II. A brief history of Indian law and policy.

• Author: Clarkson, Gavin
• Position: Leveraging Tribal Sovereignty for Economic Opportunity: A Strategic Negotiations Perspective

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." (18) 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.

1. 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. (19) Thirty years later, as a compensatory measure, the Pequots obtained a reservation of approximately 2000 acres at Mashantucket, (20) 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. (21) In 1855, a county court expropriated and sold 800 of the remaining 1000 acres of Pequot land to neighboring property owners. (22)

   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." (23) She led a successful campaign against a Connecticut plan to turn the reservation into a state park. (24) In time, George's half-sister joined her, and until the mid-1970s, the two remained the only residents on the reservation. (25) In 1975 Richard Hayward was elected tribal chairman. (26) 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. (27) 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. (28) 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. (29)

   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. (30) 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. (31)

   Seven years later, urged by the Connecticut Congressional delegation to settle the suit, President Ronald Reagan signed the 1983 Connecticut Settlement Act. (32) The Act provided the Pequots with $900,000 in federal funds for a combination of land purchases and economic development projects. (33) In 1984, using funds from the settlement, the Pequots purchased 650 acres of land that previously had been part of the reservation. (34) They also bought a pizza restaurant and started a gravel business and a maple sugar production enterprise. (35)

   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. (36) By 1985, roughly thirty Pequots lived on the reservation. (37) With mixed marriages and families of intermarried couples, the reservation's total population was approximately seventy-five. (38)

2. Tribes as Separate Sovereigns (39)

   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 Fox-woods 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, (40) the Indians occupied the desired land. To satisfy western expansion goals, the Indian lands usually were not taken by force but were instead ceded (41) to the United States by treaty in return for, among other things, the establishment of a trust relationship. (42) 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, (43) but also because the trust relationship often was consideration for the Indians' relinquishment of land. (44) Notably, the Indians and the federal government entered into these treaties as government-to-government relationships among collective political entities. (45) From the beginning of its political existence, the United States "recognized a measure of autonomy in the Indian...