Professor Emeritus Frank Pommersheim & Justice Steven L. Zinter.

AuthorHagen, Alex M.


The Board of Editors of the South Dakota Law Review is pleased to dedicate Volume 65 to Professor Emeritus Frank Pommersheim.

Frank Pommersheim was born in Queens, New York City, in 1943. Fie graduated from Colgate University in 1965, where he also played four years of basketball. Professor Pommersheim went on to earn a J.D. from Columbia Law School in 1968, as well as an MPA from Harvard University in 1984. Upon graduation, Professor Pommersheim served in the VISTA (Volunteers in Service to America) program in Alaska as a volunteer and volunteer leader from 1968-1970. He also worked for the New York City Department of Consumer Affairs in East Harlem from 1971-1973.

After acquittal as part of the Camden 28, a non-violent, anti-war group, Frank moved with his family to South Dakota in 1973. For the next ten years, he lived and worked on the Rosebud Sioux Reservation as a faculty member at Sinte Gleska University and as Director of Dakota Plains Legal Services.

Professor Pommersheim joined the faculty of the University of South Dakota School of Law in 1984 and served in that capacity for thirty-five years until he retired in 2019. During this time, he served on numerous tribal appellate courts throughout Indian country, including more than twenty-five years as the Chief Justice for the Cheyenne River Sioux Tribal Court of Appeals and Associate Justice on the Rosebud Sioux Supreme Court. As an appellate justice, he has written more than 130 opinions.

Professor Pommersheim is also an accomplished scholar in the field of Indian law. He has written five books including Braid of Feathers and Broken Landscape, as well as more than 40 law review articles. In addition, Frank is also a published poet, whose most recent chapbook is entitled Local Memory and Karma (The Buddha Correspondence, Vol. 2).

In addition, Professor Pommersheim has also received several teaching awards, including the Belbas-Larson Award for Excellence in Teaching and the John Wesley Jackson Award as Outstanding Professor of Law. Outside the Law School, he has received the South Dakota Peace and Justice Center Reconciliation Award and the South Dakota Council for the Humanities Distinguished Achievement Award. In 2019, he was awarded an Honorary Degree from Sinte Gleska University.

Frank continues to listen carefully to Bob Dylan and to pay close attention to the beauty and grace of the birds that fill the sky.

MATTHEW L.M. FLETCHER ([dagger1]) Buddha, Felix Cohen, and Nanaboozhoo Walk Into a Bar: A Tribute to Frank Pommersheim I met Frank Pommersheim in Rapid City, South Dakota, in 2004, a few months before I was to begin teaching law students at North Dakota. We were presenting at a pipeline program for Native high school and college students, trying to show them that they could go to law school, too. Frank was to conduct a mock law school class, teaching Johnson v. McIntosh (1) and showing them the Socratic method.

I never took Federal Indian Law in law school, so I had never even seen an Indian law class before. I learned that a Frank Pommersheim class is an incredible performance. His deep voice seemed to both calm the students and command their attention. I was mesmerized. I had read Johnson v. McIntosh for my law school property class and wrote a short article about that experience, (2) but listening to Frank teach, I realized I knew absolutely nothing about that case. Frank had total command of the material. He deftly used the Socratic method--on kids, no less--and guided them through one of the most difficult cases in the canon just by calmly asking questions. By the end, these teenagers knew the foundations of American property law and how those foundations rested on the tired and broken backs of Indian people. They looked inspired--inspired to climb the hill and use the law to take it all back. I know I did.

I also knew I had no business teaching a law school class. I knew nothing about Johnson v. McIntosh. I knew nothing about how to teach. Before I got to Grand Forks, I had a lot of work to do. My first Indian law class was taught by Frank Pommersheim, and I still aspire to be like the teacher he was that day.

Buddha, (3) Felix Cohen, (4) and Nanaboozhoo (5) walk into a bar. They order drinks and settle in. "Tell us a joke, Nanaboozhoo," Buddha says, knowing Nanaboozhoo is a jokester. "Aho. Here's a transcendental nonsense joke for you lawyers:"

A man walks into a bar, orders a drink. A second man, who has a guide dog, walks into the bar, tries to order a drink. The bartenders says, "No dogs allowed." The man with the dog says, "This is my guide dog. You can't deny entrance to a man with a guide dog." The bartender agrees and gives a drink to the man with a dog. A third man walks into the bar. He also has a dog, but it's a Pug, and the man is carrying it. "Hey," the bartender says. "No dogs, except guide dogs." The man with the pug looks at the bartender and says, "Well, I'm blind and this is a guide dog." The bartender shakes his head and says, "That's not a guide dog. That's a pug. A lap dog." "What?!?!" the man with the pug exclaims. "They gave me a pug!" (6) Buddha chuckles. "Poetry is blood; law is water." (7) He turns to Felix Cohen. "How about you?" "Well, I'm not known for my jokes, but how about this one?" "A scientist and her husband are walking on a country road. The husband says, 'Look, those sheep have been shorn.' The scientists says, 'Yes, on this side.'" (8) Buddha chuckles again. "Poetry and law are both reports on human experience; reports from different angles with different means." (9)

I knew Frank Pommersheim before I met him in Rapid City. I had been a lawyer for seven years before I left practice to become a law teacher. I read Indian law articles voraciously while in practice. Because I had not taken Indian law in law school, I had a lot of catching up to do.

Frank Pommersheim was my Indian law professor. Everywhere I turned for guidance on an Indian law topic, Frank's work was there. Trying to incorporate Indian law in your federal court class? Frank explained how, and more importantly, why. (10) Trying to explain the tribal court exhaustion doctrine to business partners of the tribal enterprise? Frank wrote the book on the tribal court exhaustion doctrine. (11) Trying to learn about tribal customary and traditional understandings of due process? Frank wrote tribal court opinions using Lakota custom and tradition to interpret the due process clause of the Indian Civil Rights Act. (12) Frank helped write the book on tribal civil rights law, too. (13)

Buddha sips his beverage. "Felix Cohen, you're the architect of modern tribal governance. This project of self-determination. How do you think it's going?" Felix Cohen answered with a parable:

Some [one hundred forty] years ago a great German jurist had a curious dream. He dreamed that he died and was taken to a special heaven reserved for the theoreticians of the law. In this heaven one met, face to face, the many concepts of jurisprudence in their absolute purity, freed from all entangling alliances with human life. Here were the disembodied spirits of good faith and bad faith, property, possession, laches, and rights in rem. Here were all the logical instruments needed to manipulate and transform these legal concepts and thus to create and to solve the most beautiful of legal problems. Here one found a dialectic-hydraulic-interpretation press, which could press an indefinite number of meanings out of any text or statute, an apparatus for constructing fictions, and a hair-splitting machine that could divide a single hair into 999,999 equal parts and, when operated by the most expert jurists, could split each of these parts again into 999,999 equal parts. The boundless opportunities of this heaven of legal concepts were open to all properly qualified jurists, provided only they drank the Lethean draught which induced forgetfulness of terrestrial human affairs. But for the most accomplished jurists the Lethean draught was entirely superfluous. They had nothing to forget. (14) Buddha nods. "Poetry is your mother; law, your father." (15) He turns to Nanaboozhoo, who is several drinks deep into his cups. "And you, Whiskey Jack?" (16) Nanboozhoo says, "I will tell the story of the council of dogs." He burped. An innini [man] living in a village with no ogema [chief or leader] decided to invite the inniniwaag [men] of the village to a council. At that council, the innini decided, the inniniwaag would select an ogema. He decided to make a piece of fry bread and bring it to the council. The new ogema would ceremonially eat the fry bread to conclude the council. But the innini was no good at making fry bread, and he didn't want to ask his relatives who were good cooks--who tended also to be kwewaag [women] --because he didn't want them to know about the council. So his fry bread was near-black, greasy, cold on the inside, and hard as a rock.

The inniniwaag who came to the council agreed that it was right to have a council to pick a new ogema. The one who organized the council and brought the fry bread assumed that since he was the only one with foresight enough to call a council and bring a piece of fry bread, that the council quickly would choose him to be the new ogema. He was wrong. The others began nominating each other. And they began arguing.

"Let Odiyaash be ogema."

"No! He is a fool. We should select Gichi Nemaab."

"Not that one. He is bagandizi [incompetent]."

And so on.

The inniniwaag argued and argued. The one who brought the fry bread despaired. His plan was falling apart. As the others argued, they stood. It was apparent they would soon come to blows. Some of them were already growling.

The man who brought the fry bread jumped up and rushed to the middle of the council with the bread in his hand. "So it is decided," he said, though of course no one had decided anything. "I accept the nomination to be our next...

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