Frank Pommersheim Guest Post: “The Red Bird Trilogy”

The Red Bird Trilogy: Comments Delivered at the 11th Annual University of South Dakota Native Alumni Dinner[1]

Frank Pommersheim

I. Opening Welcome

A special thanks to John Little,[2] Megan Red Shirt Shaw,[3] Damon Leader Charge,[4] the Tiyospaye Council, and many others for all their hard work on this event to recognize and highlight the contribution of Native alums to this University and to their Tribes and the State of South Dakota in their professional lives.

            I also want to give special thanks to John and Megan for the decision to highlight the contributions and accomplishments of Native law school grads both during their time at the Law School and in their subsequent professional lives.  This is an important first in the history of the Law School.

            Although I am not sure that this is public knowledge yet (I remain a relative stranger in the world of social media!), I want to commend Dean Neil Fulton of the Law School for selecting J.R. LaPlante, class of 2009 and member of the Cheyenne River Sioux Tribe, as the 2023 keynote speaker at the special hooding graduation ceremony held by the Law School on May 5.  This will be another first.  J.R. will be the first Native alum to give the keynote at this prestigious event.  Cheers!

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Job Announcement — Indian Law Position at South Dakota

Tenure-Track Position in Indian Law

The University of South Dakota School of Law looks to hire an Assistant or Associate Professor, dependent upon qualifications, with expertise in the fields of Indian Law and federal courts. USD Law has both a long-standing institutional commitment to the field of Indian Law, as well as an Indian Law program on which it hopes to build.

This position is on the tenure track and will start at the beginning of the 2019-2020 academic year. The successful candidate will teach our Indian Law and Federal Jurisdiction courses; the remainder of the course package will be subject to negotiation. Areas of potential interest include bankruptcy, insurance, intellectual property, agricultural law, and cyberlaw.

Individuals appointed to tenure-track positions are expected to fulfill the tripartite responsibilities of teaching, scholarship, and service. The successful applicant must be a licensed attorney in a United States jurisdiction (a state or the District of Columbia).

The University of South Dakota embraces and practices the values of diversity and inclusiveness. Candidates who support these values are encouraged to apply. EEO/AA

Applications must be submitted through the Board of Regents electronic employment site: For application assistance or accommodation, call 605-677-5671. Please include your application letter, vita, and the names and addresses of three current references.

Inquiries may be directed to Tiffany C. Graham, Associate Dean of Academic Affairs, University of South Dakota School of Law, 414 East Clark Street, Vermillion, SD 57069. You may also send a message by email to, or you may call at 605-658-3509.

Employment Division v. Smith Panel at SEALS, July 2011

This is just a draft agenda we’ve been asked to pass along in light of the Cardozo debacle (as with the Cardozo conference, please be advised there’s no objection or concern about the panelists named, just that there are no Indian law scholars):

First Amendment WorkshopDiscussion Group: Free Exercise in the Wake of Employment Division v. Smith

In April, 1990 the Supreme Court held in Employment Division v. Smith, 494 U.S. 872 (1990), that “an individual’s religious beliefs” do not “excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”  This embrace of a belief/ conduct dichotomy reversed years of prior precedent, discarding a regime within which burdens on free exercise were assessed under the strict scrutiny rubric normally associated with government limits on fundamental rights.  This panel will explore where matters stand on the twentieth anniversary of Smith, discussing the current status of the Free Exercise Clause in the light of Smith, subsequent decisions of the Court, and parallel attempts to revive free exercise as a meaningful guarantee through federal and state statutes.

Moderator: Professor William Marshall, University of North Carolina School of Law.

Discussants: Professor Daniel Conkle, Indiana  University, Maurer School of Law; Professor Caroline Corbin, University of Miami School of Law; Professor James Dwyer, College of William and Mary, Marshall-Wythe School of Law; Professor Leslie Griffin, University of Houston Law Center; Professor Kurt Lash, University of Illinois College of Law; Professor Douglas Laycock, University of Virginia School of Law; Professor Christopher Lund, Wayne State University School of Law.

By way of contrast, consider the University of South Dakota’s conference earlier this year, which featured Marci Hamilton, Chris Lund, and other prestigious scholars that do not focus on Indian law, as well as scholars and practitioners that do — Zacheree Kelin (who litigated the Arizona Snowbowl case), Klint Cowan (who litigated the Comanche religious freedom case), and Charles Grignon (an American Indian religious practitioner).