Kirsten Carlson’s “Congress and Indians”

Written by: Matthew Fletcher

Primary Source: Turtle Talk

Kirsten Matoy Carlson has published “Congress and Indians” (PDF) in the University of Colorado Law Review. Here is the abstract:

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.

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Matthew Fletcher
Matthew L.M. Fletcher is Professor of Law at Michigan State University College of Law and Director of the Indigenous Law and Policy Center. He is the Chief Justice of the Poarch Band of Creek Indians Supreme Court and also sits as an appellate judge for the Pokagon Band of Potawatomi Indians, the Hoopa Valley Tribe, and the Nottawaseppi Huron Band of Potawatomi Indians. He is a member of the Grand Traverse Band of Ottawa and Chippewa Indians, located in Peshawbestown, Michigan. In 2010, Professor Fletcher was elected to the American Law Institute.