Leveraging Tribal Sovereignty for Economic Opportunity: A Strategic Negotiations Perspective
Clarkson, Gavin, Sebenius, Jim, Missouri Law Review
Table of Contents I. Introduction II. A Brief History of Indian Law and Policy A. Early Pequot History B. Tribes as Separate Sovereigns C. Self Determination and Tribal-State Compacting 1. Education 2. Law Enforcement 3. Taxation 4. Hunting and Fishing D. Rationale for Compacting III. A Brief History of Indian Gaming A. The Early Years B. Gambling in Connecticut C. Gambling on the Pequot Reservation D. California v. Cabazon Band of Mission Indians E. The Indian Gaming Regulatory Act (IGRA) IV. A Framework for Analyzing Tribal State Negotiations A. Interests: The Raw Material for Negotiation B. Negotiation as a Means of Advancing Interests C. Negotiation as a Joint Problem-Solving Process D. Developing a Negotiation Strategy E. Using the Framework for Analysis V. Round 1: The Initial Casino Negotiations A. Context of the Initial Negotiations B. Opportunities and Barriers of the Initial Negotiations C. Strategic Activities of the Initial Negotiations VI. Round 2: Negotiating Slots at Foxwoods A. Context of Negotiating Slots at Foxwoods B. Opportunities and Barriers of Negotiating Slots at Foxwoods C. Strategic Activities of Negotiating Slots at Foxwoods D. Prologue VII. Major Shifts in the Negotiation Landscape A. Seminole Tribe v. Florida: The States Adjust Their BATNAs B. Adjustments to Tribal BATNAs VIII. Conclusion
For Indian tribes throughout most of U.S. history, "the people of the states where they are found are often their deadliest enemies." (1) Recently, however, tribes and states have been able to find sufficient common ground in order to work cooperatively in certain areas, particularly as state budget deficits continue to worsen. (2) In some instances, Congress has mandated such cooperation. (3) In other instances, the cooperative activity has arisen between the parties themselves as a practical matter. (4) In either situation, tribes and states often find themselves at the bargaining table.
The negotiation dynamics of tribal-state compacting, however, may be challenging. The parties have experienced centuries of animosity. The "shadow of the law" relevant to the substance of the negotiation is ill-defined or easily misunderstood, as is often the case with Indian law. Questions about the boundaries of Indian Country (5) may be unsettled and subject to litigation. Finally, significant cultural differences obscure common ground that may facilitate a successful negotiation.
While the range of tribal-state compacts is large, (6) Indian gaming has generated the greatest amount of attention in recent years. (7) Although India tribes have conducted gaming operations since the 1970s, the advent of large-scale tribal casinos dramatically increased the economic impact of Indian gaming. (8) Most of the tribes that launched successful casinos had a common rags-to-riches story, but the story of the Mashantucket Pequots is unique. Having been nearly annihilated more than 350 years earlier, (9) the Pequots opened their Foxwoods casino in 1992 (10) and negotiated a compact with the State of Connecticut that allowed the tribe to install slot machines in return for a share of the slot proceeds. …