High Contrast Mode:

Guidance on Due Dilligence for Indian Tribes in Selecting Business Partners

11 Aug 23

By Patrick R. Bergin

In today's intricate and evolving tribal business landscape, marked by numerous opportunities for growth and collaboration, the judicious selection of business partners assumes paramount importance for Indian tribes. As custodians of their cultural heritage, economic well-being, and sovereignty, Indian tribes are compelled to navigate potential risks that may arise from those seeking to exploit their unique status. In light of this, the following due diligence steps can be a useful guide when evaluating prospective business partners.

1. Establish Clear Objectives and Develop Checklist: Before exploring the due diligence process, Indian tribes and tribally owned businesses should clearly define their objectives for the business relationship. These objectives should align with the Tribe's cultural values, economic goals, and long-term vision. Establishing a well-defined purpose for the business partnership ensures that all subsequent due diligence efforts are focused on and aligned with the Tribe's priorities. In addition, develop a comprehensive checklist tailored to the Tribe's specific needs and priorities. This checklist acts as a roadmap to ensure that all relevant aspects are thoroughly assessed during the due diligence process.

2. Start with a Non-Disclosure Agreement. Many Indian tribes initiate the due diligence process by entering into a Non-Disclosure Agreement (NDA) with prospective business partners. This strategic step serves as the gateway to accessing critical and confidential information from the partner's operations. The NDA also acts as a shield, assuring the prospective partner that the Tribe is committed to maintaining the confidentiality of the information shared. This encourages the partner to provide comprehensive insights without reservation, allowing the Tribe to make well-informed decisions and identify potential risks effectively.

3. Gather Basic Information: Collecting basic information about the prospective business partner forms the foundation of due diligence. For example, most Secretary of State websites contain an online database where businesses are registered. Tribal staff can search for the prospective partner's name to find information about their legal status, ownership structure, registered address, and key personnel. If the proposed partner is a publicly traded company, their annual reports and financial statements can be accessed from the U.S. Securities and Exchange Commission (SEC). Obtaining such data helps establish a preliminary understanding of the partner's background and operations.

4. Research Background and History: Take a deep dive into the prospective partner's history to gain insights into their evolution, founding date, and significant milestones. It would be prudent to visit the potential partner's own website and social media profiles to gain insights into their products, services, company history, and recent developments. Investigate any legal disputes, bankruptcies, regulatory violations, or negative media coverage that might impact the Tribe's reputation by association. Attending industry-specific trade shows and conferences where the partner may be exhibiting or presenting can also offer valuable insights into their products, services, and interactions within the industry.

5. Financial Analysis: Request and analyze the partner's financial statements, including balance sheets, income statements, and cash flow reports. Scrutinize financial ratios such as liquidity, solvency, and profitability to assess the partner's financial health and ability to contribute to the partnership's success. It may be prudent to engage financial experts, such as accountants, financial analysts, or consultants, who specialize in conducting thorough financial analyses.

6. Legal and Regulatory Compliance: Verify that the partner is registered and in good standing with relevant government authorities. Evaluate their compliance with federal, state, and tribal regulations, as well as industry-specific licensing requirements. Review contracts, agreements, and legal documents to uncover any potential legal risks or liabilities. If the potential partner is related to a gaming activity, it may be wise to search online records at the National Indian Gaming Commission and state gaming regulatory agencies for any notices of violation.

7. Management and Leadership: Research the background and experience of the partner's key management personnel. Assess their track record, qualifications, and alignment with the Tribe's values. Understanding the leadership team's capabilities and cultural sensitivity is crucial for a harmonious partnership. Explore business journals, newspapers, and magazines for articles or features related to the partner's management and leadership.

8. Operational Due Diligence: Gain a comprehensive understanding of the partner's operational processes, supply chain, and production capabilities. Evaluate the quality and consistency of their products or services. Identify any operational risks that might have an impact on the Tribe's interests, including potential disruptions or ethical concerns.

9. Customer and Supplier Relationships: Assess the partner's customer base, client relationships, and overall customer satisfaction. Understand their supplier relationships, including potential dependencies or vulnerabilities that could affect the partnership's stability. Check with relevant industry associations and local chambers of commerce to see if the partner is a member. These organizations may provide additional information about the partner's reputation and involvement in the industry. Also, Indian tribes can request references from the partner's existing clients, customers, and suppliers. Research testimonials, online reviews, and other sources to gauge the partner's reputation and track record within the industry.

10. Intellectual Property (IP) and Innovation: If necessary to the business relationship, identify and evaluate the partner's intellectual property assets, including patents, trademarks, and copyrights. Understand their approach to innovation, research and development, and their willingness to respect and protect tribal intellectual property rights. Tribal staff can conduct online searches through the U.S. Patent and Trademark Office (USPTO).

11. Cybersecurity and Data Privacy: Evaluate the partner's cybersecurity measures, data protection policies, and privacy practices. Ensure they have robust protocols in place to safeguard sensitive information, including any tribal data that may be shared during the partnership. Publicly traded companies often include information about their cybersecurity initiatives, risks, and incidents in their annual reports and financial statements. These documents can be accessed from the U.S. Securities and Exchange Commission (SEC) website.

12. Financial Stability and Funding Sources: Investigate the partner's financial stability and sources of funding. Ensure they have a solid financial foundation and the ability to contribute resources and capital to the partnership. If the partner is a limited liability company, one source could be the partner's operating agreement. This organizational document can contain useful information on capital contributions and ownership interests.

13. Legal and Financial Advisors: Engage legal and financial experts with expertise in tribal matters to guide the due diligence process and provide insights. Their specialized knowledge can help identify potential risks and ensure the Tribe's interests are protected. Additionally, the Tribe's legal team can research public records and filings, such as court records and bankruptcy filings, to uncover any potential legal or financial challenges faced by the partner.

14 Visit the Partner's Facilities: Whenever feasible, conduct on-site visits to the partner's facilities. This firsthand experience provides a deeper understanding of their operations, working environment, and commitment to quality. An on-site visit also allows Indian tribes to verify the accuracy of the information provided by the partner. It ensures that the partner's claims, capabilities, and representations align with reality and are not mere exaggerations on paper.

15. Cultural Alignment: Assess the partner's alignment with the Tribe's cultural values, traditions, and ways of doing business. A partner who respects and understands the Tribe's cultural heritage is more likely to contribute positively to the partnership's success.

16. Continual Monitoring. Lastly, it is important to recognize that due diligence is an ongoing process. Regularly monitor the partner's performance, adherence to contractual terms, and alignment with the Tribe's values and objectives throughout the partnership's duration.

Conducting due diligence is a comprehensive endeavor that safeguards the Tribe's interests, values, and cultural heritage. By following these steps, tribal governments and tribally-owned businesses can make informed decisions, forge meaningful partnerships, and contribute to the sustainable economic growth and well-being of their communities. Finally, customizing the due diligence process to align with tribal values and aspirations is essential to building lasting and successful partnerships.

For further discussions on crafting a due diligence plan tailored to your tribe or tribally owned business, please feel free to reach out to Sacramento partner Patrick R. Bergin.