Just published in the Wicazo Sa Review: 25.2.cook-lynn reviews pommersheim.

A few comments on Prof. Cook-Lyn’s review. I do so with great respect for both scholars. Both are inspirations to me in American Indian Studies, Literature, and Law.

That said, my first comment is that review is almost painfully negative, and in my view largely unfair to Prof. Pommersheim (not that he needs anyone at all to defend him; he is more than capable). And yet there is a great deal of learning Indian law profs and practitioners can digest in the review.

To begin, the review repeatedly states that Pommersheim’s work here offers nothing new. For example, this:

Over ten years ago, looking at the same cases as Pommersheim, in American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice, David Wilkins outlined these arguments which Pommersheim neglects. There is nothing new in Pommersheim’s reiteration.

First, anyone familiar with Pommersheim’s work knows he’s been raising points about judicial plenary power in Indian law, for example, for 15, 20 years or more (his Broken Ground and Flowing Waters came out 33 years ago). But it simply does not matter who said it first because, second, Prof. Wilkins’ work (which is outstanding) did not have the same purpose as Pommersheim’s book. Whether Congressional plenary power over Indian affairs is legitimate or justifiable is not the focus of Pommersheim’s book — a constitutional amendment such as the one he proposes would help to make that debate irrelevant or at least fundamentally change its tone. Other comments along these lines from Cook-Lyn suggest that she simply is unaware of Pommersheim’s greater body of work; which is too bad, because to put it mildly, he is no Johnny-come-lately.

Second, Prof. Cook-Lyn attacks Prof. Pommersheim for proposing a constitutional amendment that would place Indian tribes on the same legal plane as states. She quotes a portion of the proposed constitutional amendment proposed three decades ago by Russel Barsh and James Henderson, not Pommersheim’s actual proposed text.

His actual proposal includes this language:

The inherent sovereignty of Indian tribes within these United States shall not be infringed, except by powers expressly delegated to the United States by the Constitution.

The amendment itself is a compromise, but surely one worth discussion without such overt derision.

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