NATIONAL HEADQUARTERS 1849 C Street NW, Mail Stop #1621 Washington, DC 20240 Tel: 202.632.7003 Fax: 202.632.7066 WWW.NIGC.GOV

REGIONAL OFFICES Portland, OR; Sacramento, CA; Phoenix, AZ; St. Paul, MN; Tulsa, OK; Oklahoma City, OK

April 21, 2020 

VIA EMAIL 

Townsend Hyatt 

Orrick, Herrington & Sutcliffe LLP

1120 NW Couch Street

Suite 200

Portland, OR 97209-4163

Re: Review of Deposit Account Control Agreement for the 

Poarch Band of Creek Indians

Dear Mr. Hyatt: 

This letter responds to your March 17, 2020, request, on behalf of the Poarch Band of Creek 

Indians for the National Indian Gaming Commission’s Office of General Counsel to review a Deposit 

Account Control Agreement between the PCI Gaming Authority, Credit Suisse AG, Cayman Islands 

Branch, as collateral agent, and Capital One, National Association. Specifically, you ask for my opinion 

whether the DACA constitutes a management contract requiring the NIGC Chairman’s approval under 

the Indian Gaming Regulatory Act. You have also asked for an opinion whether the DACA violates 

IGRA’s requirement that a tribe have the sole proprietary interest in its gaming operation.1

On May 24, 2019, I advised the Tribe that it was my opinion that certain documents submitted by 

the Tribe (“2019 Credit Documents”) were not management contracts and did not violate the sole 

proprietary interest requirement of the Indian Gaming Regulatory Act.2 In addition, on September 27, 

2019, I determined that the DACA among the Tribe, the PCI Gaming Authority, Credit Suisse AG, 

Cayman Island Branch, as a collateral agent, and the Bank of American did not constitute a management 

contract nor did it violate IGRA. 

In my review, I considered the following document submitted on behalf of the Tribe, which was 

unexecuted, but was represented to be in substantially final form:

• Deposit Account Control Agreement, marked as “NIGC Submission Draft 

3/12/20”.

The DACA submitted to the Office of General Counsel on March 17, 2020, contains terms 

similar to other agreements that this Office has reviewed and analyzed that are available on the NIGC 

 1 25 U.S.C. 2701 et seq.

2 Id.
Townsend Hyatt

Re: Review of Deposit Account Control Agreement for Poarch Band of Creek Indians

April 20, 2020

Page 2 of 2

website. Applying the same analysis here, it is my opinion that the DACA, is not a management contract 

and does not violate IGRA’s sole proprietary interest requirement. 

It is my understanding that the DACA is represented to be in substantially final form with respect 

to terms affecting this opinion. If the DACA changes in any material way prior to closing, this opinion 

shall not apply. Further, this opinion is limited to the DACA, and does not include or extend to any other 

agreements or documents not submitted for review. 

Please note that it is my intent that this letter be released to the public on the NIGC website. If 

you have any objections to this disclosure, please provide a written statement explaining the grounds for 

the objection and highlighting the information that you believe should be withheld.3 If you object on the 

ground that the information qualifies as confidential commercial information subject to withholding under 

Exemption Four of the Freedom of Information Act (FOIA),4 please be advised that any withholding 

should be analyzed under the standard set forth in Food Marketing Institute v. Argus Leader Media.

5 Any 

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

authorized representative of the submitter.”6 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.7 If you need any 

additional guidance regarding potential ground for withholding, please see the United States Department 

of Justice’s Guide to the Freedom of Information Act at https://justice.gov/oip/doj-guide-freedominformation-a-0.

If you have any questions, please contact Rea Cisneros, Associate General Counsel at (202) 632-

7003 or by email at rea.cisneros@nigc.gov.

Sincerely, 

Michael Hoenig

General Counsel 

cc: Jeffrey Trattner, Assistant Attorney General for the Poarch Band of Creek Indians

 3 See 25 C.F.R. § 517.7(c).

4 5 U.S.C. § 522(b)(4).

5 139 S. Ct. 2356 (2019).

6 See 25. C.F.R. § 517.7(d). 7 Id.