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Indian Nations Law Update - June 2011

June 16, 2011

Supreme Court Holds that Attorney-Client Privilege Protects Interior Department Legal Advice from Tribe's Discovery Demand

On June 13th, in U.S. v. Jicarilla Apache Nation, 2011 WL 2297786 (U.S.), the Supreme Court reversed a lower court's ruling that required disclosure of confidential internal Interior Department communications to a tribe. The Jicarilla Apache Nation (Tribe) had sued the government for breach of fiduciary trust. In the course of the litigation, the Tribe sought discovery of documents containing advice from the Interior Department's Solicitor's Office relating to the government's management of the Tribe's trust assets. The Federal Circuit Court of Appeals ruled that disclosure was required but the Supreme Court disagreed, holding that, to the extent that there existed a common law "fiduciary" exception to the attorney-client privilege that might otherwise prevent a trustee from withholding from trust beneficiaries attorney-client communications relating to administration of trust, the exception did not extend to the federal government in its capacity as trustee of Indian funds: "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."

Forest County Potawatomi Wins Renewable Energy Grant

Focus on Energy, a consortium of private and public sector organizations promoting energy efficiency and renewable energy projects, has awarded the Forest County Potawatomi Community (Tribe) a $250,000 grant to help the Tribe purchase and install an anaerobic biogas digester and biogas energy cogeneration facility on tribal lands. The digester and cogeneration facility are part of a larger, long-term energy self-sufficiency initiative for which the Tribe previously received a $2.6 million competitive grant from the U.S. Department of Energy. The biodigester will process food waste into methane gas. The generator will convert the gas into energy that will power both the generator itself and other tribal facilities. The $250,000 grant was the largest award made by Focus on Energy. Godfrey & Kahn was proud to be part of the team that prepared the Tribe's successful Focus on Energy and Department of Energy applications. For more information regarding renewable energy opportunities for tribes, contact Brian Pierson ( or 414.287.9456) or John Clancy ( or 414.287.9256).

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