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Journal of Political Ecology:
Case Studies in History and Society
VOLUME 2 (1995)
Braid of Feathers: American Indian Law and Contemporary Tribal Life, by Frank Pommersheim; Berkeley: University of California Press, 1995. 267 pp.
Reviewed by Allen C. Turner, Ph.D., J. D. Box 7704, Redlands, CA 92375.
I like thin books with thick subject matter. I also like book titles that herald the contents. This book does both. In an essay of 200 pages, Frank Pommersheim, a Lakota tribal judge, artfully braids together the variegated feathers of tribal sovereignty. Experience, Culture, History, Language, Politics, and Law, not just Acts of Congress (treaties, statutes), decisions of the United States Supreme Court, and executive action (orders and regulations) shape, limit, and ultimately enhance or diminish tribal sovereignty. The author, sometimes poetically, sometimes polemically, but always pointedly argues that tribal courts are the fundamental institution of legitimate, authentic tribal self-determination.
Braid of Feathers is an essay in advocacy; it advances the message that inherent tribal sovereignty will be made manifest by an enlightened tribal judiciary. Indeed, that tribal judiciary is the means by which residual sovereignty will be enhanced. This book makes it clear that tribal courts are the institutional key to Native American Indian political survival. Eclectic and erudite, Pommersheim speaks from his inestimable experience as a Lakota tribal judge. His scholarship is enriched by his intimate knowledge of reservation life and Indian people. His sources range from Black Elk's visions to the Holy Bible, from tribal constitutions to the Constitution of the United States, from Treaties with tribes to treatises by eminent scholars.
Pommersheim's erudition, however, is not without limits. He cites typical law school resources -- cases, statutes, law reviews, and treatises -- embellished, it would appear, by whatever is within arm's reach on his own bookshelf -- the Holy Bible, Rolling Stone, the World Almanac. And although he does address potential contributions of "other disciplines, such as politics, history, economics, philosophy, and linguistics," (p. 105) he fails to suggest just how they might enhance "a better understanding of the reality and dilemma of tribal cultures and Indian law."
The book is divided into three parts. By centering his discussion in Part One on The Land -- the reservation -- rather than on Capitol Hill, Pommersheim draws attention to the core rather than the periphery. In so doing, he departs from the more common perspective in Indian Law in which the emphasis is on federal and state preemption of tribal sovereignty rather than its retention or enhancement. (See Chapter One, "The Reservation as Place"). The reservation is the site of the continuing sovereignty battle that rages over establishment, and diminishment, and control of the tribal home land base. I don't think he makes the point clearly enough, however, that reservations are usually not grants to Indians but are sacred homelands that are set aside, reserved from, grants to the United States. Nor does he show how the reservation system fit into the Jeffersonian program for social assimilation through cultural evolution (cf.J. Lobsenz, 1982: 4-5; A. Turner 1987: 322-324).
Pommersheim's analysis of the colonial context (Chapter Two) examines the constitutional, legislative, and judicial sources of federal Indian law: the law of conquest. He clarifies the distinctions between: (a) the legislative treaty based tribal powers and federal obligations, (b) the federal trust relationship derived from decisions of the United States Supreme Court, and (c) the "pernicious 'plenary power' doctrine" (p. 40). Treaties are contracts between the tribes and the United States as coequals and as such are, or should be, the cornerstone of tribal sovereignty. They are, after all, the "Supreme Law of the Land" (U.S. Const. art. VI, cl.2).
The trust relationship is a guardian-ward relationship that recognizes the potential for overreaching by the more powerful United States. This doctrine reduced, or indeed elevated, some tribes to "domestic dependent nations" (citing Cherokee Nation v. Georgia, 30 U.S. [5 Pet.] 1, 17). Ultimately the fates of the tribes rests with the plenary power of Congress to abrogate treaties and to terminate the trust relationship with tribes. Pommersheim, with whom I agree on this point, finds this power to be most insidious and constitutionally unfounded. He suggests that in its decisions in Kagama v. United States, 118 U.S. 375 (1886), and Lone Wolf v. Hitchcock, 104 U.S. 621 (1882), "the Court simply converted its perception of congressional practice into a valid constitutional doctrine without any legal support or analysis" (p. 47).
Emphasis shifts, in Part Two -- Justice, Liberation, and Struggle--to the task of building tribal courts. Pommersheim's focus on tribal courts as the "crucible of sovereignty" (Chapter Three) balances the emphasis on the erosion of sovereignty found in Charles F. Wilkinson's American Indians, Time, and the Law (1987). Pommersheim's view from the tribal bench also stands in useful counterpoint to that of Judge William Canby of the Ninth Circuit appellate bench, whose excellent primer examines federal law about Indians (1981). (These three books-- Pommersheim, Wilkinson, and Canby--are the essential trilogy for a quick comprehension of the field of Indian law. To this I would add Felix Cohen's classic treatise, Handbook of Federal Indian Law (1942) which first synthesized the field).
Pommersheim's advocacy begins with the fundamental problem of establishing courts with legitimacy. To vest a court with legitimate jurisdiction-- i.e. the right to speak the law with authority-- it must be grounded in agreed principles, be they implicit or explicit. He notes, almost in passing, that the "existence of tribal adjudicatory mechanisms... may have preexisted or existed in tandem with formally recognized [by the Secretary of Interior] tribal courts" (p 61). Here he cites, for example, the classic study by lawyer Karl Llewellyn and anthropologist E. Adamson Hoebel (1941) on Cheyenne jurisprudence.
Pommersheim, however, fails to take the next logical step of advocating the application of the methodology of anthropological jurisprudence to the discovery of contemporary Indian law. It is not as though the method lacks merit or utility, After all, Llewellyn, a founder of the "Realist Movement" in modern jurisprudence, used an anthropological approach to discover mercantile law and to document it in the Uniform Commercial Code! (R. Danzig 1975: 621, 626; W. Schnader 1967, A. Turner 1992: 391, 397-398; W. Twining 1973).
Instead, Pommersheim trips over the obvious and falls into the rather elusive vagaries of "Liberation, Dreams, and Hard Work" (Chapter Four) wherein he seeks "for relevant insights from other disciplines, such as politics, history, economics, philosophy, and linguistics" (p.105). I quarrel not with the contributions potential, and real, of those disciplines but wonder "Whether Anthropology" that "science of man" upon whose road Mr. Justice Oliver Wendell Holmes (1886) set lawyers seeking a foundation for their profession.
I do not mean to discount in any way the value of Pommersheim's broadly based humanism or his implicit call for the incorporation of indigenous philosophy, metaphor, and culture into the body of tribal jurisprudence. But I do wonder why anthropology is not accorded a role. Is it because of some probably well-deserved antipathy of the Studied toward the Scholars? Analysis of the reference structure of this otherwise erudite chapter suggests that Pommersheim's otherwise eclectic bookshelf houses neither Leopold Pospisil's Anthropology of Law: A Comparative Theory (1971) nor John van Willigen's Anthropology in Use: A Source Book on Anthropological Practice (1991).
Part Three--Issues in the Western Landscape--examines a few nettlesome areas wherein a truly sovereign tribal presence would be advantageous. Tribal-state relations (Chapter Five) are contoured by reference to the standoff between tribes and the states over such issues as taxation, land use, and natural resource allocation. His analysis of the Court's complex decision in Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 409 U.S. 163 (1989) is keen. But the decision shows the disarray of the United States Supreme Court with respect to a cohesive federal Indian jurisprudence. The essence of that decision is that "yes, tribes can," and "no, tribes cannot" (and anything between) regulate land use on fee lands inside the reservation boundaries. Pommersheim suggests that the Brendale decision is made more coherent by reference to individual property rights associated with allotment properties sold into fee simple. Thus, an individual has relative freedom from tribal regulations on those more "private" lands (p.151). Although I do not disagree, I submit also that the Court bases its current decisions on erroneously decided precedent: e.g. the baseless assertion that "Indian reservations are parts of the states" White Mountain Apache Tribe v. Arizona 649 F.2d. 1274, 1281-82 (9th Cir. 1981). Such language, coming as it does from a federal court of appeals, corrodes the metal forged in the crucible of sovereignty.
In his next to last chapter (Chapter Six), Pommersheim offers some important suggestions about tribal economic development that could benefit from a broader perspective. But it does emphasize the need for caution in bringing on board any and every federal help program without first attempting to assess the consequences of its adoption.
In his concluding chapter, Pommersheim foresees a "New West" wherein Native Americans are full players contributing not just their exploitable natural resources but, more significantly, their vision, their spirituality, and their philosophies to a new solidarity. With a legitimate legal culture in place, this ideal is not naive but hopeful.Braid of Feathers could only benefit by including a chapter, (or by integrating such material chapter-by-chapter), showing case decisions from the numerous tribal courts across Indian Country and published in the Indian Law Reporter. These decisions show how tribal courts are addressing a wide range of legal issues.
Likewise, I am disappointed by the lack of discussion of the problem of appellate jurisdiction. What body of law would govern Indian appellate decisions? Are tribes like states whose supreme courts have final authority except in constitutional matters? Or are tribal courts to be like federal district courts whose law is articulated by circuit courts of appeals? Would the same court of appeals review, say Hopi and Navajo trial court decisions? Or would the fundamental linguistic and cultural distinctiveness of these immediate neighbors undermine the legitimacy of any appellate decision speaking to these two sovereigns? Would Hopi courts better be reviewed by a Puebloan appellate jurisdiction and Navajo with their cogenor Apache neighbors. If tribal jurisprudence is linguistically grounded (p. 105ff), would it not make sense to establish linguistically based rather than territorially based appellate jurisdiction? And what does this imply for full faith and credit? Would a decision made, for example, at a Shoshone- Bannock Tribal Court be valid universally, or just among other Shoshoneans? other Uto-Azetecans? other Idaho tribes? other "Basin-Plateau socio-political groups" (J. Steward 1938)? other states?
Although my notations may sound both positive and negative, it is the positive that I emphasize, for this work is to be regarded as a singular contribution. I hope that this review will encourage more, rather than fewer, people to seek out and digest this important work. I particularly recommend it to the tribal bar and bench, to federal and state agency personnel working on or on behalf of Indian reservations, to humanists and social scientists, and to those who would exercise "plenary authority" over the tribes -- members of the United States Congress.
Holmes, Oliver W., Jr.
Llewellyn, Karl, and E. Adamson Hoebel.
Lobsenz, James E.
Schnader, William A.
Steward, Julian H.
Turner, Allen C.
Van Willigen, John.
Wilkinson, Charles F.