The U.S. Supreme Court ruled on Thursday that because Indian tribes are indisputably governments, the Bankruptcy Code unmistakably abrogates their sovereign immunity to bankruptcy court proceedings.Continue Reading Supreme Court Finds Bankruptcy Code Abrogates Tribal Sovereign Immunity
Christine Swanick is a partner in the Finance and Bankruptcy practice group in the firm's New York office. Christine serves as Team Leader of the Tribal and Indian Law Team.
The National Indian Gaming Commission (“NIGC”) issued guidance this week for tribes and tribal lenders who submit loan documents to the NIGC for a so-called “declination letter.” Bulletin No. 2021-4, “Submission of Loan Documents and Financing Documents for Review,” summarizes criteria the agency has developed in the last decade for determining whether loan documents constitute “management” contracts, which under federal law must be approved by the NIGC Chairman or they are void. The Bulletin states that while the Office of General Counsel will continue to review loan documents and issue opinions as to whether the documents provide the lender with the ability to manage the gaming operation, contracts that “adhere to the principles and analyses” outlined in the Bulletin would likely receive an opinion letter that the contract does not need to be submitted for approval as a management contract.
Continue Reading NIGC Issues New Guidance on Financing Document Reviews and Declination Letters
On July 15, 2020, the Federal Reserve Bank of Boston issued new guidance expressly permitting tribal businesses that are borrowers under the Main Street Lending Program (“MSLP”) to pay dividends to their tribal government owners. In its amended Frequently Asked Questions (the “July 15th FAQs”), available here, the Federal Reserve announced that the Treasury Secretary exercised his authority under the CARES Act to waive the prohibition against the payment of dividends in the MSLP, permitting tribal businesses that are wholly or majority-owned by one or more tribal governments to make distributions to their tribal government owners. See July 15th FAQ H.15 and H.2. Tribal businesses and organizations seeking financial relief and Lenders seeking to extend credit under the MSLP have advocated for this important clarification so that tribal businesses may gain access to much-needed capital during the economic strain of the COVID-19 pandemic. For example, Sheppard Mullin sought this important clarification with respect to tribal distributions in comments it submitted to the Federal Reserve on April 16, 2020.
Continue Reading Federal Reserve Clarifies that Distributions to Tribal Governments are Permitted Under the Main Street Lending Program
Tribal leaders and federal officials this week will begin the task of implementing the economic relief programs of the Coronavirus Aid, Relief and Economic Security Act (or “Act”) passed by Congress on March 27, 2020. The U.S. Department of the Interior will host the first consultations with Tribes to discuss funding formulas and eligibility rules of the $8 billion Tribal Stabilization Fund through a teleconference on Thursday, April 2, and on Thursday, April 9. The Tribal Stabilization Fund is one of three programs in the Act that Tribes might use to mitigate the downtown of their economic enterprises. Highlights of the three programs and how they might help your Tribe and Tribal businesses follow:
U.S. Department of Treasury Tribal Stabilization Fund:
- Sets aside $8 billion of the Coronavirus Relief Fund for payments to Tribal governments for increased expenditures of the Tribal government or a tribally controlled entity of the Tribal government;
- Payments may be used to cover costs that (i) are necessary expenditures incurred due to the COVID-19 public health emergency; (ii) were not accounted for in the most recently approved budget of the Tribal government or tribally controlled entity; and (iii) were incurred from March 1, 2020 to December 30, 2020.
President Trump has declared a national emergency as a result of the novel coronavirus (COVID-19) pandemic, and more than 30 States have made emergency declarations in response to COVID-19. Governors…
Continue Reading When the “Lights Go Out on Broadway” Will the Lights on Tribal Slot Machines be Next? What Do State COVID-19 Emergency Actions Mean for Tribal Gaming Operations?
The recently released Department of Justice (“DOJ”) opinion (“DOJ Opinion”) concluding that the Wire Act prohibits both sports and non-sports related Internet betting and wagering, leaves the industry with the…
Continue Reading DOJ Opinion Leaves Industry Hanging: If UIGEA Exclusions Don’t Modify the Wire Act What Does That Mean for Intrastate Gambling Transactions?
A federal district court in New Mexico has issued a decision finding that the U.S. Department of the Interior’s regulations permitting the Secretary of the Interior to adopt Class III gaming procedures for a tribe lacking a Tribal-State Compact are invalid and violate the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701 et. seq. (“IGRA”). If upheld, the decision in New Mexico v. Dept. of Interior could be expected to shift the balance of power to the states in the negotiation of new compacts and renewed compacts. The decision also may result in pressure on the Department of the Interior to exercise its role as trustee for tribes and sue states that fail to negotiate compacts in good faith.
Continue Reading Federal Court Limits Tribe’s, Secretary’s Options When States Balk at Gaming Compact
The U.S. Supreme Court (“Court”) issued a 5-4 decision today in a case with implications for Tribal-State relations and the resolution of disputes under the federal Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. (“IGRA”). The Court in Michigan v. Bay Mills Indian Community found that the sovereign immunity of the Bay Mills Indian Community (“Tribe”) barred a suit filed by the State of Michigan (“Michigan”) to enjoin Class III gaming on the Tribe’s Vanderbilt property, land the Tribe purchased in fee located 100 miles south of its reservation. In making its decision today, a majority of the Court:
Continue Reading U.S. Supreme Court Decision in Michigan v. Bay Mills Indian Community et al.
The Office of the Solicitor of the Department of the Interior has issued a legal opinion (the “Opinion“) to the Secretary of the Interior interpreting the statutory phrase “under federal jurisdiction” in the Indian Reorganization Act, 25 U.S.C. § 461 et seq. (1934), (the “IRA“). The Opinion is a result of the U.S. Supreme Court decision, Carcieri v. Salazar, 555 U.S. 379 (2009) (hereinafter, “Carcieri”), which limited Secretarial authority to take land into trust for tribes to those tribes “under federal jurisdiction” in 1934. The Opinion advises the Department of the Interior (“Interior“) that a tribe may be considered “under federal jurisdiction” in 1934 if it can show:
Continue Reading Interior’s Carcieri Opinion Means More Diligence for Trust Land Development Projects