Legitimizing American Indian Sovereignty: Mobilizing the Constitutive Power of Law through Institutional Entrepreneurship

Extensive sociolegal scholarship has addressed the utility of law as a mechanism through which marginalized groups may promote social change. Within this debate, scholars employing the legal mobilization approach have thus far highlighted law's indirect impact, beyond the formal arenas of law, via effects on the "legal consciousness" of reformers and would-be reformers. This article contributes to this debate, and the legal mobilization framework in particular, by theoretically identifying and empirically documenting ways through which the constitutive power of law may be effectively used by challengers to more directly pursue changes in institutionalized practices themselves. The article examines the strategic use of law by a set of American Indian tribal leaders in the state of Washington who, over a 13-year period, consciously meshed or "cohered" legal and extrajudicial efforts to gain recognition of their sovereign political status. Through a mode of agency known as "institutional entrepreneurship," they utilized the multiplicity of law and exploited resources and opportunities inhering within the state itself, but outside the courts. In the context of ambiguous legal precedent and widespread local challenges to tribal rights, they mobilized latent discourses of federal Indian law that legitimated the sovereign governmental status of tribes. Importantly, they circulated tribal sovereignty discourses well beyond the field of law, but through the authoritative activity and voice of the state, and in doing so, generated a precedent-setting recognition of tribal sovereignty. On August 4, 1989, 25 federally recognized Washington tribes and the state of Washington signed the Centennial Accord, in which all parties explicitly recognized the sovereignty of the other parties and established mutually acceptable procedures for conducting subsequent relations on a "government-to-government" basis. The Accord included mechanisms for implementing this relationship, including an annual state-tribal summit, the identification of agency and tribal liaisons, and the establishment of ongoing training about the government-to-government relationship and tribal sovereignty for state officials and employees. Thus while the Accord did not change any substantive rights or powers per se, it emphatically established the cognitive and normative map upon which state-tribal relations would subsequently be understood and ushered in a wide-ranging set of new practices that have continued to the present. The Centennial Accord constituted a striking reversal of Washington State practices and generated national and international attention. Infamously, the state government and its citizenry had for years emphatically denied tribal sovereignty through their words and actions. Continuing with the previous practice of treating tribes and tribal members as ethnic groups subordinate to state authority, the state and its citizens earned a stinging rebuke from the federal judiciary for their joint resistance to local Indian fishing rights declared in United States v. Washington (1974). In 1978, the U.S. Court of Appeals noted the state's "extraordinary machinations in resisting the decree," and asserted, "[E]xcept for some desegregation cases ... the district court has faced the most concerted official and private efforts to frustrate a decree of a federal court witnessed in this century" (Puget Sound Gillnetters Association v. United States District Court). Indeed, sporadic anti-tribal violence and widespread civil disobedience, often implicitly or explicitly encouraged-or undertaken directly by-the state, occurred from the late 1960s through the mid 1980s. The Accord went beyond any action mandated by legal rulings or federal laws. Indeed, Washington's unequivocal formal acknowledgment of tribes' distinctive sovereign status set national precedent. This study attempts to explain this puzzling development while advancing an understanding of how law may be creatively used by marginalized groups to promote social change. …