High Stakes Negotiation: Indian Gaming and Tribal/State Compacts

Although Indian tribes and the surrounding states were often bitter enemies throughout much of the history of the United States, recently tribes and states have been able to work cooperatively in a number of areas. In some instances, Congress has mandated such cooperation, and at other times the cooperative activity has arisen between the parties themselves as a matter of pragmatism. In either instance, tribes and states often find themselves at the bargaining table. The negotiation dynamics of tribal-state compacting, however, can be challenging. The parties may have experienced centuries of animosity. The “shadow of the law” relevant to the substance of the negotiation may be ill-defined or easily misunderstood. Finally, significant cultural differences may obscure common ground that could facilitate a successful negotiation. While the range of tribal-state compacts encompasses many issue areas, Indian gaming has probably generated the greatest amount of activity in recent years. In particular, the negotiations that led to the immense success of the Pequot gaming operation in Connecticut have become almost mythical in nature, with states often misunderstanding the lessons of the Foxwoods story. The true story is one of strategic negotiation and the leveraging of tribal sovereignty into economic opportunity. Using a close analysis of the Foxwoods-Connecticut negotiations as a point of departure, this chapter also discusses the sovereign nature of tribal governments and the complex regulatory environment that governs Indian gaming.