Lightning in the Hand: Indians and Voting Rights
Written by Pamela S. Karlan, [View as PDF]
120 Yale L.J. 1420 (2011).
American Indians and the Fight for Equal Voting Rights
By Laughlin McDonald
Norman, OK: University of Oklahoma Press, 2010, pp. 347. $55.00.
A surprisingly insightful review from the paper of record:
Kluger’s recitation of these events can be seen as an upbeat refusal to treat a historical tragedy as irredeemable. Usually, Indians tend to disappear from histories about them — even when the blame for their suffering is placed on others. The Nisqually, as Kluger shows, have not disappeared, and “The Bitter Waters of Medicine Creek” is an eloquent account of a massacre’s legacies as well as its history.
We want to highlight two recent books — both excellent in their own ways — on Indian leaders during (roughly) treaty times. First, Anton Treuer’s book, The Assassination of Hole in the Day (available online at Birchbark Books, the greatest bookstore in the world), published by the Minnesota Historical Society Press, is a truly entertaining read. It is one of the rare books that makes extensive use of Indian oral histories, and gives these histories the credence they so often deserve. The story of Hole in the Day’s murder by his own people is a classic tale of Anishinaabe political leadership that more or less tracks the rise and fall of Julius Ceasar. Important leader, does some great and terrible things, overreaches, loses power, and eventually loses life. But real import, however, is the impact of treaty negotiations on Aninshinaabe leaders.
The second book, Brian Hicks’ Toward the Setting Sun: John Ross, the Cherokees, and the Trail of Tears (available here), was published by the Atlantic Monthly Press, and is another entertaining read. And like Treuer’s book, this is a great study of how tribal leadership operated during these amazing times.
Al Brophy wrote a nice post today at the Faculty Lounge about the book we will be talking about today, Radicals in Their Own Time. Given that Al is one of the speakers, this is likely an excellent preview into his portion of the talk this afternoon.
THE 10 WORST INDIAN CASES EVER
By James Botsford
Finally someone has written a book that shines a light into the dark corners of the Supreme Court’s thievery of the rights of Native America. Did you ever wonder by what quiet sleight-of-hand huge dimensions of the inherent rights and cultures of Native people disappeared or were radically reduced? Turns out some of the worst damage ever done to the original people came from the highest level of the judicial branch… the Justices of the U.S. Supreme Court who historically have enjoyed (and cultivated) the perception that they are objective, neutral and above the fray of politics and ideology. Oh, if only it were true.
The book is In the Courts of the Conqueror, The 10 Worst Indian Law Cases Ever Decided. And this book isn’t written by just any old someone. It was painstakingly researched and written by Walter Echo-Hawk (Pawnee) who Vine Deloria Jr. once referred to as “the best Indian law attorney in America.” Echo-Hawk earned his chops as a staff attorney at the Native American Rights Fund for 35 years where he was personally involved in many of the biggest Indian rights issues of our time.
Echo-Hawk sets the bar high when it comes to intellectual honesty, cultural values and the ethics of legal analysis. From that perspective he walks us through what he believes are the ten worst Indian law cases ever decided. Scholars and activists will quibble over a few of his top ten (or is it bottom ten?), but they’ll risk missing the bigger point, which is the devastation of these decisions as they change the course of history.
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.
Here. It was published in Studies in American Indian Literatures.
Excerpt from the Law & Politics Book Review blog:
by Frank Pommersheim. Oxford: Oxford University Press, 2009. 424pp. Cloth $35.00/£22.50. ISBN: 9780195373066.
Reviewed by Sheryl Lightfoot, First Nations Studies Program and Department of Political Science, University of British Columbia. Email: Sheryl.lightfoot [at] ubc.ca.
pp.264-267
The relationship between American Indian tribes and the United States federal government can be described as problematic at best and paradoxical at worst. In its more than 200 year history, this relationship has been caught in a fundamental tension between Congress’ assertion of a colonial, plenary power over tribes and tribal nations’ desire to affirm their inherent sovereignty, a sovereignty that pre-existed the United States of America. This fundamental tension, which stems largely from a certain degree of ambiguity over the status of tribal nations within the US constitutional matrix, plays itself out in the inconsistent application of US federal Indian law, and in Supreme Court decisions that vacillate yet increasingly undermine and limit tribal sovereignty.
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Two elements of this book are particularly noteworthy and exciting. First, Pommersheim places constitutional respect for tribal sovereignty into an international law framework. This is a novel move within the field of federal Indian law scholarship, yet it fits quite comfortably with the global Indigenous agenda of constitutionalizing Indigenous rights to meet the self-determination rights standard expressed in the United Nations Declaration on the Rights of Indigenous Peoples, passed by the U.N. General Assembly in 2007. Several countries in Latin America and Asia have moved to enshrine Indigenous rights through constitutional reform, and Pommersheim offers a concrete suggestion on how the United States could potentially meet its international obligations to Indigenous rights, especially the right of self-determination.
Second, Pommersheim brings ideas that have been circulating in the American Indian Studies and Political Science fields for decades and places them squarely within the federal Indian law literature. The late Vine Deloria, Jr. (to whom this book is dedicated) began writing about the constitutional ambiguity of American Indian tribes in the late 1960s and continued elaborating on these ambiguities and complexities [*267] until his death in 2005. David Wilkins’ 1997 seminal work on the problematic treatment of American Indian tribal sovereignty by the US Supreme Court further highlighted these issues. Both Deloria and Wilkins, in their voluminous bodies of work, often discuss the need to rectify the problematic and paradoxical state of constitutional confusion associated with American Indian law. Deloria and Wilkins have primarily advocated for a return to a bone fide treaty process in order to resolve constitutional confusion in a manner that preserves the extra-constitutional status of tribal nations. Pommersheim’s proposal for a constitutional amendment to enshrine tribal sovereignty moves the conversation in a different direction, seeking inclusion, rather than exclusion, in a constitutionally structured tribal-federal relationship. Questions abound about what this would mean both in principle and practice for tribes, treaties and the nation-to-nation relationship between tribes and the federal government. Nevertheless, the Pommersheim proposal is sure to spark lively debate among scholars, lawyers and citizens in Indian Country.
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From Indianz:
“Mary Lethert Wingerd’s “North Country: The Making of Minnesota” is a history of the Indian experience in Minnesota, from the first encounters with Europeans to the removal of tribes in the aftermath of the Sioux Uprising. This era is unfurled with exacting detail and personal attention to the feelings and actions of the principal characters. It is a well-done and fascinating tale.
While it is, indeed, a history of the making of Minnesota and a good tale, “North Country” is a select tale. Perhaps expectations could be served with a change in title: “The Native Minnesotans: Politics and Culture Leading to the Sioux Uprising.” For that is what it covers, and there it ends. This book does not tell much about any group except as they relate to the Indians.
We get all the familiar names: Du Luth, Le Sueur, Sibley and Rice (the Henrys), and Alexander Ramsey. And others, not so famous: Joe Brown, Hastings and Prescott. There is no mention, though, of luminaries such as James J. Hill or John Ireland until the very last pages. This is not their story.
The evolution of the intricate and delicate relationship between the Indians and the traders is expressly laid out. We learn of the métis, part Native and part French, who declare themselves gens libre, free people. They all — Indians, traders, French and métis — were inhabitants of a northern multicultural borderland society, which, due to its location in an inaccessible interior wilderness, was largely left alone until the advent of the steamship.”
From the Legal History Blog:
Also in the NY Times, a review of THE LAST STAND: Custer, Sitting Bull and the Battle of the Little Bighorn by Nathaniel Philbrick, and EMPIRE OF THE SUMMER MOON: Quanah Parker and the Rise and Fall of the Comanches, the Most Powerful Indian Tribe in American History by S. C. Gwynne.
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