Frank Pommersheim’s Valedictory Notes and Collage

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

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

Frank Pommersheim Symposium — John Petoskey [the elder]

Frank Pommersheim leads an exemplary life as a poet, Buddhist practitioner, federal Indian law practitioner, tribal judge and Indian law scholar with a demonstrated professorial panache as a law school lecturer, not to mention his many presentations at Indian law conferences, law review articles, tribal court opinions and books over the last 45-50 years. He has participated, collected and systematized Indian law in the tradition of Felix Cohen, shedding light and direction on a fractured Indian law history.  Tribal government and Indian law have gone through an enormous change in the last 50 years. Frank, participated in that change with sympathy, empathy and informed advocacy—thinking and guiding the non-Indian and Indian communities through the hard work of seeing each other, and understating each other, across the chasm of a stained history of violence, fear, misunderstanding, and forced accommodation. His scholarly output on developing Indian law and arguments supported Tribes’ and Indians’ assertion of their multiple rights—treaty, tribe, jurisdiction, continued self-determination– to exist in the face of a history of forced Indian trauma, forced land lost, forced cultural destruction, forced loss of children, and so much more; in general, the long curious cruel story of legal conquest in the courts’ and texts’ of the conqueror. Each tribe addresses its unique legal history in the texts of the conqueror, Frank wrote against this tradition of the conquest text, the conqueror’s story of justification.  Frank told part of our story from our perspective, legal narrative and analysis in opposition to the continued domination of legal conquest, writing suggesting the possibilities of being an Indian lawyer in resistance to conqueror’s legal narrative that destroyed tribes and Indian people.

Over many years I have been the grateful recipient of his Buddhist Haiku poems to allay my fears, affirm my hopes, to aspire me to be a better person, and to make me see the present in the acts of everyday life. One of his Haiku poem is the sound of a screen door closing late at night of a teenage child’s return from a night out, stopping his unstated fear, Buddha worrying on nothing but inevitable change.

Frank may go out for the night, and I will wait for that sound of the screen door closing of his return, and if not, Buddha said what is the sound of one screen door closing? Who really retires, anyway?

Frank Pommersheim Symposium — Angela Riley

I’m not certain of the first time I met Frank, but one of my earliest memories of him is from an Indian law mentoring event at Lewis and Clark Law School, probably around the year 2005. That event, which included other luminaries in the field, was organized by Bob Miller to identify and mentor junior scholars. (I was so inspired by the event, in fact, I copied it years later at UCLA). That symposium was undoubtedly one of the turning points in my career. I was a junior scholar, and, while I had benefited from some professional guidance, I had not received much mentoring around being an Indian Law professor to that point. At that meeting, in particular, I recall I was working out some new ideas that would ultimately turn into my (Tribal) Sovereignty and Illiberalism piece and aid in securing my tenure.  I had not yet figured out how to really refine my ideas, and I remember presenting them in sort of a muddle. Instead of harsh criticism, however, the senior colleagues gathered there were encouraging and thoughtful, while pushing for better, clearer ideas, crisper arguments, and deeper thinking.

Frank made an impression on me then, one that has stayed with me. I recall very clearly Frank’s tall, quiet way. His very deep voice, his stylish Western vest, his humble and unassuming demeanor. He had a way about him: earnest and kind, but always with a quiet humor percolating just beneath the surface. I was wowed and intimidated by him in those days, until eventually I found my footing and we became peers and, later, friends. When he published Broken Landscape, I poured through it. Shortly thereafter, I wrote a review of the book, which Matthew has graciously agreed to reprint below.  That review highlighted, among the many things I admired about Frank’s excellent book, his clear optimism and sense of hope.  As I wrote in 2011:

Broken Landscape is a comprehensive, beautifully crafted, ambitious work that courageously breaks from the swarm of contemporary critique of the Supreme Court’s Indian law jurisprudence. From my vantage point, the most promising thing about Broken Landscape is that it is a beginning, not an end.

For this and other reasons, I still assign it every time I teach my Good Native Governance seminar, introducing students at UCLA, Harvard, and Montana to Frank’s insights.

From that point, Frank became a trusted colleague. I moderated the panel at Fed Bar when he discussed the ideas – along with other scholarly giants, Carole Goldberg and Rebecca Tsosie — and I have referred students to his work countless times. Though I love Broken Landscape, in my view, Frank’s greatest impact is the work he did with and for tribal courts, leaving a truly profound imprint on Indian country. So when he sent me Tribal Justice: Twenty -Five Years as a Tribal Appellate Justice a few years later and asked me to blurb it, I was honored.  I remember the plane I was on, flying from Los Angeles to Oklahoma, when I read it. And my words that appear on the back cover are truly from the heart:

Only a poet could so seamlessly intertwine memoir, practical how-to, and grand vision in one remarkable book about law and life in Indian country. Tribal Justice is deeply compelling, taking the reader on a more than quarter-of-a-century ride through an extraordinary career devoted to tribal law and the people from which it springs.

I have to say, I felt a little forlorn that Frank did not allow an event to celebrate his greatness and his mark on Indian country. So I was delighted and honored when Matthew told me he would be putting this incredible collection together on Turtle Talk and asked if I want to contribute. I jumped at the chance.

Though there are volumes of things one could say to honor Frank, I’ll say this. Frank is a poet, a dreamer, a visionary, a teacher, an intellectual, a pragmatist, and a friend. But of all of his remarkable qualities, I have probably been most influenced by one characteristic that stands out above all others to me. That is respect.  As his entire career – and certainly his work on tribal courts – reflects, Frank holds enormous respect for the world around him, for his place on the planet in relation to other living things, and, most of all, for Indian people. In conversation and in his writing, Frank always speaks of Indian people, of reservation life, of tribal justice systems, of indigenous (and other) cultural and spiritual commitments, with the deepest respect. In my experience, that is the foundation for understanding and connection in this oftentimes fragmented and disassociated world that keeps us so lacking in empathy and gratitude. Frank taught respect by showing respect.

Like Broken Landscape, this chapter of Frank’s journey undoubtedly is a beginning, not an end. I will follow that journey with rapt attention. And I extend my deep respect to Frank and thank the Creator who made him. Jagenagenon.

Frank Pommersheim Symposium — Gloria Valencia-Weber

An Ode to Frank Pommersheim from a Grateful Non-Poet Law Professor

Caveat: It is impossible to properly title you. Long ago you went beyond a mere Indian Law professor. Unquestioned, we are all in your debt for the great law professor stuff.

FRANK

Engaged in the imaginative reach past the everyday task of thinking hard about Native Americans and their misadventures among the centuries of U.S. law.

Who keeps asking the “why not” questions.  Challenging us by invoking alternative ways to look at the real-life quandary facing the now-breathing persons caught in a tribal law problem that sometimes spins out into the perilous space of state and federal law.

Propagating reality- based contemplations that do not allow the evasive work around if justice is to be delivered and made real among the living.

Then you take us along on the ultimate personal poetic spin into a universe of nature and ancient wisdom from other lands and cultural imaginations.

Creating missals of non-rhyming poetry that fly into your life at just the right moment.  They have gently landed in my life at times when it seemed you knew there were some rough patches to overcome.

Even the paper was comforting to hold. The poetics soothed the momentary not-really a crisis as well as the absolutely a crisis.  Later readings produce a contemplative appreciation of the “then” moment and where one is now.

Gratitude when words are inadequate.

New Poem from Frank Pommersheim: “Buddha Stands With Standing Rock”

Buddha Stands With Standing Rock

Frank Pommersheim

 

Water

against oil

 

flow

against frack

prairie

against Corps

horse

against tank

song

against empire

spirit

against capital

vision

against history

peace

against war

life

against death

Mitaku Oyasin

(all my relatives)

 

Guest Post — Frank Pommersheim: A Short Inquiry into Pe’ Sla: History, Public Policy, and Moral Imagination

A Short Inquiry into Pe’ Sla:  History, Public Policy, and Moral Imagination

By Frank Pommersheim

In 2012, several Lakota tribes, including Rosebud, Crow Creek, Standing Rock, and the Shakopee Mdewakanton Sioux of Minnesota purchased a 2,400 acre ranch on the open market.  The purchase price was about $9 million dollars.  The land is located within the western part of South Dakota in a rural portion of Pennington County.

The land is also located within the sacred Black Hills and the historical Great Sioux Nation as recognized in the Fort Laramie Treaty of 1868.  The Lakota name for this area is Pe’ Sla or the ‘Heart of All That Is.’  Tribal plans for the land include historical, cultural, and religious activities, as well as sustainable buffalo ranching.

The Tribal path best suited to these cultural, spiritual, and economic activities involves placing this land into ‘trust’ status.  This process is authorized by § 5 of the Indian Reorganization Act of 1934.  This ‘land into trust’ provision is specifically designed to permit tribes to reacquire some of their land base that was severely reduced (in the amount of 90 million acres) during the time of treaty violations and the allotment process that ran from 1877-1934.

The two major effects of placing land into trust are that the land is no longer subject to local property tax and it becomes part of ‘Indian country’ as defined by federal law at 18 U.S.C. § 1151.  This latter designation establishes an area of substantial federal and tribal jurisdiction and minimal state authority.

The process for placing land into trust requires a tribal application and review by the Bureau of Indian Affairs.  This administrative process requires notice to the public, including county and state governments.  Interested parties may also submit written arguments in favor or in opposition to the tribal application.

The State of South Dakota filed written comments in opposition to the Tribal application.  The essence of the state’s arguments were the loss of real property tax revenue in Pennington County and the creation of confusing ‘checkerboard’ jurisdiction in the affected area.  These arguments were rejected by the Regional Director’s written decision of March 10, 2016.

Key elements of the Bureau of Indian Affairs administrative decision include the following.  The loss of tax revenue in Pennington County is miniscule.  The loss of tax revenue in the amount of $78,887 is .00106% of the total county tax revenue of $7,416,900,664.  The potential jurisdictional problems are real enough, but have already been largely dealt with through a signed memorandum of understanding entered into between the Tribes and Pennington County.  This memorandum of understanding deals with both criminal and civil jurisdiction, not simply in broad generalizations, but also in practical terms of cross-deputization and shared resources.  The BIA decision also emphasizes the important fact that the local government of Pennington County, the government most directly affected by this application, did not oppose it.  Pennington County submitted no arguments in opposition.

Context is also significant and relevant.  In the Pe’ Sla application, the State of South Dakota not only opposes the tribes, but is in direct opposition to its own local county government.  This is striking and profoundly jarring.  The usual South Dakota refrain to keep the federal government out of the loop is now complemented by a desire to keep local government out too.

The Pe’ Sla case is not South Dakota’s first land into trust rodeo.  Indeed, the State of South Dakota has vigorously litigated land into trust cases for the past dozen years.  The State has opposed land into trust applications by the Lower Brule Sioux Tribe, the Sisseton-Wahpeton Tribe, the Crow Creek Sioux Tribe, and the Flandreau Santee Sioux Tribe.  The State lost all four of these cases, despite their appeals all the way to the Eighth Circuit Court of Appeals.  The State even sought review by the United States Supreme Court in the Lower Brule case, but its petition was denied.

Despite this, the State does not seek conversation or dialogue with the Tribes on these matters.  It seeks no common ground.  Apparently, it just prefers to litigate, to use its resources without qualm, and to go as far as necessary to ‘win,’ except that the State has yet to ‘win.’

With this useful history so close at hand, one might think that it is a good time to begin a respectful conversation and public policy dialogue.  Yet the only recent ‘talk’ has been Governor Daugaard’s hurtful and ill-informed comments on the Pe’ Sla case.  During his appearance before the Rosebud Sioux Tribe Council to inform the Tribe of the State’s decision to appeal the case, he opined on the Tribal failure to understand their mistake:

I also oppose the Pe’ Sla land into trust for this reason.  You have many Tribal members who have needs here on the Reservation.  And if Grandma needs housing or if Grandma needs transportation . . . Grandma doesn’t need you to spend tribal resources on a park land setting for religious use or for buffalo agricultural use.  Grandma needs housing.  Grandma needs food.  And so that’s your decision to make . . . not mine.  That’s yours to make.  But I don’t support it . . . For that reason.

While many people consider Governor Daugaard a good and decent man, his comments follow the all too common trajectory of many ‘leaders,’ who have gone before him.  Such state (and federal) ‘leaders’ know what is best for Indians without ever talking to them.  There is no need for conversation, respect, or reconciliation.

Just take care of ‘Grandma’ and forget about your religious heritage.  Take care of ‘Grandma’ and forget about sustainable buffalo ranching.  Just stay back and accept the unjust and impoverished status quo.  Don’t bother us with your efforts to (re)acquire a tiny portion of your sacred lands and to initiate a new sustainable buffalo economy.  Just stay back.  Just stay in your place.

The State of South Dakota is just repeating itself.  Just playing the same old hand of opposition to tribes.  Yet repeating the past is not inevitable.  Co-operative possibilities are not difficult to imagine.  They include such things as a joint park and permanent exhibit that deals with the history of the Black Hills, cooperative agricultural ventures involving buffalo, or a jointly run tourism office.

South Dakota.  Just turn your heart and mind around.  Withdraw your appeal.  Reset your political and moral compass.  Imagine a better, more respectful, and more inclusive future.  Good things are possible.  As Basil Brave Heart wisely encouraged the Governor in the context of the name change of Harney Peak to Black Elk Peak, “When I talk to him, I will say I know you’re frustrated, but I wish you would join us in our celebration.  I would appreciate it if you would embrace and celebrate with us on this great venture.”  Celebration without litigation.  South Dakota should think about it.