Negotiating Economic Survival: The Consent Principle and Tribal State Compacts Under the Indian Gaming Regulatory Act
72 Pages Posted: 9 May 2009 Last revised: 16 Jun 2011
Date Written: 1997
This article examines the model of negotiated tribal-state compacts, frequently used to resolve conflicts over environmental and water issues, as an application of what Vine Deloria, Jr. has called the "consent principle" the idea that tribes, states, and the federal government use the political arena to negotiate a balance of power among the three sovereigns responsive to their respective needs and authority. Part II explores the historical evolution of the consent principle as it has played out between tribes and state and federal governments. Part III compares the respective success of negotiated agreements and litigation in maintaining tribal sovereignty and treaty rights in the arena of natural resource disputes and then looks at the transfer of this approach to Indian gaming rights. Part IV discusses the tribal interests in economic and political survival triggered by the controversy over the IGRA, examines how the statute's compact provision enforces recognition of competing state interests, and scrutinizes the applicability of alternative dispute resolution strategies for resolving conflicts between tribes and states. Finally, Part V analyzes the use of intergovernmental agreements under principles of federalism and theoretical models of multicultural dialogue such as "treaty constitutionalism" and "treaty federalism".
Keywords: Indian Gaming, sovereignty, natural resources
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