V. Round 1: the initial casino negotiations.

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

In early 1989, after the passage of IGRA, the Pequots announced that they intended to build a casino alongside their bingo hall. (273) The tribe sought to negotiate a compact with the State of Connecticut, but officials declined. (274) The attorney general took the position that Connecticut law did not allow casino gambling, and thus the state could not grant the tribe's request for a compact. (275) Connecticut law, however, did allow "Las Vegas nights," fundraisers run by non-profit or charitable organizations that featured casino games such as blackjack and roulette. (276) At "Las Vegas nights," participants gambled with play money and used their winnings to bid for prizes. (277) The Pequots argued that, if the state permitted other organizations to run casino-type games, the tribe had the legal right under the IGRA to do so. (278) To force the state government to the negotiating table, the Pequots filed suit against Connecticut on November 3, 1989. (279) The stage was set for the first battle for the Foxwoods casino.

1. Context of the Initial Negotiations

   When approaching a negotiation, the parties must address its relevant context. A non-exclusive list of contextual factors includes economic, competitive, historical, political, institutional, and organizational matters. A good assessment of the setting is neither complete nor exhaustive but gives a useful sense of the involved and potentially involved parties, perceptions of their interests, and the nature of the process by which they are interacting. In short, assessing a negotiation's relevant context entails looking at the setting to see its implications for structure and psychology as well as the elements available for efforts to change the game.

   The Mashantucket Pequots and the State of Connecticut were primary stakeholders in the litigation, but other significant parties played a role in the outcome. Spearheading the Pequots' legal effort was Tureen & Margolin, a six-member law firm in Portland, Maine, that specialized in Indian affairs.280 Thomas Tureen and Barry Margolin founded the firm in 1981, shortly after the pair, legal aid attorneys in their thirties, won a historic $81.5 million settlement for two Maine Indian tribes in a land-claim case. (281) Afterwards, the two lawyers, who earned no fees in the case, decided to establish a private practice. (282) Their firm soon became general counsel not only to the two tribes Tureen and Margolin had represented in Maine but also to the Mashantucket Pequots. (283)

   Tureen & Margolin had ample experience representing American Indians but none in the casino business. (284) One of the firm's associates, however, had worked for former New Jersey Attorney General John Degnan, who had extensive experience in casino regulation. (285) This associate, Robert Gips, recommended that the Pequots hire his former boss to help negotiate a compact with the state. (286) Degnan advised, however, that if the Pequots were to move forward with their casino project, the tribe needed someone with even more experience in casino regulation and operations, and he suggested Michael Brown. (287)

   Having successfully prosecuted key members of New Jersey's Genovese crime family, Brown served as director of New Jersey's Division of Gaming Enforcement from 1980 until 19 82. (288) During his tenure, Brown oversaw the opening of seven casinos and supervised the initial licensing hearings for five others. (289)

   As a gaming regulator, Brown learned that modern casinos were not the corrupt, mob-run operations reminiscent of the early gambling days in Nevada. (290) Brown said, "Some of the companies, I started to realize, had developed a corporate attitude toward gaming.... They were run by people with MBAs, not...