This article was originally published in Tribal Business News, May 5th, 2025.

Real estate development on tribal land can unlock long-term revenue, diversify economies beyond gaming, and create needed jobs and housing. Every project—from a single travel plaza to a mixed-use workforce-housing complex—must navigate unique legal, financing, and governance questions tied to tribal sovereignty and trust land.

Tanya Gibbs, a founding partner at Mshkawzi Law LLP and citizen of the Little Traverse Bay Bands of Odawa Indians, has guided tribal governments and economic-development corporations (EDCs) through nearly $1 billion in transactions ranging from e-commerce to large real-estate builds. Associate attorney Kathryn Petersen, a citizen of the Grand Traverse Bay Band of Ottawa and Chippewa Indians, works alongside Gibbs on non-gaming economic-development matters, corporate structuring, and real-estate deals.

Since the pandemic, tribes have increasingly looked inward at underutilized land assets, addressing workforce housing shortages to support economic growth while navigating complex financing structures in a field where less than 0.5% of the nation's 1.3 million lawyers identify as Native American.

In this Q&A, the two attorneys explain market trends, common financing tools, and the practical steps tribal leaders should consider before turning the first shovel. Their answers have been edited for clarity and length.

What trends are you seeing in real estate and land development in tribal communities?

GIBBS: We've seen a significant increase in gas stations, convenience stores, and travel plazas, especially out west. Many tribes are leveraging the Cougar Den court case, which recognized the Yakima's treaty right to transport fuel tax-free along federal roadways. This allows tribes to undercut non-tribal competition by offering better prices on the reservation, which has been incredibly profitable.

Since COVID, there's been a much stronger focus on real estate development in general. Many tribes have vacant or underutilized land, and I think during the pandemic, communities looked inward and asked, "What assets and resources do we already have?" Rather than acquiring new entities, they're recognizing opportunities with existing land holdings.

The other major trend is housing development. This started entering my world about six or seven years ago. As tribal businesses develop hotels, convenience stores, restaurants, and other enterprises, they need employees. Especially in remote areas, it's hard to find workers because there's nowhere to live. We're seeing a real push for tribes or their economic development corporations (EDCs) to create workforce housing, using it as a means to support continued economic growth.

What types of financing are most commonly used in the projects you advise on?

GIBBS: It varies, but we mostly see traditional financing through banks. We use the Indian Loan Guarantee Program quite frequently, where the federal government through the BIA provides a 90% guarantee for projects. Lenders need to be part of that program, but they can easily apply and get approved. It's one of the most successful programs we've worked with.

We've tried other loan guarantee programs, like through the USDA, but they tend to be more cumbersome. There's also been a lot of discussion lately about 105(l) leases, which can be leveraged to pay for existing buildings or potentially used as collateral for future development or infrastructure.

The biggest challenge is always educating lenders. I keep a short list of financial institutions that have been supportive of Indian Country and easy to work with—and another list of who to avoid. We often need to negotiate to ensure we're just lending to the tribal EDC and nothing more. Lenders frequently want casino revenue as collateral or guarantees from tribal governments, and removing those requirements can be challenging.

How early should legal counsel be brought into a project?

PETERSEN: As early as possible.

GIBBS: Nobody wants to pay legal fees, I understand that. But the reality is, the sooner the legal team is brought in, the better. We can help structure and identify potential issues in advance. Without early legal involvement, business people might get all the way down the line with commitments and signed agreements before discovering a property is actually a wetland, tribal law prohibits certain activities, or organizational documents require additional approvals. Bringing in legal counsel too late is often far more costly than involving them from day one.

What are some of the biggest hurdles clients face in putting together real estate deals?

PETERSEN: A significant amount of our time is spent educating banks, lenders, or non-tribal parties about basic concepts—how tribes work, the difference between working with a tribal government versus a tribal economic development company. Another major hurdle is carving out tribal government involvement. If your EDC is structured correctly, banks or lenders shouldn't need guarantees from the tribal government. The tribal business should be able to handle the deal independently.

Do your clients typically have their EDCs set up correctly, or do you see a blending of tribal government and business?

PETERSEN: It can be a mix. We prefer that the EDC is established as a separate legal entity to protect the division of assets between the government and business.

Gibbs: I'd add that separation of business and politics is critical. You can never completely separate them, but having distinct entities and proper corporate governance helps. It also helps non-tribal business partners, lenders, or tenants understand the structure and feel more comfortable with the relationship.

How does the legal framework around trust land change the way deals are structured?

PETERSEN: With trust land, there's no opportunity to give any ownership interest in the land itself. Deals usually involve ownership interests only in the improvements or buildings on the land. The land cannot be collateralized or encumbered in any way.

The other significant factor is applicable law. Tribal law applies on tribal trust land, and if there are additional requirements beyond federal regulations, both federal and tribal law will apply. This means we need to consider whether tribal standards exceed federal requirements.

GIBBS: For joint ventures or business partnerships between tribal EDCs and non-Native entities, there are creative ways to structure business entities that provide the non-tribal partner with tax benefits the tribal partner doesn't need, while still maximizing the tribe's goals. There's significant room for creativity when developing business partnerships on trust land.

How does your team help clients navigate financing options or legal hurdles?

GIBBS: We're usually involved in the early stages, which helps us understand our clients' goals and intended deal structure. This allows us to identify issues and structure things appropriately. We also have long-standing relationships with potential partners and lenders, so we can guide clients toward good partners and away from problematic ones. Being established in Indian Country helps avoid issues down the road.

PETERSEN: We emphasize thorough due diligence before committing time, money, or resources. Knowing exactly who you're partnering with is something we consistently remind our clients to prioritize.

GIBBS: Over the years, we've developed a comprehensive legal due diligence process. We run background checks on individuals and entities to ensure there's no criminal history or pattern of litigation. We review all documentation and prepare detailed legal memos for leadership—whether executives, board members, or tribal council—so they understand not just the people and company involved, but the structure of the deal, its risks, and benefits. This allows them to make educated decisions about moving forward.

What makes your approach different from a typical law firm?

PETERSEN: We work exclusively with tribes or tribal EDCs, so we never have to compromise when making decisions. We always prioritize sovereignty and the needs of tribal communities in negotiations and deal structuring. We prefer to be proactive rather than reactive by being involved from step one.

GIBBS: Because we represent only tribes, we're not concerned about what banks or their legal counsel might think of us. We can take aggressive positions on behalf of our clients when necessary because we're focused solely on the interests of Indian Country. We also genuinely care about our clients. Many firms—both non-tribal and some tribal—come in for one specific project and then disappear. Most of our clients have been with us for over a decade.

We focus on foundational elements of the business—ensuring structures are in place, goals are being met, and there's transparency between the company, council, and community. In daily practice, it's easy to just answer the specific question a client asks, but we often dig deeper, addressing peripheral issues that might expose them to liability. Taking time to truly understand their operations and provide comprehensive legal advice sets us apart.