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July 24, 2018
Via U.S. Mail & Facsimile

Bill Kekahbah, Chairman

Kaw Gaming Inc., Board of Directors
5640 N. LA Cann Rd.

Newkirk, OK 74647

Fax: 580-269-1157

Re: Review of Consulting Agreement for the Kaw Nation

Dear Chairman Kekahbah:

This letier responds to the May 14, 2018 request on behalf of Kaw Nation for the
National Indian Gaming Commission’s Office of General Counsel to review a Consulting
Agreement. Specifically, you have asked for my opinion on whether the Agreement is a
management contract requiring the NIGC Chair’s approval under the Indian Gaming Regulatory
Act. You also asked for an opinion whether the agreement violates IGRA’s requirement that a
tribe have the sole proprietary interest in its gaming operation.

In my review, I considered the following document submitted on behalf of the Nation
which was unexecuted, but was represented to be in substantially final form:

e Consulting Agreement, marked as “DocuSign Envelope ID: 79A0E4B5-2E36-
47EB-BF90-47B4EA1D3D60”

Confining my review to the four corners of the documents, it is my opinion that the
Consulting Agreement is not a management contract and does not require the approval of the
NIGC Chairman. It is also my opinion, confining my review to the four corners of the document,
that the Consulting Agreement does not violate IGRA’s sole proprietary interest requirement.

The Agreement does not create a management relationship between KG1 and CNHC
because the agreement is limited to activities that will occur pre-opening and does not authorize
CNHC to have any on-going influence once the operation is open. A future agreement could alter
this analysis were it to also be “non-management” but result in CNHC implementing the
recommendations produced under this agreement,

The Agreement also does not violate IGRA’s requirement that the Tribe maintain the
Sole Proprietary Interest in its gaming operation because the term of the contract is for a little
less than two years and will not extend into the opening or operation of the gaming enterprise. It

NEW MAILING ADDRESS: NIGC/DEPARTMENT OF THE INTERIOR 1849 C Street NW, Mail Stop #1621 Washington, OC 20240 Tel: 202.632.7003 Fax: 202.632.7066
REGIONAL OFFICES — Portland, OR; Sacramento, CA; Phoenix, AZ; St. Paul, MN; Tulsa, OK; Oklahomiet City, OK

WWW.NIGC.GOV


Chair Secondine Hensley

Re: Review of financing agreements on behalf of the Kaw Nation
July 24, 2018

Page 2 of 2

also doesn’t give CNHC any control over the gaming activity. Finally, CNHC’s compensation is
a fixed amount, is not based on a percentage of the casino’s revenues, gross or net, and appears
to be reasonably tied to the tasks performed. Based on this analysis, it is my opinion that the
Agreement does not grant a control interest in the Nation’s gaming operation.

It is my understanding that the drafts are represented to be in substantially final form, and if
the Revised Financing Documents change in any material way prior to closing or are inconsistent
with assumptions made herein, this opinion shall not apply. Further, this opinion is limited to the
Revised Financing Documents listed above. This opinion does not include or extend to any other
agreements not submitted 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 this disclosure, please provide a written statement
explaining the grounds for the objection and highlighting the information that you believe should
be withheld. 25 C.F.R. § 517.7(c). 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), 5 U.S.C. § 552(b)(4), 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 Critical Mass Energy Project v. NRC, 975 F.2d 871
(D.C. Cir. 1992). Any claim of confidentiality should also be supported with “a statement or
certification by an officer or authorized representative of the submitter.” 25 C.F.R. § 517.7(c).
Please submit any written objection to FOLASubmitterReply@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. Jd. 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 http://www. justice.gov/oip/doj-guide-freedom-information-act-0.

If you have any questions, please contact NIGC Staff Attorney Heather McMillan Nakai
at (202) 527-5577.

Sincerely,
Michael Hoenig
General Counsel

cc; Yonne Tiger
(via email Yonne@tigerlawpllc.com)

Heidi Staudenmaier
(via email hstaudenmaier@swlaw.com)