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March 23, 2020

VIA FIRST CLASS MAIL AND EMAIL

Jennifer D. Miernicki

Faegre Drinker Biddle & Reath LLP

2200 Wells Fargo Center, 90 South Seventh Street

Minneapolis, MN 55402-3901

Re: Review of loan documents for Cheyenne & Arapaho Tribes

Dear Ms. Miernicki:

This letter responds to your January 21, 2020 and February 4, 2020 requests for the 

National Indian Gaming Commission’s Office of General Counsel to review loan agreements 

between the Cheyenne and Arapaho Tribes (Borrower) and the Bank of America, NA (Lender). 

Specifically, you have asked for my opinion whether the documents are management contracts 

requiring the NIGC Chairman’s approval under the Indian Gaming Regulatory Act. You also 

asked for my opinion whether the loan documents 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 Loan 

Documents”) all of which are unexecuted, but were represented to be in substantially final form:

o Loan Agreement between Bank of America, N.A. and the Cheyenne and Arapaho Tribes 

(NIGC Submission Draft 2/4/2020; US.125311630.06 in lower left corner; 40 pages)

o Exhibit A – Form of Loan Notice

o Exhibit B – Form of Compliance Certificate

o Security Agreement (NIGC Submission Draft 4/2/2020; US.125723697.02; 12 pages)

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

Counsel has already reviewed and analyzed, opinion letters for which are available on the 

NIGC’s website. Applying the same analysis here, it is my opinion that the Loan 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 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 
Jennifer D. Miernicki

Re: Review of loan documents for Cheyenne & Arapaho Tribes

March 23, 2020

Page 2 of 2

Documents listed above. This opinion does not include or extend to any other agreements not 

submitted for review, including, but not limited to, any letter of credit, written assurance, 

agreement, document, pledge, assignment, endorsement, instrument, or financing statement.

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.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 any withholding should be analyzed under 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, the 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/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@nigc.gov.

Sincerely, 

Michael Hoenig

General Counsel

cc: Hershel Gorham, Legal Counsel to the Cheyenne & Arapaho Tribes

 1 See 25 C.F.R. § 517.7(c). 2 5 U.S.C. § 552(b)(4).

3 139 S. Ct. 2356 (2019).

4 See 25 C.F.R. § 517.7(d). 5 Id.