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Gavin Clarkson and Jim Sebenius

excerpted from: Gavin Clarkson and Jim Sebenius, Leveraging Tribal Sovereignty for Economic Opportunity: a Strategic Negotiations Perspective, 76 Missouri Law Review 1045-1112, 1069-1080 (Fall, 2011) (501 Footnotes Omitted)

While each tribe has its own separate history, the struggle to maintain a separate, sovereign existence is common to most tribes, and while Pequot history has many unique elements, their struggle and ultimate triumph similarly demonstrate that the first key to economic development is sovereignty. Although the status of tribes as separate sovereigns has not always been clear, the concept has still played a vital part in tribal and U. S. history.

A. Early Pequot History

The Pequots were once one of the most powerful Indian nations in New England, but the English almost annihilated them during the Pequot War of 1637. Thirty years later, as a compensatory measure, the Pequots obtained a reservation of approximately 2000 acres at Mashantucket, which would eventually become Ledyard, Connecticut.

Colonial settlers, however, gradually encroached upon the Pequots' land. In 1761, after settlers had appropriated half the Pequots' territory, a judge deeded that half to the settlers. In 1855, a county court expropriated and sold 800 of the remaining 1000 acres of Pequot land to neighboring property owners.

The population on the 200-acre Pequot reservation dwindled. By the 1950s, Elizabeth George, grandmother of eventual tribal chairman Richard Hayward, was the only Pequot living on the reservation, and her resolve earned her the nickname Iron Lady. She led a successful campaign against a Connecticut plan to turn the reservation into a state park. In time, George's half-sister joined her, and until the mid-1970s, the two remained the only residents on the reservation. In 1975 Richard Hayward was elected tribal chairman. He left his job as a pipe fitter at the nearby Electric Boat shipyard, moved onto tribal land, and set about rebuilding the reservation's Pequot population. Hayward managed to entice some tribe members back by offering used mobile homes to those who settled on Pequot land, using homes the tribe had acquired from the federal government for $1000 to $1500 each. By 1979, with twenty-three year-round residents on the reservation and many other people visiting and helping with development efforts, the tribe received a $1 million loan from the Department of Housing and Urban Development to build new homes.

As tribe members returned, the Pequots sought to reclaim lost land. In 1976 the tribe sued the State of Connecticut, claiming that the sale of 2000 acres of Pequot land by the State of Connecticut violated Federal law. In particular, the Pequots argued that Connecticut failed to follow a 1790 law requiring the federal government to approve all sales of Indian land, and that the 1855 sale of Pequot land violated that law.

Seven years later, urged by the Connecticut Congressional delegation to settle the suit, President Ronald Reagan signed the 1983 Connecticut Settlement Act. The Act provided the Pequots with $900,000 in federal funds for a combination of land purchases and economic development projects. In 1984, using funds from the settlement, the Pequots purchased 650 acres of land that previously had been part of the reservation. They also bought a pizza restaurant and started a gravel business and a maple sugar production enterprise.

Land expansion and the tribe's handful of new businesses attracted scattered Pequots back to the reservation. Those who could demonstrate ancestry of at least one-sixteenth Mashantucket Pequot were admitted to the tribe and could establish residency on tribal lands. By 1985, roughly thirty Pequots lived on the reservation. With mixed marriages and families of intermarried couples, the reservation's total population was approximately seventy-five.

B. Tribes as Separate Sovereigns

Although the immense success of Foxwoods was years away, the tribe's land claim and its recognition as a tribe laid the foundation upon which Foxwoods would be built. The question then arises, how could a tribe like the Pequots engineer such a return from the brink of extinction? The partial answer lies in the concept of tribes as separate sovereigns whose existence extends beyond the lifetimes of the individual members of a tribe at any given point in time. A tribe continues to exist as a sovereign entity so long as one member remains. The forces that could cause a tribe to dwindle down to one member, however, have been present since the formation of this nation.

As the newly formed United States began its inexorable march westward, it developed an insatiable appetite for more land. Unfortunately, the Indians occupied the desired land. To satisfy western expansion goals, the Indian lands usually were not taken by force but were instead ceded to the United States by treaty in return for, among other things, the establishment of a trust relationship. The federal government thus assumed a guardian-ward relationship with the Indians. This relationship was assumed not only because of prevailing racist notions of Indian societal inferiority, but also because the trust relationship often was consideration for the Indians' relinquishment of land. Notably, the Indians and the federal government entered into these treaties as government-to-government relationships among collective political entities. From the beginning of its political existence, the United States recognized a measure of autonomy in the Indian bands and tribes. Treaties rested upon a concept of Indian sovereignty and in turn greatly contributed to that concept.

While the formal existence of the United States began at a point in time when the prevailing policy of treaty-making recognized tribal sovereignty, such an orientation was not permanent. In the 1870s, Congress ceased making treaties with the Indians and instead developed a policy that was characterized as a mighty pulverizing engine, a policy that would destroy tribalism and force Indians to assimilate into dominant society as individuals. The policy devastated the tribes, and its consequences remain highly problematic.

The United States changed its policies toward tribal government structures again in 1928. In response to a report documenting the failure of federal Indian policy, Congress passed the Indian Reorganization Act of 1934 (IRA). In an effort to reinforce tribal sovereignty, the legislation allowed tribes to adopt constitutions and to reestablish structures for governance. Congress also passed specific acts to reverse the effects of previous policies established with the intention of destroying the governance structure of particular tribes, such as the Five Civilized Tribes in Oklahoma. Congressional policy had once again reversed itself - instead of destroying tribal sovereignty, the federal government was now encouraging it. As a result, many tribes began to thrive economically. The IRA provided a powerful stimulus to tribal governmental organization and in many cases so strengthened that organization as to enable continued development despite fluctuations in administrative policy.

Federal Indian policies would oscillate through one more cycle in the next half-century. A 1949 Report on Indian Affairs by the Hoover Commission recommended complete integration of Indians [as a federal policy] goal so that Indians would move into the mass of the population as full citizens. As a result, in 1953 the official congressional policy changed to one of ending the Indians status as wards of the United States. For the tribes that were terminated under this policy, the results were disastrous.

Just as Congress had reversed itself when it repudiated allotment and passed the IRA, the policy of termination also was short-lived. Ironically, termination had the opposite effect in its attempt to detribalize. Indians finally recognized that federal policy too often was directed at destroying tribalism. From that perspective, they concluded that only tribal control of Indian policy and lasting guarantees of sovereignty could assure tribal survival in the United States. With the Kennedy and Johnson administrations' abandonment of the termination policy, programs such as the Economic Opportunity Act [were passed, which] recognized the permanency of Indian tribes and the importance of social investment in reservation communities.

President Richard Nixon was arguably the most ardent supporter of Indian sovereignty, and he issued a landmark statement calling for a new federal policy of self-determination for Indian nations. Perhaps the greatest of Nixon's contributions to Indian tribal sovereignty was Public Law 638, the Indian Self-Determination and Education Assistance Act of 1975, which authorized the Secretaries of Interior and Health and Human Services to contract with and make grants to Indian tribes and other Indian organizations for the delivery of federal services. Acting at times pursuant to federal court orders, the Bureau of Indian Affairs (BIA) assisted tribes in reconstituting their governmental structures.

During this period, the U.S. Supreme Court handed down Morton v. Mancari, one of the most important Indian cases of the modern era. The Court held that tribal Indians were members of quasi-sovereign tribal entities and that Indian status was thus political rather than racial in nature. Mancari involved the BIA's hiring preference for Indians, but the Court extended its holding to other areas of Indian policy as long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians, and the policy is reasonable and rationally designed to further Indian self-government.

Thus, through acts of Congress and Supreme Court rulings, tribes are ensconced within the federalism framework. In the words of Justice Sandra Day O'Connor, Today, in the United States, we have three types of sovereign entities - [T]he Federal government, the states, and the Indian tribes. Each of the[se] sovereigns plays an important role in this country.

C. Self Determination and Tribal-State Compacting

In addition to the reaffirmation of a government-to-government relationship between tribes and the federal government, states began to realize that tribes were not going away and that in the federalist system there were three separate sovereigns. In part because of this recognition of a federalist triumvirate, a delicate but vital spirit of cooperation between tribes and states has grown across the nation. For example, the Western Governors' Association has determined that, especially in rural areas, tribes and states face many of the same problems, and the Association has begun projects among state governors, tribal chairmen, and interested groups to promote these mutual concerns. In addition, the Conference of State Chief Justices has recognized the jurisdictional confusion that inevitably arises between a tribe and a state. Accordingly, the Conference has begun implementing strategies to promote communication, cooperation, and comity between state and tribal courts. Emphasizing the need for mutual respect between the two courts and their common interest in serving all of the people within their jurisdictions, the Conference reiterated that effective enforcement is needed to create an orderly environment and that tribal and state authorities should be full participants in justice. One of their specific recommendations is to make intergovernmental agreements that provide for cross-utilization of facilities, programs, and personnel by state and tribal court systems.

Certain states have developed actual frameworks for entering into intergovernmental agreements with tribes. For example, South Dakota has enacted a statute that states, It is the policy of the state to consult with a tribal government regarding the conduct of state government programs [that] have the potential of affecting tribal members on the reservation. South Dakota also recognizes tribal court orders and judgments. In Wisconsin, an executive order provides that state agencies recognize the unique government-to-government relationship between the State of Wisconsin and Indian Tribes and accord Tribal governments the same respect accorded other governments.

Even Nevada, which fought a contentious battle against tribal jurisdiction in Nevada v. Hicks, has entered into a number of tribal-state cooperative agreements and has experienced amicable relationships with tribes. The Nevada Attorney General described the relationship as follows: [the current atmosphere] allows the state and the tribes to approach each other (warily certainly, but not from the narrow vantage point of absolute mistrust of motive and ultimate intent) on a government-to-government basis. Also in Nevada, the Attorney General has issued a number of opinions delineating tribal-state cooperation, and the legislature has passed a number of statutes regarding tribal-state cooperation.

Some of the tribal-state cooperation has been a result of congressional mandate. For example, the Indian Child Welfare Act (ICWA) identifies the Tribal Courts as the vehicle for the implementation of federal policy. ICWA mandates that tribes have exclusive jurisdiction over certain Indian child custody proceedings and requires their transfer from state to tribal court. Under ICWA, states shall give full faith and credit to any Indian tribe proceeding applicable to Indian child custody. ICWA also authorizes states and tribes to enter into agreements with each other respecting care and custody of Indian children and jurisdiction over child custody proceedings. Congressional requirements of state-tribal cooperation extend outside the arena of child welfare as well.

In addition to mandated federal policy, tribes and states also have initiated cooperative activity on their own. Formal and informal agreements between state or local governments and tribes cover a wide range of issues. These legal instruments take many forms, including memoranda of understanding, memoranda of agreement, inter-governmental agreements, compacts, and collaboration agreements. Professor Frank Pommersheim's 1991 law review article detailed eighty-seven such agreements, including agreements on jurisdiction, the environment, hunting and fishing, health and welfare programs, and Indian burial sites.

States have numerous and powerful interests in creating agreements with tribes, as evidenced by the fact that the states have negotiated hundreds, if not thousands, of such agreements since the 1980s. An empirical examination of this activity indicates that, as he suspected, Professor Pommersheim barely scratched the surface in terms of assessing the level of tribal-state compacting activity.

The National Congress of American Indians estimates that as many as 450,000 Indian children are in elementary and secondary schools in the United States. Only 10% of these children attend BIA schools on reservations, with the remainder mostly attending public schools, half of which are off-reservation.

The number of agreements relating to education that tribes and other sovereigns consummated is difficult to measure, in part because some agreements involve broad state-level directions to local school districts to cooperate as a general matter with area tribes. While Professor Pommersheim reported only two such agreements in 1991, the number of such agreements has grown substantially in the past two decades to include a broad array of specific educational issues.

Education-related agreements address funding, sharing of student data, the provision of culture-specific educational services, truancy, incorporation of tribes into local school boards for contracting and governance, disbursement of Impact Aid funds, programs to increase educational achievement, special education funding and services, transportation, and even tribal sponsorship of sports teams in North Dakota.

In at least one instance, a state has elevated cooperation with its tribes to the level of a constitutional mandate. Montana's Constitution recognizes the unique cultural heritage of the American Indians and declares a commitment to the preservation of their cultural integrity. This objective is reflected in a bill passed in 1999 requiring each school district to work cooperatively with Montana tribes, or others nearby, when providing instruction or when implementing an educational goal or adopting a rule related to the education of each Montana citizen, to include information specific to the cultural heritage and contemporary contributions of American Indians, with particular emphasis on Montana Indian tribal groups and governments.

The Native American Rights Fund reviews a number of cooperative agreements relating to the education of Indian children and provides access to the text of these agreements. Examples include an agreement between a reservation boarding school and the local school district in the Cheyenne-Eagle Butte School Cooperative School Agreement, which touches on funding, personnel, curriculum, transportation, and the rights of students.

2. Law Enforcement

States and tribes frequently use intergovernmental agreements to strengthen law enforcement and public safety for Indian and non-Indian communities. Unfortunately, high rates of criminal victimization in Indian Country, often of Indians by non-Indians, are frequently coupled with the reluctance of non-Indians to prosecute. These realities have encouraged the negotiation of a broad range of law enforcement intergovernmental agreements. Now numbering more than 150 separate agreements involving twenty-two states, their subsidiary jurisdictions, and more than seventy-five tribes, these agreements exist to clarify the complex jurisdictional questions relating to law enforcement in Indian Country and to achieve greater efficiencies in the use of law enforcement personnel and resources.

3. Taxation

A number of tribes and states have reached intergovernmental agreements related to taxation. Tribes enjoy an exemption from state taxes, which provide many substantial economic opportunities not available to the other sovereigns within the American federalist structure. Many states, however, fear revenue loss as tribal enterprises begin to compete with non-Indian enterprises subject to state taxation. Thus, states resist the expansion of tax-exempt tribal enterprises when they can. Sometimes both parties perceive gain in reaching a negotiated resolution.

The State of Michigan and several tribes signed a broad taxation agreement that covers use taxes, fuel taxes, income taxes, tobacco taxes, and the Single Business Tax. This agreement provides for a standardization of tax collection understandings about the disbursement of a portion of tax monies back to the tribes and includes, under certain conditions, the waiver of sovereign immunity in tax matters for the tribes and the state.

In January 2002, the State of Nebraska and the Winnebago Tribe signed a taxation agreement governing the tribal sale of reformulated gasoline and other petroleum products, in which the tribe collects the state tax but receives 75% back from the state. In Oklahoma, more than thirty tribes have entered into agreements with the state governing the taxation of motor fuels in the wake of a similar act by the state legislature.

Tribal sales of tobacco often provide an attractive economic opportunity because, under most circumstances, tribes do not have the burden of state tobacco taxes. Many tribes and states, however, share concerns relating to the health consequences of tobacco and prevention of youth smoking. States are concerned about revenue loss as consumers shift from vendors subject to state taxes to the tribal providers. The State of Washington and its tribes have made several compacts relating to sharing revenues and managing the sale of cigarettes. In Oklahoma, the Choctaw, Chickasaw, and Seminole Nations also compacted with the State of Oklahoma regarding tribal sale of tobacco products. Per the agreements, the state receives tribal tax revenues but guarantees the tribes' taxation rates and contributions to certain programs, such as education and health care.

4. Hunting and Fishing

Habitat co-management plans for wildlife and fishery resources are attractive to the federal government, state governments, and some tribes in order to better protect the animal resources Indians and non-Indians enjoy. These agreements pose certain risks to both parties and raise nettlesome issues for tribes. In many cases, intergovernmental agreements can cut through the knot of confusing jurisdictions and reduce waste in the management of game and fish resources for the benefit of all parties. Intergovernmental agreements also can provide tribal members with better access to traditional hunting and fishing areas, including off-reservation sites, and can help tribes protect reservation areas from non-Indian sportsmen. Given the ongoing debate regarding which entity has management authority over wildlife resources, state-tribal agreements may best meet the needs and rights of multiple user groups. This trend will accelerate as the successes of recent cooperative efforts become more apparent to stakeholders.

The most comprehensive compact relating to fisheries resources is the Columbia River Compact, developed in the wake of the Boldt decisions, comprising the Oregon Fish and Wildlife Commission, the Washington Fish and Wildlife Commission, and the various tribes that have developed substantial fisheries. This compact ensures tribal participation in decisions that may affect their fisheries while providing an institutional mechanism for the coordination of recovery and resource management plans and the sharing of tribal expertise.

Promoted by Governor Gary Locke through the Office of Indian Affairs, the State of Washington signed a series of agreements with tribes relating to both subsistence hunting and fishing as well as recreational fishing and hunting licenses. The agreements were a product of the 1999 Centennial Accords implementation plan that institutionalized a government-to-government relationship between tribes and the state. The parties to the agreements include the Departments of Ecology, Fish and Wildlife, and various tribes across the state.

An Oregon Department of Fish and Wildlife report describes cooperative agreements and efforts ranging from hydropower licensing to access to game for ceremonial purposes, with many other cooperative efforts in between. Arizona has signed seventeen separate agreements with eight tribes relating to game and fisheries management, ranging from hunting permits to turkey capture and relocation programs, and from predator management to wildlife law enforcement.

D. Rationale for Compacting

At its most basic level, the availability of tribal-state cooperative agreements allows the states freedom to create contracts that meet the needs of their constituents. Without these agreements, states and their non-Indian citizens would have no access to Indian land for non-criminal matters that affect both groups, matters ranging from minor contractual issues such as auto repossession to land development and zoning issues. States would also be unable to enforce child-support agreements or have state court rulings enforced in Indian Country. In addition to decreasing the likelihood of reaching mutually satisfactory solutions to disputes, the absence of intergovernmental agreements would also contribute to a possible escalation to violence.

One example of the need for amicable negotiation between tribes and states occurred when the Rhode Island State Police staged an armed invasion of the Narragansett reservation to forcibly shut down a tribal tobacco store that was selling tobacco products without charging state sales taxes. Fortunately, such violent confrontations are now the exception, and as tribes and states have found ways to work together, the areas of cooperation have expanded. In many instances, any political subdivision of a state can enter into cooperative agreements with tribes in pursuit of mutual interests. For example, states and tribes have used inter-jurisdictional agreements to integrate their respective judicial systems so that the two remain separate and distinct, supporting rather than contradicting each other. States also have found these agreements helpful in clarifying and simplifying the application of social policies, aiding the resolution of domestic disputes, and in dealing with issues surrounding religious practice. In some states, this cooperation even extends to issues of mental health.

Although the breadth of tribal-state compacting is extensive, gaming compacts have been the most prominent. More than twenty states have reached gaming agreements with more than 200 tribes that the Secretary of the Interior has approved and that operate under the oversight of the National Indian Gaming Commission. The fact that a compact exists, however, does not indicate that a casino is in operation, let alone profitable. As discussed in Part IV.B, however, tribes can also offer limited forms gaming even in the absence of a compact. In order to understand the nuances of tribal gaming compacts, the origins of Indian gaming must be understood.