Broken Landscape
Elizabeth Cook-Lyn Reviews Frank Pommersheim’s “Broken Landscape”
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.
Review of Frank Pommersheim’s “Broken Landscape”
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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Reminder: Frank Pommersheim Event on March 23
Frank Pommersheim’s New Book “Broken Landscapes” is Out Now!
Just received this in the mail. Here is the website for the book from Oxford.
Broken Landscape
Indians, Indian Tribes, and the Constitution
Frank Pommersheim
Description
Broken Landscape is a sweeping chronicle of Indian tribal sovereignty under the United States Constitution and the way that legal analysis and practice have interpreted and misinterpreted tribal sovereignty since the nation’s founding. The Constitution formalized the relationship between Indian tribes and the United States government–a relationship forged through a long history of war and land usurpation–within a federal structure not mirrored in the traditions of tribal governance. Although the Constitution recognized the sovereignty of Indian nations, it did not safeguard tribes against the tides of national expansion and exploitation
As Broken Landscape demonstrates, the federal government has repeatedly failed to respect the Constitution’s recognition of tribal sovereignty. Instead, it has favored excessive, unaccountable authority in its dealings with tribes. The Supreme Court has strayed from its Constitutional roots as well, consistently issuing decisions over two centuries that have bolstered federal power over the tribes.
Frank Pommersheim, one of America’s leading scholars in Indian tribal law, offers a novel and deeply researched synthesis of this legal history from colonial times to the present, confronting the failures of constitutional analysis in contemporary Indian law jurisprudence. Closing with a proposal for a Constitutional amendment that would reaffirm tribal sovereignty, Pommersheim challenges us to finally accord Indian tribes and Indian people the respect and dignity that are their due.
Frank Pommersheim teaches at the University of South Dakota School of Law, where he specializes in Indian law. Prior to joining the faculty in 1984, he lived and worked on the Rosebud Sioux Reservation for ten years. He has served on a number of tribal appellate courts throughout Indian country and currently serves as Chief Justice for the Cheyenne River Sioux Tribal Court of Appeals and the Rosebud Sioux Supreme Court. He is the author of Braid of Feathers: American Indian Law and Contemporary Life and East of the River: Poems Ancient and New .
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