Making Strategic Choices: How and Why Indian Groups Advocated for Federal Recognition from 1977 to 2012

By Carlson, Kirsten Matoy | Law & Society Review, December 1, 2017 | Go to article overview

Making Strategic Choices: How and Why Indian Groups Advocated for Federal Recognition from 1977 to 2012


Carlson, Kirsten Matoy, Law & Society Review


Advocates use the law in arguing for social change in multiple venues (Handler 1978; McCann 1994; Rosenberg 1991; Silverstein 1996; Silverstein 2009). Juridification, or advocates' reliance on legal language, formal structures, and automated procedures both inside and outside the courts has increased over time (Silverstein 2009). Moreover, advocates' use of multidimensional strategies "across different domains (courts, legislatures, media), spanning different levels (federal, state, local), and deploying different tactics (litigation, legislative advocacy, public education)" has grown in recent decades (Cummings and NeJaime 2010; Rhode 2007-08). This trend toward the increased use of law across institutional venues raises the question of how and why groups employ law strategically in different venues.

In this article, I start to unpack this question about how and why groups use the law in different institutional settings by examining the various administrative and legislative strategies employed by 124 Indian groups seeking federal recognition from 1977 to 2012. The federal recognition of Indian groups is a particularly rich setting for investigating how and why groups use legislative and administrative processes to make their legal claims. Since its formation, the United States has dealt with American Indians by establishing legal relationships with them as separate political communities, commonly referred to as "tribes" or "nations" (Goldberg-Ambrose 1994). The United States and tribes entered into treaties acknowledging the tribes' preexisting and ongoing rights and governmental authority. These treaty relationships, along with federal legislation and Supreme Court decisions, form the basic legal framework governing Indians in the United States today. The key elements of this framework include: federal recognition of inherent governmental authority possessed by Indian tribes, which usually supplants state powers; a federal trust obligation toward and special federal powers over Indian tribes and their citizens; and federally protected lands for designated Indian tribes (Ibid.). This legal framework, and the status and power that flow from it, however, only applies to Indian groups recognized as tribes by the federal government (Newton 2006 §3.02). Nonfederally recognized Indian groups lack this legal status. The estimated 400 nonfederally recognized Indian groups in the United States suffer from high rates of poverty and unemployment, often live in rural areas, and lack political clout (Cramer 2008: 52-54). As a result, many of these groups seek recognition-the legal status that affirms Indian groups as selfgoverning tribes.

Some Indian groups have pursued legislative strategies, others have employed administrative ones, and still others have utilized both in seeking recognition. Many groups have shifted their strategies in different ways and for diverse reasons over time. This variation among strategies used by several groups seeking a similar goal over a 25-year period provides an opportunity to investigate how and why groups employ the law strategically in legislative and administrative settings.

I utilize a relatively novel approach drawing on theoretical and methodological insights from the interest group and sociolegal literatures to explore the circumstances in which Indian groups developed different strategies for recognition over time. I take useful insights from the interest group literature about the role of motivations, goals, and constraints in the development of lobbying strategies and integrate them with a constitutive perspective to construct a more nuanced approach to understanding how and why groups employ the law strategically in different venues. By exploring the interactive dynamics among goals, motivations, and constraints in strategic decisionmaking, my approach contributes to a fuller understanding of the complex of meaning, setting, and action involved in the development and use of advocacy strategies. …

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