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

Published date01 December 2017
Date01 December 2017
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:
Law & Society Review, Volume 51, Number 4 (2017)
C2017 Law and Society Association. All rights reserved.
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

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