into the statute.
10 The majority also contends that its reading of §162a(d) is supported by a provision in the Indian Claims Limitation Act of 1982 (ICLA), 96 Stat. 1976, which provided that if the Secretary of the Interior rejected a claim for litigation by an Indian claimant, he was required to provide upon request “any nonprivileged research materials or evidence gathered by the United States in the documentation of such claim.” §5(b), id., at 1978. According to the majority, this provision reflected Congress’ understanding that “the Government retains evidentiary privileges allowing it to withhold information related to trust property from Indian tribes.” Ante, at 22, n. 11. But this provision cannot bear the weight the majority places on it. Even putting aside the undisputed fact that the ICLA is inapplicable to the claims in this case, the majority’s reliance on the ICLA provision fails to recognize that documents subject to the fiduciary exception are, under the “real client” rationale, per se nonprivileged. See, e.g., Mett, 178 F. 3d, at 1063. Accordingly, if anything, the ICLA’s requirement that the Government disclose “nonprivileged” materials to Indian claimants supports the conclusion that Congress intended communications related to trust fund management to be disclosed to Indian tribes.
11 The majority’s errors are further compounded by its failure to accord proper consideration to the mandamus posture of this case. “This Court repeatedly has observed that the writ of mandamus is an extraordinary remedy, to be reserved for extraordinary situations.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U. S. 271, 289 (1988). “As the writ is one of the most potent weapons in the judicial arsenal, three conditions must be satisfied before it may issue,” Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 380 (2004) (internal quotation marks and citation omitted): “First, the party seeking issuance of the writ must have no other adequate means to attain the relief he desires—a condition designed to ensure that the writ will not be used as a substitute for the regular appeals process. Second, the petitioner must satisfy the burden of showing that his right to issuance of the writ is clear and indisputable. Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.” Id., at 380–381 (internal quotation marks and citations omitted; alterations deleted). The majority purports to leave the decision whether to grant mandamus relief to the Federal Circuit, but simultaneously drops a footnote stating that it “assume[s]” that the Court of Federal Claims on remand will “follow [its] holding” that the fiduciary exception is inapplicable here. Ante, at 24, and n. 13. By doing so, the majority virtually assures that the Nation will not be able to use the communications at issue in this litigation, thereby effectively granting extraordinary relief to the Government upon no showing whatsoever that the stringent conditions for mandamus have been met.
ORAL ARGUMENT OF PRATIK A. SHAH ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We will hear argument today in case 10-382, United States v. Jicarilla Apache Nation.
Mr. Shah: Mr. Chief Justice, and may it please the Court:
Relying on common law trust principles applicable to private fiduciaries, the Federal Circuit imposed on the United States a duty to disclose attorney-client privileged communications to an Indian tribe.
That abrogation of the privilege should be reversed for at least three reasons.
First, reflecting the sovereign nature of the United States function, the Indian trust context lacks the factors essential to recognition of a private trust fiduciary exception.
Unlike in a private trust, government attorneys and other Federal officials owe an exclusive duty of loyalty to the United States, not to the beneficiary.
The government pays the cost of trust administration out of appropriated funds, not out of the trust corpus.
The government, not the trust, owns the resulting record, and the release of such governmental record, including to a tribe or individual Indian, is governed by specific statutes and regulations as well as the Freedom of Information Act, not the common law.
Second, the decision below conflicts with this Court's precedents that distinguish the United States from a private trustee and that reject enforcement of duties governing the administration of Indian property that are not set forth by specific statute or regulation.
The fiduciary exception to the attorney-client privilege is premised on a private trustee's general common law duty to disclose trust information, but no statute or regulation imposes such a duty on the United States.
Justice Sonia Sotomayor: Counsel, all of the statutes relating to these funds use the word "trust".
Not one statute defines trust and says in any way this is not a fiduciary relationship.
To the contrary, in fact, most of the statutes require what would be consistent with fiduciary obligations, and at least one of them that you rely on says "but not limited to".
So the issue before us doesn't involve a competing sovereign interest by the U.S. You've conceded that in your cert petition.
The circuit below said this is not a case where there is an independent sovereign issue governing the U.S. activities.
Just explain to me what's the rationale that would permit a trustee of a trust fund to withhold from the beneficiary the kinds of documents that relate to the management of the fund?
If the funds exist for the benefit of the Indian tribe, why aren't they entitled to management documents?
Mr. Shah: Okay--
Justice Sonia Sotomayor: That's the part that doesn't make -- that you're not explaining.
Justice Ruth Bader Ginsburg: Mr. Shah, you might want to make your third point.
You said you had three points preliminarily, so why don't you make your third point and then respond to the question.
Mr. Shah: --Sure, Your Honor.
The third point is that the Federal Circuit's decision poses serious practical problems for the government because the general common law duty to disclose which undergirds the fiduciary exception extends to all trust information without regard to the existence of litigation; excepting it implies a broad and burdensome disclosure obligation.
For example, there are over 300,000 individual account holders, individual Indian account holders on top of the tribal, tribal account holders.
If this Court were to accept the fiduciary exception and thereby ratify the underlying rationale, presumably then any one of those or all of those 300-plus thousand individual account holders could simply call up the Interior Department and request all related trust records outside of the existing statutory and regulatory regime.
Now, Justice Sotomayor, let me turn back to your set of questions, and let me start with the first point that you made, which is the statutes here use the term trust; why doesn't that connote some sort of broad fiduciary relationship?
This Court has made clear in its precedents, and it dates back to the Mitchell 1, the first decision in Mitchell case, where Congress's use of the term "trust", the Court said, does not imply the full gamut of common law fiduciary obligations.
The dissent made precisely -- the dissent in Mitchell made precisely the argument that you're sketching out here, which is when Congress uses a term like trust, we would naturally assume that it implies fiduciary obligations.
The majority in Mitchell rejected that notion, and in fact in Mitchell 2 in the Navajo Nation decisions, the Court has continued to reject that proposition.
But more -- more than as a matter of precedent I think that makes--
Justice Sonia Sotomayor: But in both -- in all of those cases, counsel, it was a limitation related to competing interests, meaning it was recognizing that there are potentially moments in which an attorney is acting both in the interest of the government and in the interest of the tribe.
Mr. Shah: --Justice Sotomayor, with respect, there is no competing interest that I'm aware of that were mentioned in -- in the Mitchell decisions, Mitchell 1, Mitchell 2, or even the Navajo Nation decision.
Those were simply -- in Mitchell 1 it was the Indian General Allotment Act, which said that the United States "shall hold in trust" land for the benefit of the Indians.
The argument made by the tribe in that case and by the dissenters in the Court was when the Court said you shall hold the land in trust, that implies certain management and other responsibilities for resources related to that land.
This Court said no, when Congress uses the term "trust" in the Indian context, that there must be specific statutory regulatory duties that the Court sets out.
Let me explain--
Justice Sonia Sotomayor: But that was a jurisdictional question, not a question with respect to -- to the -- to the obligation.
You're not seriously suggesting that if you're a trustee of an Indian fund that you can breach your fiduciary duty by simply not exercising care in your investment strategies.
So some form of -- of duty exists.
Mr. Shah: --Sure, and let me--
Justice Sonia Sotomayor: --from the common law, and the common law has to define that.
Mr. Shah: --Well, Your Honor, I agree everything up to the point when you said we go to the common law.
Of course there would be in this context some enforceable duties with respect to investment of the funds held in trust, and that's because the relevant statutes, section 161a and 162a, set forth specific investment duties that the government must comply with.
Now, as to your other point, that Mitchell 1 and the Navajo Nation--
Justice Sonia Sotomayor: And so why would, if it imposes those duties, protect you from disclosing items that might -- attorney confidences that go to that very act, the very act of investing in the way, even under your definition, that the trust requires you to?
Mr. Shah: --A couple responses, Your Honor.
The -- the two statutes that you're talking about, 161a and 162a, set forth specific investment duties.
They don't say anything about disclosure.
The 1994 Act does set forth some disclosure obligations, but they are extremely discrete.
There are essentially two disclosure obligations that all of these statutes together impose.
The -- the United States must provide an account statement, a quarterly account statement; and the United States must provide the -- the Indian tribes and individual Indians an annual audit.
That is the extent of disclosure obligations that Congress has set forth and that the Interior Department by regulation has implemented.
Now, to the -- to the extent that your question suggests that the tribes may need more in order to enforce those enforcement duties, I think the -- the account statements and the annual audit goes a long way towards suggesting that if there is a problem, then the tribe may want to try to enforce those duties.
The other point I would make is, although the legally enforceable duties under this Court's decisions in Mitchell and Navajo Nation are those set forth by statute and regulation, that doesn't mean the Interior Department doesn't have discretion to provide more information.
And in fact, in practice, the Interior Department does provide a much broader swath of information to the Indian tribes regarding these accounts than the two discrete pieces of information that the statutes set forth.
Justice Samuel Alito: Do you agree that the -- do you agree that the fiduciary exception is well established as a general matter?
Mr. Shah: Your Honor, the United States does not contest the existence of a fiduciary exception in certain private trust contexts where the criteria for that exception are satisfied.
So the answer is no, we don't, we don't dispute the existence in certain contexts under certain circumstances of a fiduciary exception.
Justice Samuel Alito: So if this cause arose in a different context with a different trustee, the position of the United States would be that under Rule 501 of the Federal Rules of Evidence there is a fiduciary exception to the attorney-client privilege?
Mr. Shah: Yes, Your Honor.
It would depend on the circumstances.
For example, if it were a private trust and the factors that -- in which the courts, the old English cases, for example, have recognized where the fiduciary exception applies, that is the information is sought solely for the benefit of the beneficiary, the expenses for that legal advice are paid out of the trust corpus, and as a result of that, the resulting legal advice and the resulting records belong to the trust corpus.
All of those things give right, as the old English cases say, give right to a common law right of access for the beneficiary to access those.
Justice Ruth Bader Ginsburg: Mr. Shah, you don't have to take a position on that, because you don't represent a private trustee.
And the government can accept arguendo that there would be such a relationship, but I don't think you have to defend it.
Mr. Shah: Absolutely, the Court need not decide that question in order to reach the question.
The Court can assume it arguendo and then go forward.
I think the critical point here is, though, that all of the factors that underlie that -- that exception in the private trustee concept are absent here.
Here the government is acting out of its own interest.
It is paying for the legal advice out of congressional appropriations.
The government owns the records at issue by virtue of the Federal Records Act, by virtue of Interior Department regulations, which are cited in the back of our brief make very clear that the government owns these records, and because they are governmental records their disclosure is not governed by the common law.
There is a highly--
Justice Samuel Alito: The thrust of what -- my understanding of the thrust of what Justice Sotomayor was asking is something like the following: It's easy to understand how there can be competing government interests when you're talking about some, the management of lands, things of that nature.
But when you're just talking about managing funds, what competing interests can there be in practical terms?
If you assume arguendo that this exception applies to a private trustee, why should it not apply to the government in practical terms?
Mr. Shah: --Sure.
Let me provide two responses, Justice Alito.
First, I think as a formal position I don't think our position turns, as a formal matter, on the existence of a specific competing duty.
I think such a rule would overlook the ways in which the U.S. inherently, United States inherently differs from a private trustee.
And I think that's especially true in the light of the complex multifaceted ways in which the government interacts with Indians and Indian tribes.
Those sovereign obligations extend to law -- providing law enforcement, educational duties, health services.
One subset of those duties are the type of trust responsibilities at issue in this case.
Now, to be more concrete, I think, even putting aside that larger framework which may create tensions between the United States and with -- and the Indian tribes in certain circumstances, I think even in the trust fund, purely in the trust fund context that we're talking about, there could be at least tensions that arise.
For example, the D.C. Circuit in the Cobell case when it talked about the accounting obligation that it imposed on the government, it made clear that it's not the same accounting obligation that would apply at common law.
And the reason the D.C. Circuit gave was because the United States would be taking that -- performing that obligation at the expense of taxpayers.
There are budgetary constraints that the United States must take into consideration as a sovereign.
Maybe that's not a specific competing obligation in the formal sense, but I think it's -- it's a factor that distinguishes the United States from a private fiduciary.
Also, there are -- for example in our brief we discuss one of, just as an example, one of the documents at issue in this case, which involves a judgment by a tribal court seeking to attach funds from an individual Indian money account.
The United States acts as a trustee with respect to that individual -- Indian account.
It may be the case that the United States consistent with its fiduciary obligations in that sense could simply pay out the judgment, but I think there would be room for the United States to take a closer look at the judgment, to make sure that it complies with, for example, the Indian Civil Rights Act or basic due process--
Justice Stephen G. Breyer: Suppose we have the Union Trust Company, a private company that has 5,000 trust accounts.
One day the president of the company says to the lawyer: Mr. Smith's account is in a special situation.
Will you please look into what we should do for him as trustee?
There's no implication for any other account.
There's no threat of litigation.
I just want to know what we're supposed to do.
Now, I take it the document that is subsequently written would be open for Mr. Smith to get; is that right?
Mr. Shah: --Yes, Your Honor.
We do not--
Justice Stephen G. Breyer: Yes, okay.
Now, why should the government be treated differently were the situation identical to what I just proposed?
Mr. Shah: --I think the response is, Your Honor, is that the situation will never be identical to the hypothetical you posed because the government inherently differs, and let me set out--
Justice Sonia Sotomayor: But this argument, frankly, would be -- we wouldn't have any need for 501, because if as an evidentiary rule the government is always different, then there is no situation in which fiduciary duties in common law would ever exist.
Mr. Shah: --To be clear, Justice Sotomayor, the government is not arguing that no common law exception to the attorney-client privilege can apply to the government or that Federal Rule 501, Federal Rule of Evidence 501 is otherwise inapplicable.
We're making a much more limited argument that this particular common law fiduciary exception is not applicable to the government, and that is because the premise of that fiduciary exception does not apply.
Justice Sonia Sotomayor: Is there -- is there any greater value to a fiduciary duty than to manage the account for the benefit of the beneficiary?
That's the very essence of what a trust means, and so I'm having a hard time understanding not a competing interest situation where you're addressing a different statutory requirement, but merely -- and that's what this case was presented as, merely the management of the trust.
So what you're, it seems to me, you're arguing is there is no duty.
You're saying it's all defined by statute only, but you're rendering -- there's no need to use the word "trust" because it wouldn't be a trust.
Mr. Shah: Well, Your Honor, I don't think that those two things are inconsistent.
The fact that we don't look to the common law to fill in all of the duties doesn't mean that the government doesn't have duties in this context.
It has very specific duties, to invest the funds properly, to invest the funds as set forth in the statutes.
What this Court has said could not be done is to look at the general common law to create obligations on the government.
Justice Stephen G. Breyer: I would like to get an answer to my question.
Mr. Shah: Sure.
Justice Stephen G. Breyer: My question, to go back to it, was imagine that the government has a thousand trust accounts for a thousand tribes.
Mr. Shah: Okay.
Justice Stephen G. Breyer: And imagine that several of them consist of nothing more than $500,000 in cash.
Mr. Shah: Okay.
Justice Stephen G. Breyer: And one day the Secretary of the Interior says to a lawyer: I fear there is kind of a difficult fiduciary problem arising into account number 302, which is owned by such and such tribe.
There is no threat of litigation.
As far as I can tell, the answer to this will have no implication for anything else in the government.
Will you please look at it and give me a memo what to do?
Now, why should that memo not be given to the lawyer for the tribe if in the identical case of the Union Trust Company you would give the lawyer -- the memo to the beneficiary?
Mr. Shah: A couple of reasons, Your Honor.
First, as this Court recognized, starting back in 1912 in the Heckman case, and reiterated in the Candelaria and Minnesota cases after that, is that the United States is not acting simply out of the beneficiary's interests.
So in the hypothetical, the original hypothetical that you posed in the corporation or the bank that was acting as a trustee, there the trustee is simply acting out of its fiduciary obligation solely to benefit the beneficiary.
That is not how the governments work.
As this Court made clear, the government is acting not out of the beneficiary's interests, it is acting out of its own sovereign interest in managing the statutes and regulations that govern the administration of Indian property.
That's a fundamental difference.
Justice Stephen G. Breyer: You're saying, one, we're not really a trustee totally?
Mr. Shah: Yes.
Justice Stephen G. Breyer: Okay.
Now, if we treated -- the courts treated you as a trustee really and totally--
Mr. Shah: Sure.
Justice Stephen G. Breyer: --in this very limited situation I described, what harm would befall the government?
Mr. Shah: Well, Your Honor, we would still win, and here's why.
The factors that -- even assuming a common law trustee, the fiduciary exception doesn't apply automatically at all common law trustees.
There's several things that underlie that fiduciary exception.
One, the -- the -- the advice sought is typically paid for out of the trust corpus, and as a result of that fact, the trust itself owns the records.
Those are the principal two factors that the cases recognizing a fiduciary exception rely upon to create a common law right of access of the beneficiary to such records.
None of those factors are present here.
The government pays for these -- for -- for the cost of administration, including legal advice, out of congressionally appropriated funds.
The records resulting from that advice belonged to the government.
The government owns those records, both as a matter of statute and regulation.
And the disclosure of those records is subject to a highly reticulated regime.
There are statutes, there is regulations, there is the Freedom of Information Act.
All of that would be bypassed if this Court were to accept the fiduciary exception in this context.
Justice Ruth Bader Ginsburg: Mr. Shah--
Justice Anthony Kennedy: Other than the time and expense of going through voluminous records, which is obvious, is there any other harm to the government in being required to show that there's a competing interest that makes disclosure unnecessary or improper?
Mr. Shah: Yes, Your Honor.
As I said to Justice Alito, it may not always be that the government can point to a specific competing interest in the sense that Justice Sotomayor is talking about, a competing statutory interest.
But there are inherently these tensions, budgetary concerns, other ways in which the United States interacts with Indian affairs.
Justice Ruth Bader Ginsburg: --Is one -- is one of them shielding government actors?
I mean, from what you said so far, on the one hand you recognize that it is what we call a guardian, the guardian-ward relationship between the United States and the tribe.
But what you seem to be suggesting is that the government has a dual focus, and one is its guardianship relation to the tribe, but the other is these are government actors and the government is also interested in shielding its actors.
Is that -- is that it or is it a more nebulous interest?
Mr. Shah: Well, Your Honor, I think it could be more nebulous -- but -- but there -- I think there is a real chilling concern.
And I think this dovetails into Justice Kennedy's question, that the Interior Department, in order to properly administer, to carry out the statutory and regulatory duties, it often needs to seek the legal advice of -- of the lawyers in the Interior office or in the Department of Justice.
In order to avoid the chilling the full and frank seeking of rendering of legal advice, the same purposes--
Justice Antonin Scalia: Well, this is just the general purpose behind the exception to 301, right, the -- the exception for providing attorney's advice.
The ordinary private litigant doesn't have to show, when he refuses to turn over attorney advice, that there's some conflict which would make it harmful for him to turn that over, does he?
Mr. Shah: --Not as a general matter, Your Honor.
If -- if -- if we were in the private trustee context and a court were to decide that the fiduciary exception applied--
Justice Antonin Scalia: Not in the trustee context.
I'm just talking about the normal operation.
Mr. Shah: --Oh, absolutely, Your Honor.
The justifications are general in nature and there isn't an obligation to--
Justice Antonin Scalia: And -- and so, once you establish that this isn't the normal trust complex, we apply the normal Rule 301 law, and -- and that does not require the person who declines to turn over the information to show why it would really hurt him to turn it over, right?
Mr. Shah: --I think that's exactly correct, Justice Scalia.
Justice Ruth Bader Ginsburg: How many -- how many of these mismanagement suits are there?
Do you have any estimate?
Mr. Shah: Yes.
Currently there are about 90 such pending suits, counting all of the district courts as well as the Court of Federal Claims.
And -- and -- and of course, this issue could arise in any of those cases.
Let me get back to one of Justice Sotomayor's questions, the -- the initial question about the fact that the Congress has used the term "trust".
I think as a matter of precedent, both the Mitchell decisions and the Navajo Nation decisions, I think those are binding, controlling precedent, and the Court should not deviate from those precedents that say a statute or regulation must define the duty.
But beyond the binding nature of those precedents, I think they make sense from first principles as well, and let me try to explain why.
The -- the -- the term "trust" has been used by both Congress and the courts in a variety of ways, often in a variety of imprecise ways, when it comes to the relationship between the United States and Indians and Indian tribes.
Courts and Congress have used the term when it comes to providing law enforcement, when it comes to providing educational services, health services, none of which are really the type of private common law trust that we know.
And even in scenarios where there is a discrete property interest that might bring us closer to the common law context, this Court has used -- this Court and Congress has recognized that "trust" can mean a lot of different things.
It can mean the type of bare trust that was at issue in Mitchell 1, the Indian General Allotment Act, when the trust was really simply to avoid alienation of the land.
It may mean specific investment duties, as we have here.
But the point is that there is no "one size fits all" trust terminology, and so that's why it makes sense for this Court to require Congress to set forth the specific duties and statutes, and the Interior Department to set forth specific duties and regulations before it implies such a sweeping obligation on the United States.
I think it also flows from a more general principle of a reluctance to hold the United States to common law duties when there's an existing statutory and regulatory regime.
I think for all of those reasons, not only as a matter of precedent, but as -- as a matter of principle, I think the -- the -- the fiduciary exception would -- would not apply here.
Justice Anthony Kennedy: I hadn't thought about your argument until this -- until you made it this morning, that if there -- if -- if the tribe is correct that it owns these documents and gets -- can get them anytime, but the -- the -- the trial court here divided the documents into five categories.
Mr. Shah: Yes, Your Honor.
Justice Anthony Kennedy: As to some of those categories it -- it denied -- it denied production.
Mr. Shah: Yes, Your Honor, but those--
Justice Anthony Kennedy: And I take it did that in the context of recognizing the attorney-client privilege, including work product, which were the accountant's records.
Mr. Shah: --Right.
As I understand it, you're right, Justice Kennedy, that most of the documents that the -- the trial court said the government didn't have to produce were, as you stated, attorney work product privileges -- privileged documents, and those the trial -- the trial court said that no fiduciary exception would apply to the attorney work product privilege.
And it was on that basis that it allowed the government to withhold the documents.
If there are no further questions, I would like to reserve the remainder of my time.
Chief Justice John G. Roberts: Thank you, Mr. Shah.
Mr. Shah: Thank you, Your Honor.
Chief Justice John G. Roberts: Mr. Gordon.
ORAL ARGUMENT OF STEVEN D. GORDON ON BEHALF OF THE RESPONDENT
Mr. Gordon: Mr. Chief Justice, and may it please the Court:
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 G. Roberts: It's -- you don't doubt that in this context sovereign commands would trump trustee obligations, do you?
In other words, if Congress--
Mr. Gordon: I -- I -- I do not -- I do not, Mr. Chief Justice.
Chief Justice John G. Roberts: --Okay.
Mr. Gordon: The -- the notion of -- the issue here is an issue of evidence, and it is controlled by Federal Rule 501, which specifies that Federal courts that resolve claims of privilege based on common law principles.
Under the common law, a trustee cannot assert the attorney-client privilege to withhold from a fiduciary legal advice about management of the trust.
That, I submit, is the end of the analysis.
Justice Samuel Alito: Well, what do you make of the fact that the Uniform Trust Code reserves decision on the question whether there is a fiduciary exception to the attorney-client privilege?
That seems to suggest that as a general matter, this is not as well-established as you seem to argue.
Mr. Gordon: Your Honor, there are very -- there are a handful of States that have not recognized the fiduciary exception, but there is no Federal circuit that has refused to recognize it.
Indeed, all of the Federal circuits that have considered it have adopted it, and it is recognized in both, as we stated in our brief, the Restatement of Trusts and the Restatement of the law Governing Lawyers.
Justice Ruth Bader Ginsburg: Mr. Gordon--
Justice Antonin Scalia: Has it ever been applied, to your knowledge, where -- where it was not the case that the trust paid for the attorney's advice out of the trust funds and where the trust did -- where -- where the trust owned the papers that consisted of the attorney's advice?
Is there any case where those two conditions or either one of them did not exist where the -- the trust was required to turn over the attorney's advice?
Mr. Gordon: Justice Scalia, I -- I cannot cite a specific case--
Justice Antonin Scalia: Yes, but, see, that's the argument of the government, that the exception, the trust exception to the extent that it exists, was based principally upon the fact that these papers belonged to the trust and that the attorney's advice had been paid for by the trust, so of course the trustee is entitled to get it.
Mr. Gordon: --But that's not correct, if -- if I may, Mr. Justice.
If you look at the seminal American decision, the Riggs Bank decision that's cited in both briefs, they talk about the rationales and they said that the first rationale is that the trustee acts as a proxy for the beneficiary in obtaining the advice.
The second rationale is that the trustee has a general duty to disclose relevant information to the beneficiary.
The Court mentioned that one factor that it would look at was who had paid for the legal advice, but it did not suggest that that was determinative, and indeed subsequent case law has made clear that it is not, and the Restatement says explicitly that who paid is not the controlling factor.
Justice Antonin Scalia: But you don't have a single case?
Mr. Gordon: Not that I can cite right now.
But it would be--
Justice Ruth Bader Ginsburg: --I thought Riggs -- you said Riggs was a case where the trust fund paid the lawyer, and the Court distinguished cases where that wasn't so, where the trustee was paying the lawyer for the trustee's own protection, and the Court went out of its way to say we are dealing with a case where the lawyer is paid out of trust funds.
In Riggs, the -- seminal case, right?
Mr. Gordon: --Yes, Your Honor.
But the issue -- this is, I submit, letting the tail wag the dog.
What we are talking about is money that belongs to the beneficiary.
We're talking about money.
We're not talking about a bare trust.
We're talking about a full-fledged trust under Mitchell 2.
Indeed, this Court in Mitchell 2 said that trusts involving the management of Indian money were full-fledged trusts.
And in that situation for the government to say that, while any private fiduciary would be obliged to show to the beneficiary the legal advice it's received when there's an issue about whether it's fulfilled its fiduciary duties, it's different because we've spent our hard-earned money on these lawyers and we own the records in issue.
I mean, that doesn't make sense.
And basically as a matter of discovery, which is where we are right now, the posture of the case, whenever you seek discovery, in virtually all of those circumstances the documents in issue are going to belong to the opposing party.
Chief Justice John G. Roberts: Counsel, the attorney-client privilege is policy-based and I'm concerned about the policy implications of your position.
Our system has concluded that it works best if people have candid advice from their lawyers, and my concern here is if you're a lawyer -- you are a lawyer -- and -- and you're asked for your advice by a trustee--
Mr. Gordon: Right.
Chief Justice John G. Roberts: --and if you know that that is going to be shared with the beneficiary, you're going to give bland, mushy, hedging advice rather than direct and candid advice to the trustee, because it's going to be shared more widely beyond the trustee.
And that's -- that hurts not only the trustee, but also the beneficiaries, whose trustee does not have candid legal advice.
Mr. Gordon: My response to that would be twofold, Your Honor.
The first is that that same argument can be made for any private fiduciary, yet the courts have felt that the more important relationship is the relationship between the trustee and the beneficiary, that that trumps the need for or the desirability for private discussions between the--
Chief Justice John G. Roberts: So how does -- I appreciate the point, but how does a trustee get candid legal advice?
In every case, isn't the -- the lawyer -- concerning his dealings with the beneficiary, with the trust: I don't know if I have to do this or I have to do this.
Mr. Gordon: --Right.
Chief Justice John G. Roberts: And it seems to me if the -- if the information is always going to be shared with the beneficiary, the trustee is always going to get hedged advice.
Mr. Gordon: Well, if it's never shared, Your Honor, then it leaves it at the option of the trustee to selectively waive the privilege when it's to its advantage in a breach of trust suit.
Justice Antonin Scalia: No.
Why can't the trustee say: I'm going to hire my own lawyer?
I'm not going to pay this lawyer out of trust funds, so it will be my lawyer, and his advice is only to me and serving my interests?
Why wouldn't -- why wouldn't that suffice?
Mr. Gordon: I think the issue, Your Honor, is whether that, in fact, is what the trustee is seeking.
If the trustee is seeking advice about personal liability, then I certainly agree that the trustee could do that.
If the trustee instead is seeking advice, regardless of who pays for it, but is seeking legal advice about how the trustee should manage money belonging to the beneficiary--
Chief Justice John G. Roberts: Well, that's always a question of liability.
If he messes up and doesn't manage it the way he's supposed to, he will be liable.
So the distinction you draw doesn't seem to me to be a workable one.
Mr. Gordon: --Well, Your Honor, I -- I submit that the whole issue is if there is a suit for breach of trust, which is the precondition for all of this, whether in that circumstance the trustee is obliged to produce the legal advice that it has received so the beneficiary can be--
Justice Antonin Scalia: The trustee cannot hire his own lawyer, you're saying.
So long as he's a trustee, he cannot hire his own lawyer to get advice on how to manage the trust in a way that will avoid his liability.
He just can't do it, right?
Mr. Gordon: --Yes, Your Honor, that's the position.
And that puts the government in no different position than private beneficiaries or ERISA beneficiaries or any other sorts of beneficiaries.
Justice Anthony Kennedy: What's your best case that you have on that in the private trustee context?
I had thought your answer was going to be that in that case, the fact that the payment is made by the trustee out of the trustee's own funds and not out of the trust funds might be dispositive and might give him the privilege.
But you -- you seem to say, in answer to the questions from the Court, that, other than this distinction you make between what the personal liability is and how he ought to manage the trust, which I think is a murky distinction, that the documents have to be disclosed.
What's your best case for that?
Mr. Gordon: Justice Kennedy, let me respond to that.
And I agree that who is paying for it -- if the trustee is paying for it out of his own or her own pocket, that is a factor that certainly should be looked at and would be entitled to -- to some weight in terms of what the purpose of the advice was for; but ultimately the issue is whether the trustee is seeking to protect personal interests, protect against a claim of liability, for example, or whether is -- the trustee is looking for advice about how to manage the beneficiary's money.
Chief Justice John G. Roberts: So I'm the trustee, and I say I would like legal advice as to whether I should renegotiate this lease with the government.
Mr. Gordon: Yes, Your Honor.
Chief Justice John G. Roberts: Now, I want that advice so I manage the trust correctly, and I'm concerned if I don't manage the trust correctly I'm going to be sued.
Now is the document from the lawyer responding to that inquiry privileged or not?
Mr. Gordon: I think, Your Honor, that if it focuses on how to manage it properly, then -- and it's prospective, then I think that the -- it -- it is not privileged.
If, instead, you posit, you know, this is what I did and I'm concerned I may have screwed up, do you think I'm liable, then I think a different answer may obtain.
Chief Justice John G. Roberts: So if he says this is what I did and I might be liable, it's privileged.
If he says this is what I'm going to do--
Mr. Gordon: Please tell me what to do, yes.
Justice Anthony Kennedy: Which means you can't get preventative advice, which is one of the most important kinds of advice an attorney can give.
Mr. Gordon: Well, Your Honor, I agree preventative advice is the most -- is among the most important one can give.
But why should the government be in a different position with regard to this than the private beneficiary?
Justice Stephen G. Breyer: I have a question on that particular point, and there may be an obvious answer to this which I just couldn't find.
But if the lawyer is in the government and he writes a memo, then -- and if it's available to a litigant who litigates against the government, as it would be here, then why isn't it available to the entire world via the Freedom of Information Act?
Mr. Gordon: Your Honor, the Court said in the Sears decision, which is the cited in our brief -- I believe it's in footnote 16 -- that citizens' access rights under FOIA are not necessarily coextensive with--
Justice Stephen G. Breyer: That's certainly true, they're not.
But I just wonder, what is it in FOIA that would make this not available to the world?
Mr. Gordon: --That, Your Honor, and also the fundamental--
Justice Stephen G. Breyer: Well, that just -- that just says it may or may not be coextensive.
Reading the statute, it says you have to make all interagency or all memos available of a certain type, which I think this would fall into.
Then exception 5 protects, among other things, attorney-client memos that are privileged because they're inter-agency or intra-agency memos that would not be available by law to a party other than an agency in litigation.
Mr. Gordon: --Right.
Justice Stephen G. Breyer: Now, they are available if you win.
And so, if you win that exception doesn't seem to apply.
And if it doesn't seem to apply, that's what was -- then the whole world can get this memo.
And what I'm wondering is there must -- either there is a very obvious answer to that, which there could be, or there isn't.
If there is an obvious answer, that's the end of it.
Mr. Gordon: I would say--
Justice Stephen G. Breyer: If there isn't an obvious answer, I'll have to go away and worry about it.
Mr. Gordon: --I would say, Your Honor, that this Court's decision in Julian, where it said that different classes of persons may have different rights under FOIA -- the right we are talking about here is the right of the beneficiaries.
We're not talking about the citizen's right to see how Indian trust monies have been managed.
Justice Stephen G. Breyer: I know you don't want that, and what I'm looking is how you prevent that.
Mr. Gordon: But I believe that under the precedent in Julian, that it would be that what we're talking about here is access to Indians whose money is being managed.
Justice Samuel Alito: If we assume for the sake of argument that a private trustee may, using the private trustee's own fund, hire an attorney to obtain prospective advice about liability, does that doom your argument here for the reason that the government claims it has no ability to set up a system like this, to have some attorneys in the solicitor's office provide advice regarding the management of the funds and other attorneys in the solicitor's office provide advice regarding -- regarding the possibility of prospective liability in light of all of these suits that you mentioned?
Mr. Gordon: Well, Your Honor, again I come back that the trustee is entitled where the issue is liability, rather than how to manage the money.
The -- that gets into an area that would not be subject to the fiduciary exceptions.
So if that is the focus of the advice, a private beneficiary wouldn't have to give up that advice and we don't contend that the government should, either.
But where, as here, all of the documents are general documents that deal generally with how to manage Indian trust funds--
Justice Antonin Scalia: --Again, as the Chief Justice pointed out, that seems to me an artificial distinction.
What I ask from -- for from the attorney is advice as to how I can manage the trust so as to avoid liability.
I mean, the -- the two are connected.
You can't separate out advice as to how to manage, how to manage the trust from advice as to how to avoid liability.
In the -- in the context of asking, of a trustee's asking advice, the two are the same.
Mr. Gordon: --Well, Your Honor, at -- at some logical level there is a link there that can never be severed, but I submit, respectfully, that the government, when it's getting advice about managing trust funds, is not really focused on its liability.
The government's liability, after all, is much more circumscribed than private fiduciaries, in any number of ways.
It is seeking legal advice about what is the proper way to invest, can we do this, can we pool funds, can we do -- you know, can we make a certain type of investment or is it prohibited to us.
And advice of that nature is advice to which the beneficiary is entitled.
A private beneficiary -- the beneficiaries of private trusts are entitled, and Indians, whose money is being managed because the government has taken on itself by statute and said, we are going to take control of your monies and we're going to manage them, have no lesser right to get access to this highly relevant information when they litigate for breach of trust.
Justice Ruth Bader Ginsburg: You make a distinction, I -- I take it, between attorney-client privilege and work product.
Initially, you were seeking both on the theory that the tribe is in fact the client, but apparently you are not pressing that point any more about work product?
Mr. Gordon: In fact, Your Honor, there is some case law that says the fiduciary exception can be applied to -- to work product.
We did not press that point in the Court of Federal Claims.
We -- focused our request for documents on attorney-client, not on work product.
Chief Justice John G. Roberts: --So under your theory if there's a claim of privilege on -- on -- on the government's behalf, presumably the district court would conduct an in-camera review to determine whether it was retrospective for liability or prospective for responsibility?
Mr. Gordon: Yes, Your Honor, which is exactly what happened here.
The Court of Federal Claims reviewed all of the documents in camera and made a document-by-document determination, which is, of course, the standard approach when you're talking about attorney-client privilege.
It's done on a document by document basis.
Justice Antonin Scalia: Did it do -- did it do on that basis, retrospective versus prospective?
Mr. Gordon: It didn't come up, Your Honor, because there weren't any retrospective wants.
Justice Sonia Sotomayor: There were no prospective, is that -- did you--
Mr. Gordon: They're all prospective, Your Honor.
They're all prospective.
Chief Justice John G. Roberts: Well, they -- they could be retrospective, too, right?
The government exposes itself to liability, obviously, in these areas as well.
That's the basis for your suit, right?
Mr. Gordon: --Yes, Your Honor.
The -- I want to pick up, I believe it was on a comment that you made, Justice Sotomayor, when you said that under the government's theory there would be no need for Rule 501.
And indeed, they say that it's not enough.
501 on its face says apply common law principles.
And the government's argument is that's not enough unless there's some other statute that requires common law principles to be applied to this.
Now, this is a neat trick.
You just read 501 out of the Rules of Evidence when it comes to the government, notwithstanding that 501 itself says it's to be used to determine privilege claims by the government, and that's reinforced in Federal Rule of Evidence 1101, which specifically says that the Rules of Evidence are to apply in the Court of Federal Claims.
Chief Justice John G. Roberts: I suppose the government as a whole has an obligation to act in the best interests of the citizenry, right?
Why doesn't the same theory apply to any citizen?
Look, government, you're supposed to -- you're acting in a fiduciary statute -- status with respect to me.
You're supposed to be acting in my best interests.
If you're getting advice from the, you know, Department of Justice about what to do, I'm entitled to get that.
Mr. Gordon: Your Honor, it -- I think that that could pick up on the same distinction that the Court has already drawn in Mitchell 1 and Mitchell 2, between bare trust and a full-fledged trust.
The government may have a general duty to act in the interests of all citizens.
Indeed, I think we would all agree with that.
But that does not mean that the government is engaging in the conduct of a full-fledged trust with respect to citizens.
Its relationship to citizens day in and day out is akin to, in fact maybe even a level below, the bare trust relationship that was at issue in Mitchell 1.
So, we're not proposing a -- a sweeping new rule here.
It's the government that's proposing to transform this Court's jurisprudence about Indians, because the notion that the only enforceable obligations it has are those set forth in statute or regulation, were the Court to adopt that, it would be overruling its decision in White Mountain Apache.
Chief Justice John G. Roberts: Are there any other -- are there any other areas in which the government's relationship to particular groups of citizens is that of fiduciary to beneficiary?
Mr. Gordon: Yes, Your Honor.
Chief Justice John G. Roberts: What are some of those?
Mr. Gordon: Well, the -- the principal one we could find, which is cited in our brief, is with respect to government retirees who make voluntary contributions to their fund, and the government's argument here could be applied to them.
Chief Justice John G. Roberts: And your argument could be applied to them?
Mr. Gordon: Yes, Your Honor, and I'm happy for it to be.
I believe it should be.
Chief Justice John G. Roberts: So if I'm a government retiree, I have the ability to get the legal advice that whoever it is that runs that trust gets?
Mr. Gordon: Yes.
I might add, Your Honor, fortunately it's not the Bureau of Indian Affairs that runs that.
Justice Stephen G. Breyer: Does that happen a lot?
I mean, I -- I -- I'm not -- does that happen a lot?
I mean, are there a lot of instances where the lawyers who work for all -- the retirement funds are huge.
There must be cases coming up all the time.
And all the advice of the lawyers is just available--
Mr. Gordon: Your Honor, no, frankly it hasn't come up that much with -- in terms of Federal retirees.
There's the Cavanaugh v. Wainstein case that we cite in our brief which is about the only published decision I've been able to find.
The fact of the matter, I -- I was being humorous a moment ago, but the fact of the matter is that the government retirement funds have been, it appears, run quite well and there have been relatively few claims brought against them.
There's a reason that there are a bunch of pending cases regarding Indian--
Justice Stephen G. Breyer: --I know that.
I'm just worried about the -- the attorney-client privilege is somewhat sacred, and suddenly making everything available to the whole public has got me worried.
And I looked at that Sears case.
I didn't see anything there that eases my concern.
And then you referred to a different case, the name of which I forgot, and I could not find.
Mr. Gordon: --That's the Julian case, Your Honor.
Justice Stephen G. Breyer: Is that in the--
Mr. Gordon: I'm sorry, it's not cited in our brief.
Justice Stephen G. Breyer: --How am I going to find it?
I couldn't get how you spell it.
Mr. Gordon: I will -- it -- 486 U.S. 1, 1988, Your Honor.
The -- there is another inconsistency in the government's position here that I would like to highlight for the Court, if I may.
That is this: The government relies on the common law in the first place to say it has a privilege.
There's no statute that gives the government attorney-client privilege.
So it relies on common law saying: We have an attorney-client privilege.
Now, that's fine under Federal Rule 501.
But the government says, while it can rely on common law, Jicarilla cannot rely on that same common law to establish the limits on the privilege it's claiming.
This Court described that sort of argument as
"heads I win, tails you lose. "
and said that it can't be right.
And I submit that it can't be right here.
Justice Ruth Bader Ginsburg: The government is maintaining throughout that it wears two hats.
On the one hand it is a guardian or a trustee, and on the other hand it is the sovereign.
So it's the latter, the government's claim that it is the sovereign, that makes the difference, it's not the--
Mr. Gordon: --I agree, Your Honor, that that's their claim.
But the government hasn't shown how the fact that it is the sovereign, which we certainly concede, makes any meaningful difference for purposes of the issue presented here.
The cases it cites establish that the government, because it is sovereign, in some instances has broader authority than a private trustee would to help out the beneficiary.
And I believe that that is--
Justice Anthony Kennedy: But it also has broader authority, and that's just their point, I take it, for many other areas.
The sovereign can't easily divest itself of its responsibilities.
A trustee can so conform and shape its business that it doesn't have conflicts.
A government just can't do that.
Mr. Gordon: --Well, Your Honor, I agree, but the issue of conflicting, competing interests, first of all it arises in the private trust context and it arises frequently.
Anytime you've got a life beneficiary and a remainderman, you've got a potential conflict between the beneficiaries; and this issue of conflict has led to the development of the duty of impartiality for private trustees; and it's discussed at length in section 79 of the Restatement.
So the notion of competing interests is not unique to the government.
The government may have some different competing interests than a private trustee might have.
That's certainly conceivable.
And if it does, the existence of a specific competing interest may affect whether the action that the government takes is or is not a breach of trust.
Justice Antonin Scalia: We're not talking here about competing interests.
I mean, the example you give of -- of the life beneficiary and the remainderman, those are interests of the beneficiaries that conflict.
Mr. Gordon: That's correct, Your Honor.
Justice Antonin Scalia: We're talking here about an interest of the trustee that conflicts with what he is supposed to do, with respect to the person who is the beneficiary of the trust.
That -- that's a totally different situation.
Mr. Gordon: Well, Your Honor, I submit that it's not totally--
Justice Antonin Scalia: And ordinarily if there is that kind of a conflict where the trustee has a personal conflict, he has to step down as trustee.
You can't continue to be trustee when you -- your own financial interests, for example, are against the financial interests of the beneficiary; right?
Mr. Gordon: --Well, Your Honor, you're positing that the trustee has a personal interest that's adverse to the beneficiary.
Justice Antonin Scalia: That's what the government asserts: I have other duties as government besides my duties to the -- to these Indians.
Mr. Gordon: That's correct.
Justice Antonin Scalia: And sometimes those duties conflict with my duties to the Indians.
Mr. Gordon: Those are competing responsibilities.
I agree that the government may have that, and that may affect whether the decision that they ultimately make is or is not an appropriate decision.
But it does not affect their duty to disclose as a matter of evidence the legal advice that they use to make that judgment.
The beneficiary, when the beneficiary's money is at stake, is entitled to see what advice the government acted on in dealing with its money.
Justice Anthony Kennedy: Is this true regardless of the fact that the government may have a very powerful interest in seeking neutral, independent advice from an attorney, and that were you to prevail that advice would become watered down?
Mr. Gordon: Yes, Your Honor.
I don't -- I submit that the ultimate balancing of interests here is the same as it is for a private fiduciary.
There is no -- the Court -- we urge the Court to affirm that under Rule 501 Indian tribes are entitled to the same evidence as other trust beneficiaries about how their money was managed.
That is our request of this Court.
Chief Justice John G. Roberts: The trustee I guess is -- is broadly conceived of as the government?
Mr. Gordon: Yes, Your Honor.
Chief Justice John G. Roberts: Well, isn't the lawyer working for the trustee then a trustee too, an employee of the trustee?
Mr. Gordon: I think that may in a theoretical sense be true, Your Honor.
But practically speaking, there's a difference between the BIA officials who are acting as the trustee and the attorneys who are advising the trustee.
Our claim is against the trustee.
It's not against the attorneys.
We are not seeking to impose any professional responsibilities on the government attorneys.
Chief Justice John G. Roberts: Thank you, Mr. Gordon.
Mr. Gordon: Thank you.
Chief Justice John G. Roberts: Mr. Shah, you have 4 minutes remaining.
REBUTTAL ARGUMENT OF PRATIK A. SHAH ON BEHALF OF THE PETITIONER
Mr. Shah: Your Honor, if I can just make three -- three points on rebuttal.
The first is with respect to Federal Rule of Evidence 501.
The government is not implementing any trick here.
This is not a
"heads you win, tails you lose. "
Our argument is simple.
We look to -- we invoke a valid attorney-client privilege.
The other side invokes a common law exception to that privilege.
Our argument is not that no common law exception is applicable to the government.
It's simply that the basis for this common law exception is not applicable, so the exception should not be applicable.
It's a very straightforward argument.
The second point I would like to make is in response to the contention that we have a full-fledged trust here as opposed to a bare trust in Mitchell.
I'm not quite sure what "a full-fledged trust" means in the Indian trust context.
Certainly there's specific investment-related duties that the statute sets forth with respect to trust funds, but this Court has made clear in -- in Mitchell and reiterated in the Navajo Nation decision that it's not enough for the statute to simply set forth the statutory duties, but it must define, and this is a quote,
"define the contours of those duties. "
The statutes at issue, section 161a, 162a, do nothing of the sort.
They don't even set out a general disclosure obligation, let alone the contours of any such disclosure obligation.
But even if we were to disregard this Court's precedents in Mitchell and in Navajo Nation, and we were to resort to the common law to flesh out the nature of the responsibilities, again there's nothing from the discrete investment obligations that are set forth in those statutes that would lead to a general disclosure obligation, let alone an intrusive obligation to disclose the government's attorney-client communications.
And there's good reasons to think that Congress did not apply such an obligation when it has set forth a fairly reticulated statutory and regulatory regime governing disclosures, and with respect to other statutes.
For example, the 1982 Indian Claims Limitation Act specifically addressed privileged versus nonprivileged information.
The last point I would make goes to the general duty to disclose.
Whether that's contingent simply on payment, ownership or other factors.
While it may not be the case that the payment is the sole factor, it's certainly an important factor, and I think as my friend responded in response to Justice Kennedy, if in fact the private trustee is paying for the legal advice on their own, that's going to be a significant consideration as to whether the beneficiary can get it.
And as Justice Scalia pointed out, the lines are not always going to be clear between trust administration advice and liability advice.
In fact, they're often going to run into one another.
Beyond payment, I think the even more important factor here is the ownership of the records.
While payment is indicative of ownership, when we're talking about the government context, payment is not the only reason why we say that the government owns the records that result from legal advice or any other trust administration facet.
That's set forth by statute and regulation, the Federal Records Act, and the Interior Department regulations that are set forth in the appendix of the brief.
The reason why I think--
Chief Justice John G. Roberts: If I -- if I pay -- if I pay a lawyer to prepare a document for me, is that -- I do own that document or does the lawyer?
Mr. Shah: --I think as a general -- I think as a general matter, one would think that the client would -- it would belong to the client, at least in the sense that the client would have full access to that document.
And I think that's a fundamental distinction here, that we're not -- because the -- these are governmental records, they're subject to the statutory and regulatory regime that governs disclosure of government documents, either specific disclosure obligations set forth by Congress, Interior Department regulation or the more general Freedom of Information Act.
Justice Sonia Sotomayor: But aren't you confusing, just following up on the Chief Justice's, ownership with access?
FOIA itself doesn't make these records less -- the government doesn't own them less merely because FOIA requires them to share it with other people.
So the ownership interest is not the defining legal obligation.
Mr. Shah: You're absolutely correct.
The fact that they're accessible by FOIA does not -- does not change the government's ownership of those records, but the fact that Congress is able to set forth a scheme like FOIA is turned on the fact that these are government records that are owned by the government.
Because they're government records, it's Congress and it's the Interior Department that decides when to disclose them and under what circumstances to disclose them.
The tribe's rule here would eviscerate that very reticulated statutory and regulatory regime.
Thank you, Your Honor.
Chief Justice John G. Roberts: Thank you, Mr. Shah, and Mr. Gordon.
The case is submitted.
Justice Samuel Alito, Jr.: This case comes to us on a writ of certiorari to the United States Court of Appeals for the Federal Circuit.
The Jicarilla Apache Nation filed a breach of trust action in the Court of Federal Claims, seeking monetary damages for the Government's alleged mismanagement of the Tribe's trust funds.
During discovery, the Tribe moved to compel production of certain documents and the Government asserted the attorney-client privilege.
Court of Federal Claims granted the motion impart holding that communications relating to the management of trust funds fall within a fiduciary exception to the attorney-client privilege.
Under that exception, which courts have applied to common-law trusts, a trustee who obtains legal advice related to trust administration is precluded from asserting the attorney-client privilege against trust beneficiaries.
The Government petitioned the Court of Appeals for a writ of mandamus which the Court denied.
The Court of Appeals held that the trust relationship between the United States and the Indian tribes is sufficiently similar to a private trust to justify applying the fiduciary exception.
The analogy between the Government and a private trustee cannot be taken too far.
The Government's trust obligations to the Tribes are governed by a statute, not the common law.
In fulfilling in statutory duties, the Government acts not as a private trustee but pursuant to its sovereign interest in the execution of federal law.
The two criteria, justifying the fiduciary exception, are therefore absent in the context of this trust.
Because its sovereign interest is distinct from the beneficiaries' private interest, the Government seeks legal advice in its own rather than a fiduciary capacity.
In this case, the relevant statute delineates specific disclosure obligations of the Government to the Tribe.
Common law does not override the specific trust-creating statute and regulations that apply here.
We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
Justice Ginsburg has filed an opinion concurring in the judgment in which Justice Breyer has joined.
Justice Sotomayor has filed a dissenting opinion.
Justice Kagan took no part in the consideration or decision of this case.