Cite as: 532 U. S. 1 (2001)
Opinion of the Court
about the consultant that is constant in the typical cases is that the consultant does not represent an interest of its own, or the interest of any other client, when it advises the agency that hires it. Its only obligations are to truth and its sense of what good judgment calls for, and in those respects the consultant functions just as an employee would be expected to do.
B
The Department purports to rely on this consultant corollary to Exemption 5 in arguing for its application to the Tribe's communications to the Bureau in its capacity of fiduciary for the benefit of the Indian Tribes. The existence of a trust obligation is not, of course, in question, see United States v. Cherokee Nation of Okla., 480 U. S. 700, 707 (1987); United States v. Mitchell, 463 U. S. 206, 225 (1983); Seminole Nation v. United States, 316 U. S. 286, 296-297 (1942). The fiduciary relationship has been described as "one of the primary cornerstones of Indian law," F. Cohen, Handbook of Federal Indian Law 221 (1982), and has been compared to one existing under a common law trust, with the United States as trustee, the Indian tribes or individuals as beneficiaries, and the property and natural resources managed by the United States as the trust corpus. See, e. g., Mitchell, supra, at 225. Nor is there any doubt about the plausibility of the Government's assertion that the candor of tribal communications with the Bureau would be eroded without the protections of the deliberative process privilege recognized under Exemption 5. The Department is surely right in saying that confidentiality in communications with tribes is conducive to a proper discharge of its trust obligation.
From the recognition of this interest in frank communication, which the deliberative process privilege might protect, the Department would have us infer a sufficient justification for applying Exemption 5 to communications with the Tribes, in the same fashion that Courts of Appeals have found sufficient reason to favor a consultant's advice that
11
Page: Index Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 NextLast modified: October 4, 2007