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4 Harv. Negotiation L. Rev. 283
Harvard Negotiation Law Review
Spring 1999
Legislative Development
WHEN SOVEREIGNS NEGOTIATE IN THE SHADOW OF THE LAW: THE 1998 ARIZONA-PIMA MARICOPA
GAMING COMPACT
Ron M. Rosenbergd1
Copyright (c) 1999 Harvard Negotiation Law Review; Ron M. Rosenberg
I. Introduction
In the late 1970s, casino gaming on Indian reservations emerged as an effective, if controversial, means for tribes to address
their high rates of poverty and unemployment. Its proponents consider gaming to be a ‘white buffalo,‘ a spiritual sign of good
fortune, through which tribes may attain economic development and, with that, cultural and political survival. Opponents
assert that gaming is a poison pill that will ultimately threaten the gaming tribe’s cultural survival, as well as threaten states’
interests off the reservation.1 On the heels of a Supreme Court decision upholding tribal gaming, Congress in 1988 enacted
the Indian Gaming Regulatory Act (IGRA).2 The IGRA prescribed a detailed process by which states and tribes would come
to an agreement (formally a ‘compact‘) regarding the establishment of gaming activities on Indian reservations. In 1996, the
Supreme Court’s decision in Seminole Tribe v. Florida 3 severely disrupted the balance struck by the IGRA process,
eliminating the tribe’s ability to sue states in federal court to compel the states to sign a gaming compact. The law was left in
a state of uncertainty. During the next two and one-half years, not one tribe-state compact was finalized. On August 18, 1998,
without any further direction from either Congress or *284 the Supreme Court, the State of Arizona and the Salt River
Pima-Maricopa Indian Community signed the first tribe-state gaming compact since the Seminole Tribe decision.
This Review analyzes the process by which the tribe and state arrived at their agreement. Part II provides a brief historical
background of the evolving relations between Native American tribes and the United States, while Part III outlines the
shifting legal framework that arose in response to the advent of casino gaming on tribal reservations. Part IV examines the
lengthy, multi-faceted process by which the Pima Maricopa and State of Arizona arrived at their August 1998 compact. The
tribe’s experience reveals innovative methods through which a theoretically co-equal sovereign was able to correct power
asymmetries inherent in the legal framework. Part V explores the substance of the resulting compact and how the parties
were ultimately able to engage in ‘pie-expanding‘ integrative bargaining, despite the appearance of a litigated resolution.
While the process appeared to fall squarely within an adjudicative model of dispute settlement, Part VI concludes that the
parties’ many legal maneuvers ultimately did not resolve their dispute, but merely enabled them to reach a negotiated
resolution of the gaming issue.
II. Brief Historical Background
During the colonial (or contact) period, European countries entered into treaties with Native American tribes as separate
sovereigns in order to gain land rights and establish political alliances.4 For the first century of United States history, the
federal government continued this practice, signing hundreds of treaties with tribes. Treaty-making defined to a large extent
the legal and political relationships between the Indian nations and the United States government.
Importantly, the federal government’s relationship with the tribes was exclusive. States had no formal role in the relationship
between the federal government and tribes, though states exercised considerable political power in the halls of Congress.
Relying on the Indian Commerce Clause of the Constitution, 5 Congress exercised plenary power to legislate in a wide range
of Indian affairs, including governance, education, law enforcement, social and economic welfare, *285 and property law.6
Congress’ stated goals were to protect Indian sovereignty, economic growth, and self-sufficiency.7 In several early cases, the
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Supreme Court affirmed that tribes were sovereign nations with whom the federal government enjoyed an exclusive political
relationship, such that state law had no force within Indian territory. 8
Out of this period emerged what Vine Deloria has called the ‘consent principle,‘ the idea that tribes and the federal
government use the political arena to negotiate a balance of power between two sovereigns that is responsive to their needs
and authority.9 The consent principle was manifest in the treaty-making between parties who interacted with each other, if
only formally, as co-equal sovereigns.
By the end of the nineteenth century, many tribes had lost their military power, and thus their political power with respect to
the federal government. Tribes were forced from their lands. Disease and warfare had reduced their numbers. Eventually,
tribes were relocated to a series of small reservations, permanent fixtures within states, that circumscribed the territorial
boundaries of tribal homelands, and to some extent, of tribal sovereignty. With few exceptions, reservation tribes have
experienced high levels of poverty and unemployment.
The widening power gap between tribes and the federal government undermined the consent principle. In negotiations
between tribes and the federal government, consent became only symbolic. Perceiving consent-based negotiations to be an
ineffective method of protecting their interests, tribes moved negotiations to the court room, embracing litigation as a means
of securing their rights. This is not to say that parties altogether rejected negotiation as a dispute resolution mechanism.
Rather, tribes adopted a strategy that can be described as ‘litigate first, negotiate later.‘ Litigation’s emphasis on legal rights,
or entitlements, helped Indian nations bridge the power gap between tribes and the federal government. In their seminal
essay, Bargaining in the Shadow of the Law, Mnookin and Kornhauser note that legal rules create ‘bargaining endowments . .
. that indicate the particular allocation a court will impose if the parties fail to reach *286 an agreement.‘10 By first securing a
court decision declaring its legal rights--generally regarding natural resource use in the earlier cases 11--a tribe could force the
federal government ‘to the table‘ to negotiate an arrangement based on a recognition of the tribe’s ‘bargaining endowment.‘
Furthermore, tribal litigation over land and water rights raised awareness of tribal sovereignty and political identity. As tribes
increasingly enjoyed success in court and grew more politically active, the federal government in the 1970s articulated a
policy of ‘self-determination‘ and encouraged tribes to assume control over federal programs.12 As tribal governance
structures developed and sought to exercise control over a broader array of reservation affairs, state governments began to
question and challenge the breadth of tribal jurisdiction. Rather than await instruction from the federal government or adhere
to the laws of the state in which the reservation was located, tribes increasingly crafted their own social and economic
policies. In the late 1970s, several tribes adopted gaming as an effective, if controversial, means of economic development.
Tribal assertion of political independence in the 1970s has led to what Rebecca Tsosie considers a ‘resurrection of the
consent principle.‘13 Tsosie describes what she views as a return to the negotiation model of dispute resolution, as tribes, the
federal government, and now states increasingly reach negotiated resolutions of competing land and water claims. What
differentiates the consent principle of early tribal-United States relations from the consent principle of today is the inclusion
of the state in the once exclusive federal-tribal relationship. Until recently, one could identify two levels of federalism within
the United States: the balance of power between tribes and the federal government and that between states and the federal
government. Only recently has there been pressure to combine or reconcile the two regimes into one tri-party federal system.
Striking a balance that respects, and preserves to the extent possible, the sovereignty of all three constituent members of this
new federalism is no easy task.
*287 III. The Legal Framework
A.Cabazon: The Supreme Court Recognizes Tribes’ Legal Entitlement to Game
In 1979, the Seminole Tribe of Florida opened the first reservation-based bingo parlor.14 The State of Florida challenged the
tribe in federal court, contending that Public Law 83-280 gave the state the power to regulate gaming on Indian
reservations.15 In 1981, the Fifth Circuit Court of Appeals upheld a lower court’s determination that Florida’s bingo statute
was of a civil/regulatory, as opposed to criminal/prohibitory, nature and therefore inapplicable to the tribe. 16 Over the next
five years, tribes throughout the United States adopted gaming enterprises as an economic development strategy. 17
In 1987, the Supreme Court addressed Indian gaming for the first time in California v. Cabazon Band of Mission Indians. 18
The Cabazon Court adopted the Fifth Circuit’s distinction between state regulatory and prohibitory powers, holding that if a
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state regulated, but otherwise permitted, some form of gambling within its borders, even if only for charitable purposes, then
the state could not regulate gaming on a reservation. Only if the state completely banned gambling and criminalized such
activities within the state as against public policy, could it also prohibit gambling on the reservation. 19 The Cabazon Court
acknowledged the competing interests of state, tribe, and federal government, but concluded that ‘[s]elf determination and
economic development are not within reach if the Tribes cannot raise revenue and provide employment for their members,‘
*288 such that the ‘State’s interest in preventing the infiltration of [organized crime] does not justify state regulation of the
tribal bingo enterprises in light of the compelling federal and tribal interests supporting them.‘20
The Cabazon decision apparently recognized that tribes had a sovereign, if contingent, ‘right‘ to conduct gaming on their
reservations. Absent a decision to completely outlaw all forms of gambling, states could not legally require tribes to accept
regulations nor even to meet and listen to its suggested regulations. In securing for tribes a legal entitlement to game,
Cabazon had weighed the competing interests of two sovereigns and conferred an absolute legal entitlement on one. As a
result, Cabazon created a power asymmetry between the two sovereigns, states and tribes, albeit one that inverted the
traditional leverage of states over tribes. Unhappy with their inability to require tribes to adopt regulations that would address
states’ interests, states lobbied Congress for legislation that would readjust the power imbalance. Congress acceded and, in
1988, enacted the Indian Gaming Regulatory Act.21
B. Indian Gaming Regulatory Act (IGRA): Congress Codifies and Modifies Tribal Gaming Rights
The IGRA reflects a political compromise that codifies the tribes’ gaming entitlement announced in Cabazon yet establishes
an elaborate process through which state, tribe, and federal government interests may be addressed in the development of a
‘compact,‘ the terms of which fully regulate the conduct of certain gaming activities. However, the process as designed
created more than simply a forum through which states could discuss their interests before tribes began gaming on the
reservation. The compact requirement effectively made the tribes’ sovereign right to conduct gaming dependent on state
consent. Without the state’s signature on a compact, a tribe may not conduct high stakes gaming.
The IGRA established the National Indian Gaming Commission (NIGC) to monitor and regulate certain gaming. The Act
identifies three classes of gaming and specifies the permissible scope of tribe, state, and federal regulation for each class.
Class I gaming includes social games played for minimal prizes or traditional games played in connection with tribal
ceremonies or celebrations.22 Class I gaming *289 is within the tribes’ exclusive jurisdiction.23 Class II gaming includes
bingo, and, if played at the same location as bingo, also includes pull-tabs, punch boards, tip jars, and other games similar to
bingo.24 Class II gaming also includes non-banking card games (e.g., poker) that are authorized by state law or are not
explicitly prohibited by state law. Except for the applicability of certain state laws with respect to card games, Class II
gaming is regulated by the tribe with federal oversight.25 The Act provides no formal role for state regulation of Class II
gaming.
1. Class III Gaming
Class III gaming includes the high stakes, casino-style gambling--slot machines, blackjack, craps, pari-mutuel wagering, and
lotteries--that we normally associate with Las Vegas or Atlantic City.26 A tribe may lawfully conduct Class III gaming only
if: (1) the state in which the tribe is located permits such gaming for any purpose, by any person, organization, or entity; (2)
the tribe adopts a gaming ordinance that has been approved by the NIGC Chairman; and (3) the tribe and state have
negotiated a ‘compact‘ that has been approved by the Secretary of the Interior. 27 Ironically, the compact provision, designed
to avoid contentious, protracted, and expensive litigation, has spawned more litigation than any other provision in the Act.28
2. The Tribe-State Compact Process
The Act prescribes an elaborate process for arriving at a tribal-state gaming compact. First, the tribe seeking to conduct Class
III gaming first requests the State to ‘enter into negotiations‘ towards a compact to govern such gaming.29 The State ‘shall
negotiate with the Indian tribe in good faith to enter into such a compact.‘30 The Act limits the kinds of provisions a compact
may include to those ‘directly related to the operation of gaming activities.‘31
*290 To prevent states from resisting or ignoring tribal requests to enter into a compact, the Act provided tribes a judicial
remedy. If the parties have not agreed upon a compact within 180 days of the date the tribe formally requested negotiations,
the tribe may bring an action in federal district court alleging that the state refused either to enter into negotiations or to
conduct such negotiations in good faith.32 If the court finds that the state has failed to negotiate in good faith, the court ‘shall
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order‘ the state and tribe to conclude a compact within 60 days.33
If after this 60-day court-ordered negotiation period, there is still no compact, the tribe and state shall each submit to a
court-appointed ‘mediator‘ a proposed compact ‘that represents their last best offer‘ for a compact.34 The mediator will then
‘select from the two proposed compacts the one that best comports with the term of [the Act] and any other applicable
Federal law and with the findings and order of the court.‘35
The mediator then submits the chosen proposal to each party. If the state does not consent to the mediator-selected compact
within 60 days, the mediator will notify the Secretary of the Interior, who shall prescribe, ‘in consultation with‘ the tribe,
procedures consistent with the proposed compact, and with state and federal law. 36 If the Secretary does not take action on
the mediator-selected compact within 45 days of its submission to the Secretary, the compact shall be considered to have
been approved to the extent that it is consistent with federal law. 37 The Secretary may disapprove a compact if it violates
federal law or ‘the trust obligations of the United States to Indians.‘38
3. Negotiating under the IGRA Compact Process
The Act attempts to facilitate a negotiated agreement between states and tribes by restricting the tendency to ‘litigate first.‘
To this *291 end, the Act establishes several conditions precedent to federal court jurisdiction. Before a tribe can sue a state
in federal court, the parties must first have engaged in ‘good faith‘ negotiations for a 180 day period. Should federal court
jurisdiction arise after the six month negotiation period, and should the court determine that the state failed to negotiate in
good faith, the Act instructs the court to order the parties to negotiate a compact within sixty days. The Act attempts to
achieve a compact that is negotiated between the parties, rather than imposed by a federal court, even if the federal court must
ultimately compel the parties to arrive at the compact.
It is worth noting, however, that the IGRA process does as much to inhibit, as to facilitate, negotiations between tribes and
states. First, the Act circumscribes the substantive scope of negotiations to subjects ‘directly related to the operation of
gaming activities.‘39 This restriction precludes tribes and states from integrating other issues of mutual concern into the
negotiations to arrive at a broader agreement. The Act’s restriction on the scope of options that the parties may generate to
address their various interests limits the potential size of the pie the parties will ultimately share.
Second, in the event that the parties do not arrive at a compact within the initial 180 day negotiating period, nor within the
sixty day period ordered by a federal judge, the Act provides for a court-appointed ‘mediator‘ to select the ‘last best offer‘
which most comports with the Act.40 Alternative dispute resolution is commonly divided into two broad categories:
facilitative and adjudicative.41 A facilitator is ‘a non-directive intermediary who brings the parties together to help them
reach the best mutually agreeable solution to the dispute at hand.‘42 An adjudicator is one who hears arguments and/or looks
at evidence from both parties to a dispute, and then imposes a judgment on the parties. Judges and arbitrators are regarded as
adjudicators, whereas ‘mediators‘ are generally understood to be facilitators. However, the IGRA ‘mediator‘ may only weigh
and choose between two opposing proposals. She may not guide the parties to a negotiated settlement or otherwise facilitate a
mutually agreeable settlement. The term ‘mediator‘ is thus a misnomer. The IGRA, in fact, provides for mandatory, binding
arbitration much like *292 the ‘final offer‘ system employed as a last resort to settle employment contracts between free
agent baseball players and team owners.43
C.Seminole Tribe: The Supreme Court Disrupts the Balance
Under the complex process described above, compact negotiations frequently break down for any of several reasons. A state
may argue that because its public policy prohibits Class III high stakes gaming, it is not required to enter into a compact. 44
Also, because tribes cannot conduct Class III gaming without a compact, states have stalled by not negotiating in ‘good faith‘
or by refusing to negotiate altogether. The IGRA attempted to curb this latter tactic by providing tribes with a remedy in
federal court. In order to move negotiations along, the IGRA gives tribes the ability to sue states as a matter of federal law.
States, who originally lobbied for the IGRA process in response to the Supreme Court’s Cabazon decision, sought to evade
enforcement of the negotiation provisions in federal courts. States argued that the IGRA violated their state sovereignty under
the Eleventh Amendment to the U.S. Constitution.45 That is, the Eleventh Amendment immunizes the fifty states from being
sued in federal courts.
On March 27, 1996, the Supreme Court issued its decision in Seminole Tribe of Florida v. Florida, affirming states’ Eleventh
Amendment defense to tribal suits under the IGRA.46 The Supreme Court’s decision does not completely invalidate the
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Indian Gaming *293 Regulatory Act or, more specifically, its compact negotiation process. The Act contains a severability
clause, 25 U.S.C. § 2721, such that those sections which have not been invalidated shall still retain their force and effect. The
compact negotiation process for class III gaming is, however, sequential. Now that tribes may not seek federal court
involvement to compel negotiations or to move the parties forward, the careful balance that Congress struck in crafting the
IGRA’s compact negotiation process has been seriously disrupted.
The Supreme Court in Cabazon first confirmed that tribes have a right to conduct gaming. Congress then enacted the IGRA,
conditioning the tribes’ gaming right upon state consent. Finally, the Supreme Court ruled in Seminole Tribe that Congress
could not compel states to give their consent. Within less than ten years of its confirmation by the Supreme Court in
Cabazon, the tribes’ ‘right‘ to conduct gaming effectively ceased to exist.
D. Negotiating a Gaming Compact under IGRA after Seminole Tribe
More than three years after Seminole Tribe, compact negotiations under the IGRA remain in a state of uncertainty. 47 The
Supreme Court in Seminole Tribe cited, without endorsing, a footnote from the earlier Eleventh Circuit decision in that case
suggesting that, absent federal court jurisdiction, a tribe could seek immediate recourse from the Secretary of Interior. 48
Following the Seminole Tribe decision, the Senate Committee on Indian Affairs held hearings to solicit opinions on the
resultant post-Seminole Tribe regime for compact negotiations under the IGRA. 49 Many interested parties-- states, tribes,
casino interests, academics--have weighed in with *294 their assessments of how the post-Seminole Tribe compact
negotiation process should appear, both as a matter of law and policy.50
The continuing debate over how to patch the hole left in the compact process by Seminole Tribe should be informed by the
fact that, in the two and one-half years following the Court’s decision, no tribe-state class III gaming compacts have been
successfully finalized.51 The absence of compacts signed after Seminole Tribe shows that the judicial remedy crafted by
Congress in the IGRA was necessary to level the playing field. Many states read the Seminole Tribe decision as permitting
them to simply refuse to participate in further negotiations.
IV. En Route to a Class III Compact Between Arizona and the Pima-Maricopa
In August 1998, the Salt River Pima Maricopa Indian Community (Pima Maricopa or Community) and the State of Arizona
entered into the first post-Seminole Tribe compact in the United States. The lengthy, multi-faceted process by which the Pima
Maricopa and the State of Arizona arrived at their August 1998 compact reveals innovative methods to ameliorate, in the
post-Seminole Tribe era, the power asymmetry between theoretically co-equal sovereigns negotiating under a shifting federal
legal framework. Negotiations were not limited to the period following the final determination of each side’s legal
entitlements. Rather, each stage of the long process was itself a form of negotiation, albeit in different fora. The entire
process, as described by one person close to the negotiations, resembled a well-choreographed ‘dance‘ between the State of
Arizona and the Pima Maricopa. Often this dance was more for the benefit of the viewing public than for the parties
themselves.
From the inception of the IGRA in 1988, Arizona resisted entering into gaming compacts with various tribes throughout the
state. Despite requests to negotiate from some 20 tribes located in Arizona, state officials initially refused to negotiate any
gaming compacts, contending that casino gambling would attract organized crime.52 Exercising the judicial remedy afforded
under the IGRA, several tribes sued the State of Arizona in federal court. The tribes argued that the *295 state was required
to negotiate and enter into Class III gaming compacts because the state already permitted gaming in the form of the Arizona
Lottery, charitable casino nights, and racetrack betting.53 In 1992, a federal district court ordered state-tribe negotiations and
appointed former Arizona Supreme Court Chief Justice Frank X. Gordon to mediate. 54 In February 1993, Gordon determined
that the tribes were entitled to conduct gaming in such forms as slot machines and poker, based on existing legalized
gambling in the state. The state responded by convening a special legislative session to pass legislation prohibiting specified
forms of ‘casino gambling.‘55 The tribes reacted both by gathering signatures for a statewide ballot initiative and by
petitioning U.S. Secretary of the Interior Bruce Babbitt to intervene. Thus, in addition to seeking recourse at the federal level,
the sovereign tribal nations also utilized Arizona state law to force the state to reckon with its request to compact. The Pima
Maricopa Indian Community would later adopt this strategy in its effort to secure a compact. The parties reached a
compromise in June 1993 and sixteen standard form compacts were eventually executed. Importantly, any future tribes
seeking a compact would be offered this standard form.
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In December 1994, the Ninth Circuit Court of Appeals in Rumsey Indian Rancheria of Wintun Indians v. Wilson held that ‘a
state need only allow Indian tribes to operate games that others can operate, but need not give tribes what others cannot
have.‘56 Rumsey circumscribed the types of gaming states were obligated under the IGRA to negotiate, but did not address
the Eleventh Amendment defense affirmed in Seminole Tribe. Arizona Governor Symington would seize on the language in
Rumsey to avoid signing any additional compacts.
Several months before the Rumsey decision, the Salt River Pima Maricopa Indian Community had voted to adopt gaming on
its reservation, located on the edge of Scottsdale. On May 11, 1995, Pima Maricopa President Ivan Makil sent a letter to
Arizona Gaming Director Gary A. Husk formally requesting a meeting to negotiate a gaming compact. 57 On May 16, 1995,
then Governor Fife Symington *296 informed President Makil that, pursuant to the Ninth Circuit’s recent decision in
Rumsey, the state would not enter into negotiations.58
For five months between June and October 1995, meetings were held between the Community and the Arizona Department
of Gaming but no agreement was reached. On October 27, 1995, Makil wrote Symington in a final attempt to obtain a
‘standard Arizona Class III gaming compact‘ akin to the sixteen compacts signed in 1993. The Governor refused, and on
November 16, 1995, the Community filed a federal lawsuit to compel Symington to negotiate a compact.59
At the same time as its federal law suit, the Community began gathering signatures to place Proposition 201, a public
referendum dubbed the ‘Fairness Initiative,‘ on the November 1996 statewide election ballot.60 Proposition 201 asked
Arizona voters whether the Pima Maricopa should be offered the same standard form compact as earlier offered to sixteen
other tribes. As in 1993, a sovereign tribal nation employed the sovereign state’s legal processes to improve its position in
negotiations with that state. In the aftermath of Seminole Tribe, this strategy will likely be increasingly adopted. 61
*297 A Community representative indicated that the tribe decided to proceed with a state ballot initiative for several reasons.
First and foremost, the tribe anticipated that the Supreme Court would soon issue a decision in the Seminole Tribe litigation.
In a worst-case scenario, the tribe would lose its ability to bring a federal court action to compel negotiations as a matter of
federal law. A successful state ballot initiative would require Arizona to offer a standard compact as a matter of state law,
which would be enforceable in state courts and which would be beyond the reach of an Eleventh Amendment sovereign
immunity defense. Second, Governor Symington publicly opposed gaming ostensibly to protect Arizona residents from an
influx of organized crime. If the residents themselves, especially those living in Scottsdale, would endorse gaming on the
Pima Maricopa reservation, the Governor’s unbending opposition to a new compact would be less justified.62 Finally, the
tribe conducted a preliminary poll that revealed the tribe’s likely success on a ballot initiative. The tribe faced no real
opposition and the cost of the ballot initiative was minimal relative to the tribe’s litigation expenses. 63
On November 5, 1996, Proposition 201 passed by a 2-to-1 margin, even among the voters of Scottsdale--those most affected
by gaming on the adjacent Pima Maricopa reservation. The very day after Proposition 201 passed, a federal district court
judge dismissed the lawsuit.64 The tribe’s two-pronged strategy, federal court litigation and a state ballot initiative, was not
unwarranted.
The success of Proposition 201 could be considered a mixed blessing, as much inhibiting as encouraging further negotiations.
On the one hand, Proposition 201 brought Governor Symington back to the negotiating table. Between November 1996 and
February 1997, Governor Symington sought to negotiate several changes to the standard *298 compact, including enhanced
regulatory authority and the ability to approve the specific geographic location of casinos on the reservation. On the other
hand, the tribe treated its victory on Proposition 201 as the natural end of the negotiations. Rather than go forward with the
negotiations, the tribe contended that the public initiative effectively defined the contours of the compact and that ‘there was
nothing left to negotiate.‘65 As required by the language of Proposition 201, the Community sought the same ‘standard form‘
compact that the state concluded with 16 tribes in 1993. The Community did not want to deviate from the standard form,
contending that Proposition 201 required the governor to sign a compact identical to those offered in 1993. The tribe
effectively transformed Proposition 201 into a bargaining position.
Because the governor’s office insisted that the standard form compact include some revisions before signing, the tribe
determined that its ‘best alternative to a negotiated agreement‘ (BATNA)66 was, again, to litigate. Earlier, the tribe elected to
litigate in federal court in pursuit of a remedy prescribed by federal law (the IGRA). The combined effect of Seminole Tribe
and the adoption of Proposition 201 was to alter the Community’s BATNA to litigation in state court. On February 17, 1997,
the Community filed a Petition for Special Action with the Arizona Supreme Court, requesting a mandamus order requiring
Governor Symington to sign a standard form compact. 67
In October 1997, the Arizona Supreme Court unanimously ruled in favor of the Pima Maricopa, holding that Proposition 201
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required the Governor (now Jane Hull, who took office in September 1997) to sign the standard form compact.68 In so doing,
the Court noted that Proposition 201 restricted the ability of the parties to change the terms of the standard compact:
[Proposition 201] did no more than put eligible tribes on an equal footing with the tribes that already had compacts when
Rumsey was decided. It could simply have removed the state’s Rumsey objection to class III gaming and required the state to
negotiate with each tribe individually. This would have. . . allowed the state to negotiate casino location in a more flexible
way to accommodate the different circumstances presented by *299 each reservation’s location. . . . But the initiative does
more: it not only removes the Rumsey objection but also requires the state to enter into the same compact entered into with
other tribes. Thus the flexibility to negotiate location was not preserved. We must enforce the plain terms of the statute unless
it violates constitutional principle or leads to absurd or irrational results. That is not the case here.69 The Arizona Supreme
Court explained, however, that its decision did not prohibit the state from trying to negotiate a better deal for itself than that
obtained in the previously negotiated standard compact. Indeed, the Court noted that Proposition 201 required the governor to
sign the standard compact only if, within the 30 day period prescribed by A.R.S. § 5-601.01, the governor was ‘unable to
persuade, bargain, cajole, or otherwise reach an agreement‘ different from the standard compact.70 In fact, the Court
concluded by encouraging the parties to continue negotiations: ‘[W]e do not discourage Governor Hull from re-opening
negotiations. Nothing in IGRA or the initiative measure requires the parties to remain at an impasse.‘71 Despite this
encouragement to continue negotiating, Proposition 201 effectively struck a position below which the state could not descend
in negotiating a compact. Even the Arizona Supreme Court could not resist remarking that the “initiative gives the tribes a
negotiating advantage--a peek, so to speak, at the state’s ‘hole card.” ’72
The tribe had to clear one final legal hurdle to the conclusion of a gaming compact. In January 1997, during a rare period in
which the parties were actually negotiating at a table instead of in a courtroom, Alan and Paula Sears, private residents of
Phoenix closely affiliated with Governor Symington, filed a suit to declare Proposition 201 unconstitutional. 73 The Sears suit
bounced from the Arizona Supreme Court, down to the Maricopa County Superior Court, and back up to the Arizona
Supreme Court before being soundly rejected on July 16, 1998 for lack of standing.74
*300 One month later, on August 18, 1998, the State of Arizona and the Salt River Pima Maricopa Indian Community signed
the ‘standard form‘ compact,75 the first gaming compact to be concluded in the United States since the 1996 Seminole Tribe
decision. The U.S. Department of the Interior approved the compact on September 10, 1998. 76
V. Analysis of the Arizona-Pima Maricopa Compact
It might appear that the tribe ‘won the jackpot.‘ That is, viewed purely from an adjudicative framework, one would expect
that the tribe could cash in its court victory in exchange for the standard form gaming compact. Because they remained
almost entirely within the adjudicative model of dispute resolution for the duration of the negotiation process, the parties
appeared to have left little room for integrative bargaining. The proverbial ‘pie‘ appeared to have been distributed entirely to
the tribe, though not necessarily expanded. If this were indeed the case, the legal processes, so beneficial in correcting for
power asymmetries, would have narrowly constrained the scope of the resulting agreement to the detriment of both the state
and the tribe.77
However, despite the appearance of a zero-sum, distributive game in which the tribe won the jackpot through litigation, the
parties ultimately transcended the adjudicative model and fared better than had they simply adopted the standard compact. In
the end, the parties were able to address the interests underlying their negotiating positions and to incorporate appropriate
resolutions of several issues in the final agreement, if not squarely within the four corners of the formal compact.
For example, while the standard compact prescribes how many gaming devices a tribe may have, the parties were able to
incorporate an understanding as to what would constitute a ‘device.‘ One particular machine has five separate stations that
may be played simultaneously and independently by five people. Although originally asserting that such a machine counted
as only one ‘device,‘ the tribe *301 acceded to the state’s interpretation; each player position would constitute a separate
device.78 Another ambiguity in the standard compact that the parties were able to resolve regarded wager limitations. Section
3(h) of the compact imposes an $8.00 limit on wagers. The tribe agreed to an interpretation wherein the several components
of double-down, splitting, and insurance bets would be treated as a joined, single wager for purposes of the $8.00 limit.79
More important than resolving these technical points, both parties were keenly interested in assuring that the tribe’s casino
pass what one party called the ‘newspaper test.‘ Neither tribe nor state wished to pick up the morning newspaper and read, for
example, that the casino had hired several convicted felons.80 Such a headline would impugn the gaming operation’s
legitimacy and sense of accountability in the eyes of Arizona residents. Tribe attorney Richard Wilks effectively
demonstrated the importance of appealing to public perceptions: ‘[W]e want to get the state as involved as it can be. We want
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to follow our gaming laws. They are tougher than the state’s own laws. If we aren’t doing that, we want the state to help us
do it.‘81 To this end, the state wished to secure authority to regulate and/or monitor the hiring of all non-tribal casino
employees, to obtain access to portions of the casino and its records, and to perform background checks on third-party
financiers and casino operators.82
The parties’ shared interest in complying with the ‘newspaper test‘ was served by the very fact that the parties were now
committed83 to finalizing a gaming compact. As a pre-compact staff memorandum to Governor Hull had cautioned, tribes
who ‘believe that they are without legal recourse [[[in the aftermath of Seminole Tribe] *302 have simply opened casinos
without compacts.‘84 This was not a hypothetical danger, as the Pima Maricopa had already opened the poker table section of
its Casino Arizona in June 1998 despite threats of lawsuit. 85 The memorandum to Governor Hull further recognized the
difficulties that other states have experienced in shutting down or even regulating uncompacted gaming once begun.
Uncompacted gaming presents greater risks to investors and operators. Reputable gaming and finance companies are
unwilling to operate in the more risky, uncompacted environment, creating ‘a void which is filled by less reputable
companies. ‘86 Thus, the very existence of a gaming compact addressed the parties’ mutual concern with public perception by
minimizing reliance on less reputable non-tribal entities.
Although eager to address common concerns and amenable to accommodating several of the state’s concerns, the tribe was
reluctant to describe any additional understandings as part of the parties’ ‘compact.‘ The tribe feared that anything construed
as departing from the ‘standard form‘ compact might violate the terms of Proposition 201 and jeopardize the validity of the
compact. Therefore, on the same day that the tribe and state signed the standard form compact, a series of letters were
exchanged clarifying the parties’ mutual interpretation of various provisions. The letters accommodate twenty-one points of
agreement. While the letters contains significant additions and amendments to the ‘standard form‘ compact, the parties were
careful to formally agree that ‘[t]he interpretations of the compact set forth [[[herein] are not intended or should not be
construed to mean that the compact entered into between the Community and the State either affects or differs in any way
from the standard form of compact.‘87
*303 The interpretations, clarifications, and understandings contained in the August 18, 1998 exchange of letters address the
several issues introduced above. For example, in recognition of its concern for the newspaper test, the tribe’s letter expressed:
the Community’s desire to assure strong and effective regulation of its gaming operations. Therefore, solely as a matter of
policy, the Community has decided in its discretion to adopt certain regulatory approaches even more stringent than those
required by the standard compact. (We do not intend to suggest that these regulatory approaches are required of other tribes
with gaming compacts; such a decision is appropriately left to the sovereign discretion of each tribe.) 88 Adopting these
additional regulations through an informal exchange of letters preserves the appearance that neither sovereign conceded
authority to the other in a manner perceived as permanent or precedent-setting.89
After so many years of legal posturing, both sovereigns ultimately benefited from the flexibility achieved through
informality. In the end, both parties had an opportunity to incorporate their separate and mutual interests into the final
agreement, formally contained in the standard form compact but ‘clarified‘ by the concurrent exchange of letters. Were the
negotiations not orchestrated at every stage for public consumption, the process may well have appeared differently, though
the final agreement likely would have been the same.
VI. Conclusion
As introduced above, Rebecca Tsosie describes what she considers to be a ‘resurrection of the consent principle,‘90 a return
to the negotiation model of dispute resolution, wherein tribes, the federal government, and now states increasingly reach
negotiated resolutions. At first glance, the process described above appears to fall within an adjudicative model of dispute
resolution. Closer examination reveals that the parties’ many legal maneuvers ultimately did *304 not resolve their dispute,
but rather contributed to a negotiated resolution of the gaming issue.
Of course, it is often difficult to discern negotiations taking place within an adjudicative model. One newspaper editorialist
pleaded confusion as to ‘how one finds middle ground between what’s legal and illegal.‘91 Lamenting that ‘concocting
compromises simply to avoid court fights will only delay the day of reckoning,‘92 the writer erroneously assumes that
finalization of a gaming agreement may only be achieved through an all-or-nothing legal determination of one party’s rights
with respect to the other’s. Quite the opposite is true.
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Whether viewed as the unfortunate result of a breakdown in negotiations, as a form of negotiation, or as a precursor to
negotiation, litigation is seldom a first or preferred mode of dispute resolution. At times, litigation may be necessary to help
parties, who are at an impasse in negotiations, by defining their rights with respect to the other party. 93 At other times,
litigation may bridge a power gap and bring a reluctant party to the negotiating table. 94 Especially in this latter sense,
litigation complements or supports the consent principle. The litigation-first strategy adopted by both parties in this gaming
dispute did not contradict, and in fact may have enhanced, the consent principle that hopefully will guide future tribe-state
dispute resolution in the new tri-party federal system.
Footnotes
d1
Ron Rosenberg is a recent graduate of the University of Virginia School of Law and the Fletcher School of Law & Diplomacy at
Tufts University. In the fall of 1999, Mr. Rosenberg will work in the U.S. Department of Justice’s Executive Office for
Immigration Review. The author is grateful for the contribution of Eileen Babbitt, Matthew Siben, and Jennifer Goffman
Rosenberg. All errors belong to the author alone.
1
This paper emphatically makes no judgment, normative or otherwise, regarding gaming on the reservation. Rather, it focuses on
the process by which tribes and states arrive at an agreement under which such activities may be conducted.
2
25 U.S.C. §§2701-2721 (1998).
3
517 U.S. 44 (1996).
4
This summary of early relations between tribes and the United States is drawn from Rebecca Tsosie’s outstanding study,
Negotiating Economic Survival: The Consent Principle and Tribal-State Compacts under the Indian Gaming Regulatory Act, 29
Ariz. St. L.J. 25, 29 (1997).
5
U.S. Const. art. I, § 8, cl. 3.
6
Mark E. Stabile, The Effect of the Federally Imposed Mediation Requirement of the Indian Gaming Regulatory Act on the
Tribal-State Compacting Process, 7 Seton Hall J. of Sport Law 315, 316 n.2 (1997).
7
25 U.S.C. § 450(a) (1996), cited in Stabile, supra note 6, at 316.
8
See Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Worcester v. State of Georgia, 31 U.S. 515 (1832), cited in Stabile,
supra note 6, at 316 n.4.
9
Vine Deloria, Jr., Laws Founded in Justice and Humanity: Reflections on the Content and Character of Federal Indian Law, 31
Ariz. L. Rev. 204, 205 (1989), cited in Tsosie, supra note 4, at 28.
10
Robert H. Mnookin & Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce,‘ 88 Yale L.J. 950 (1979).
11
See generally Tsosie, supra note 4, at 34-42.
12
Id. at 32.
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13
Id. at 33.
14
History and Creation of the Indian
<http://www.sanmanuel.com/HisIgra.html>.
15
Id. Enacted by Congress in 1953, Public Law 280 transferred federal criminal jurisdiction over reservations to designated states.
Until 1968, states could assume such jurisdiction without tribal consent. Since then, no tribe has consented to such a transfer of
jurisdiction.
16
Seminole Tribe v. Butterworth, 658 F.2d 310, 312-13 (5th Cir. 1981).
17
During the 1980s, only five states (Arkansas, Hawaii, Indiana, Mississippi, and Utah) prohibited all forms of gambling as a matter
of criminal law. While casino gambling was generally limited to Nevada and New Jersey, almost every state condoned some form
of charitable gaming and horse track betting. Many sponsored their own lottery. At this writing, only Hawaii and Utah maintain
an absolute ban. Tsosie, supra note 4, at 47.
18
480 U.S. 202 (1987).
19
The Supreme Court in Cabazon dealt with California, a P.L. 280 state that already exercised criminal jurisdiction on reservations.
20
480 U.S. at 219, 221-22.
21
25 U.S.C. §§ 2701-2721 (1998) [hereinafter IGRA or the Act].
22
25 U.S.C. § 2703(6) (1998).
23
25 U.S.C. § 2710(a)(1) (1998).
24
25 U.S.C. § 2703(7)(A) (1998).
25
25 U.S.C. § 2710(b) (1998). Card games must be played in conformity with any state laws or regulations regarding hours of
operation and pot limits. 25 U.S.C. § 2703(7)(A)(ii)(II) (1998).
26
25 U.S.C. § 2703(8) (1998).
27
25 U.S.C. § 2710(d) (1998).
28
Tsosie, supra note 4, at 52.
29
25 U.S.C. § 2710(d)(3)(A) (1998).
Gaming
Regulatory
Act
(IGRA)
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April
18,
1999)
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30
25 U.S.C. § 2710(d)(3)(A) (1998).
31
25 U.S.C. § 2710(d)(3)(C)(I)-(vii) (1998).
32
25 U.S.C. § 2710(d)(7) (1998).
33
25 U.S.C. § 2710(d)(7)(B)(iii) (1998). In determining whether a state has negotiated in good faith, the court ‘(I) may take into
account the public interest, public safety, criminality, financial integrity, and adverse economic impacts on existing gaming
activities, and (II) shall consider any demand by the State for direct taxation of the Indian Tribe or of any Indian lands as evidence
that the State has not negotiated in good faith.‘ Id.
34
25 U.S.C. § 2710(d)(7)(B)(iv) (1998).
35
Id.
36
25 U.S.C. § 2710(d)(7)(B)(vii) (1998).
37
25 U.S.C. § 2710(d)(8)(C) (1998).
38
25 U.S.C. § 2710(d)(8)(B) (1998).
39
25 U.S.C. § 2710(d)(3)(C)(i)-(vii) (1998).
40
25 U.S.C. § 2710(d)(7)(B)(iv) (1998).
41
John S. Murray et al., Processes of Dispute Resolution, The Role of Lawyers 437 (2d ed. 1996), cited in Stabile, supra note 6, at
334.
42
Id.
43
The benefit of such a system is that it encourages parties to submit a reasonable, closer-to-center final offer. Should party A
submit a final offer that is too demanding in the judgment of the arbitrator, party A risks being forced by the arbitrator to accept
party B’s offer.
44
See 25 U.S.C. § 2710(d)(1)(B) (‘Class III gaming activities shall be lawful on Indian lands only if such activities are (B) located
in a State that permits such gaming for any purpose by any person, organization, or entity....‘)
45
“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.‘ U.S. Const. amend.
XI.
46
517 U.S. 44 (1996). In a 5-4 decision, the Supreme Court held that Congress did not have the authority under Article I of the
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Constitution to abrogate state sovereignty under the Eleventh Amendment by forcing a state to submit to federal court
jurisdiction. In order to confer federal court jurisdiction over a state, Congress must both expressly intend to abrogate the state’s
immunity and abrogate that immunity ‘pursuant to a valid exercise of [[[constitutional] power.‘ 516 U.S. at 55, citing Green v.
Mansour, 474 U.S. 64 (1985). The Court noted that while Congress had clearly intended to abrogate state sovereignty with
passage of the IGRA, in doing so Congress did not act ‘pursuant to‘ any constitutional provision, including the Indian Commerce
Clause. 517 U.S. at 62.
47
What is certain, if unlikely to occur, is that the original negotiation process under the IGRA is still valid if the state consents to
suit, i.e., the state waives its Eleventh Amendment immunity. 517 U.S. at 56.
48
517 U.S. at 53 n.4, citing Seminole Tribe of Florida v. Florida, 11 F.3d 1016, 1029 (11th Cir. 1995). Furthermore, the Supreme
Court has since denied certiorari on the legality of procedures prescribed by the Secretary of Interior in the event that a state
claims Eleventh Amendment immunity from a tribe’s suit under the IGRA. See Alabama v. Poarch Band of Creek Indians, cert.
denied 517 U.S. 1132 (1996) (denying No. 94-35); Florida v. Seminole Tribe of Florida, cert. denied 517 U.S. 1133 (1996)
(denying No. 94-219).
49
The Oversight of Indian Gaming: Hearings on the Impact of the Supreme Court Decision in Seminole Tribe v. Florida, 104th
Cong., 1st Sess. (1996).
50
For a review of some of these proposals, see Stabile, supra note 6, at 327-33.
51
Telephone Interview with Gay Kingman, Director, Public Relations and Seminar, National Indian Gaming Association (NIGA)
(October 1, 1998).
52
Heidi McNeil, Indian Gaming in Arizona: The Great Casino Controversy Continues, Ariz. Att’y, Jan. 1998, at 13, 14.
53
Id.
54
Yavapai-Prescott Indian Tribe v. State of Arizona, No. CIV 91-1696 PCT PGR (D. Ariz. May 29, 1992).
55
S.B. 1001, 41st Leg., 2d Reg. Sess. (Ariz. 1993), cited in McNeil, supra note 52, at 14 n.13.
56
41 F.3d 421, 427 (9th Cir. 1994), amended on denial of rehearing, 64 F.3d 1250 (9th Cir. 1995), cert. denied, 117 S. Ct. 2508
(1997).
57
See 25 U.S.C. § 2710(d)(3)(A).
58
Governor Symington did not outright refuse to enter into negotiations. The Seminole Tribe decision (confirming states’ 11th
Amendment immunity to suit in federal courts) was still a year away. Rather, Symington informed Makil that the state would not
enter into negotiations for keno and slot machines because those forms of gaming were prohibited by state law. The state would,
however, enter into a compact permitting only lottery games, pari-mutual wagering on horse and dog racing, and off-track betting,
since those limited activities were legally conducted in Arizona.
59
In addition to contending that the state had failed to enter into ‘good faith‘ negotiations during the 180 days since the Community
first requested a compact, 25 U.S.C. § 2710(d)(7)(B)(I), the Community also claimed that the state denied the tribe equal
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protection under the 14th Amendment by refusing to extend to the tribe the same standard compact signed with 16 other tribes.
McNeil, supra note 59, at 14.
60
Proposition 201 (now codified at A.R.S. § 5-601.01) contained the following declaration of intent and purpose:
Pursuant to section 5-601, Arizona Revised Statutes, the state has entered into gaming compacts with sixteen of Arizona’s
twenty-one Indian tribes. These compacts are of a standard form that was negotiated by the state with various Indian tribes and
approved by the United States Secretary of the Interior. The standard form of compact serves the interests of the state by
providing uniform comprehensive controls over reservation gaming including regulation of Indian gaming contractors and
vendors and limitation upon types of gaming, the number of gaming devices and the number of gaming locations on each
reservation. The state refuses to enter into the standard form of compact with any of the five Arizona tribes that do not have a
compact. In the interests of fairness and sound administration the same standard compact should be available to any of those five
tribes who request it.
61
In the November 1998 elections, tribes in California waged and won a multimillion dollar ballot initiative, Proposition 5, asking
California voters to force the state to negotiate gaming compacts. Dan Morain, Handful of Tribes Broke Initiative Spending
Record, Los Angeles Times, Feb. 6, 1999, at A18.
62
Indeed, passage of Proposition 201 could afford the Governor an opportunity to ‘save face,‘ to back away from a potentially
unsustainable position of non-negotiation without necessarily reversing his public stance against reservation gaming generally. As
explored infra Part V, a state’s steadfast refusal to negotiate is unsustainable to the extent that tribes may respond by conducting
non-compacted gaming.
63
A Community representative indicated that the initiative was self-financed (no outside casino interest was involved) and the tribe
had to target only two television markets. Furthermore, Proposition 201 was endorsed by the state Attorney General and the
sheriff of Scottsdale. Telephone Interview (Oct. 13, 1998).
64
Salt River Pima Maricopa Indian Community v. Arizona, No CIV 95-2496 PHX EHC (D. Ariz. 1996). The court also dismissed a
claim of racial discrimination under 20 U.S.C. § 1983, finding that, in refusing to negotiate a compact, the Governor had
exercised legislative authority.
65
Telephone Interview with Pima Maricopa representative (Oct. 15, 1998).
66
Roger Fisher & William Ury, Getting to Yes: Negotiating Agreement Without Giving In 104 (1981).
67
See Salt River Pima Maricopa Indian Community v. Symington, No. CV 97-0090-SA (Ariz. 1997).
68
Salt River Pima Maricopa Indian Community v. Hull, 945 P.2d 818 (Ariz. 1997).
69
Id. at 822 (1997).
70
Id. at 822.
71
Id. at 826.
72
Id. at 823.
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73
Paula Sears is the sister of Carol Heiler, wife of Jay Heiler, Symington’s chief of staff. Howard Fischer, Anti-Prop. 201 Suit
Maintains Casinos Illegal, Ariz. Daily Star, Feb. 12, 1997 at 1B.
74
Sears v. Hull, 961 P.2d 1013 (Ariz. 1998). Governor Hull’s name was substituted as defendant after Symington resigned from
office in September 1997. Id. at 1016 n.5.
75
Hull Approves Indian Gaming Compact, Ariz. Daily Star, Aug. 19, 1998, at 2B
76
Interior Department Approves Salt River Tribe’s Gaming Compact, Ariz. Republic, Sept. 15, 1998, at B1.
77
It is uncertain whether the alternative state law track imposed any greater constraints on the substance of the agreement than those
erected by the federal IGRA process.
78
Letter from Jon Jenkins to Gary Husk (Aug. 18, 1998) (on file with Harvard Negotiation Law Review).
79
Id.
80
Just such a newspaper test failure occurred during the June 1998 opening of the poker hall to Casino Arizona, when it was
discovered that the tribe had hired two people whose state gaming licenses had previously been revoked. See Carol Sowers,
Casino Truce Reached: State Monitor OK’d for New Poker Hall, Ariz. Republic, June 19, 1998, at A1.
81
Casino Arizona, State Compact Talks Snagged, Ariz. Daily Star, June 18, 1998, at 3B.
82
See Diana Balazas and Alexa Haussler, Hull Pushes Tougher Gaming Pact; Salt River Tribe in Negotiations, Ariz. Republic, July
29, 1998, at 1.
83
Whether ‘commitment‘ properly connotes motivation or legal obligation is left for the reader to decide.
84
Memorandum from Stephen Hart to Governor Jane Hull, Non-Compacted Gaming (on file with Harvard Negotiation Law
Review). ‘The experiences of California, Washington, Idaho, Nebraska, Texas, and Florida show that tribes will resort to
non-compacted gaming when they believe their attempts to obtain a compact through legal channels have been blocked.‘ Id. at 5.
85
Indian Poker Hall Opens in Phoenix; Tribe Agrees to Some State Oversight on Casino Arizona, Where It Hopes to Install Slots,
Tucson Citizen, June 19, 1998, at 12. The poker debate persists but involves questions of legal interpretation--related to the
IGRA’s Class II gaming regime--that are beyond the scope of this paper.
86
Memorandum from Stephen Hart, supra note 84, at 3. Reputational bona fides confer an economic value, too. Non-tribal entities
of possibly dubious character may exact greater percentages of gaming profits, leaving less funds for social welfare programs on
Indian lands.
87
Letter from Jon Jenkins to Gary Husk (Aug. 18, 1998) (on file with Harvard Negotiation Law Review).
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88
Letter from President Ivan Makil to Governor Jane Hull (Aug. 18, 1998) (on file with Harvard Negotiation Law Review).
89
Notwithstanding the fact that points of agreement in the letters exchanged are clearly not legally binding on the Pima Maricopa
nor on other tribes, the state obviously sought to establish some sort of precedent for its anticipated re-negotiation of compacts
with the original sixteen tribes when their current compacts expire in 2003. Telephone Interview with representative of
Governor’s office (October 15, 1998).
90
Tsosie, supra note 4, at 33.
91
John Kolbe, High-Stakes Showdown with Tribe, Arizona Republic, June 12, 1998 at B7.
92
Id.
93
At one point, both sides urged the Arizona Supreme Court to issue a quick decision on the legality of gaming. Howard Fischer,
Both sides Urge Quick Decision on Legality of Gaming, Ariz. Daily Star, Nov. 21, 1997, at 1B.
94
In the end, however, it was the tribe’s utilization of the state’s ballot initiative procedures that leveled the playing field and kept
the negotiations on track. Without the parallel state law framework, the tribe would likely have been unable to overcome the
overwhelming power gap, in the post-Seminole Tribe era, that allowed Governor Symington to long decline the Community’s
requests to negotiate.
End of Document
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