A plea for a social contract process
Compact negotiations—and re-negotiations—clearly rank as among the most momentous activities that any tribe might ever pursue. For that matter, they are among the most important activities for states as well.
Yet in most instances the importance of such matters is left in the hands of… dare I say it… lawyers.
I happen to like lawyers as much as the next guy, perhaps because it is how I earn my living. In particular, gaming law is a passion of mine. But the best lawyers in this important field will likely agree that we are limited in our abilities to convey the human side of compacts and other contracts. The law—like the fine-print of ink on a contract—can be cold and unfeeling, quite unlike the goals behind a compact.
Indeed, compacts are designed to be the ultimate quid pro quo between sovereign governments. I am suggesting that the negotiations will be more beneficial to all parties when everyone recognizes the goals, and the stakes.
This point was driven home recently by a panel discussion at the National Indian Gaming Association (NIGA) mid-year show. The discussion focused on economic impacts, and the eloquent speakers included Sheila Morago, executive director of the Oklahoma Indian Gaming Association and one of the most respected leaders in all of gaming. She told of her own upbringing amid poverty in Arizona, and explained how gaming has provided an important rung to Native Americans across the country who would otherwise have had little opportunity. She also noted that gaming affords upward mobility to all its workers—tribal and non-tribal alike—and workers can start at the bottom and work themselves up to better positions through a combination of hard work and talent.
Speaking at the same panel was Michael Pollock, managing director of Spectrum Gaming Group who made this point: “Economic impact studies are not about numbers.”
That is both provocative, and a bit jarring, especially coming from a company such as Spectrum that is known around the world for its detailed economic impact studies. But, as he noted correctly, the numbers don’t tell the whole story.
Pollock cited a 2013 Spectrum study in Florida that was chock full of numbers, but the core point came from an interview with Jim Shore, general counsel for the Seminole Tribe of Florida.
When asked what life would be like for the Seminoles if they had not been given the opportunity to offer gaming, Shore gave a very telling quote: “You would have to come up with a new definition of poverty.”
Numbers alone cannot make this critical point, at least not very well. Compact negotiations depend on economic impact analyses, which in turn depend on human elements. Bring in the human element, and you turn “opportunity” from a word into a goal. Numbers can be numbing, unless they are linked to people.
The best compacts are those that create genuine partnerships between states and tribes, recognizing that both parties share the same goals. In most contractual negotiations, the parties represent different groups, each vying for an advantage. But tribal members are also constituents of states, and the economies of states do not stop at a line where a reservation begins.
With that in mind, compacts should be creative in identifying and advancing shared goals. When issues such as exclusivity and revenue-sharing are negotiated, these are not zero-sum games where one side can win, and the other can lose.Rather, such issues are best dealt with when they are viewed as mutually beneficial. One common misperception is that gaming is somehow a road to certain riches for tribal operators. That is simply not the case. In most instances, the ability to offer gaming is an opportunity that tribal leaders can take advantage of. When they succeeded, their partners in state government also succeed in a variety of ways, from increased economic activity to increased tourism and other benefits.
At the end of the process, the real beneficiaries are the families—tribal and non-tribal alike—who find opportunities that would otherwise not be available. They don’t teach that in law school, but it is an important lesson nonetheless.