Cherokee Nation, The et al v. Salazar et al

Filing 126

OPINION AND ORDER by Magistrate Judge T Lane Wilson (Re: 116 Opinion and Order, Ruling on Motion to Supplement, In Camera Documents Received ) (crp, Dpty Clk)

THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
THE CHEROKEE NATION and
CHEROKEE NATION
ENTERTAINMENT, LLC,
Plaintiffs,
vs.
S.M.R. JEWELL, in her official
capacity as Secretary of the Interior, and
KEVIN WASHBURN, in his official
capacity as Acting Secretary for Indian
Affairs, U.S. Department of the Interior,
Defendants,
UNITED KEETOOWAH BAND OF
CHEROKEE INDIANS IN OKLAHOMA
Intervenor Defendants.

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Case No. 12-cv-493-GKF-TLW

OPINION AND ORDER
In its Opinion and Order (dkt. # 116) on plaintiffs’ Motion to Supplement the
Administrative Record and Objection to Redactions (dkt. # 49), the District Court ordered
defendants to provide a July 30, 2012, Indian Lands Opinion to the undersigned in camera for a
determination on the issue of whether the opinion was properly withheld on the grounds of
attorney-client privilege. (Dkt. # 116). The undersigned has received and reviewed that
document.
“The attorney-client privilege is the oldest of the privileges for confidential
communications known to the common law.” Upjohn Co. v. United States, 449 U.S.383, 389,
101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (citation omitted). The privilege “encourage[s] full and
frank communications between attorneys and their clients” because an attorney’s ability to

provide “sound legal advice or advocacy depends upon the lawyer’s being fully informed by the
client.” Id. The privilege covers communications from client to attorney and from attorney to
client. See In re Grand Jury Proceedings, 616 F.3d 1172, 1182 (10th Cir. 2010). The privilege,
however, is not universal, as it protects only those communications that “relate to legal advice or
strategy sought by the client.” United States v. Johnston, 146 F.3d 785, 794 (10th Cir. 1998).
Defendants, who are seeking to invoke the privilege, bear the burden of proof. See Motley v.
Marathon Oil Co., 71 F.3d 1547, 1550 (10th Cir. 1995).
The July 30, 2012, Indian Land Opinion is a textbook example of a memorandum from
an attorney, the Associate Solicitor for Indian Affairs, that analyzes legal issues and provides
legal advice to the client, the Acting Assistant Secretary for Indian Affairs. The Court has also
reviewed the District Court’s Opinion and Order (dkt. # 116), the agency’s final decision, and the
privilege log and finds no evidence of a waiver. Accordingly, the Court finds that the July 30,
2012, Indian Lands Opinion is protected by attorney-client privilege.
SO ORDERED this 7th day of November, 2013.

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