Amicus Curiae Brief — Department of Interior v. Klamath Water Users Protective Assn.

DEc 13 2°00

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No. 99-1871

In The

Supreme Court of the United States

+

UNITED STATES DEPARTMENT OF THE

INTERIOR AND BUREAU OF INDIAN AFFAIRS,

Petitioners,

KLAMATH WATER USERS

PROTECTIVE ASSOCIATION,

Respondent.

e

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

S

BRIEF OF AMICUS CURIAE CITY OF

TACOMA, WASHINGTON

IN SUPPORT OF RESPONDENT

°

J. RicHarp CREATURA

Counsel of Record

GorDON, THOMAS, HONEYWELL,

MALANCA, PETERSON &

Dauner, P.L.L.C.

1201 Pacific Avenue

Suite 2200

Tacoma, Washington 98401-1157

(253) 572-5050

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

I. QUESTION PRESENTED

Should this Court adopt a new trustee-beneficiary

privilege for the purpose of protecting communications

between Indian tribes and the United States?

TABLE OF CONTENTS

Page

I. QUESTION PRESENTED..............+eeeeee: i

II. INTEREST OF AMICUS CURIAE.............. 1

Ill. SUMMARY OF THE ARGUMENT............. 3

BV, ARGRIRGIINT . «oo ccccccccceceussess0000ee 5

(A) Communications between a trustee and

beneficiary are not privileged .......... 5

(B) The federal trust responsibility to tribes

does not compel heightened protection of

re rn 8

(C) The creation of a trustee-beneficiary

privilege will adversely impact the pub-

Be amd Che Gel . ooo scnes0eseeeee eee 13

YY, CORCLEIIIIIN ...ccccccccscseseese ee 15

TABLE OF AUTHORITIES

Page

Cases

Aiena v. Olsen, 194 F.R.D. 134 (S.D.N.Y. 2000)......... 8

Couch v. United States, 409 U.S. 322 (1973)............ 7

Department of the Air Force v. Rose, 425 U.S. 352

PEEP PDEPERERGGSEGES SCS Ceceecccecccccecess 14

Havasupai Tribe v. United States, 752 F. Supp. 1471

(D.Ariz 1990), aff'd sub. nom. Havasupai Tribe v.

Robertson, 943 F.2d 32 (9th Cir. 1991), cert. denied

sub. nom. Havasupai Tribe v. United States, 503

eee ee ee as accceseccccccccccscs OF

rr 7

In re Grand Jury, 103 F.3d 1140 (3d Cir.), cert. denied

sub nom. Roe v. United States, 520 U.S. 1253

EEL EESSE SE EES LESSEE ESOT OTTTTTETT TTT 7

In the Matter of a Grand Jury Subpoena, 722 N.E. 2d

EEE ESE IEEE PPT TTT TTT TTT 7

Jaffee v. Redmond, 518 U.S. 1 (1996)..............05. 5, 7

Lincoln v. Vigil, 508 U.S. 182 (1993)..............605. 12

Linde Thomson Langworthy Kohn & Van Dyke, P.C. v.

Resolution Trust Corp., 5 F.3d 1508 (D.C.Cir.1993) ..... 8

Morongo Band of Indians v. Federal Aviation Admin.,

161 F.3d 569 (9th Cir. 1998). 2.0.0.6... 6c c cece 10, 11

Navajo Tribe of Indians v. United States, 624 F.2d 981

PERE PeRGGRGeeesececcccccccccccecccces 11

North Slope Borough v. Andrus, 642 F.2d 589

EEE PPT TTTTTLTTITTLT TELE 9, 11

iV

TABLE OF AUTHORITIES - Continued

Page

Oneida Indian Nation of New York v. New York, 691

F.2d 1070 (2d Cir. 1982) ........ 22 ec cece cece eee eeee 2

Petersen v. Douglas County Bank & Trust Co., 967

F.2d 1186 (Othe Cir.1992)... 0... cercccccccccccccccess 8

Pyramid Lake Paiute Tribe of Indians v. Morton, 499

F.2d 1095 (D.C. Cir. 1974), cert. denied, 420 US.

GER CITGED.. co vccccccccccccccessccccesesecsseescecs 12

Rosenblatt v. Northwest Airlines, Inc., 54 F.R.D. 21

PEASE ZIG ED occ cccccccccvcsecctecescccessccecesce 8

Shoshone-Bannock Tribes v..Reno, 56 F.3d 1476 (D.C.

Cie, BOTED ccc cccccccsccccccecccsecsccccssosescoves 12

Skokomish Tribe v. Federal Energy Regulatory

Comm'n, 121 F.3d 1033 (9th Cir. 1997)........... 1, 11

Smith v. B & O R. Co., 473 F.Supp. 572 (D.Md.

FOP Dic ccccccccccccccccesessccscceecesceesesesseeces 7

Sneirson v. Chemical Bank, 108 F.R.D. 159

Sk ererrerrrrrrrrrrr rrr rrr 8

State v. Maxon, 756 P.2d 1297 (Wash. 1988)........... 7

Trammel v. United States, 445 U.S. 40 (1980)........... 5

United States v. Arthur Young & Co., 465 U.S. 805

GRIDDED oc ccccccccccccccccoccccccccccescossescccesues 7

United States v. Bein, 728 F.2d 107 (2d Cir.) cert.

denied sub. nom. DeAngelis v. United States, 469

OIG. GP CIGD oc cccnccccsccccccccccccevecosecseses 7

v

TABLE OF AUTHORITIES - Continued

Page

United States v. International Brotherhood of Teams-

fore, UBD FBS ZED GOS Cie. BOGP pa « cc cccccccccccccces 6

United States v. Bryan, 339 U.S. 323 (1950)............ 6

United States v. Cherokee Nation of Oklahoma, 480

ae GU GENE coddencencancncedescseeséacenseenes 9

United States v. Keeney, 111 F.Supp. 233

(D.D.C.1953), rev'd on other grounds, 218 F.2d 843

is GP WO oc nviccccecscncccessusisaveeaeséncss 7

United States v. Mitchell, 445 U.S. 535 (1980)....... 9, 10

United States v. Mitchell, 463 U.S. 206 (1983)....... 9, 10

United States v. Nixon, 418 U.S. 683 (1974)............ 6

United States v. Prevatt, 526 F.2d 400 (5th Cir. 1976) ..... 8

United States v. Shoshone-Bannock Tribes, 229 F.3d

1161, 2000 WL 915398 (9th Cir. July 7, 2000)...... 11

University of Pennsylvania v. EEOC, 493 U.S. 182

GEESE o vocncevnvadesecenocssonsceuchesssenseuaceces 6

White Mountain Apache Tribe v. United States, 46

Pe BP GD CONE ccc cccccceccccccscesscess 12

STATUTES AND RULES

OE I icc ccccuccucecncunccnenss 5

I oy sock scacdiasnccassannanunanacin 7

7 ocasnanshabadawanadexcoceasuns 14

28 U.S.C. § 2415(a) .......... cece eeeeeeeeuceeeeeeeees 2

48 Fed. Reg. 13698 (Mar. 31, 1983)................00. 2

PU Gh, COUR, TE ve vcccccscnccccevcnnssecncenescocees 5

vi

TABLE OF AUTHORITIES —- Continued

Page

OTHER

~~” Executive Order No. 13,084, 63 Fed. Reg. at 27,655

SE Eb SEU Ke chdsseckbKecheweudeseascaccasesas 12

Executive Order No. 13,175, 65 Fed. Reg. 67249

I 13

Encarta World English Dictionary (visited Dec. 8,

2000) <http://dictionary.msn.com.> ................ 5

:

|

is

Il. iNTEREST OF AMICUS CURIAE

The City of Tacoma, population 185,000, is the third

largest city in the State of Washington. Founded in 1884,

the City has played an integral role in the development of

the Pacific Northwest.

In the early 1920s, as part of the regional effort to

spur settlement and development, Tacoma applied for

and obtained a license to construct the Cushman Hydro-

Electric Project on the North Fork of the Skokomish River.

The Skokomish Indian Tribe claims that the Cushman

Project has adversely impacted its treaty fishing rights

along the Skokomish River and led to sedimentation and

flooding problems.

Pursuant to the Federal Power Act, the Cushman

Project was subject to relicensing in 1974. In 1975, the

Skokomish Tribe intervened in the relicensing proceed-

ings. Since that time, the relicensing has been the subject

of litigation involving Tacoma, the Skokomish Indian

Tribe, and numerous environmental groups and state and

federal agencies. FERC Cause No. 95-70884. During the

course of litigation the Tribe has accused FERC of violat-

ing a fiduciary responsibility to the Tribe by not acting in

the Tribe's interest. See, e.g., Skokomish Tribe v. FERC, 121

F.3d 1303, 1308 (9th Cir. 1997).

In November 1999, the Skokomish Tribe filed a law- -

suit against Tacoma that seeks $5.8 billion in damages

allegedly caused by construction and operation of the

Cushman Project. The alleged period of damages spans

from the initial construction in the 1920’s to the present

and into the indefinite future. The Tribe included the

United States as a codefendant and alleged, among other

_—

things, that the United States had breached its fiduciary

duty to the Tribe by refusing to bring a lawsuit against

Tacoma for damages on behalf of the Tribe. The United

States was dismissed from the lawsuit on May 26, 2000.

During the course of relicensing litigation and the

more recent litigation concerning alleged damages, Tac-

oma submitted a number of Freedom of Information Act

requests to the Department of Interior and its constituent

agencies. Tacoma’s principal request sought all docu-

ments reflecting, referring or relating to the claims of the

Skokomish Indian Tribe under the Indian Claims Limita-

tion Act (“ICLA”). That Act required tribes wishing to

pursue pre-1966 claims for damages against a private

entity, such as Tacoma, to register that claim with the

Bureau of Indian Affairs. 28 US.C. § 2415(a); Oneida

Indian Nation of New York v. New York, 691 F.2d 1070, 1084

_= 2d°Cir.}982). Failure of a tribe to file that claim by the

statutory deadline would result ina waiver of the claim.

On March 31, 1983, the United States published a notice

listing such tlaims filed by the Skokomish Tribe and its

members, 48 Fed. Reg. 13698, 13912 (Mar. 31, 1983), five

of which might affect Tacoma’s interests. Tacoma also

sought documents relevant to the damage claims asserted

by the Tribe, including information about conservation,

fisheries, proposed mitigation, sedimentation issues and

flooding. After experiencing frustration in the FOIA pro-

cess, Tacoma recently served employees at the Depart-

ment of Interior with subpoenas requesting production of

the same documents.

To date, no documents relating to claims filed by the

Skokomish Tribe pursuant to ICLA or about the Tribe's

alleged damages have been produced by the Department.

<n

SS eee

_— =

Although Tacoma and the Department are attempting to

resolve their differences, the U.S. Attorney has advised

Tacoma that the Department may not produce documents

similar to those that are the subject of this litigation

under the so-called doctrine of “non-acquiescence.”

Tacoma seeks to relicense the Cushman Project and to

defend itself against the allegations made by the

Skokomish tribe. These efforts may be adversely

impacted if this Court creates a new trustee-beneficiary

privilege that prevents the disclosure of communications

between tribes and the United States.

Ill. SUMMARY OF THE ARGUMENT

Exemption 5 of the Freedom of Information Act pro-

tects information not available by law in litigation. Thus,

Exemption 5 protects material produced through privi-

leged communications. Communications between a tribe

and the United States, however, have never been consid-

ered privileged. While there is a trust relationship

between the tribes and the United States, that relation-

ship, in and of itself, does not create a privilege from

disclosure under the ordinary rules of discovery.

The Petitioner and various amici would have this

Court paint with a broad brush - so long as the communi-

cation between the United States and the Indian tribes is

“within the confines of a trust relationship,” then the com-

munication is privileged. See, e.g., Brief Amicus Curiae of

the Campo Band of Mission Indians et al., at 11, 15, 16, 17,

18, 20 (emphasis in original). Presumably, this approach

would implicate literally all communications between the

tribes and the United States.

The Petitioner's position ignores general trustee-ben-

eficiary law, which does not recognize a trustee-benefici-

ary privilege. Indeed, every court throughout the country

that has considered the question has ruled that privileges

should be narrowly construed and should not be added

upon nor enlarged except in exceptional circumstances.

The Petitioner's approach also pays short shrift to the

sizable body of federal law that distinguishes between

the government's general, “bare trust” responsibilities

and its special trust responsibilities. Only the latter estab-

lish a legally enforceable fiduciary relationship. Even a

special trust responsibility, however, does not give rise to

privileged communications.

If this court chooses to expand the trustee-beneficiary

privilege, access to important information that should be

available to all would be curtailed. Restricting access to

this information could adversely affect public resources,

including fishing rights and water rights. Communica-

tions between the United States and the tribes should not

be subject to any different standards than the standards

to which all other parties are subject. In this respect, the

tribes are entitled to no better, and no worse, treatment

than the rest of us.

IV. ARGUMENT

(A) Communications Between a Trustee and Bene-

ficiary are Not Privileged.

Exemption 5 of the Freedom of Information Act

(“FOIA”) shields from disclosure “intra-agency or intra-

agency memorandums or letters which would not be

- Or

available by law to a party other than an agency in

litigation with the agency.” 5 U.S.C. § 552(b)(5).

Petitioner and the tribes obscure the true nature of

‘the relationship between the United States and the

Klamath Tribe. A tribe is clearly not a federal agency; it is

a discreet, quasi-sovereign entity. Nor is a tribe an

agency's “consultant” under the generally accepted defi-

nition of that term. “Consultant,” as defined by the

Encarta Dictionary, is “an expert who charges a fee for

providing advice or services in a particular field.” Encarta

World English Dictionary (visited Dec. 8, 2000) <http://

dictionary.msn.com>. Although a tribe may be knowl-

edgeable about the information it provides to an agency,

it provides this information cost-free in furtherance of its

own interests. Rather, a tribe communicates with the

United States as the beneficiary of a trust relationship

with the United States. Thus, the Petitioner essentially

asserts that the documents provided to the Department of

the Interior by the Klamath Tribes are privileged because

they were exchanged in the context of that trust relation-

ship. All other arguments are simply distractions.

Rule 501 of the Federal Rules of Evidence authorizes

the Court to define new privileges by interpreting “com-

mon law principles . . . in the light of reason and experi-

ence.” See, e.g., Jaffee v. Redmond, 518 U.S. 1 (1996) (federal

common law recognizes psychotherapist-patient privi-

lege); Trammel v. United States, 445 U.S. 40 (1980) (modify-

ing privilege against adverse spousal testimony). As this

Court has made clear, evidentiary privileges should not

be created lightly, “[iJnasmuch as ‘[t]estimonial exclu-

sionary rules and privileges contravene the fundamental

principle that the public . . . has a right to every man’s

evidence.’ ” University of Pennsylvania v. EEOC, 493 U.S.

182, 189 (1990) (quoting Trammel v. United States, 445 U.S.

40, 50, (1980) (citation omitted)).

When evaluating a claim of privilege this Court

start[s] with the primary assumption that there is a

general duty to give what testimony one is capable of

giving, and that any exemptions which may exist are

distinctly exceptional, being so many derogations from a

positive general rule.’ ” United States v. Bryan, 339 US.

323, 331 (1950) (quoting 8 J. Wigmore, Evidence § 2192, p.

64 (3d ed. 1940)). Thus, this Court should greet any

attempt to fashion a privilege lacking in historical or

statutory basis with considerable reluctance. University of

Pennsylvania, 493 U.S. at 195. The party seeking an excep-

tion from disclosure bears the burden of establishing the

existence of a privilege and its applicability to a particu-

lar case. See, e.g., United States v. International Brotherhood

of Teamsters, 119 F.3d 210, 214 (2d Cir.1997). The burden is

a heavy one, since privileges are neither “lightly created

nor expansively construed.” United States v. Nixon, 418

U.S. 683, 710 (1974).

“ae

What is entirely lacking in the Petitioner's brief, or

any of the various amici briefs submitted on behalf of the

Petitioner, is any discussion in either federal law or com-

mon law where any court has determined that communi-

cations between a trustee and a beneficiary are

- — << ~ =

privileged. In fact, no such decision exists. Thus, Peti-

tioner asserts the trustee-beneficiary privilege without

any precedence whatsoever.!

Although the Restatement (Second) of Trusts, Section

170, Comment S, provides that a trustee is under a duty

not to disclose information, this directive is a far cry from

a privilege from disclosure under the rules of discovery.

Indeed, there are many “confidential” communications

that are not “privileged” communications. These include

communications between a client and an accountant,? a

parent and a child,> an employer and an employee,‘ a

' In contrast, the psychotherapist-patient privilege recently

recognized by this Court in Jaffe v. Redmond was recognized in

some form by all fifty states and the District of Columbia. 518

U.S. at 18.

2 United States v. Arthur Young & Co., 465 U.S. 805, 816-17

(1984); Couch v. United States, 409 U.S. 322, 335 (1973); United

States v. Bein, 728 F.2d 107, 112-13 (2d Cir.), cert. denied sub. nom.

DeAngelis v. United States, 469 U.S. 837 (1984). Congress created

an extremely limited accountant-client privilege in the Internal

Revenue Service Restructuring and Reform Act of 1998. 26

U.S.C. § 7525(a).

3 In re Grand Jury, 103 F.3d 1140, 1143, 1146-1148, 1157 (3d

Cir.), cert. denied sub nom. Roe v. United States, 520 U.S. 1253

(1997); In re Erato, 2 F.3d 11, 16 (2d Cir.1993); In the Matter of a

Grand Jury Subpoena, 722 N.E. 2d 450 (Mass. 2000); State v.

Maxon, 756 P.2d 1297, 1303 (Wash. 1988).

4 United States v. Keeney, 111 F.Supp. 233 (D.D.C.1953); rev'd

on other grounds, 218 F.2d 843 (D.C.Cir.1954); Smith v. B& O R.

Co., 473 F.Supp. 572, 585-86 (D.Md. 1979).

banker and a customer,> and an insurance agent and an

insured.® All of these relationships may include some

“confidential” communication that generally should not be

made available to others. Nevertheless, when those rela-

tionships are subject to the scrutiny of discovery rules,

those communications are no longer cloaked in secrecy

and are not privileged.

In short, there is no precedent, either in common law

or statute, for creating a trustee-beneficiary privilege. As

discussed above, numerous other relationships where

confidentiality is an equal or greater concern have been

denied a special privilege. Accordingly, there is no basis

for creating a “distinctly exceptional” exemption for the

trust relationship.

(B) The federal trust responsibility to tribes does

not compel heightened protection of commu-

nications.

The Petitioner and tribes submitting amicus briefs on

behalf of the Petitioner frame the federal trust respon-

sibility as a holistic, monolithic duty that exists in every

transaction between a tribe and the United States. This

5 United States v. Prevatt, 526 F.2d 400, 403 (5th Cir. 1976);

Sneirson v. Chemical Bank, 108 F.R.D. 159, 162 (D.Del.1985);

Rosenblatt v. Northwest Airlines, Inc., 54 F.R.D. 21, 23

(S.D.N.Y.1971).

6 Linde Thomson Langworthy Kohn & Van Dyke, P.C. v.

Resolution Trust Corp., 5 F.3d 1508, 1514 (D.C.Cir.1993); Petersen

v. Douglas County Bank & Trust Co., 967 F.2d 1186, 1188 (8th

Cir.1992); Aiena v. Olsen, 194 F.R.D. 134, 136 (S.D.N.Y. 2000).

portrayal is a gross mischaracterization of this judicially

created trust relationship.

The trust relationship between the United States and

Indian tribes is normally no more than a “bare trust” that

creates no legally enforceable duty. United States v. Mit-

chell, 445 U.S. 535, 542 (1980) (Mitchell I). In some limited

circumstances, none of which occur in this case, the

United States does owe a special duty to the tribes that is

legally enforceable. United States v. Mitchell, 463 U.S. 206,

224-25 (1983) (Mitchell II). Regardless, in no circumstance

has any tribe successfully asserted a privilege from dis-

closing information based on either a general or special

trust relationship.

The nature and scope of the federal trust respon-

sibility is entirely dependent on the context of the rela-

tionship between the tribe and the United States. Thus,

while it is true that the United States acts in a fiduciary

capacity in its dealings with Indian tribal property, United

States v. Cherokee Nation of Oklahoma, 480 U.S. 700, 707

(1987), it is also true that the government's fiduciary

responsibilities necessarily depend on the substantive

laws creating those obligations. Mitchell II, 463 U.S. at

224-25; Mitchell I, 445 U.S. at 542. “Without an unam-

biguous provision by Congress that clearly outlines a

federal trust responsibility, courts must appreciate that

whatever fiduciary obligation otherwise exists, it is a

limited one only.” North Slope Borough v. Andrus, 642 F.2d

589, 612 (D.C.Cir.1980).

The variability in the trust relationship is clearly

demonstrated by this Court’s analysis in Mitchell I, 445

U.S. at 542, and Mitchell Il, 463 U.S. at 224-25. In Mitchell

I, this Court examined the General Allotment Act’s

requirement that the United States “hold the land .. . in

trust for the sole use and benefit of the” allottee. Despite

the invocation of a trust relationship, this Court held that

the Act did not create any fiduciary obligation to manage

timber resources appropriately on these allotments, since

the language and legislative history of the Act did “not

unambiguously provide that the United States has under-

taken full fiduciary responsibility as to the management

of allotted lands... .” 445 U.S at 542, 546. Conversely, in

Mitchell II this Court found that, in contrast to the “bare

trust” created by the General Allotment Act, the United

States’ extensive statutory and regulatory control over

timber resources and management on tribal lands created

a heightened responsibility akin to that of a trustee that

was enforceable at law. 463 U.S at 224. Nevertheless, the

Court never discussed nor adopted a trustee-beneficiary

privilege arising out of that special trust relationship. Nor

has any case since.

Notably, Courts have regularly rejected attempts by

Indian tribes to expand the United States’ general, “bare

trust” responsibility in the absence of a statutory and

regulatory scheme creating a heightened fiduciary rela-

tionship. Frequently, this occurs when tribes attempt to

compel the United States to grant them a special status

when enforcing general statutes and regulations. In

Morongo Band of Indians v. Federal Aviation Admin., 161

F.3d 569 (9th Cir. 1998), for instance, the Ninth Circuit

rejected the Morongo Band’s argument that the Federal

Aviation Administration, as trustee, was bound to act in

the interest of the tribe:

one

11

. . . [A]lthough the United States does owe a

general trust responsibility to Indian tribes,

unless there is a specific duty that has been

placed on the government with respect to

Indians, this responsibility is discharged by the

agency's compliance with general regulations

and statutes not specifically aimed at protecting

Indian tribes.

161 F.3d at 574. The court reached the same conclusion in

Skokomish Tribe v. Federal Energy Regulatory Comm'n, 121

F.3d 1033 (9th Cir. 1997), holding that Indian tribes were

not entitled to “greater rights that they would otherwise

have under the [Federal Power Act] and its implementing

regulations.” Id. at 1308-09.”? Similarly, the federal trust

responsibility does not require the United States to

pursue litigation on behalf of a tribe, even in disputes

” See also United States v. Shoshone-Bannock Tribes, 229 F.3d

1161, 2000 WL 915398 (9th Cir. July 7, 2000) (the Resource

Conservation and Recovery Act does not create a fiduciary duty

to enforce the Act on fee land within a reservation); North Slope

Borough v. Andrus, 642 ©.2d 589, 611 (D.C.Cir.1980) (the

Endangered Species Act and National Environmental Policy Act

did not create a heightened fiduciary responsibility to Native

Americans); Havasupai Tribe v. United States, 752 F.Supp. 1471,

1487-89 (D.Ariz 1990) (Neither the Treaty of Guadalupe

Hidalgo, the American Indian Religious Freedom Act, the

Grand Canyon National Park Enlargement Act, nor the

government's general course of dealing with the tribe created a

special fiduciary duty to the tribe), aff'd sub. nom. Havasupai

Tribe v. Robertson, 943 F.2d 32 (9th Cir. 1991), cert. denied sub. nom.

Havasupai Tribe v. United States, 503 U.S. 959 (1992); Navajo Tribe

of Indians v. United States, 624 F.2d 981, 988 (Ct.C1.1980) (the

existence of the special relationship obligating the United States

to educate Indians depends on the proper interpretation of the

terms of some authorizing document).

12

involving natural resources held in trust for a tribe. Shos-

hone-Bannock Tribes v. Reno, 56 F.3d 1476, 1483 (D.C. Cir.

1995); Pyramid Lake Paiute Tribe of Indians v. Morton, 499

F.2d 1095, 1097 (D.C. Cir. 1974), cert. denied, 420 U.S. 962

(1975); White Mountain Apache Tribe v. United States, 46

Fed.Cl. 20 (Fed.Cl. 1999); see also Lincoln v. Vigil, 508 U.S.

182 (1993) (The trust relationship did not limit the Indian

Health Service discretion apply lump-sum appropriations

as it saw fit.)

The Petitioner and amici tribes can neither demon-

strate an historic privilege nor present any compelling

new circumstances that require the creation of a new

privilege that cloaks communications between tribes and

the United States in secrecy. Nothing in FOIA or its

implementing regulations requires special protection of

communications from Indian tribes. Contrary to the amici

tribes’ arguments, none of the executive orders, regula-

tions and agreements governing tribal communications

with the United States even attempt to change law and

create a special privilege. The Executive Memorandum of

April 29, 1994, for example, expressly states that it “does

not create any right to administrative or judicial review,

or any other right or benefit or trust responsibility, sub-

stantive or procedural, enforceable by a party against the

United States, its agencies or instrumentalities, its officers

or employees, or any other person.” J.A. at 51. Similarly,

the two Executive Orders entitled “Consultation and

Coordination with Indian Tribal Governments” both state

they are “not intended to create any right, benefit or trust

responsibility, substantive or procedural, enforceable at

law by a party against the United States, its agencies, or

any person.” Executive Order No. 13,084, 63 Fed. Reg. at

13

27655 (May 14, 1998); Executive Order No. 13,175, 65 Fed.

Reg. 67249 (Nov. 6, 2000). The Department of Interior

Manual referenced by the Petitioner notes that the expec-

tation of confidentiality does not apply unless “otherwise

provided by applicable law, regulations, or Administra-

tion policy.” J.A. at 58. Finally, the Klamath Project Agree-

ment itself contains an unambiguous statement that it

does not create any special rights:

[This Agreement] does not by itself create,

change or alter any rights of any of the parties

to the Agreement, nor by itself create an inde-

pendent right subject to judicial review. Nothing

in this Agreement is intended to or shall have

the effect of constraining or limiting the United

States in carrying out its obligations under law,

including its trust obligations. All communica-

tions under the agreement are in furtherance of

federal responsibilities.

].A. at 64.

In sum, the federal trust responsibility does not

demand preferential treatment of communications

between Indian tribes and the United States. There is no

historic or contemporary basis for such a privilege. Thus,

the tribes are not entitled to greater rights or deference

than anyone else.

(C) The creation of a trustee-beneficiary privilege

will adversely impact the public and the

tribes.

Congress enacted the Freedom of Information Act

with the express purpose of “ ‘piercling] the veil of

administrative secrecy and [ ] open[ing] agency action to

14

i”?

the light of public scrutiny.’ ” Department of the Air Force v.

Rose, 425 U.S. 352, 358 (1976) (cite omitted). The limited

exceptions from this policy are “exclusive and must be

narrowly construed.” Id. (citations omitted.)

If this Court paints with a broad brush and creates a

privilege for all communications between the tribes and

the United States, this Court will limit access to important

information that should be available to all under the

Freedom of Information Act. There are innumerable cir-

cumstances in which such a privilege could adversely

affect public resources. Tribes regularly report to the

United States on environmental conditions and the use of

public resources, such as fish and water in which tribes

could be considered co-managers. Tribes regularly gather

scientific information regarding environmental condi-

tions and mitigation efforts and report this information to

the United States in the hopes of influencing the outcome

of a variety of issues. Are all these communications to

remain privileged, even though similar information from

other entities that impact public resources are uncon-

trovertibly available to the public through FOIA

requests? What possible benefit is served by maintaining

a cloak of secrecy over these very public issues?

The present situation of Tacoma demonstrates the

potential harmful effects of creating a new privilege. Tac-

oma is confronting a lawsuit filed by the Skokomish Tribe

that alleges $5.8 billion in damages allegedly caused by

the Cushman Project on the North Fork of the Skokomish

River. In order to preserve these claims, the Skokomish

Tribe was required to file pre-1966 damage claims under

the Indian Claims Limitation Act of 1982. 28 U.S.C. § 2415

(1998). Through FOIA requests and through discovery in

15

the damages lawsuit, Tacoma has sought documents that

demonstrate the Tribe complied with the Indian Claims

Limitation Act, the scope of that compliance, and the

precise nature of the claims the Tribe may have pre-

served. Thus far, the Tribe and the Department of Interior

and its constituent agencies have resisted disclosing these

documents in both the FOIA and discovery process.

Should the so-called trustee-beneficiary privilege be

allowed to avoid demonstrating compliance with the

jurisdictional requirements of a $5.8 billion lawsuit?

Similarly, the Skokomish Tribe and the United States

have exchanged information on every aspect of the

Tribe’s use of the Skokomish River for over a century.

Should Tacoma be restricted from reviewing, evaluating

and using this information to defend against the Tribe’s

claims of $5.8 billion in damages?

The very purpose of the Freedom of Information Act

is to shed light on issues of public concern so that all,

including the tribes, will benefit from that knowledge. To

create another impediment, without congressional

authority and where no precedence exists, is unwar-

ranted and prejudicial.

V. CONCLUSION

The Court's decision in this matter will have a broad

impact on hundreds of current and future lawsuits and

adjudications and issues of public policy involving Indian

tribes across the nation. The Petitioner fails to demon-

strate any meaningful justification for creating a new

16

trustee-beneficiary privilege that protects communica-

tions between the United States and Indian tribes. Tac-

oma respectfully requests this Court to reject this claimed

privilege in favor of the policy of open government and

unrestricted access to information vital to the public’s

welfare.

Dated this 13th day of December 2000.

Respectfully submitted,

J. RicHARD CREATURA

Counsel of Record

Gorvon, THOMAS, HONEYWELL,

MALANCA, PETERSON &

Dane, P.L.L.C.

1201 Pacific Avenue

Suite 2200

Tacoma, Washington 98401-1157

(253) 572-5050