Frank Pommersheim

Guest Post by Frank Pommersheim on the Retirement of Judge Sherman Marshall

Matthew L.M. Fletcher

JUDGE SHERMAN MARSHALL RETIRES

Sherman Marshall, Chief Judge of the Rosebud Sioux Tribal Court, recently retired after more than 35 years as the heart and soul of the Rosebud Sioux Tribal Court system. Judge Marshall was born and raised on the Rosebud Sioux Indian Reservation. He is a fluent Lakota speaker and deeply steeped in Lakota tradition and custom. Sherman received his Associate of Arts degree from Sinte Gleska University and also was the first recipient of a Bachelor of Selected Studies from Sinte Gleska University. He is a 1984 graduate of the University of South Dakota School of Law and a long time member the South Dakota Bar Association. Upon graduation from USD Law, Sherman was admitted to practice and returned home to the Rosebud Sioux Reservation. After serving as an administrator at Sinte Gleska University for several years, he joined the Rosebud Sioux Tribal Court as the Chief Judge, a position he has held since 1986. It is likely that Judge Marshall is one of longest serving judges on any tribal court in Indian Country.

It is difficult to fully understand and comprehend how much Sherman was able to accomplish during his long tenure on the bench. Early in his judicial career, Judge Marshall decided that it was incumbent upon him and his staff to visit all 20 tribal communities on the Reservation to describe the judicial system to community members and equally important, to receive input (including criticism) from community members. Over time, these efforts did much to enhance and increase community respect for the Rosebud Sioux Tribal Court system. Judge Marshall was also instrumental in helping to establish the Rosebud Sioux Tribal Bar Examination, as a necessary prerequisite for practice in the tribal courts of the Rosebud Sioux Tribe. Rosebud is the only tribe in South Dakota and one of the few anywhere in Indian country that prepares and administers its own Bar Examination. Closely related to the implementation of its own Bar Examination, Sherman was a key figure in establishing Sicangu Oyate Tribal Bar Association, one of the very few functioning tribal bar associations that exists in Indian Country. The Sicangu Oyate Tribal Bar Association, which includes both law trained and non-law trained tribal advocates has served to help create and identify a community of practitioners who are committed to practicing in tribal court with integrity and a commitment to fairness and due process.

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Frank Pommersheim’s NAICJA Keynote

Matthew L.M. Fletcher

Frank Pommersheim asked us to post his keynote speech from this year’s NAICJA conference, “An Emeritus Prose Podcast: The Pandemic Checkpoints of the Cheyenne River Sioux Tribe: A Teaching Essay.”

Here it is:

The Pandemic Checkpoints of the Cheyenne River Sioux Tribe

An excerpt:

In the Spring of 2020, the Cheyenne River Sioux Tribe (CRST) began implementing a series of limited vehicle checkpoints within the boundaries of the reservation as part of its comprehensive public health response1 to limit the spread of COVID-19. One of the checkpoints was located on a state highway running through the Reservation. There was an immediate uproar in South Dakota. Many people, both Native and non-Native, contacted me and asked, ‘Frank, can the Tribe really do this?’ My answer was ‘yes.’
As the questions about this Tribal public health initiative became increasingly heated, the merits of the health policy were increasingly subsumed in political rhetoric concerning the ‘rights’ of non-Natives and the authority of the state to quash the Tribe’s efforts. The calls kept coming. My answer of ‘yes’ remained the same. Yet the supporting legal analysis was not so easily summarized. No (federal) statute or Supreme Court case unequivocally said yes or no. The answer of ‘yes’ required a careful exegesis of both Supreme Court precedent and the law of the CRST.

Frank Pommersheim’s Valedictory Notes and Collage

Matthew L.M. Fletcher

Frank Pommersheim has published “I Was So Much Older Then/I’m Younger Than That Now: Valedictory Notes and Collage” in the South Dakota Law Review (pdf).

Here is an excerpt:

Teacher, Scholar, Tribal Justice, Colleague. These are theseasons turning and braiding across my years and decades in thefield, the factory, and the monastery of my work and vocation.The toil of craft and building community. Yet there is alsosomething valedictory and elegiac that guides this pen and spillsthis ink in the desire to provide both a professional and personalsense of my thirty-five years of service at the University of SouthDakota School of Law (hereinafter USD).

Frank (far right) at the Montana Law Review symposium 2018

Frank Pommersheim Symposium — Matthew Fletcher

Matthew L.M. Fletcher

I met Frank Pommersheim in Rapid City, South Dakota in 2004, a few months before I was to begin teaching law students at North Dakota.

We were presenting at a pipeline program for Native high school and college students, trying to show them that they could go to law school, too. Frank was to conduct a mock law school class, teaching Johnson v. McIntosh and showing them the Socratic method.

Know that I never took Federal Indian Law in law school. And so I had never even seen an Indian law class before.

I learned that a Frank Pommersheim class is an incredible performance. His deep voice seemed to both calm the students and command their attention. I was mesmerized. I had read Johnson v. McIntosh for my law school property class and wrote a short article about that experience, but listening to Frank work, I realized I knew absolutely nothing about that case. Frank had total command of the material. He deftly used the Socratic method — on kids, no less — and guided them through one of the most difficult cases in the canon just by calmly asking questions. By the end, these teenagers knew the foundations of American property law. And how those foundations rested on the tired and broken backs of Indian people. They looked inspired, inspired to climb the hill and use the law to take it all back.

I know I did.

I also knew I had no business teaching a law school class. I knew nothing about Johnson v. McIntosh. I knew nothing about how to teach. Before I got to Grand Forks, I had a lot of work to so. My first Indian law class was taught by Frank Pommersheim, and I am still trying to become a teacher as good as he was that day.

***

But I knew Frank Pommersheim before that. I had been a lawyer for seven years before I left practice to become a law teacher. I read Indian law articles voraciously while in practice. Because I had not taken Indian law in law school, I had a lot of catching up to do.

Frank Pommersheim was my Indian law professor.

Everywhere I turned for guidance on an Indian law topic, Frank’s work was there. Trying to show to state lawyers why a tribe might not want to go to state court on a water law issue? Frank collected cases showing state courts were inhospitable to tribal claims. Trying to explain the tribal court exhaustion doctrine to business partners of the tribal enterprise? Frank wrote the book on the tribal court exhaustion doctrine. Trying to learn about tribal customary and traditional understandings of due process? Frank wrote tribal court opinions using Lakota custom and tradition to interpret the due process clause of the Indian Civil Rights Act.

***

When I began my law teaching career, I needed to find an identity for my scholarship. Was I going to focus on tribal economic development, Indian gaming, taxation, and the like? Was I going to focus on tribal environmental and natural resources law? Was I going to write about cultural property? No. I liked thinking about tribal courts and I liked thinking about the Supreme Court.

I decided to become like Frank Pommersheim.

I believe I picked the best role model. His scholarship on tribal courts and the Supreme Court is the best there ever was on those subjects. It was direct and to the point. And it was correct. Frank sees through the technocratic writing of the Supreme Court on the first reading. He gets there before anyone else does and sits patiently waiting for everyone to catch up. Frank made it seem easy when it was anything but.

***

A few years back, Frank created a website to house all of the tribal court opinions he had written. I knew about a bunch of them. The Crazy Horse malt liquor case. The Saginaw Chippewa disenrollment case. The Long Family Land and Cattle Company case. Dollar General. But the sheer number of opinions blew me away. An entire academic career could be built on reading exclusively from this corpus of tribal law. His impact on the development of tribal law is far beyond anyone two or three other professors. His name appears in nearly every single chapter of my tribal law casebook (I just checked to see), and usually a half dozen times a chapter or more.

I wanted to be a tribal judge so I could be more like Frank Pommersheim.

***

A while back, I received a poem of Frank’s in the mail titled Buddha Sends a Hunter-Gatherer Poem to Prof. Pomm’s Indian Law Class. I have a binder full of poetry and art Frank has produced. There is a space on my bookshelf next to my green ceramic Buddha with Frank’s books of poems.

The man is amazing. ‘Nuff said.

Buddha