Braid of Feathers: American Indian Law and Contemporary Tribal Life.

• Author: Frickey, Philip P.

Federal Indian law is perhaps the least respected and most misunderstood area of public law. Although the field produces a steady diet of cases for the Supreme Court, the Justices have little love for the topic.(1) The work of Indian-law scholars and practitioners seems isolated from the more general span of public law scholarship and practice. Indeed, the mere mention of the field is a conversation stopper for public law generalists of either the academy or the practicing bar.

There are probably many reasons why federal Indian law is out of the mainstream. Some of them involve fairly typical problems of public law: unclear -- indeed, largely nonexistent -- constitutional text,(2) murky doctrines of case law,(3) the hydraulic pressure upon doctrine of evolving social circumstances, and so on. In addition, there may be some sense on the part of the dominant community that the issues involved in federal Indian law are relatively unimportant in the great scheme of things.

Other factors that contribute to the marginalization of the field are, however, more unusual. Issues concerning the rights of Native Americans are quite different from those involving other minority groups defined by race or ethnicity. Indians had sovereignty, land, and other group rights before their contact with colonizing Europeans and they continue to have sovereignty, land, and other group rights today. The wrongs colonization perpetrated were group wrongs rather than individuated injuries. The status of Indian tribes today, which involves collective land ownership, self-government, some aspects of territorial sovereignty, and government-to-government relations with the United States, is unlike anything else in domestic American public law.

Indeed, a fundamental reason for the inscrutability of federal Indian law is that analogies to other areas of public law turn out to be false. Mainstream public law attempts to protect politically powerless members of minority groups from being treated differently from similarly situated persons who are in the majority.(4) These individualistic and integrationist qualities spring from American domestic norms of equal protection associated with Brown v. Board of Education.(5) In contrast, federal Indian law seeks to protect Indians as groups -- as peoples, not as people(6) -- from forced assimilation and destruction of their separate status. These collectivist and separatist qualities spring, remarkably, from international law notions of sovereignty, which were incorporated into American domestic law in the early nineteenth century by the Marshall Court.(7) Surely this head-spinning contrast between the familiar equal-protection narrative and the unfamiliar Indian law one is a major reason why federal Indian law is sealed off from the public law mainstream.(8)

This exclusive focus on law is, however, highly deceiving. For I think it is the context of federal Indian law, even more than its murky doctrines and qualities, that leads to its marginalization. It is plain to anyone who will look that federal Indian law is the law governing the colonization and displacement of the indigenous peoples of this continent by Europeans. The justifications for those colonial acts -- acknowledged by our Supreme Court to turn on Christianizing the heathen and confiscating natural resources to use them more efficiently(9) -- now seem hollow. The cross-continental march of European-Americans, the brutality of the Indian wars and their aftermaths, and the removal westward and ultimate isolation of Indians on reservations is a story painful to contemplate in a society supposedly premised upon a Constitution that protects against governmental abuse and embodies a social contract based on consent. The unattractiveness of this narrative, its tension with our dominant American narrative of faith in the rule of law, and the difficulty in knowing how to fuse these narratives into lessons of contemporary significance all contribute to the marginal status of federal Indian law.(10)

Turning to the current context, contemporary federal Indian law, "on the ground," happens far away from the District of Columbia, on isolated lands called Indian reservations. The people it primarily affects have a third layer of citizenship -- membership in the tribe as well as citizenship in the United States and in the state in which they reside -- and may consider tribal membership the most significant of the three. They may also adhere to some traditional beliefs and ways of life inconsistent with western, capitalist values. Indeed, it is no small irony that Native Americans are essentially foreigners in their own country,(11) both culturally and legally.(12)

Traditional public law scholarship has its difficulties in coming to grips with such far-flung and foreign factors. Frank Pommersheim has sought to identify these deficiencies and to begin to remedy them in his new book, Braid of Feathers: American Indian Law and Contemporary Tribal Life. Pommersheim brings a wealth of experience to the task. He spent over ten years living and working on the Rosebud Sioux Reservation in South Dakota. Now a law professor at the University of South Dakota, Pommersheim sits as an appellate judge for both the Rosebud Sioux Tribe and the Cheyenne River Sioux Tribe.

Pommersheim approaches the subject as much with his heart as his head. He acknowledges that his experiences in Indian country have been highly rewarding, both personally and professionally (p. 6). Indeed, he speaks frankly of his friendship toward and obligations to "people and communities who have done so much, with lasting good humor, to highlight the issues and enhance the choices in my own life and those of my family" (p. 13). He recognizes that his view "is not detached nor neutral but engaged and committed" (p. 5), a product of his experiences "in the particular western landscape of Indian country in South Dakota" (p. 6).

This abandonment of any pretense of objective, neutral analysis, however, does not undermine his contribution. Indeed, it seems to me that it greatly enhances it, for it replaces the typical, and misleading, "view from nowhere"(13) with the actual context of relevance. For as Pommersheim notes, most federal Indian law scholarship focuses almost exclusively on "the pervasive role of Congress and the Supreme Court" (p. 1), failing to acknowledge "the counterweight of tribal sovereignty and authority" (p. 1) and "the understanding and implementation of the indigenous vision that develops in its localized institutional settings" (p. 2).

This, then, is a self-proclaimed "inside-out view from the grassroots, reservation level rather than the traditional top-down view that permeates most Indian law writing" (p. 2). What Pommersheim seeks for tribes is legitimacy in law running in both directions. Tribal governmental institutions, particularly tribal courts, must have "tribal authenticity," and this " `inside-out' authenticity, in turn, must meet the potential constraints of [federal] judicial and congressional review that is necessary to achieve a complementary `top-down' authenticity" (p. 134). "In many ways," Pommersheim says, "tribal courts are ideally situated to serve as a bridge between local tribal culture and the dominant legal system" (p. 194). Bi-directional connectedness and legitimacy, in turn, could lead to a "true tribal-federal (judicial) dialogue on tribal sovereignty" that seeks "justice [as] a product of conversation rather than unilateral declaration."(14) Ultimately, this institutional dialogue is the vehicle by which Pommersheim hopes to achieve what he sees as "the two most important -- indeed, complementary -- projects in the field of federal Indian law . . . the decolonization of federal Indian law and the simultaneous construction of an indigenous version of tribal sovereignty and self-rule."(15)

Heady stuff, this. Openly utopian and yet concretely contextual, Pommersheim asks us to image a decolonized federal Indian law and a flourishing tribal life, all with the support of the dominant society. True to his "inside-out" approach, he first considers the reservation context, places the reservation within its broader context in the western United States, and then uses these contextual understandings as the bases for crafting the legal context to achieve the two goals he identifies. I will consider each in turn.

1. A CONTEXT FOR CARING

   Pommersheim is explicit in his rationale for examining the context of federal Indian law:

   I seek to develop a sense of context -- cultural, spiritual, and physical -- to help explain why Indian people are committed to reservation life and why non-Indians need to honor and respect that commitment. For it is this commitment to the reservation as place that undergirds all the central legal struggles in Indian country about land, water, natural resources, and jurisdiction. Unless we understand this context, there is little chance that we can forge a commitment to eradicate the stigma of invidious difference while at the same time preserving an enduring pride of difference. Without the human and cultural specifics, the field of Indian law is hopelessly abstract and disconnected from the reality and aspiration of contemporary tribal life. The thick description of the reservation as place provides a context for caring as well as a firm grounding for understanding the pain and promise of law in contemporary Indian life. [p. 8]

   In my judgment, the major contribution of this book lies in the identification and substantial satisfaction of these aspirations.

   By its very nature, federal Indian law is the law of colonial power -- case law from what John Marshall once revealingly called "the Courts of the conqueror,"(16) statutes from the centralized legislature of the colonial government, and so on. It is law made by others and imposed upon indigenous peoples. It is both unsurprising and disturbing, then, that, as Vine Deloria once...