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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