Wayne State professor and team will gather data on Indian legislative efforts

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– LEGAL NEWS PHOTO BY CYNTHIA PRICE

Kirsten Carsen will explore Native American influence on policy through a grant Wayne Law School has received from the National Science Foundation.

By Cynthia Price
Legal News

For people with a certain type of intelligence, developing strategies outside a framework of hard data to inform the decision-making process is to be avoided wherever possible.

Wayne State University Assistant Professor of Law Kirsten Matoy Carlson is about to embark on a researcher’s dream project, one that will bring data-driven evidence to bear on an important discussion in the Native American community.

The National Science Foundation (NSF) has given Carlson $250,000 to explore the soundness of the proposition that Native American tribes and people will have more success in moving their priorities forward through legislative solutions than through the courts.

Thought about this, in what Carlson calls Indian Country, is based on earlier research, which indicates that over three-quarters of the time, Indian nations have lost in United States Supreme Court decisions; Native American lawyers and advocates therefore promote legislative change as likely to be more successful.

How often has that worked in the past, and what are the factors that have made it succeed or fail?

“When you look for data on this, no one is actually studying what’s been enacted – and even more so, whether tribes are pursuing legislation, and whether they’re successful,” Carlson said. “All this kind of bothered me, and brought up the question, what if this is a bad idea and we don’t know it?”

Carlson and a team of research assistants will be able to investigate the nearly 7000 Native-American-related bills in a database Carlson has already developed. These represent bills which were either introduced or became law during the period 1975 to 2013.

“That roughly covers the period of Congress’s latest Indian policy,  the ‘self-determination policy’ —  the idea that Congress wants to  support tribes as separate sovereigns in a government-to-government relationship. 1975 was the first Congress which enacted legislation on that policy,”  Carlson explains.

Historically, groups seeking full civil rights have used lawsuits and the court process to ensure those rights are granted.

“I grew up learning that the courts were the bastions of civil rights,” Carlson says, “but since the late 1980s there has been a lot   of discussion in Indian Country about putting money into legislative advocacy, because going through the courts didn’t seem to be working anymore.”

Carlson is eminently qualified to weigh in on American Indian law, having worked for four years as a staff attorney for the Montana office of the Indian Law Resource Center, which also has offices in Washington DC.

Hailing from Oklahoma originally, Carlson received both her J.D. and her Ph.D. from the University of Michigan after completing Master’s level Maaori studies at Victoria University in New Zealand, and receiving her Bachelor’s degree in International Studies from Johns Hopkins University.

Prior to her 2007-2011 stint at the Indian Law Resource Center, Carlson clerked for the Hon. Diana E. Murphy, U.S. Court of Appeals for the  Eighth Circuit, and was Visiting Associate Professor at the University of Minnesota Law School.

She co-wrote, with Robert T. Coulter, “Natural Allies: Conservationists, Indian Tribes, and Protecting Native North America,” for a 2012 book called Tribes, Land, and the Environment.

Carlson’s proposal for funding of her project, which is called “Legal Mobilization, Rights Claims and Federal Indian Policy Reform,” is itself a work of scholarship well worth reading. It sets out a case for the limits of what is known about the legislative advocacy history of Indian nations, derived from a broad reading of the literature on the subject.

It includes as one of its sources Matthew Fletcher, Michigan State University College of Law professor.

The proposal states, “The literature on political advocacy by Indian nations is also scant and underdeveloped as political scientists routinely omit American Indians from studies of American politics,” a recurring theme in making the case for funding.

However, Carlson feels that the NSF was willing to award her the grant at least in part because she intends to apply rigorous scientific standards and methodologies.

As just one example, she meticulously divided the legislation in her huge federal database into four types: pan-tribal, which addresses issues faced by all Indian nations or people; tribe-specific; general legislation with a high focus on Indians, such as bills on health or education that have large sections affecting federal Indian policy; and general legislation with a low focus, which includes mentions of Indians or tribes.

Inherent in asking questions about the pan-tribal types of legislation is determining whether there really is a national position on certain issues.

“Since at least the 1940s, tribal groups have been trying to get some consensus positions on big issues, so I think there are pressures for that,” Carlson said. “But there are 566 separate tribal governments, and they’re culturally and linguistically different,   so ... it’s really hard to know with certainty how much dissension there is or how many different positions there are.”

In that regard, Carlson mentions such national efforts as the National Congress of American Indians and the Tribal Supreme Court project. But as the proposal puts it, “A sufficient number of Indian nations exist to suggest variation among them and to facilitate comparative studies of their legislative strategies.”

The project begins May 1. Carlson explains, “The next step is to take these bills and see if tribes have   played a role in the process. Has there been a Congressional hearing where someone has testified, has there been written testimony, are they taking a position on bills and is that being heard by Congress?   We need to get a better sense for whether Congress passed or didn’t pass a bill based on the tribe’s position for or against the bill's enactment.”

After pinning down some of the over-arching trends, Carlson and research team members will flesh out case studies that illustrate the findings.

Carlson will incorporate the research into several of her classes,  with the goal of students learning intensely about legislative advocacy.