Gaming & Indian Law

Overview

Tribal Gaming and Finance

Tribal gaming has proven to be the single greatest engine for tribal economic development and resurgence. Although tribal gaming is now a mature industry, opportunities for tribes and non-Native partners remain. Drawing upon deep and varied experience in tribal gaming and related finance matters, Dykema and its attorneys and government relations professionals are well positioned to assist. Through representation of tribal governments and business entities, developers, gaming management companies, financial institutions, and other third parties, Dykema’s expertise runs the gamut in this area, covering pre-development activities, compacting and governmental negotiations, financing, licensure and regulatory matters, and operational issues.

Dykema is experienced in all “pre-development” aspects of developing tribal gaming enterprises, assisting tribes and their partners in satisfying the prerequisites for a tribe to engage in Class II and Class III gaming under the Indian Gaming Regulatory Act (“IGRA”). In doing so, Dykema has been involved in initial due diligence and feasibility studies for dozens of proposed gaming projects. Dykema’s pre-development work then extends to assisting tribes in obtaining land in trust and, in the case of newly acquired lands, meeting IGRA’s exceptions allowing for gaming on land taken into trust after 1988. Dykema’s pre-development expertise also includes concluding tribal-state gaming compacts: negotiating compacts, managing approval through state legislative processes, advocating for approval by the U.S. Department of Interior, and litigating challenges brought by opponents. When third parties are involved in tribal casino development, Dykema has negotiated development, consulting and management agreements, obtaining “declination letters” and approvals of the National Indian Gaming Commission (“NIGC”) where required.

Dykema’s compacting and governmental negotiations experience extends beyond just initial compacts, and also encompasses evaluating the interplay between existing compacts and new proposals, and navigating disputes that arise under compacts. In addition to work directly for tribes and their partners, Dykema has also advised local governments in implementing local revenue sharing and mitigation agreements, and state governments with regard to the impact of exclusivity clauses, and permissible arrangements for structuring tribal revenue sharing.

When it comes to funding tribal casino pre-development costs, construction, expansions and renovations, Dykema has played critical roles in deals totaling over $700 million. In doing so, we have represented tribes, banks and investors, negotiating deal terms, concluding transactional documents, providing opinion letters, and obtaining the NIGC’s de facto approval. Among our accomplishments was serving as counsel for bondholders who were party to a precedent-setting first financial restructuring of a troubled tribal gaming facility.

Finally, Dykema has experience advising clients with respect to tribal casino operational issues, such as licensing and regulatory matters, and labor law matters.

Commercial Gaming

Dykema’s commercial gaming experience spans multiple domestic and foreign jurisdictions, and ranges from authorization, to licensure and regulatory matters, to mergers and acquisitions, to finance, and to litigation. As counsel to the ballot committee that passed gaming legalization in Michigan in 1996, Dykema was in on the ground floor in this state. But we have also represented the owners of casinos in Nevada, Mississippi, Indiana, and Colorado, and worked on commercial gaming matters in Canada and Caribbean nations. Over the last fifteen years, Dykema’s transactional work in the gaming field totals over $3.2 billion in successful acquisitions and financings. We have represented suppliers and vendors. We have served as expert witness in gaming regulatory litigation in Nevada. And we regularly advise clients with regard to sweepstakes and promotions, charitable gaming, and some state lottery matters.

Trailblazers in New Gaming Jurisdictions

Dykema, its lawyers and other professionals have played key roles in establishing tribal and commercial casino gaming in Michigan, and have been at the forefront of gaming developments in other new gaming jurisdictions.

In the tribal arena, Dykema was at the forefront in Michigan, playing a lead role in multitribal compact negotiations that resulted in the state’s first tribal-gaming compacts in 1993. Dykema reprised this role for a second round of compacts that won approval in 1998, and then was central to the defense of those compacts before trial and appellate courts (twice before the Michigan Supreme Court). Dykema also played a lead role in devising modern compacts in California, assisting in compact negotiations between tribes and former California Gov. Arnold Schwarzenegger.

For commercial gaming, in 1996, Dykema represented the proponents of a voter-initiated ballot proposal authorizing casino gaming at three commercial casinos in Detroit, Michigan. Dykema then represented commercial gaming clients in drafting provisions of the Michigan Gaming Control and Revenue Act and regulations promulgated under the Act. Later, Dykema represented the proponents of a state constitutional amendment that limits further gaming expansion in Michigan.

Dykema professionals and the Firm have also been involved in the introduction of gaming and legalization efforts in other states. Dykema’s gaming team includes a former analyst for the Illinois Senate who was responsible for gaming issues including the initial expansion of Illinois riverboat gaming and lottery matters. Dykema also has been involved in legislative drafting for legalization efforts in the State of Hawaii, and for negotiations of concessionary agreements in several Caribbean nations.

In its current efforts, Dykema’s team draws upon the deep experience of its professionals in working for state governments on gaming issues. Dykema’s team includes lawyers for Michigan’s past two governors (with responsibility for tribal gaming matters, lottery modernization, gaming taxation, and gaming regulatory oversight), and the former Chief of Staff to the Michigan Senate committee that oversaw passage of Michigan’s gaming laws and tribal-state compacts. Dykema has the experience to assist developers, states and other interests that are seeking or exploring gaming authorization or expansion, or addressing the complex public policy issues that arise from these developments.

Tribal Economic Development and Business Services

As tribes continue to diversify their economies beyond gaming, securing a better future for the next generations, Dykema is honored to help advance this critical objective. Dykema has helped tribes, consultants, developers and outside management companies in evaluating and implementing a variety of business projects. In recognition of this experience, Dykema was hired by the Michigan Economic Development Corporation to write two guidebooks for tribal economic development: one explaining the opportunities and incentives for non-Native companies to partner with tribes and tribal members, and one explaining different structures that can be used for tribal business entities, complete with model tribal codes.

Dykema is highly sophisticated in crafting contracts between tribes and third parties, respecting tribal sovereignty by helping non-tribal partners to understand how to properly address tribal sovereign immunity, tribal court jurisdiction, and tribal regulatory jurisdiction. Dykema has negotiated contracts and addressed tribal partnership issues in the areas of gaming, telecommunications, energy transmission and development, outdoor advertising, health care, multistate distribution companies, insurance and utilities.

Dykema is highly attuned to the import of tribal sovereignty for tribal business. One of our members was a leader in negotiations for the nation’s first truly comprehensive multi-tax state-tribal tax agreements, and we remain involved in tax matters on behalf of tribal member businesses today. We have also represented tribes and tribal businesses in labor and ERISA matters. Building upon our broader expertise as lead counsel for the 2008 ballot measure that authorized the use of medical marijuana in Michigan, we are presently assisting in the exploration of possible tribal cannabis business ventures. We are also deeply involved in telecommunications work with Alaska Native villages.

Tribal Governmental Representation

Dykema has had the great pleasure of working with tribes on unique and sophisticated governmental matters, highlighted by the firm’s work on behalf of the Bay Mills Community College, a tribally controlled community college that authorizes charter schools throughout the State of Michigan. Dykema played a lead role in drafting the State’s charter school law, and subsequent amendments, in a manner that allows BMCC to fully participate, obtaining state funds to offer culturally appropriate education to underprivileged Michigan children. Dykema has also been involved in ordinance drafting and constitution analysis for a number of tribes.

Beyond working solely with tribal governments, Dykema members are also proud of the roles they have played as former attorneys to state governors in modernizing the State of Michigan’s relationship with tribes to better extend to tribal governments the respect that they deserve. Both in that role and in the representation of tribal clients, Dykema members negotiated the first State-Tribal Accord in Michigan, inaugurated and institutionalized what are now annual state-tribal summits, led amendments to the State’s Urban Cooperation Act to clearly authorize agreements for the joint exercise of tribal and state governmental powers, and concluded cross-deputization agreements. Dykema lawyers also played lead roles in important settlements of treaty rights and gaming cases.

Finally, Dykema has demonstrated its commitment to the education of new tribal member attorneys. A member of the firm was intimately involved in bringing to the Michigan State University School of Law the first director of that school’s Indigenous Law Program. The firm has since hired numerous members of the program, both as law clerks and as associates. In the summer of 2015, 3 of the firm’s 20 “summer associates” are members of federally recognized tribes.

Experience Matters

A sampling of  experience:

  • Represented Wisconsin Governor Scott Walker in compact and other gaming negotiations pertaining to a proposed tribal casino in that state, and in related arbitration.
  • Representing Alaska telecommunications carriers serving Alaska Native Villages, a Dykema member filed extensive comments with the Federal Communications Commission regarding the Tribal Mobility Fund, and the critical need to support broadband deployment to Indian Country. 

  • Advocating on behalf of a tribal member controlled limited liability company that owns a resort within reservation boundaries, yet is improperly being assessed real property taxes.
  • Represent a tribal government and gaming arm on ERISA compliance matters.
  • Served as special Indian law counsel to financial institutions in the March 2012 $385 million refinancing of the FireKeepers Casino in Battle Creek, Michigan, ensuring that the transactional documents received a declination letter from the NIGC. We also served as counsel to the management company, Full House Resorts, in the initial 2008 financing of this facility. 
  • Served as Indian law counsel to the holders of $122 million in senior unsecured notes issued by the Little Traverse Bay Bands of Odawa Indians for the construction of the Odawa Casino resort. After economic troubles led the issuer to the brink of default, the issuer and bondholders agreed to restructure the facility’s debt, in what was the first refinancing of a financially troubled tribal gaming facility in the United States. Dykema advised the bondholders throughout the transaction, which closed in November 2010, and worked with the NIGC to obtain a precedent setting declination letter confirming that the refinancing was in accordance with federal law. 
  • Served as Indian law and regulatory counsel in 2012 to the acquisition of a gaming machine manufacturer and supplier for more than 50 Class II and Class III tribal casinos. In this role, our attorneys were responsible for advising parties with regard to the validity and enforceability of supplier agreements and tribal licensure and approval requirements. 
  • Represented MotorCity Casino and Hotel as its outside legal counsel handling various issues including gaming licensure, liquor licensure, bond financing transactions and other matters on an ongoing basis. Dykema represented the casino on a $1.1 billion acquisition financing and has represented the company on subsequent related financing transactions. 
  • Represented the owner of Majestic Star Casino/Fitzgeralds Hotel and Casino – Las Vegas, NV; Gary, IN; Black Hawk, CO; and Tunica, MS with regard to acquisition, financing and regulatory matters. That representation included the following financing transactions: 
      • $303.5 million of high-yield debt securities (three tranches of secured and unsecured notes) and follow-on exchange offer 
      • $260 million of 9 1/2 percent Senior Secured Notes and follow-on exchange offer 
      • $80 million Secured Credit Facility 
      • $130 million of 10 7/8 percent Senior Secured Notes and follow-on exchange offer 
      • $253 million acquisition of Trump Indiana, Inc. 
  • Represented several owners, shareholders and financial institutions with regard to Greektown Casino & Hotel in Detroit, including: 
      • Representing an institutional investor (financial institution) in the 2013 sale of Greektown Casino to the current owners, including representation before the Michigan Gaming Control Board
      • Representing a multinational securities corporation before the Michigan Gaming Control board in licensing related to the firm’s acquisition of Greektown Casino as part of Greektown Casino’s emergence from Chapter 11 bankruptcy
      • Representing a prospective owner in obtaining regulatory approval from the Michigan Gaming Control Board
  • Representing tribes and casino developers seeking to develop Tribal casinos around the country, including advising parties regarding Indian law, fee-to-trust matters, federal legislative and administrative process, negotiations of agreements with states and municipalities, real estate, business and labor agreement negotiation, and all other aspects of these complex projects. Our attorneys have been directly involved in State-Tribal compact negotiations in Michigan, California and New York and have drafted legislation to permit commercial gaming in numerous other states and foreign jurisdictions. 
  • Represented the Manistee Local Revenue Sharing Board, and its component governmental members, in interpreting and implementing the local revenue sharing and mitigation provisions of a Michigan tribal-state gaming compact.
  • Represented proponents of Michigan Proposal E of 1996, authorizing casino gaming at three commercial casino facilities in Detroit and subsequently was involved in drafting provisions of the Michigan Gaming Control Act and regulations promulgated under the Act. 
  • In 2007, on behalf of all three Detroit casinos, successfully enjoined the State of Michigan from closing the casinos during a state governmental shutdown that threatened to mandate closure (Motor City Casino, et al v. Michigan Gaming Control Board, Michigan, Court of Appeals Case No. 260898). 
  • Represent a tribally controlled community college in various matters related to the college’s status as a charter school authorizing body. Since 2000, the college has issued contracts to charter more than 45 public schools, which are overseen by the tribally-controlled college. The Firm’s representation implicates a unique interaction of public school law with Federal Indian law issues like tribal sovereignty and intergovernmental agreements.
  • Represented the Michigan Economic Development Corporation (MEDC) as Indian law counsel, preparing on the MEDC’s behalf two guidelines—Tribal Business Structures: A Guidebook on Different Structures for Tribal Business Entities and Incentives for Joint Ventures Between Michigan’s Tribes and Non-Indian Businesses. Those guidelines provide the cornerstone of the State of Michigan’s efforts to promote tribal economic development and joint partnerships between tribes and non-tribal businesses.
  • Represented the Little River Band of Ottawa Indians to develop their Sex Offenders Registry Ordinance, in accordance with the Sex Offender Registration and Notification Act (SORNA). With Dykema’s assistance, the Tribe developed and implemented a comprehensive ordinance that allows the Tribe to register sex offenders under the terms of its ordinance and SORNA thus aiding the Tribe in its efforts to protect its community from sex offenders.

Honors and Awards

Dykema lawyers have been named to Best Lawyers in America in the fields of Gaming Law and Native American Law. Additionally, members of the firm were awarded the Thomas M. Cooley Law Review's annual award for best brief to the Michigan Supreme Court for their work successfully defending the validity of Michigan's tribal-state gaming compacts.

Speaking Engagements