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Justice Alito wrote for the majority, which concluded that if the fiduciary exception existed a subject on which the Court did not opine , it did not apply here. While the United States undoubtedly possesses a trust relationship with Indian tribes that bears some resemblance to a common law fiduciary relationship, this relationship is not identical to the relationship between a private trustee and the beneficiaries of a private trust.

There, the law deems the fiduciary to have no personal interest in the management of the trust. The beneficiaries are the "real clients" and trust assets are used to pay for the attorney's services. By contrast, the trust obligations of the United States are laid out by statute, not common law, and the Government always acts in its "sovereign interest in the execution of federal law.

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Thus, when the United States seeks legal advice, it does so not just in a representative capacity, but in its own capacity — i. Further, the statute creating the particular trust relationship at issue provides for specific information to be disclosed to the tribes. If broader common law disclosure requirements existed, this provision would be superfluous. The Court also declined to adopt a case-by-case approach, which would make the privilege dependent on whether the Government actually had a competing concern as to the particular communication at issue.

Justice Ginsburg, joined by Justice Breyer, concurred in the judgment only. The Government has a distinct interest in carrying out the laws governing the conduct of tribal affairs. Because of this unique interest, Ginsburg agreed that Government attorneys render advice to the United States in its personal rather than fiduciary capacity and that the fiduciary exception was therefore inapplicable.

But they felt the majority went too far in its analysis when it stated that the Government "assumes Indian trust responsibilities only to the extent it expressly accepts those responsibilities by statute" and therefore did not include other common law disclosure obligations. Since those other obligations were not before the Court in this case, they would not reach out farther than necessary to decide them. While it is hard to imagine getting too worked up over this arcane and narrow issue, that didn't stop Justice Sotomayor, who penned a lengthy and impassioned dissent.

In her view, "a network of federal laws requires the United States to act strictly in a fiduciary capacity when managing Indian trust fund accounts. Since the statutes establish a conventional fiduciary relationship, common law fiduciary principles should apply — as the Court has noted in myriad prior cases. Justice Sotomayor was very concerned that, while the issue presented was a narrow evidentiary one, the majority's broad decision might be read to limit the United States' obligations to the tribes to those enumerated by statute.

Numerous prior cases of the Court had rejected such a cramped view of the United States' responsibilities and had applied common law trust principles to fill in the gaps of the statute establishing the basic trust relationship. If you've read this far, we're impressed.

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You deserve a coffee break and a walk outside. We hope to wrap up the remaining decisions of the Term this week. Thanks, as always, for reading! For more information, contact Kim Rinehart or any other member of the Practice Group at Skip to content Find a Person. John's College St.

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The Supreme Court: State vs. Federal Sovereignty

Supreme Court Update: Bond v. First Derivative Traders , Borough of Duryea v. Guarnieri and United States v. Jenny R. Chou, Kim E. Share This Page. Greetings, Court fans! Read More News. This unique guide identified the top individuals worldwide who are leading the way in the development and implementation of […]. The Chambers HNW rankings and editorial was […].

Wiggin and Dana has been named a top U. Only one lawyer in each category in each community receives this honor. This essay makes two main points. Indeed, the majority opinion displays a basic misunderstanding about the design of the underlying treaty. Holland, statutory interpretation. Suggested Citation: Suggested Citation. Subscribe to this free journal for more curated articles on this topic. Subscribe to this fee journal for more curated articles on this topic. Public International Law: Sources eJournal. We use cookies to help provide and enhance our service and tailor content.

By continuing, you agree to the use of cookies. In these hypothetical scenarios, the President would not have simply made a promise among nations. Instead, he and the Senate would have enacted binding domestic law through treaties.


  • A Soap-Opera Court Case That Could Seriously Threaten U.S. Foreign Policy.
  • Bond v. United States: Federalism’s Limits on the Treaty Power.
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The ability to impose domestic obligations on states and individuals triggers Tenth Amendment concerns about the sovereign states and their reserved powers. But if that were so — if state sovereign powers were a null set — then the Tenth Amendment would be superfluous, as would the whole of Article I, Section 8. Professors Lawson and Seidman may have put it best:. If the Treaty Clause does give the President and the Senate power to alter state capitals,.

New York v.

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United States held that the federal government cannot commandeer state governments into passing or enforcing a federal regulatory program. Either way, we must determine whether any of the. Printz v. If the federal Treaty Clause power could violate state sovereignty, it would disrupt our constitutional structure and encroach on state sovereignty just like in New York , Printz , and NFIB v. Regardless of whether this is viewed as a Tenth Amendment problem or an enumerated powers dispute, the bottom line is the federal government cannot aggrandize power otherwise reserved to the states.

Our Constitution, and its structure devised by the Framers, does not allow this destruction of state sovereignty. One frequent objection to structural limits on the Treaty Clause power is that they do not give the federal government sufficient latitude to negotiate peace treaties with concessions. The Court, however, has suggested that this may not be absurd.

The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.

Regardless, even if the President must have the ability to cede state territory as part of a peace treaty, Professors Lawson and Seidman respond by arguing that this could be cabined as a narrow exception to Tenth Amendment state sovereignty limits on the Treaty Clause power. In any event, even if there are certain hypotheticals involving war that may increase the treaty power, the sovereignty of the people — and the sovereignty they duly delegated to the states at the Founding — should not be discarded lightly.

For nearly a century, the touchstone of this analysis has been one line from Missouri v. To make all Laws which shall be necessary and proper for carrying into Execution. In other words, Congress can pass laws that give the President the resources to exercise his executive power to negotiate and make treaties, but this authority does not necessarily give Congress the power to implement a treaty already made.

Put another way, when the people acted in their sovereign capacity and created the Constitution, they did not give the federal government all powers. Instead, they reserved the unenumerated powers to the states. It can exercise authority over no subjects, except those which have been delegated to it. Congress cannot, by legislation, enlarge the federal jurisdiction, nor can it be enlarged under the treaty-making power.

Holland seems quite out of place.