Kirsten Matoy Carlson has posted “Rethinking Legislative Advocacy” on SSRN. Here is the abstract:
In an age of statutes, legislative advocates influence the substantive content of almost every law. Yet scholars know very little about the role that advocates play in shaping statutory law because the study of legislative advocacy has been left to political scientists, who focus on the political rather than the legal aspects of legislative lawmaking. This Article responds to this gap in the literature by presenting an innovative, mixed methods approach to studying legislative advocacy that brings law back into the study of legislative advocacy and provides more accurate descriptions of how legislative advocates behave. This legal approach to legislative advocacy improves on the existing political science literature by emphasizing the legislative process as a lawmaking enterprise and highlighting the importance of the substantive content of statutory laws to legislative advocates and their behavior. The Article demonstrates the utility of this approach by presenting new empirical data on American Indian advocacy. My analysis produces two important insights about legislative advocates’ behavior overlooked in previous studies. First, it reveals that advocates perceive legislative advocacy to be about modifying the substantive content of a proposed law. Legislative advocates take the law seriously as they engage in nuanced and sophisticated strategies to interact with legislators and other political actors to craft statutory laws. They advocate on a wide range of proposed laws, shift their positions strategically throughout the legislative process, and frequently seek to modify proposed laws. Second, my account of Indian advocacy emphasizes that legislative advocacy involves legal as well as political work. Indian advocates regularly used legal frames and arguments to educate and persuade legislators to shape the law in ways that better responded to their needs.
Kirsten Matoy Carlson has posted “Lobbying Against the Odds,” forthcoming in the Harvard Journal on Legislation. Here is the abstract:
Conventional narratives maintain that groups that lack political power litigate because they cannot attain their goals politically. Yet lobbying by American Indians has increased over 600 percent since the late 1970s. And they are not alone. Other politically marginalized groups have also intensified their lobbying efforts over the past five decades. This raises an important question that scholars have yet to adequately answer: Why do some groups use legislative strategies to achieve their goals? This Article challenges the prevailing wisdom and demonstrates that groups sometimes lobby even when the odds are stacked against them. It considers the existing sociolegal framework for understanding why groups litigate, and suggests modifications based on insights from interest group studies, to provide a more complete explanation of when and why groups engage in various advocacy strategies. This modified sociolegal approach produces significant insights into how legal and political actors influence and are influenced by the institutions they turn to, but also enables us to see similar—and divergent—patterns across contexts. The Article presents original quantitative data to document the dramatic rise in American Indian lobbying from 1978 to 2012. Then it uses the modified sociolegal approach to explain how the relationships among courts, the political process, and groups facilitated American Indian legislative advocacy. It concludes by discussing the implications of the approach for studies of legal mobilization, interest groups, and federal Indian law.
Kirsten Matoy Carlson has posted “Why Lobby Congress? Constitutive and Instrumental Influences on Indian Groups’ Strategies for Federal Recognition, 1977-2012” on SSRN. This paper is highly recommended.
Here is the abstract:
When and why do marginalized groups chose a particular institutional venue when pursuing their legal claims? This article combines theoretical and methodological insights from sociolegal and interest group studies to investigate why non-federally recognized Indian groups used legislative strategies for federal recognition from 1977 to 2012. It finds Indian groups employed legislative strategies both to increase their chances of success and for constitutive purposes, including educating the public and leveraging institutional tensions. The article’s emphasis on constitutive and instrumental motivations provides a more nuanced approach to understanding marginalized groups’ venue decisions.
Kirsten Matoy Carlson has posted her paper, “Congress, Tribal Recognition, and Legislative-Administrative Multiplicity,” on SSRN.
Here is the abstract:
For over thirty years, tribal leaders, state officials, members of Congress, and scholars have decried the process by which the United States recognizes Indian tribes. Most accounts have focused exclusively on the administrative process, omitting Congress from their analyses and suggesting that Congress plays a minor role in tribal recognition. The widely-accepted proposition that Congress has relinquished control over recognition is a testable hypothesis. This article tests this proposition empirically. The results call into question the dominant narrative about the congressional role in federal recognition and show that it is just plain wrong. In addition to debunking prevailing misconceptions, the data exposes an intriguing puzzle — a more complicated tale of legislative-administrative multiplicity. Federal recognition is not a uniform administrative process. Instead, parallel legislative and administrative processes exist and often intersect in complex ways. This discovery is an important first step towards understanding these dual processes and their implications for federal Indian law and understandings of legislative-administrative relationships more generally.
Contrary to popular narratives about courts protecting certain minority rights from majoritarian influences, Indian nations lose in the United States Supreme Court over 75 percent of the time. As a result, scholars, tribal leaders, and advocates have suggested that Congress, as opposed to the courts, may be more responsive to Indian interests and have turned to legislative strategies for pursuing and protecting tribal interests. Yet very little is known about the kinds of legislation Congress enacts relating to American Indians. This Article charts new territory in this understudied area and responds to recent calls for more empirical legal studies in the field of federal Indian law by enhancing understandings of the amount and kinds of Indian-related legislation enacted by Congress. Based on an analysis of 7799 Indian-related bills, the Article expounds a basic typology of the kinds of Indian-related legislation introduced and enacted by Congress from 1975 to 2013. The Article reports a higher enactment rate for Indian-related legislation as compared to the enactment rate of all bills introduced in Congress. This finding problematizes traditional narratives about the success of minority groups in the political process and has serious implications for how scholars and advocates understand congressional policymaking. Further, the Article shows that much of this legislation does not affect Indians alone. Rather, Congress generates a substantial amount of legislation for the general welfare of its citizens, including Indians and Indian nations. It suggests that federal Indian law scholarship, which has focused on legislation specific to Indian nations, has overlooked an important part of the development of federal Indian law and policy. Finally, the Article considers some possible explanations for the higher enactment rate of Indian-related legislation and the implications of this study for congressional policymaking, especially federal Indian law and policy. It confirms the need for further investigation into the different kinds of Indian-related legislation and the complex relationships between Congress and Indians.
This is a highly anticipated and highly recommended paper. Counsel for tribal interests could be well served to consider routing resources away from litigation toward legislative efforts. Consider for one example the Gun Lake Tribe, which secured a legislative fix to the problem created by the Supreme Court’s interpretation of the Quiet Title Act.
Kirsten Matoy Carlson has posted her paper, “Political Failure, Judicial Opportunity: The Supreme Court of Canada and Aboriginal and Treaty Rights,” just published in the American Review of Canadian Studies, on SSRN.
Here is the abstract:
What role do courts play in public policymaking? Fifty years ago, Robert Dahl found that courts largely defer to the political process in public policymaking. Accepted by the majority of scholars today, Dahl’s view suggests skepticism that courts play a significant role in the policymaking process. The few scholars, who concede that courts play a role in policymaking, often see that role as less direct or as in response to public opinion. Using the development of Aboriginal and treaty rights policy in Canada as a case study, I find that the Supreme Court of Canada succeeded in revitalizing the making of Aboriginal and treaty rights policy in the 1990s even without the support of politicians or the public. In 1990, the Court irrevocably altered Aboriginal and treaty rights policy by establishing Aboriginal and treaty rights in section 35(1) of the Constitution and curtailing Parliament’s ability to extinguish these rights. Most notably, the Court reinvigorated the policymaking process by encouraging politicians to revisit Aboriginal and treaty rights policies. When they failed, the Court re-entered the policymaking arena by recognizing and protecting a wide range of Aboriginal and treaty rights from governmental incursion over the next six years. The Court’s emergence as a significant and influential policymaker was the product of historical and institutional forces. While legal mobilization, growing public support, and the judicialization of politics contributed to the development of the Court’s role, I use interviews with political and legal players as well as the Court’s own language to show how the failure of the political process influenced the Court to reinvigorate Aboriginal and treaty rights policymaking. My emphasis on political failure illuminates a more complex relationship between courts, the political process, and policymaking. It also highlights how courts can play an influential role in public policy making.
Tribal Rights, Human Rights
Kristen A. Carpenter & Angela R. Riley
2013 Mich. St. L. Rev. 293 | Download PDF
Nenabozho’s Smart Berries: Rethinking Tribal Sovereignty and Accountability
Heidi Kiiwetinepinesiik Stark
2013 Mich. St. L. Rev. 339 | Download PDF
Jurisdiction and Human Rights Accountability in Indian Country
Kirsten Matoy Carlson
2013 Mich. St. L. Rev. 355 | Download PDF
First “Review” of Scholarly Promise and Achievement
2013 Mich. St. L. Rev. 291 | Download PDF
Tribal Sovereignty and Human Rights
Joseph William Singer
2013 Mich. St. L. Rev. 307 | Download PDF
A Most Grievous Display of Behavior: Self-Decimation in Indian Country
Here is that article, intended to be an additional supplement to the FBA Indian Law Section Newsletter for Fall 2010.
Originally printed at http://www.indiancountrytoday.com/home/content/41971652.html
WASHINGTON – The American Constitution Society for Law and Policy, a progressive legal organization, has distributed an issue brief entitled, “Addressing the Epidemic of Domestic Violence in Indian Country by Restoring Tribal Sovereignty.”
The brief’s author, Matthew L.M. Fletcher, argues that domestic violence and physical assaults experienced by American Indian women on reservations are related to unjust Supreme Court decisions and to lacking federal laws.
Indian victim advocates said the information is especially important for policy makers, both at the federal level and in Indian country, to review. Research indicates that American Indian women experience physical assaults at a rate 50 percent higher than the next most victimized demographic, African-American males.
Fletcher, director of the Indigenous Law and Policy Center at Michigan State University, notes the Supreme Court has held that tribal governments do not have jurisdiction over domestic violence misdemeanors committed by non-Indians in Indian country.
The situation causes a major dilemma, especially for Indian women, since approximately one-quarter of all cases of family violence against Indians involve a non-Indian perpetrator. It’s a rate of interracial violence five times that involving other races.
“The law simply has to change,” said Kirsten Matoy Carlson, staff attorney for the Indian Law Resource Center based in Helena, Mont. “Tribes are in the best position to investigate and prosecute these crimes, yet the law prevents them from doing so.”
“Tribes must be able to prosecute and sentence violent perpetrators to protect Native women from the alarming rates of domestic violence and sexual assault. As it is, perpetrators of violence against Native women often face no consequences for their crimes. Studies report that violent offenders are likely to commit further violence when they are not held responsible for their crimes, and that domestic violence escalates over time. Sexual and domestic abusers know they can get away with committing heinous violent crimes against Native women and they regularly exploit this by targeting Native women.”
Fletcher, an enrolled member of the Grand Traverse Band of Ottawa and Chippewa Indians, closely monitors Supreme Court and other legal decisions involving Indian issues. He writes in the brief that among the traditional powers retained by Indian tribes under tribal sovereignty is the power to establish tribal courts and to prosecute criminal offenders for acts committed within Indian country.
He notes that traditionally, tribal sovereignty is inherent and undiminished unless the tribe has voluntarily divested itself of some aspect of its sovereignty, or if Congress has affirmatively acted to divest the tribes of a part of their sovereignty.
However, the Supreme Court changed these rules when it held in 1978 that Indian tribes may be divested of their sovereignty by a decree from the high court. This means that tribal governments do not actually have jurisdiction over domestic violence misdemeanors committed by non-Indians in Indian country.
“The Supreme Court has created – and Congress has not done enough to solve – a terrible irony,” Fletcher writes. “The law enforcement jurisdiction closest to the crime and with the greatest capacity and motivation for responding quickly, efficiently and fairly, has been stripped of the authority to react, leaving Indian women to suffer, and crimes of domestic violence to remain unresolved and unprosecuted.”
Fletcher says the scenario leaves Indian women who are the victims of domestic violence and physical assault by non-Indians in a quandary when federal and state authorities do not prosecute these crimes, which they often are not able to do because of a lack of resources and other factors.
Carlson says this “stripping of tribal criminal jurisdiction and refusal to ensure the prosecution of these crimes has grave consequences for the safety of Indian women.” This legal framework, she says, places Native women at increased risk for further victimization, and leaves them unprotected and without any legal recourse.
“There is no justice for Native women, and there won’t be until the law changes,” warned Carlson.
The brief proposes that Congress fix the situation by enacting legislation that recognizes tribal court jurisdiction over domestic violence and related misdemeanors committed by non-Indians in Indian country.
According to legal experts, Congress has not taken such action due to opposition from the Department of Justice and from various state governments that generally oppose tribal government activities.
Under Fletcher’s plan, tribal prosecutions for such crimes would proceed as do other tribal prosecutions.
The legal expert also proposes that Congress would condition the recognition of tribal sovereignty on a requirement that Indian tribes provide adequate constitutional and criminal safeguards. Tribes would have the ability to “opt-in” to the system.
Fletcher believes Congress has the constitutional authority to “untie the hands of Indian tribes” and permit them to once more enforce criminal laws against non-Indians in Indian country and stop the epidemic of violence against Indian women.
“Each day, an Indian woman is victimized by a person who likely will never be prosecuted,” he concludes in the brief. “It is time to act.”