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November 2, 2018
Via First Class Mail and Email

Leonika Charging

3610 N. 163rd Plaza
Omaha, NE 68116
Icharging@ndnlaw.com

Re: — Review of Loan Documents for the Santee Sioux Nation
Dear Ms. Charging:

This letter responds to your May 25, 2018 and September 27, 2018 requests for the
National Indian Gaming Commission’s Office of General Counsel to review loan documents
between the Santee Sioux Nation and Great Western Bank. Specifically, you have asked for my
opinion whether the loan documents are management contracts requiring the NIGC Chair’s
approval under the Indian Gaming Regulatory Act. You also asked for my opinion whether the
loan documents violate IGRA’s requirement that the Santee Sioux Nation has the sole
proprietary interest in its gaming activity.

In my review, I considered the following submissions (collectively, “the Loan
Documents”) all of which are unexecuted, but were represented to be in substantially final form:

e Loan Agreement (Draft: October 3, 2018; 4811-4687-2940.7 in lower left corner);

© Security Agreement (Draft: October 30, 2018; 4831-0127-0636.5 in lower left
comer);

e Control Agreement (Draft: September 24, 2018; 4853-0094-4241.3 in lower left
corner);

© Springing Depository Agreement (Draft: September 24, 2018; 4846-0506-3537.4
in lower left corner);

e Tax Exempt Promissory Note (Draft: October 3, 2018; 4838-41 10-8082.4 in lower
left corner);

© Taxable Promissory Note (Draft October 3, 2018; 4835-1100-2783.3 in lower left
corner); and

© Consent to Enter Trust Lands (Draft: March 2, 2018).

The Loan Documents contain terms similar to other agreements the Office of General
Counsel has already reviewed and analyzed, which are available on the NIGC’s website.
Applying the same analysis here, it is my opinion that the Loan Documents are not management

NEW MAILING ADDRESS: NIGC/DEPARTMENT OF THE INTERIOR 1849 C Street NW, Mail Stop #1621 Washington, DC 20240 Tek: 202.632.7003 Fax: 202.632.7066

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WWW.NIGC.GOV


contracts and do not require the approval of the NIGC Chair. It is also my opinion that they do
not violate IGRA’s sole proprietary interest requirement.

It is my understanding that the drafts are represented to be in substantially final form, and
if the Loan 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 Loan
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.' 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”),” 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 . NRCS Any claim of confidentiality should also be supported
with “a statement or certification by an officer or authorized representative of the submitter.”
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.’ 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 NIGC Staff Attorney Steve Iverson at (202)
632-7003 or by email at steven_iverson@nige.gov.

t

Michael Hoenig
General Counsel

125 CFR. § 517.7(c).

2 5 US.C. § 552(b)(4).

3975 F.2d 871 (D.C. Cir. 1992).
425 CER. § 517(c).

° Id.