VII. Major Shifts in the Negotiation Landscape

By Clarkson, Gavin; Sebenius, Jim | Missouri Law Review, Fall 2011 | Go to article overview

VII. Major Shifts in the Negotiation Landscape


Clarkson, Gavin, Sebenius, Jim, Missouri Law Review


Given the enormous success of Foxwoods, tribes from all over the United States began to push for gaming compacts. Sometimes those compacts came easily, and other times the states were obstructionist. Each side also made moves "away from the table" either to improve their position or to worsen the other sides' BATNA. One portion of IGRA that gained scrutiny and created immediate conflict between states and tribes was the "good faith bargaining" provision. Since that section of IGRA forced states to the negotiating table, altering that requirement was a logical area for a state to focus its strategic efforts.

A. Seminole Tribe v. Florida. (476) The States Adjust Their BATNAs

In September 1991, the Seminole Tribe of Florida sued the State of Florida, alleging "that respondents had 'refused to enter into any negotiation for inclusion of [certain gaming activities] in a tribal-state compact,' thereby violating [IGRA's] 'requirement of good faith negotiation'. ..." (477) Florida responded by arguing that the suit violated the state's sovereign immunity from suit in federal court. (478) After procedural battles in the lower courts, the parties appealed the case to the U.S. Supreme Court. (479)

After finding that Congress had abrogated the states' Eleventh Amendment immunity from suit, the Court held in a five-four decision that Congress acted beyond its Constitutional power when it made states subject to suit for bargaining in bad faith with tribes over gaming compacts. (480) At issue was the interplay in the language of 25 U.S.C. [section] 2710(d)(3)(A), which requires states to negotiate in good faith with an Indian tribe regarding the formation of a gaming compact, and 25 U.S.C. [section] 2710(d)(7), which authorizes a tribe to bring suit in federal court against a state to enforce that duty. (481) The Court also held that the doctrine set forth in Ex parte Young did not allow tribes to sue state officials in their official capacities as a way around the Eleventh Amendment's grant of state immunity from suit. (482)

Commentators have criticized Seminole Tribe on a number of theoretical grounds, (483) but from a practical standpoint, the decision disrupted IGRA's compromise, as states were now immune from suit even if they were lacking good faith in the negotiation of gaming compacts. This shift in the negotiation landscape allowed states to demand a large share of tribal gaming proceeds, which was not IGRA's intent. As former NIGC general counsel Kevin Washburn noted,

   From a purely legal standpoint, it is difficult to reconcile
   revenue sharing arrangements with Congress's intentions in IGRA.
   ... The compacting process was not intended to give states a veto
   over such gaming, but rather to give states an opportunity to
   address legitimate public policy concerns related to the tribes'
   exercise of the right. In other words, the compacting process was
   intended to give states a voice in Indian gaming to address
   legitimate concerns, not to give states an opportunity to demand a
   cut of the profits. … 

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VII. Major Shifts in the Negotiation Landscape
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