August 31, 2020

Via Email

Britt E. Clapham II

P.O. Box 22230

Tucson, AZ 85734

bclapham@ddaz.com

Re: Review of loan documents for the Tohono O’odham Nation

Dear Mr. Clapham:

This letter responds to your August 4, 2020 request for the National Indian 

Gaming Commission’s Office of General Counsel to review loan agreements between the 

Tohono O’odham Gaming Enterprise and the Bank of America, N.A. Specifically, you 

have asked for my opinion whether the 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 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 Amended and Restated Credit Agreement, SMRH 08/03/2020, SMRH: 4850-

8570-0418.7 (hereinafter “CA”); 

o Conformed Copy of the Amended and Restated Credit Agreement, SMRH 

08/03/2020, SMRH: 4848-2354-4771.7;

o Exhibits to Amended and Restated Credit Agreement, SMRH: 4848-2354-

4771.1;

o Exhibit A (amended form of Compliance Certificate, Exhibit E to the 

Amended Credit Agreement, SMRH 8/3/2020, SMRH 4843-3033-4659.2.

o Exhibit B (Distribution Certificate, Exhibit Q to the Amended Credit 

Agreement, SMRH 8/3/2020, SMRH 4831-1490-4259.2.
Britt E. Clapham II

Re: Review of loan documents for the Tohono O’odham Nation

August 31, 2020

Page 2 of 3

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 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.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-guidefreedom-information-act-0.

If you have any questions, please contact Associate General Counsel, Rea 

Cisneros at (202) 632-7003 or by email at Rea_Cisneros@nigc.gov.

Sincerely, 

Michael Hoenig

General Counsel

CC: Christine L. Swanick, Esq. (via e-mail)

 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.
Britt E. Clapham II

Re: Review of loan documents for the Tohono O’odham Nation

August 31, 2020

Page 3 of 3

Ned Norris, Jr., Chairman, Tohono O’odham Nation (via e-mail)

Frank Espino, Chief Executive Officer, Tohono O’odham Gaming Enterprise (via 

e-mail)