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Supreme Court delivers blow to tribes
MARCH 6, 2001

In a decision the Department of Interior says could have a "chilling effect" on information it shares with tribes, the Supreme Court on Monday turned down the government's attempt to keep private some of its correspondence with tribes in Oregon and northern California.

But the unanimous decision authored by Justice David Souter isn't just a blow to the tribes whose water rights were the subject of seven disputed documents at the center of the case. The National Congress of American Indians (NCAI), representing over 200 tribes throughout Indian Country, was among several organizations who filed friend-of-the-court briefs hoping the Supreme Court would rule in the government's favor and keep the documents private under the federal Freedom of Information Act (FOIA).

Instead, the Court sided with the Klamath Water Users Protective Association, a group of non-Indian property owners seeking to protect their water rights in the Klamath River Basin. Not only were members of the Association subject to a long-term Bureau of Reclamation water project, they were also defendants in a lawsuit the Bureau of Indian Affairs filed on behalf of the Klamath Tribe in Oregon state court.

The dispute stretches back to 1995, when the Interior engaged in government-to-government consultations with the Klamath Tribe and three tribes in northern California. Like it does for tribes elsewhere, the Interior attempted to ensure the tribes' land and water interests were preserved as part of its federal trust responsibilities.

During the course of their consultations, the tribes exchanged a number of documents regarding the water project and the lawsuit. The Association filed a FOIA request to obtain the correspondence and for the most part, the Interior complied.

It held onto seven documents, however. Six were prepared by the Klamath Tribe at the request of the government and the seventh was prepared by a government official and given to the tribe as well as the Yurok Tribe of California.

The documents, the government argued, were exempt from FOIA because they were "inter-agency or intra-agency memorandums" protected by attorney-client privilege. The government also argued -- and interested tribes and tribal organizations agreed -- that the release of the documents would negatively affect the government's trust responsibilities.

But the Court rejected both arguments, first ruling that the Interior failed to satisfy the "inter-agency" privacy exemption. Since the tribes had their own lawyers, weren't employed as consultants for the government, and were advancing their own interests, the documents in question did not qualify for the exemption.

The Court also said the trust relationship itself didn't overrule FOIA's "mandate of broad disclosure." The Court added: "All of this boils down to requesting that we read an 'Indian trust' exemption into the statute, a reading that is out of the question."

The ruling effectively requires the government to turn over the seven documents in question. The 9th Circuit Court of Appeals in 1999 had done just that before the Interior appealed.

But just how the decision affects future correspondence is open for question, at least in the eyes of the Department of Interior. Spokesperson Stephanie Hanna said the Department was "very disappointed" with the ruling and officials would be considering its effect on its relationship with tribes.

"In the future, we will be reviewing the effect of this ruling on our ongoing communications and consultations with Tribes," said Hanna. "We will also be looking at options to remedy a situation that could have a chilling effect on information that can be shared in deliberations and consultations between the government and tribes."

Get Court Documents:
DEPT. OF THE INTERIOR v. KLAMATH WATER USERS PROTECTIVE ASS'N, No 99-1871 (U.S.S.C March 05, 2001) | Oral Argument Transcript [PDF] (Argued January 10, 2001)

Get the 9th Circuit Decision:
Klamath Water v. USDOI (Ninth Circuit No. 97-36208. August 1999)

Related Stories:
Supremes hear trust case today (Tribal Law 01/10)
Trust relationship questioned by case (Tribal Law 11/30

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