Frank Pommersheim’s NAICJA Keynote

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

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?