Small Community, Big Boosts
Jennifer Miernicki on the nuances of working in tribal finance
Published in 2018 Minnesota Super Lawyers magazine on July 5, 2018
It started with one of my senior partners, Kent Richey. He was a bond lawyer, and he was asked to do a bond deal that had some ties to a tribe. His expertise evolved, and the firm continued to support tribal finance.
It was really by luck that my team had this silo of expertise, and, frankly, a couple of very well-known lawyers who were eager to bring somebody else into the fold—teach me the ins and outs of doing finance in the very unique context of Indian country. I’ve now worked with more than 30 tribes, and my deals run the gamut from helping break ground on new facilities like government centers, judicial centers, convenience stores, grocery stores—all the way to an expansion of an existing entertainment complex or casino facility. I tend to focus on the upper parts of the U.S., and also tribes on the West Coast. Maybe one of my tribal deals has been in Minnesota.
As a finance lawyer, at a certain point, the documents and frameworks begin to look really similar: Every deal you do, you’re moving money from point A to point B, subject to certain conditions and assurances. What’s unique about working in this space is you really get to dive into the history and nuances that are unique to every tribe.
For example, if you do a deal involving a tribe in Washington, you’re reading treaties that go back to the 1800s. You’re tracking, perhaps, land ownership, the history of that tribe, and their relationship with state, local and federal governments.
It’s eye-opening to try to work in your commercial agreement within that context—the history of these sovereign nations and the importance of their cultures. It takes a lot of education, and a lot of reminders to commercial counterparties who are used to doing things in a very standard way.
Each tribe that I’ve worked with, I have to know their laws, I have to read their constitution. I have to understand how their political system works and what’s necessary for them to enter into a commercial arrangement. We help provide clarity to all the parties—including, perhaps my tribal client—about how things are done.
On a recent deal, my tribal client needed more than $30 million to build a new hotel tower near its existing gaming facilities. Our team drafted and negotiated documents with the lender, analyzed the existing laws of the tribe and offered additional ordinances to fit the needs of the deal, assisted with tribal council meetings to ensure that appropriate new laws and resolutions were adopted to set the stage for the transaction, and worked with a staff attorney at the National Indian Gaming Commission to obtain a customary declination letter so that our transaction could close and the tribe could move forward with construction.
The diligence is just heavier, frankly, and it can be heavier with some tribes than others. Some have bodies of law that would look very familiar to you if you picked up the Minnesota statutes. Others maybe have a constitution and that’s it. Using experienced counsel in this space helps us a lot. When I’m picking up the phone, dealing with a lawyer I’m used to dealing with a lot, we know the dance.
Tribal finance involves a really small community of people. There are a couple of big organizations that have a couple of annual meetings and other sessions you can attend. You’ll walk through the hall, and before you realize it, there’s the chairman you worked with on this particular idea, a tribe you know well, the five bankers you’re used to seeing at every event. It feels personal.
But what’s most rewarding is that there is often a very tangible economic benefit at the end of the day. If you build a grocery store or convenience store, you’re offering something to a community that they didn’t have before. Or if you’re expanding a casino or hotel, those things offer an economic boost to the group. It’s a little less certain when you’re dealing with the corporations of the world—you don’t have a face at the other end of your deal to point at and say, ”We’re improving the life of this person.”