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October 1, 2020

VIA EMAIL

Dale A. Miller, Chairman

Elk Valley Rancheria

California Tribal Council

2332 Howland Street

Crescent City, CA 95531

Re: Review of Loan Documents between the Elk Valley Rancheria and 

Performance Equity Partners, Inc.

Chairman Miller:

This letter serves as a response to the submission of the Loan Documents between Elk Valley 

Rancheria (Tribe) and Performance Equity Partners, Inc. (Lender) to the National Indian Gaming 

Commission’s (NIGC) Office of General Counsel for review (collectively, the “Loan Documents”). 

Specifically, you have asked for my opinion whether the Loan Documents constitute a management 

contract requiring the NIGC Chairman’s approval under the Indian Gaming Regulatory Act (IGRA).

Also included in this Letter is my opinion whether the Loan Documents violate IGRA’s requirement 

that the Tribe have the sole proprietary interest in its gaming activities.

In my review, I considered the following Loan Documents, which are unexecuted but were 

represented to be in substantially final form:

1. Loan Agreement and Exhibits, dated September 28, 2020 and labeled working draft #6;

2. Promissory Note, dated April 28, 2020, and labeled working draft #5;

3. Security Agreement, dated April 28, 2020, and labeled working draft #5;

4. Deposit Agreement (with Exhibits A & B), updated September 25, 2020, and labeled 

working draft #5;

5. Consent to Enter Trust Lands, dated April 28, 2020, and labeled working draft #5;

6. Environmental Certificate, dated April 28, 2020, and labeled working draft #5; and

7. Disbursing Agreement and Exhibits, dated September 28, 2020, and labeled working 

draft #5.

The Loan Documents contain terms similar to other agreements the Office of General 

Counsel has previously reviewed and analyzed, which are available on the NIGC’s website.

Applying the same analysis here, it is my opinion 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.
Letter to Dale A. Miller, Chairman

Review of Loan Documents between the Elk Valley Rancheria and Performance Equity Partners, Inc.

October 1, 2020

Page 2 of 2

It is my understanding that the Loan Documents are in substantially final form, and if the 

Loan Documents are amended in any material way and/or inconsistent with assumptions made 

herein, this opinion shall not apply. Further, this opinion is limited to the Loan Documents mentioned 

supra. This opinion does not include or extend to any other agreements not submitted or before me 

for review.

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 such disclosure, please provide a written statement explaining 

the grounds for the objection, highlighting the information 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 the information was voluntarily submitted and, as such, that any withholding should be analyzed 

in accordance with 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, this 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/dojguide-freedom-information-act-0.

If you have any questions, please contact Staff Attorney James A. Lewis at (202) 632-7013

or by email at James_Lewis@nigc.gov. 

Sincerely, 

Michael Hoenig

General Counsel

cc: Bradley G. Beldsoe Downes, Esq.

Kevin Quigley, Esq.

 1 25 C.F.R. § 517.7(c).

2 5 U.S.C. § 552(b)(4).

3 139 S.Ct. 2356 (2019).

4 25 C.F.R. § 517.7(c).

5 Id.