by Frank Pommersheim. Oxford: Oxford University Press, 2009. 424pp. Cloth $35.00/£22.50. ISBN: 9780195373066.
Reviewed by Sheryl Lightfoot, First Nations Studies Program and Department of Political Science, University of British Columbia. Email: Sheryl.lightfoot [at] ubc.ca.
The relationship between American Indian tribes and the United States federal government can be described as problematic at best and paradoxical at worst. In its more than 200 year history, this relationship has been caught in a fundamental tension between Congress’ assertion of a colonial, plenary power over tribes and tribal nations’ desire to affirm their inherent sovereignty, a sovereignty that pre-existed the United States of America. This fundamental tension, which stems largely from a certain degree of ambiguity over the status of tribal nations within the US constitutional matrix, plays itself out in the inconsistent application of US federal Indian law, and in Supreme Court decisions that vacillate yet increasingly undermine and limit tribal sovereignty.
The US Constitution mentions American Indians only three times: in Article I, section 2, and the Fourteenth Amendment, where, in both cases, Indians are excluded from population calculations; and in the Commerce Clause, which is the only specific reference to any power delegated to Congress related to American Indians. From the earliest days of European contact with tribal nations, the relationship was defined as a treaty-based, nation-to-nation relationship, in explicit recognition of the original and inherent sovereign status of tribes. Over time, however, and reflective of a changing power balance, Congress presumed to hold greater power over tribes. By the late 19th century, Congress unilaterally changed the relationship between itself and tribes from a treaty-based one to a strictly colonial construction, with Congress asserting that it now held plenary (i.e. absolute) power over American Indian tribes in a blatant violation of its constitutionally-limited powers. Eventually, the “demands of empire and expansion converted the limited constitutional powers of the federal government into a vessel for all the sovereignty international law afforded” (p.150). The body of Supreme Court decisions over this two-hundred-plus-year period has repeatedly oscillated—sometimes decisions supported inherent tribal sovereignty but, more often than not, they placed limits on tribal sovereignty in order to satisfy the federal government’s political needs of the time.
Frank Pommersheim, a professor at the University of South Dakota School of Law and leading legal scholar in the area of American Indian tribal law, argues that while the Constitution implicitly recognizes the inherent sovereignty of tribes, it does not offer any formal protections for that sovereignty against encroachments by Congress or the Supreme Court. In his newest book, BROKEN LANDSCAPE: INDIANS, [*265] TRIBES, AND THE CONSTITUTION, Pommersheim argues that both the problems in American Indian law and the incoherence of Supreme Court decisions regarding American Indian law are directly caused by the exclusion of tribes from the constitutional matrix, a situation which has spawned disrespect and exclusion for tribes and tribal citizens, rather than dignity and inclusion. He argues for the need to amend the US Constitution in order to formally integrate tribal nations into the constitutional matrix.
In elegant, yet clear, and easy-to-read prose, Pommersheim provides a summative legal history and a constitutional analysis of some of the core Supreme Court decisions related to the role of the US Constitution in American Indian law. In this sweeping legal history, Pommersheim traces the unconstitutional and extra-constitutional powers present in Supreme Court Indian law decisions from first white settler contact through the present. He deftly demonstrates how the federal government, through the exercise of Congressional plenary (read: absolute) power over tribes, has often overlooked tribal sovereignty when it is politically expedient for it to do so. Furthermore, the Supreme Court has consistently failed to check this power claimed by Congress, instead offering inconsistent and oscillating rulings on tribal sovereignty, leading overall to a continual degradation of inherent tribal sovereignty in the modern era that leaves tribes vulnerable to future usurpations of tribal sovereignty.
In the first five chapters of Part One, Pommersheim examines the early development of the treaty-based relationship between the federal government and tribal nations, a relationship that was implicit in both the Articles of Confederation and the Constitution. He then explores how this relationship changed over time, even in the absence of Constitutional adjustments, through a series of Supreme Court decisions, beginning with the Marshall Trilogy of the 1830s, a series of three Supreme Court decisions under Chief Justice Marshall that redefined tribes from foreign nations to “domestic dependent nations,” and culminating in the infamous 1903 LONE WOLF decision, when the Court ruled that Congress maintained an extra-constitutional plenary power over tribes. In Part Two, Pommersheim explores the constitutional complexities and ambiguities of US citizenship for individual American Indians while tribal nations maintain a status that is extra-constitutional. In Part Three, Pommersheim brings constitutional ambiguity up to date, highlighting some recent Supreme Court decisions that continue to undermine and derogate the principle of tribal sovereignty. In this section, he also places Indian law Supreme Court decisions into an international context, raising the specter of jurisprudential change to conform to emerging international standards of justice and human rights. Pommersheim ends the book with a specific call for constitutional reform, which he argues will rectify the constitutional incoherence of federal Indian law and policy. He places an explicit proposal on the table: a constitutional amendment to enshrine tribal sovereignty, a move that would bring tribes clearly and legitimately into the American constitutional matrix while offering [*266] some legal protection for the inherent sovereignty of tribes.
Pommersheim defines his audience as wide (p.6), encompassing existing and aspiring practitioners of American Indian law, but he also directs the book toward fields outside American Indian law such as constitutional law and federal courts which he states “have largely ignored the concerns raised here” (p.6). I would also add that this book could be useful and accessible for American Indian tribal governments and tribal citizens, as well as of interest to scholars and students in other disciplines, such as Political Science and American Indian Studies. Furthermore, an international Indigenous audience may also find the book helpful as Indigenous peoples from many parts the world are currently engaged in transnational and domestic processes aimed at addressing issues of self-determination through constitutional reform. Pommersheim offers one possible model that could potentially form the basis for further transnational discussion.
This book adds a concrete proposed solution to a substantial body of literature in American Indian law that has identified and analyzed the problematic pre-constitutional and extra-constitutional status of American Indian tribes within the US constitutional matrix. Like other scholars in this field, and building upon his own earlier work, Pommersheim clearly and effectively brings into question the constitutionality of the foundational principles of American Indian law: discovery, the trust relationship, plenary power, and domestic dependent nations status. He rightly identifies an ongoing and current constitutional crisis in American Indian law whereby the Supreme Court provides no limits on federal power. In the US federal system, only the constitution can limit such exertions of federal power. Without constitutional protection, Pommersheim argues, tribal sovereignty remains a concept subject to the whims of Congress and the discretion of the Supreme Court.
Two elements of this book are particularly noteworthy and exciting. First, Pommersheim places constitutional respect for tribal sovereignty into an international law framework. This is a novel move within the field of federal Indian law scholarship, yet it fits quite comfortably with the global Indigenous agenda of constitutionalizing Indigenous rights to meet the self-determination rights standard expressed in the United Nations Declaration on the Rights of Indigenous Peoples, passed by the U.N. General Assembly in 2007. Several countries in Latin America and Asia have moved to enshrine Indigenous rights through constitutional reform, and Pommersheim offers a concrete suggestion on how the United States could potentially meet its international obligations to Indigenous rights, especially the right of self-determination.
Second, Pommersheim brings ideas that have been circulating in the American Indian Studies and Political Science fields for decades and places them squarely within the federal Indian law literature. The late Vine Deloria, Jr. (to whom this book is dedicated) began writing about the constitutional ambiguity of American Indian tribes in the late 1960s and continued elaborating on these ambiguities and complexities [*267] until his death in 2005. David Wilkins’ 1997 seminal work on the problematic treatment of American Indian tribal sovereignty by the US Supreme Court further highlighted these issues. Both Deloria and Wilkins, in their voluminous bodies of work, often discuss the need to rectify the problematic and paradoxical state of constitutional confusion associated with American Indian law. Deloria and Wilkins have primarily advocated for a return to a bone fide treaty process in order to resolve constitutional confusion in a manner that preserves the extra-constitutional status of tribal nations. Pommersheim’s proposal for a constitutional amendment to enshrine tribal sovereignty moves the conversation in a different direction, seeking inclusion, rather than exclusion, in a constitutionally structured tribal-federal relationship. Questions abound about what this would mean both in principle and practice for tribes, treaties and the nation-to-nation relationship between tribes and the federal government. Nevertheless, the Pommersheim proposal is sure to spark lively debate among scholars, lawyers and citizens in Indian Country.
Deloria, Jr., Vine. 1969. CUSTER DIED FOR YOUR SINS: AN INDIAN MANIFESTO. Norman, OK: University of Oklahoma Press.
Deloria, Jr., Vine. 1974. BEHIND THE TRAIL OF BROKEN TREATIES: AN INDIAN DECLARATION OF INDEPENDENCE. Austin, TX: University of Texas Press.
Deloria, Jr, Vine and David E. Wilkins. 1999. TRIBES, TREATIES AND CONSTITUTIONAL TRIBULATIONS. Austin, TX: University of Texas Press.
Wilkins, David E. 1997. AMERICAN INDIAN SOVEREIGNTY AND THE U.S. SUPREME COURT: THE MASKING OF JUSTICE. Austin, TX: University of Texas Press.
LONE WOLF v. HITCKOCK, 187 U.S. 553 (1903) .
© Copyright 2010 by the author, Sheryl Lightfoot.