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November 29, 2021

VIA EMAIL

Gina M. Jacobs, Esq.

Jones Walker LLP

190 E Capitol Street, Suite 800

Jackson, MS 39201

Re: Review of the Loan Documents for the Eastern Band of Cherokee Indians

Dear Ms. Jacobs:

This letter responds to your October 22, 2021 request on behalf of the Eastern Band of 

Cherokee Indians for the Office of the General Counsel, National Indian Gaming Commission, 

to review certain loan documents. The request asks for my opinion as to whether the submitted 

loan documents are management contracts requiring the NIGC Chairman’s approval pursuant to 

the Indian Gaming Regulatory Act. The request also asks for my opinion as to whether the loan 

documents violate IGRA’s requirement that a tribe have the sole proprietary interest in its 

gaming operation. 

In my review, I considered the following submissions (collectively, “the Loan 

Documents”):

• Seventh Amended and Restated Loan Agreement, marked as “4152-2867-2049.5”;

• Exhibits A, B, C, D, E, G, H, I, J, K, L, N, O, P-1, P-2, P-3, and P-4 to the Loan 

Agreement, marked as “4130-3900-0369.4”;

• Exhibit F to the Loan Agreement, marked as “4135-6125-2913.2”;

• Exhibit M to the Loan Agreement, marked as “4150-7120-2353.2”;

• Schedule 4.3 to Loan Agreement, marked as “4126-5129-9634.3”;

• Fifth Amended and Restated Security Agreement, marked as “4160-0935-0193.2”;

• Seventh Amended and Restated Tribal Agreement, marked as “4162-0209-1313.2”;

• Fourth Amended and Restated Tribal Subordination Agreement, marked as “4155-

4024-3505.2”; and

• Fourth Amended and Restated Unjust Enrichment and Sovereign Immunity 

Agreement, marked as “4162-4554-1937.2”.
Gina M. Jacobs, Esq.

Re: Review of the Loan Documents for the Eastern Band of Cherokee Indians

November 29, 2021

Page 2 of 2

The Loan Documents contain terms similar to other agreements that OGC has previously 

reviewed and analyzed. Some of these opinion letters may be found on the NIGC’s website. 

Applying the same analysis here, it is my opinion that, collectively, the Loan Documents are not 

management contracts and do not require the approval of the NIGC Chairman. It is also my 

opinion that they do not violate IGRA’s sole proprietary interest requirement.

It is my understanding that the Loan Documents are represented to be in substantially 

final form, and any further changes will not be material to OGC’s analysis. This opinion shall not 

apply if the Loan Documents change in any material way prior to closing or are inconsistent with 

assumptions made herein. Further, this opinion is limited to the Loan Documents listed above 

and does not include or extend to any other agreements.

Please note that it is my intent that this letter be released to the public through the 

NIGC’s website. If you have any objection to this disclosure, please provide a written statement 

explaining the grounds for the objection and highlighting the information that you believe should 

be withheld.1 If you object on the grounds that the information qualifies as confidential 

commercial information subject to withholding under Exemption Four of the Freedom of 

Information Act (FOIA),2 please be advised that any withholding should be analyzed under the 

standard set forth in Food Marketing Institute v. Argus Leader Media.

3 Any claim of 

confidentiality should also be supported with “a statement or certification by an officer or 

authorized representative of the submitter.”4 Please submit any written objection to 

FOIASubmitterReply@nigc.gov within thirty (30) days of the date of this letter. After this 

time elapses, the letter will be made public and objections will no longer be considered.5 If you 

need any additional guidance regarding potential grounds for withholding, please see the United 

States Department of Justice’s Guide to the Freedom of Information Act at 

https://www.justice.gov/oip/doj-guide-freedom-information-act-0. 

If you have any questions, please contact Senior Attorney Austin Badger at (202) 632-

7003. 

Sincerely, 

Michael Hoenig

General Counsel

 1 See 25 C.F.R. § 517.7(c). 2 5 U.S.C. § 552(b)(4).

3 139 S. Ct. 2356 (2019).

4 See 25 C.F.R. § 517.7(d). 5 Id.