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

• Published date: 01 December 2017
• Date: 01 December 2017
• DOI: http://doi.org/10.1111/lasr.12299

Making Strategic Choices: How and Why Indian

Groups Advocated for Federal Recognition from

1977 to 2012

Kirsten Matoy Carlson

How and why do groups employ law strategically in different

venues? This article combines theoretical and methodological

insights from sociolegal and interest-group studies to investi-

gate how and why nonfederally recognized Indian groups

used administrative and legislative strategies for federal recog-

nition from 1977 to 2012. By detailing the circumstances lead-

ing Indian groups to employ varying strategies, it provides a

more nuanced understanding of the dynamic interplay among

the goals, motivations, and constraints influencing groups to

use administrative and legislative processes over time.

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 dif-

ferent domains (courts, legislatures, media), spanning different lev-

els (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 differ-

ent 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

I wish to acknowledge the support of the National Science Foundation, No. SES

1353255. I also wish to thank participants at the 2015 Midwest Political ScienceAssociation

Conference, the 2015 Law and Society Annual Meeting, and the anonymous reviewers for

their insightful comments on earlier versions of this article.

Please direct all correspondence to Kirsten Matoy Carlson, Law School, Wayne State

University, 471 W. Palmer,Detroit, MI 48202-3489; email: kirsten.carlson@wayne.edu.

Law & Society Review, Volume 51, Number 4 (2017)

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1977 to 2012. The federal recognition of Indian groups is a par-

ticularly 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 relation-

ships, along with federal legislation and Supreme Court deci-

sions, 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 desig-

nated 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 self-

governing 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 sociole-

gal 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 per-

spective 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, moti-

vations, and constraints in strategic decisionmaking, my approach

contributes to a fuller understanding of the complex of meaning,

Carlson 931

setting, and action involved in the development and use of advo-

cacy strategies.

Building on the interest group literature, I consider how

motivations, goals, and constraints influence the development of

advocacy strategies (Baumgartner et al. 2009; Lowery 2007;

Smith 1995). My approach, however, goes beyond existing inter-

est group studies to investigate how motivations, goals, and con-

straints interact to shape and reshape strategies over time.

Borrowing from sociolegal studies, I conceptualize the develop-

ment of advocacy strategies as an ongoing, constitutive, and

dynamic (rather than linear) process (McCann 1996). Treating

the development of advocacy strategies as an interactive process

allows for in-depth exploration of the dynamic interplay among

goals, motivations, and constraints over time. I directly observe

the goals and motivations Indian groups assigned to the strate-

gies they used as they interacted with legislators and bureaucrats

in congressional hearings. Examining such interactions reveals

how Indian groups’ understandings of their goals and motiva-

tions shifted over time and encouraged them to reshape their

advocacy strategies in response to the institutions and social con-

texts in which their strategies were employed.

My account expands on existing sociolegal studies by e xplor-

ing how groups use the law to influence legislative and adminis-

trative processes. Like previous sociolegal studies, I emphasize

the role of law in advocacy strategies, perceiving the law to be a

resource that may be employed in legal and political struggles

(Handler 1978; McCann 1994; Silverstein 1996) and as

“constantly constructed and reconstructed through human inter-

action” (Barnes and Burke 2012: 168; Sarat 1990; Silverstein

1996). By investigating how groups use the law in legislative and

administrative contexts, I start to identify some of the multiple,

instrumental and constitutive uses and effects of legal frameworks

and arguments in legislative contexts and how they influence

group motivations and goals for pursuing particular strategies

over time.

Moreover, my analysis demonstrates that applying a constitu-

tive approach to nonjudicial settings produces valuable insights

into understanding how and why groups use the law in different

institutional settings. I show how using a constitutive approach

provides a richer, more nuanced account of the use of advocacy

strategies in legislative and administrative settings. A constitutive

approach facilitates a fuller discussion of the various influences

on advocacy strategies and how those influences interact in com-

plex ways over time to shape and reshape strategies. My

approach, thus, indicates the applicability of sociolegal theory in

nonjudicial contexts and models a way for scholars to devise

932 Making Strategic Choices