The Great Plains Tribal Chairman’s Association (GPTCA) supports the Jicarilla Apache Nation and requests that the United States honor the decision of the Federal Circuit Court and not appeal to the U.S. Supreme Court in the case of Jicarilla Apache Nation v. United States, 88 Fed. Cl. 1 (2009), aff’d sub nom., In re United States, 590 F.3d 1305 (Fed. Cir. 2009), a case involving the trust responsibility of the United States to Indian tribes.
WHEREAS, the Great Plains (formerly Aberdeen Area) Tribal Chairman’s Association (GPTCA) is comprised of the elected Chairs and Presidents of the 16 Sovereign Indian Tribes and Nations recognized by Treaties with the United States that are within the Great Plains Region of the Bureau of Indian Affairs; and
WHEREAS, the Great Plains Tribal Chairman’s Association was formed to promote the common
interests of the Sovereign Tribes and Nations and their members of the Great Plains Region which comprises the states of North Dakota, South Dakota, Nebraska; and
WHEREAS, the United States has obligated itself through Treaties entered into with the Sovereign Tribes and Nations of the Great Plains Region and through its own federal statutes, Laws, the Constitution, international law and well articulated policies; the United States has pledged to protect Indian Tribes; guarantee the right of Tribal self-government, protection and safety, and to promote the viability of Indian reservations and lands as permanent homelands for Indian Tribes, and
WHEREAS, on September 10, 2010, the Tribal Chairmen from the five Tribal Nations that are members of United Tribes of North Dakota and who also comprise the Membership of the Great Plains Tribal Chairman’s Association (GPTCA) met and took action, and
WHEREAS, since the September 10, 2010 action by the ND Tribes, the GPTCA has concurred and approved this action by Resolution, and
WHEREAS, the United States government manages over 56 million acres of land and billions of dollars in other assets belonging to American Indian tribes and individual Indians; acting as trustee over this property, which requires the U.S. to manage the property prudently on behalf of the tribes and individual Indians who are the real owners; and
WHEREAS, the Jicarilla Apache Nation has sued the United States in the Federal Court of Claims, seeking an accounting and recovery for monetary loss and damages relating to the Federal government’s alleged mismanagement of the Nation’s trust assets and other funds, including claims that the United States 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; and
WHEREAS, in the litigation, the United States has refused to provide the Jicarilla Apache Nation with information related to the Federal government’s management of tribal trust assets, based on a theory of “attorney-client privilege.”
WHEREAS, it is well established that a trust beneficiary is entitled to know about communications between its trustee and an attorney regarding the management of trust assets, and this rule, known as the “fiduciary exception” to the attorney-client privilege, has been held by all federal courts to have considered it to apply to the United States; and
WHEREAS, the United States has argued that the “fiduciary exception” should not apply to it, and that it should be entitled to keep secret any advice that it receives from government attorneys about managing Indian trust assets; and
WHEREAS, specifically, the Federal Circuit Court of Appeals held that, under the fiduciary exception to the attorney-client privilege, a trustee (in this case, the United States), may not withhold from the beneficiary (the Jicarilla Apache Nation) any advice from an attorney (e.g., the Solicitor’s Office within the Department of the Interior or the Department of Justice acting as the attorney for the U.S.) about the management of trust assets. As the court explained, the justification for the fiduciary exception is two-fold. First, the trustee, or fiduciary, (the U.S.) is not the exclusive client of the attorney (e.g., Solicitor’s Office or DOJ) rendering advice, but rather is obtaining that advice as a proxy for the trust’s beneficiaries (the Jicarilla Apache Nation, or any Tribal Nation with trust property held by the U.S) Thus, the trustee does not enjoy the attorney-client privilege in the first instance. Second, the trustee (the U.S.) has a duty to disclose all information related to trust management to the beneficiary (the Nation).This duty overrides the attorney-client privilege, especially where the information sought by the beneficiary (the Nation) is relevant to an alleged breach of a fiduciary duty by the trustee (the U.S.); see, Jicarilla Apache Nation v. United States, 88 Fed. Cl. 1 (2009), aff’d sub nom., In re United States, 590 F.3d 1305 (Fed. Cir. 2009); and
WHEREAS, the Federal Circuit Court of Appeals in its decision requires disclosure of documents subject to the “fiduciary exception”, which contain legal advice given to the Interior Department about acceptable investments for the Jicarilla Nation’s trust assets and the proper procedures for making those investments, information to which the Jicarilla Nation is entitled; and
WHEREAS, the GPTCA supports the Jicarilla Apache Nation in this Case and many of the Tribal Nations of the Great Plains have cases similar to that of the Jicarilla Apache Nation pending before various federal courts in the United States; and
WHEREAS, the decision of the U.S. to appeal the Federal Circuit Court of Appeals decision in the case of the Jicarilla Apache Nation trust mismanagement case must be made by the United States within the next few days.
NOW THEREFORE BE IT RESOLVED, that the GPTCA hereby requests the Obama Administration and the U.S. Department of Justice not to appeal to the U.S. Supreme Court the decision of the Federal Circuit Court of Appeals in the case of the Jicarilla Apache Nation cited above, since the issues presented in that case are critical to all of the trust mismanagement cases brought by Tribal Nations in recent years, most of which are still pending; and
NOW THEREFORE BE IT FURTHER RESOLVED that the member Tribes of GPTCA are encouraged to pass similar resolutions that request the President Obama Administration not to appeal the Federal Circuit Court of Appeals Jicarilla Apache Nation case to the U.S. Supreme Court; and
NOW THEREFORE BE IT FURTHER RESOLVED that this resolution, as adopted by the GPTCA, should be submitted electronically as quickly as possible to the White House, to the Department of Justice and to anyone else that is a decision maker regarding the decision to appeal the Jicarilla Apache Nation case to the U.S. Supreme Court; and
NOW THEREFORE BE IT FINALLY RESOLVED that this resolution shall be the policy of GPTCA until otherwise amended or rescinded, or until the policy objectives of this Resolution are accomplished.
Resolution No. 30-09-14-10
This resolution was enacted at a duly called meeting of the 5 North Dakota Tribes who are members of the Great Plains Tribal Chairman’s Association and a succeeding quorum vote was held on September 14, 2010 by the Great Plains Tribal Chairman’s Association in which official action was taken with a vote of 8 Tribal Chairman voting in favor and 0 voting against.
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