When I look around for books on Indian law, I always run into “A Braid of Feathers” by Frank Pomersheim. (University of California Press, copyright 1995. ISBN 0-520-20894-3) Pommersheim worked with the Appellate Courts of the Sioux and Cheyenne, although how and why is a mystery to me. This book is distinguished because its basic premise is that Indian Law should not be studied as something that is handed down from the Congress or Supreme Court, but rather should be studied from the specific tribe and reservation UP.
This is because treaties were made with separate tribes over several centuries of time, during which the US of A was growing into a national coalition and the law itself was developing and changing. Even the theory of “how to deal with Indians” changed, which meant that different treaties aimed at different accommodations, from covert extermination to a good-faith effort at keeping the peace or just moving all the Indians some vague place out West where there was “lots of room” that no one else wanted.
Sometimes tribal leaders were alert and informed enough to shape their part of the bargain and sometimes they were simply left out, the real leaders replaced by dummy leaders. (Iraq, anyone?) And the practical fate of each treaty was also unique: some ratified by Congress, some simply stored, some rejected -- as though that made any difference.
My original intention was to read this book carefully and then render it into “real” ordinary English. I had no qualms about whether I could do this since I used to type for the University of Chicago Law School and developed a good deal of vocabulary from that. But this book turned out to be as mysterious as some treaties, very much full of legal concepts.
The thing about legal concepts is that they are just that: concepts or ways of organizing theories and information and then speaking of them in shorthand by using specialized jargon. No different from any other field, except that the jargon of symphony musicians or nuclear physicists don’t have so much to do with our ordinary lives. What I’m going to do now is simply type out the Table of Contents. Then I’ll make some remarks and wait until I can find a coach to help me decipher the rest. (It might be a while.)
BRAID OF FEATHERS: American Indian Law and Contemporary Tribal Life
by Frank Pomersheim
Introduction: Why Indian Tribes and Indian Law Matter
PART I. DIFFERENT ROOTS, DIFFERENT BRANCHES: THE CULTURAL AND LEGAL SETTING
1. The Reservation as Place
2. The Colonized Context: Federal Indian Law and Tribal Aspiration
PART II. JUSTICE, LIBERATION, AND STRUGGLE: TRIBAL COURTS AND TRIBAL SOVEREIGNTY
3. The Crucible of Sovereignty: Tribal Courts, Legitimacy, and the Jurisdictional Backdrop
4. Liberation, Dreams and Hard Work: A View of Tribal Court Jurisprudence
PART III. ISSUES IN THE WESTERN LANDSCAPE: A REGIONAL PERSPECTIVE
5. Tribal-State Relations: Hope for the Future?
6. Economic Development in Indian Country
Conclusion: A Geography of Hope
The action these day, partly because of economic development coming to reservations in the form of casinoes -- which are regulated by states -- is between tribe and state and it has always been that way, in part because many of the states didn’t exist yet when the treaties were made. In fact, the states couldn’t form until reservations were delineated. Since the early days in territories were enough of a gamble that no one thought about casinoes, the laws didn’t allow for them.
Also, in the early days the Indian culture was still strong enough that it made sense to let them run their own affairs in their own way, particularly when it came to matters of the family (adoption, violence, inheritance) or religion. They were seen as “different” from other State inhabitants, which was a good reason for the State governments, baby organizations themselves, to wave reservations on past unless their denizens left the den. What this has meant over the years is that as the federal government, who evidently expected Indians to somehow expire on a certain date, tried to withdraw from the duties of education, welfare, transportation, whilst trying to secure the right to tax and enforce laws apart from the State, left a patchwork of important areas either not covered at all or duplicated or overlaid in some mysterious pattern like school financing. Not to address tobacco, drugs, gasoline, and border-crossing, especially when the tribe is bi-national.
This book is ten years old. In the interval much has happened. Eloise Cobell’s claim against the misappropriation of Indian trust funds was too new to be mentioned, but the principles on which the lawsuit was based are here described. The jargon phrases are “the doctrine of discovery,” “the guardian-ward relationship,” and “domestic dependent nations.” As Pommershein remarks, these phrases were not based on precedent because there was no precedent. If a nation “discovered” new land, they simply killed everyone and took it. But that was morally repugnant in the “home of the brave and the land of the free” so the superior white dominators would simply consider the former inhabitants to be “children” until they grew up to be white dominators themselves. (Of COURSE, they would want to!! Why would they want to remain children?)
These concepts now ARE the precedents. But speaking of “domestic dependent nations” and “soveriegnty” created a situation in which tribes and states were like rival wives or step-siblings who must constantly fight each other for resources and strategies.
One of the examples that has been in the news in Montana is the fate of a river that originates in Glacier Park, flows to the Blackft reservation but is diverted to Canada where it runs through a series of flumes and ditches and then, far to the east, returns to the Montana side. It is a hundred years old and “an ecology has grown up around it,” not just towns who depend on the water, and fields that are irrigated from it, but also certain kinds of plant growth and animal communities. If it breaks down, all these entities will be snuffed or at least radically changed, and the system IS on its last legs.
In seeking money to rebuild, the question of a new route for the water comes open. And suddenly, everyone realizes with a shock, the water -- which belongs to whomever is there earliest and highest towards the headwaters -- has totally by-passed legal owners: the Blackfeet. NOW they are players, and NOW they can get some income from it. How this plays out will tax the ability of everyone to be ethical, generous, and simply self-protective.