IV. A Framework for Analyzing Tribal State Negotiations
Clarkson, Gavin, Sebenius, Jim, Missouri Law Review
Whenever a tribe's success depends on the decisions and actions of other governmental parties who have different interests, negotiation or negotiation-like processes may be inevitable. Although gaming compacts, such as the agreement between Connecticut and the Pequots, garner most of the headlines, negotiated agreements between tribes and states that resolve jurisdictional or substantive disputes and recognize each entity's sovereignty can cover a wide range of issues. The processes of interaction range from formal to informal and from explicit to tacit. The goal of the processes may be reaching a legally binding compact or arriving at a temporary mutual understanding subject to renegotiation.
Broadly speaking, negotiation is a process of potentially opportunistic interaction aimed at advancing the full set of one's interests by jointly decided action. To be effective at negotiating, the tribe must persuade the state to say "yes" to a proposal that also meets all of the tribe's real interests and mean it. of course, the state is trying to accomplish the same objective. Basically, each side is trying to solve its "Basic Negotiation Problem," which is how best to advance one's full interests, either by improving and accepting the available deal or opting for its best no-deal alternative.
Three core elements make up each side's Basic Negotiation Problem:
(1) the importance of underlying interests as the raw material for negotiation;
(2) the implication that negotiation is a means for advancing interests, rather than an end in itself, implying that other non-cooperative means compete with negotiated possibilities; and (3) the fact that negotiation seeks jointly-decided action and thus inherently is a process of joint problem-solving. Essentially, to advance the tribe's real interests, tribal negotiators must assess what "yes" they want from the state and why the state might say it rather than opt for no deal. Thus, the tribe's approach should influence how the state sees its Basic Negotiation Problem such that what the state chooses-for the tribe's reasons -is precisely what serves the tribe's interests. The fundamental principle of effective negotiation, paraphrasing the words of an Italian diplomat, is "the art of letting them have your way" for reasons that they perceive to be their own. (261)
A. Interests: The Raw Material for Negotiation
The concept of "interests" is foundational to effective negotiation. Tribal interests in a negotiation are whatever the tribe cares about that is at stake in the process. Socrates' admonition to "know thyself lies at the core of effective deal making, along with its worthy twin to "know thy counterpart." Since negotiation requires at least two parties to say "yes" for a deal, the tribe must probe the full set of the other parties' interests and also examine its own, in addition to examining tribal interests. The best negotiators are clear on their ultimate interests and other side's interests. They also know their possible trade-offs among lesser interests and are flexible and creative on the means.
Interests visible at the surface may hide deeper interests that could be critical to a successful negotiation, so good negotiators also probe negotiating positions to identify and understand those deeper interests. Issues are on the table for explicit agreement. Positions are each party's stands on the issues. Interests are the underlying concerns that resolution ultimately affects.
Consider an example involving a power company that proposed building a significant dam to bring electricity at lower rates to the area's consumers and to demonstrate to the financial community that it could get large projects completed despite having been repeatedly stymied in these efforts. Predictably, environmentalists opposed this plan, claiming that it would damage the downstream habitat of the endangered whooping crane. Farm groups also lined up against the project, fearing that the dam would reduce water flow in the area, yet the power company needed results and a greener image. …