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December 28, 2018
Via First Class Mail and Email

Ms. Valerie Devol

Devol & Associates

15205 Traditions Lake Parkway
Edmond, OK 73013
vdevol@devollaw.com

Re: Review of Rate Protection Documents for Fort Sill Apache Tribe of Oklahoma
Economic Development Authority

Dear Ms. Devol:

This letter responds to your December 14, 2018 request for the National Indian Gaming
Commission’s Office of General Counsel to review agreements between the Fort Sill Apache
Tribe of Oklahoma Economic Development Authority and Bank of America, N.A. Specifically,
you have asked for my opinion whether the agreements are management contracts or collateral
agreements requiring the NIGC Chair’s approval under the Indian Gaming Regulatory Act
(IGRA). You also asked for my opinion whether the agreements violate IGRA’s requirement that
the Tribe have the sole proprietary interest in its gaming activity.

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

othe ISDA Master Agreement (marked “NIGC Draft Dec. 14, 2018” on the first page);
and

othe Schedule to the ISDA Master Agreement (marked “NIGC Draft Dec. 14, 2018”
on the first page).

The Rate Protection 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 Rate Protection Documents are not
management 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 Rate Protection 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

NW, Mail Stop #1621 Washington, DC 20240

NEW MAILING ADDRESS: NIGC/DEPARTMENT OF THE INTERIOR 1849 C St

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

WWW.NIGC.GOV


Letter to Valerie Devol

Review of Rate Protection Documents for Fort Sill Apache Tribe of Oklahoma EDA
December 28, 2018

Page 2 of 2

Rate Protection 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. NRC. 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 FOIASubmitterReply@nige.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 http://www justice. gov/oip/dojguide-freedom-information-act-0.

If you have any questions, please contact NIGC Legal Fellow Melissa Thevenot at (202)
632-0294 or by email at melissa_thevenot@nige.gov.

Sincerely,

Michal Ab

Michael Hoenig
General Counsel

Cc: Thomas Showman, tshowman@devollaw.com

"25 CBR. § 517.7(c).

25 U.S.C. § 552(b)(4).

3975 F.2d 871 (D.C. Cir. 1992).
425 CFR. § 517.7(c).

* Id.