Turtle Talk

Just published in the Wicazo Sa Review: 25.2.cook-lynn reviews pommersheim.

A few comments on Prof. Cook-Lyn’s review. I do so with great respect for both scholars. Both are inspirations to me in American Indian Studies, Literature, and Law.

That said, my first comment is that review is almost painfully negative, and in my view largely unfair to Prof. Pommersheim (not that he needs anyone at all to defend him; he is more than capable). And yet there is a great deal of learning Indian law profs and practitioners can digest in the review.

To begin, the review repeatedly states that Pommersheim’s work here offers nothing new. For example, this:

Over ten years ago, looking at the same cases as Pommersheim, in American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice, David Wilkins outlined these arguments which Pommersheim neglects. There is nothing new in Pommersheim’s reiteration.

First, anyone familiar with Pommersheim’s work knows he’s been raising points about judicial plenary power in Indian law, for example, for 15, 20 years or more (his Broken Ground and Flowing Waters came out 33 years ago). But it simply does not matter who said it first because, second, Prof. Wilkins’ work (which is outstanding) did not have the same purpose as Pommersheim’s book. Whether Congressional plenary power over Indian affairs is legitimate or justifiable is not the focus of Pommersheim’s book — a constitutional amendment such as the one he proposes would help to make that debate irrelevant or at least fundamentally change its tone. Other comments along these lines from Cook-Lyn suggest that she simply is unaware of Pommersheim’s greater body of work; which is too bad, because to put it mildly, he is no Johnny-come-lately.

Second, Prof. Cook-Lyn attacks Prof. Pommersheim for proposing a constitutional amendment that would place Indian tribes on the same legal plane as states. She quotes a portion of the proposed constitutional amendment proposed three decades ago by Russel Barsh and James Henderson, not Pommersheim’s actual proposed text.

His actual proposal includes this language:

The inherent sovereignty of Indian tribes within these United States shall not be infringed, except by powers expressly delegated to the United States by the Constitution.

The amendment itself is a compromise, but surely one worth discussion without such overt derision.

Moving to the heart of the matter, Prof. Cook-Lyn’s review adds that Pommersheim’s work is subject to “a critique of what may be called accepted premises.” She adds:

It would seem that it is Pommersheim’s intent in this most recent study to defend the Constitution of the United States in the same way that anthropology has always been the handmaiden of democracy and colonization. * * *

For historians and law professors to behave as though past criminal thefts and acts can be dismissed as we look forward to constitutional purity through amendment provides an unacceptable scholarship from which Indigeneity as a category of analysis is omitted.

* * * There is little in the text of the amendment that deals with the substance of Indigeneity as a reality. To make Tribal Nations equal to States is the final capitulation by the greatest democracy on earth that it cannot live up to its ideals, and will not defend the treaties it made during its colonial era.

Prof. Cook-Lyn — in the portions bolded and italicized above — seems to be saying that Pommersheim’s constitutional amendment is an outrage to Indian people, and that the real reform would be full recognition of Indian treaties. Putting aside the problem that many Indian treaties were one-sided affairs sometimes the result of coercion and force, Pommersheim’s proposed constitutional amendment would potentially obviate the need to rely so heavily upon the treaties. Certainly, this is a worthy discussion.

This portion of the critique includes a real, and legitimate, form of critique. Like so many of us that study and practice in federal Indian law, there are definitely times when we fall back on “accepted premises.” We rail on about the Supreme Court and Congress, often at the expense of a real discussion about what to do with the powers Indian tribes retain in the view of the federal government (or as yet undiscovered powers). Practitioners really have no choice (imagine the Supreme Court’s reaction to an advocate in oral argument before the Supreme Court asserting that there is no Congressional authority to abrogate treaty rights). Short of a revolution, what choice do advocates have? Pommersheim offers such a revolution in the form of a constitutional amendment, but even that is limited by perhaps what Pommersheim thinks is realistic in modern America.

But then the review seems to take an ugly turn, with Prof. Cook-Lyn thoroughly condemning Prof. Pommersheim’s proposal as “unacceptable scholarship.” What appears to be missing is “indigeneity.” Maybe the difficulty here is the lack of specificity in terms. Lawyers and law profs expect a certain specificity. “Indigeneity” is not one of our favorite words, in large part because its definition eludes us. Probably the only aspect of “indigeneity” that everyone agrees upon is that there are aspects of indigeneity in Indigenous Peoples. Is Cook-Lyn ultimately arguing that Pommersheim’s work is no good because he is not an Indian person? Hopefully not. (Ironically, the actual amendment language she attacks was in fact put forward by two Indigenous scholars 30 years ago.)

Maybe the problem is that law and American Indian Studies just don’t work well together. There certainly are two different academic languages at play. Both have much to teach the other. Prof. Cook-Lyn’s book review is a rough treatment of Prof. Pommersheim’s work, but her “accepted premises” argument is certainly legitimate, and worthy of considerable thought and discussion.