St. Thomas
Lawyer
SPRING 2017
UNIVERSITY OF ST. THOMAS SCHOOL OF LAW
THE FACES OF IMMIGRATION Clinic clients and alumni share their stories
St. Thomas
Lawyer SPRING 2017 – VOLUME 10, ISSUE 2 UNIVERSITY OF ST. THOMAS SCHOOL OF LAW
Published by the University of St. Thomas School of Law 1000 LaSalle Ave. Minneapolis, MN 55403 (651) 962-4892 lawschool@stthomas.edu stthomas.edu/law Publisher Helen Clarke Ebert
12 Dean’s Message
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Editor Patricia Petersen
News 4
Art Director and Designer Peter Borden
Snapshots 10
Photographers Mark Brown Mike Ekern Annabelle Marcovici Contributors Lisa Montpetit Brabbit Molly Butler ’18 J.D. Santo Cruz ’10 J.D. Helen Clarke Ebert Anna Heisler ’18 J.D. Nicole Fredricks Jackson Michelle Johnson ’19 J.D. Kate Norlander ’07 M.B.C. Andrew Ratelle ’14 J.D. Robert Vischer Front cover “Alberto,” who hasn’t seen his wife and son in five years, was helped by law students in our Legal Services Clinic. We share a few immigrant clients’ stories and reflections of the law students who helped them on P. 12. Photo by Mark Brown Back cover Photo by Mike Ekern ’02
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The Faces of Immigration
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A Champion for the Common Good
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Beyond Standing Rock
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Fostering a Culture of Solidarity
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A Gentleman and a Scholar
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Class Action
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Published Opinion: A Case for Cuba
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26 The University of St. Thomas is an equal opportunity educator and employer. St. Thomas does not unlawfully discriminate, in any of its programs or activities, on the basis of race, color, creed, religion, national origin, sex, sexual orientation, family status, disability, age, marital status, status with regard to public assistance, membership or activity in a local commission, genetic information or any other characteristic protected by applicable law. stthomas.edu/eostatement
SOLIDARITY AT ST. THOMAS LAW Pope Francis has urged the world “to educate ourselves in solidarity, to rediscover the value and meaning of this very uncomfortable word.” Why would the Holy Father refer to solidarity as an “uncomfortable” word? Perhaps because, as his predecessor Pope Paul VI explained, solidarity “binds us to make ourselves the neighbor of every person without exception, and of actively helping him when he comes across our path.”
solidarity in the broader world, we have to start by making sure that solidarity is a reality within our own law school community. A feature story in this issue explores our efforts in this regard.
At St. Thomas Law, our national rankings for practical training, clinics and best professors are empty accolades unless they reflect an effort to prepare our students for a cause greater than themselves. That cause is captured best by the term solidarity, and this issue of our magazine explores how we equip our students to make themselves “the neighbor of every person without exception.”
For our cover story, rather than expressing the clinic’s impact through charts or statistics, we have chosen to capture the impact through the eyes of our students: as the face of a real person, often scared but hopeful, looking back at them in a deeply human encounter. The stranger becomes neighbor.
Given the tensions we face as a nation regarding the continued viability of a shared vision of the common good, our law school’s efforts to practice solidarity have never been more vital. If we aspire to train students to be agents of
And as our nation debates how best to secure our borders, the students and faculty in our immigration clinic continue to come alongside the refugee, providing a voice to the voiceless.
Practicing solidarity is not often an easy road and does not always culminate in a feel-good story. It compels us to run toward some of the most polarizing debates in our communities in an effort to contribute more light than heat as we speak up for otherwise neglected perspectives. In this issue, we describe efforts by our alumni
working as advocates for Native American tribes as they navigate questions of sovereignty in the battle over the Dakota Access Pipeline. Alumni are active on many other fronts, of course. Santo Cruz ’10 reflects on the trade mission to Cuba he helped lead on behalf of the state of Minnesota, building bridges across decades of acrimony and alienation. We also profile Amanda Mortwedt Oh ’12, whose work for The Committee on Human Rights in North Korea reminds us not to forget those who suffer outside the world’s gaze. Professor Robert Delahunty is also profiled. His scholarship brings attention to shortcomings of our international legal order, and his legendary hospitality toward students reminds us that solidarity begins with the person right in front of us. Why does St. Thomas Law exist? If our answers extend no further than job training or socially beneficial legal research, we have settled for an incomplete vision of our law school’s potential. Now is the time, in the midst of seemingly intractable divisions in our world, when we can help show what solidarity means in the real world, and why it matters.
Robert K. Vischer Dean and Mengler Chair in Law University of St. Thomas School of Law
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SCHOOL OF LAW NEWS 105 Inmates Freed Through Clemency Work Professor Mark Osler and 13 current and former students from the University of St. Thomas School of Law share responsibility for the freedom of 105 federal inmates whose sentences were cut short under former President Barack Obama’s clemency initiative. Among those successes were nine clients of the Federal Commutations Clinic; nine clients of Jamie Waldon ’15 in his capacity as a fellow with the Clemency Resource Center (CRC), which was co-founded by Osler and is housed at New York University; nine clients of Eric Hylok ’15, also as a fellow with the CRC; and 78 additional clients of the CRC. “Given an overall success rate of around 10 percent for these petitions, the fact that the majority of the petitions produced by our faculty, students and alumni were successful speaks well not only for our commitment to serving those on the margins, but for our commitment to excellence,” Dean Robert Vischer said.
“ Given an overall success rate of around 10 percent for these petitions, the fact that the majority of the petitions produced by our faculty, students and alumni were successful speaks well not only for our commitment to serving those on the margins, but for our commitment to excellence.”
In addition to Waldon and Hylok, the following students and alumni helped their clients win early release: Marc Spooner ’12, Ashley Bennett ’13, Derek Hansen ’13, Allison Kadrmas ’14, Nicole Swisher ’14, Nicole Flaherty ’15, Laura Reilly ’15, Brittany Sandager ’15, Matt Blubaugh ’16, Natasha VanLieshout ’16 and Patrick O’Neill ’17.
Gonstead and Kahn Promoted to Professor Mariana Hernandez Crespo Gonstead and Rob Kahn have been promoted to the university rank of professor. In announcing the promotions to the St. Thomas Law community, Dean Robert Vischer noted both have done remarkable work during their time at St. Thomas in the key areas of teaching, scholarship and service.
Mariana Hernandez Crespo Gonstead
– Dean Robert Vischer
Rob Kahn
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Reuniting a Refugee Family In early February, the immigration clinic at the University of St. Thomas School of Law joined human rights advocates, pro bono lawyers and politicians in an effort to bring a 4-year-old girl from Somalia to Minnesota to reunite with her mother after her journey was halted during President Donald Trump’s January travel ban. Faculty and students from the School of Law’s immigration and religious liberty clinics, including professors Virgil Wiebe and Tom Berg, students Ted Shillingstad and Jessica Lanzi, and alumnus James Todd ’14, were conducting background research into constitutional questions related to the case when the girl, Mushkaad Abdi, was cleared for travel. The clinic teamed up with the Immigrant Law Center of Minnesota, the University of Minnesota Law School’s Center for New Americans, Mid-Minnesota Legal Aid, pro bono lawyers at Dorsey & Whitney LLP, the American Civil Liberties Union of Minnesota, Advocates for Human Rights, Lutheran Immigration and Refugee Service, Lutheran Social Service of Minnesota offices on two continents, and Minnesota Senators Amy Klobuchar and Al Franken in this effort.
First Women’s Leadership Roundtable Past and present women members of the St. Thomas Law Board of Governors came together with women law students in October 2016 for a luncheon roundtable exploring the entrepreneurial thought process and its relationship to professional success and personal satisfaction. At top, retired Stearns County District Court Judge Elizabeth Hayden, a member of the Board of Governors, laughs with students. At bottom, Compliance Advisory Board member Chris Collin, senior ethics and compliance manager for General Mills, talks with students.
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Sisk Files Amicus Brief in SCOTUS Case In a case pending before the U.S. Supreme Court raising the question of whether a border patrol agent may be held responsible under the U.S. Constitution for shooting a playing child who was hit and killed outside the United States border, professor Gregory Sisk has filed an amicus brief emphasizing the absence of any other remedy for this wrongful killing. Represented by the law firm of Wilmer Cutler Pickering Hale and Dorr, Sisk submitted a Friend of the Court brief explaining that a constitutional tort claim is the only possible remedy for the child’s survivors in this case. The U.S. government is immune from liability because Gregory Sisk of the “foreign country” exception to the Federal Tort Claims Act, and the individual officer is also immune from liability under state tort law through the federal Westfall Act because he was acting within the scope of his duty. Thus, Sisk The U.S. government is immune from liability because of the argued, the exception to Bivens “foreign country” exception to the Federal Tort Claims Act, and when there is another adequate the individual officer is also immune from liability under state remedy under non-constitutional tort law. ... Thus, Sisk argued, the exception to Bivens when law simply does not apply here there is another adequate remedy under non-constitutional and would not prevent the Court from recognizing the Fourth law simply does not apply here. Amendment claim against the officer.
Archbishop Hebda Speaks at the School of Law Archbishop Bernard Hebda of the Archdiocese of St. Paul and Minneapolis speaks at a Mission Roundtable luncheon at the School of Law in October 2016.
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St. Thomas Again Named a Top Law School Nationally for Professors, Quality of Life and Value The University of St. Thomas School of Law is again ranked as a top law school nationwide for its professors, quality of life and value. The Best Professors and Best Quality of Life rankings come from The Princeton Review. The publication includes insight from 19,400 law students, as well as data from law school administrators, to inform its rankings. The No. 8 Best Professors ranking is based on student answers to survey questions concerning how good their professors are as teachers and how accessible they are outside the classroom. The No. 5 Best Quality of Life ranking is based on student answers to survey questions on a strong sense of community at the school, whether differing opinions are tolerated in the classroom, the location of the school, the quality of social life at the school and the school’s research resources. The Best Value ranking comes from The National Jurist and compares St. Thomas with the country’s other private law schools. St. Thomas is No. 10 on the list, up from No. 17 the prior year. Employment is the most important factor in the ranking. Other factors considered include average debt, tuition costs, bar passage success rates and cost of living in the surrounding communities. St. Thomas is the only Minnesota law school ranked by number as a “best value” school.
SCHOOL FOR #5 LAW BEST QUALITY OF LIFE
Princeton Review
SCHOOL FOR #8 LAW BEST PROFESSORS Princeton Review
U.S. FOR #10 IN BEST VALUE The National Jurist
“As human beings, we are not wired simply to survive and maintain ourselves. We want to be part of a grand adventure that matters in a very meaningful way. That’s why law cannot lose its capacity to inspire.” – Dean Robert Vischer in an interview with Minnesota Lawyer
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Father Reginald Whitt poses with students in his Torts class on his final day of teaching.
Law School Says Goodbye to Father Whitt Father Reginald Whitt, whose rigorous – sometimes terrifying – classroom manner defined the first-year torts experience for hundreds of students over the years, retired at the end of fall semester. According to Dean Robert Vischer, “No one has embodied the St. Thomas mission more authentically than Father Whitt has. In reviewing years of [his] student evaluations, several clear themes emerge: He showed no hesitation to push students out of their comfort zones. He brought an expectation of excellence. He told the truth about student performance. Whitt’s classroom exemplified the rigor that has been a traditional hallmark of the very best law schools. The fact that the rigor was demanded by a priest, who also presided at communion every Friday at noon in our chapel, was a powerful reminder that faith and reason are not mutually exclusive, that a caring community can still be a demanding one, and that authentic education demands attention to the spiritual, not just the intellectual.”
Judges Commend Students’ Brief in Death Row Appeal Third-year students Bridget Duffus and Katherine Koehler received high praise from federal judges during oral arguments on a death row inmate’s appeal in January. The Law Appellate Clinic students, along with supervising professor Gregory Sisk, worked on behalf of an Arizona inmate challenging the prison’s policy of skimming the contents of letters that prisoners write to their lawyers. Following oral arguments to the U.S. Court of Appeals for the 9th Circuit in San Francisco, the judges commended the students on the quality of the briefs filed on the pro bono appeal, with one of the judges saying they were “better briefs than a whole lot of briefs we get from people being paid for it.”
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Law Appellate Clinic students Bridget Duffus, left, and Katherine Koehler, right, stand with professor Gregory Sisk outside the James R. Browning U.S. Court of Appeals Building in San Francisco.
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It’s our job to make them care, to see their humanity, and to make others see it too. That’s what we focused on when we wrote our petitions, and I think that’s why professor Osler, and his clinic, have been successful.
ADMISSIBLE HEARSAY
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– Natasha VanLieshout ‘16, in a Facebook post about the news that one of her clients received clemency from then-President Barack Obama
Overheard in and around the University of St. Thomas School of Law
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The person who is going to face consequences is not educated in the law … [this is why] we must ensure that our system is conducted fairly.
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[Public defender and corrections officer are the] only careers where you start out every conversation with your client believing they’re not going to tell you the truth.
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– Professor Hank Shea, in response to how the criminal justice system directly affects the lives of defendants, during an event on white-collar crime and ethics
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– Jim Bruton, a former prison warden, speaking at an event about life inside a supermax prison
before the launch, I looked over “ Right and saw Dean Vischer. I asked for a “ photo, and his response was, ‘I’m not smiling. I’m very competitive.’
A court is constructed to be a barrier between the majority opinion and the rights of the minorities.
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– 1L Kay Bolanos, posting on Instagram about the finals week paper airplane toss from the fourth floor of the atrium
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People with humble hearts make the best educators. I have in mind Professor [Rob] Kahn when I say this, who is one of the best people I have known in my life. His humility and love for us provide a lesson for me about vocation.
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– An LL.M. in U.S. Law student, reflecting on the first semester experience at St. Thomas Law
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– Dr. Christopher Wolfe, professor emeritus of political science at Marquette University, during an event on the Supreme Court and changing social mores
do anything “ Ifbecause you don’t of some risk, there will be the certainty of injustice. … If you are going to be bold, be bold for the people with the least.
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– Professor Mark Osler, in an op-ed for the Star Tribune on presidential clemency
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SNAPSHOTS
Class of 2016 members Amanda Brodhag, Caitlin Hull, Laura Herll, Kelly Castellano, Taylor Budensiek, Jill Barreto, Rachel Arneson O’Connor, Lexi Bulau, Chloe Sershon and Meghan Marty celebrate birthdays together in November.
Alumnae Kristy Lieblein, Christina Hahn Warren and Kelley Siemon, all from the class of 2005, at a crosscountry skiing outing.
Class of 2005 alumnae and law partners, from left, Barb Weckman Brekke, Rebecca Ribich and Johanna Clyborne at Rebecca’s daughter’s wedding.
Alumni at the wedding of Rachel (Arneson) O’Connor ’16 and husband Richie O’Connor. Pictured are: (back, from left) Lindsay Lien-Rinholen ’15, Rachel Davis ’16, Rachel O’Connor, Richie O’Connor, Sydney Hull ’16, Caitlin (Drogemuller) Hull ’16, Amanda Brodhag ’16, Jill Barreto ’16 and Matthew Johnson ’16, and (front, from left) Kelly Castellano ’16, Courtney Wieden ’16, Alexa Bulau ’16, Anne (Rondoni) Tavernier ’16, Catherine Underwood Floeder ’16 and Jay Hinner ’16.
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Carolyn Latimer ’13, Bridget Finn ’13, Conor Gaughan ’13, Clay Harris ’13, Amy O’Neill ’13 and Katie (Rheault) Arenz ’12 at Harris’ wedding.
Alumnae Julia Offenhauser ’04 and Victoria Brenner ’04 at the sixth annual St. Thomas Law Alumnae Brunch, Leadership at Your Best, where Offenhauser was presented with the Alumna Leadership Award.
Facebook @ustlawmn Professor Julie Oseid with husband Jeff at the annual University of St. Thomas School of Law Christmas Party.
Twitter @ustlawmn Instagram @ustlawmn
A group of 1Ls from Section A at the St. Thomas Law Christmas Party. They are smiling because they had their last Contracts class that morning!
Minnesota Supreme Court Justice Margaret H. Chutich (center) with St. Thomas Law Immigration Clinic supervisor Virgil Wiebe (second from right) and student attorneys Christopher Jison (left), Dan Dosch (second from left), Kari Jacobson (center-right) and Wondwosen Darsebo (right) at the Jan. 13 clinic swearing-in ceremony. Spring 2017 Page 11
THE FACES OF IMMIGRATION
Clinic clients and alumni share their stories Photos by Mark Brown Story by Helen Clarke Ebert
If you can navigate your way through the political rhetoric on immigration, you’ll find real people trying desperately to survive – and if they’re lucky, maybe even thrive – at a time when all the odds seem stacked against them. The immigration clients of the University of St. Thomas Legal Services Clinic are just some of the people behind the debate that has captured the nation’s attention since November. Here, we share a few of their stories through images, and in the words of the law students who helped them. Page 12 St. Thomas Lawyer
“ ‘Alberto’ had such incredible courage and strength throughout our time working together. We told him early on that a lot would rest on how he told his story, and he really responded. He worked incredibly hard in the lead-up to our day in court. Lawyers can some times feel like they care more about a case than their client, but that was never something we contemplated with him.” – Nicholas Kimball ’14, who worked on “Alberto’s” case in 2013 and 2014
“ALBERTO” “Alberto” hasn’t seen his wife and young son in five years. He left his home in Central America in 2012 after observing and reporting serious police misconduct there. He came to the Legal Services Clinic in 2013 on a referral from Advocates for Human Rights. He applied for and was denied asylum, but was granted relief through the Convention against Torture, an international human rights treaty. He currently is working with the International Institute of Minnesota to bring his family to the United States.
“I still remember how torn ‘Alberto’ was in leaving his wife and son, not knowing if they were safe, or if/when he’d ever be able to see them again. He had a simple, but happy life back in Central America, and to give that up – to give up his family – truly meant he had no other option. I don’t think many people understand that internal struggle that people like him go through when they think of the people fleeing Central America and coming to the U.S. today.” – Beatriz Marrinan ’14, who worked on “Alberto’s” case as a student in 2013 and 2014, and as a staff member through 2016
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LALA Originally from Liberia, Lala married a U.S. citizen and later found herself in an unsafe home situation. She was referred to the Legal Services Clinic in 2012 by an Episcopalian social services agency. Clinical student attorneys worked with her to file a Violence Against Women Act petition and apply for a green card. Lala received her green card four years later, in March 2016.
“Lala had experienced some real trauma, and retelling her story so that we could advocate for her elicited some strong emotions. I learned to be comfortable with absorbing some of the client’s emotion while also analyzing her legal options. This is a skill I use nearly every day in my current practice of family law. It’s my job to be calm, honest and thorough.”
“I still remember the hopeful smile on Lala’s face when she was leaving the clinic, and that has stuck with me as a reminder to do the best I can do for my clients. A great attorney is not just competent; a great attorney is also compassionate and caring, and remembers the importance of their service to the client. To this day, I make sure to keep in mind that practicing the law is about more than just the law; it is about the clients first and foremost. There are many different kinds of clients (rich, poor, humans, corporations, the government, and so on), but they all have something in common: the need for access to justice, even though for some, more is at stake than the others.”
– Joy Nissen Beitzel ’14, who worked on Lala’s case in 2012
– Assad Amini ’16, who worked on Lala’s case in 2015 Spring 2017 Page 15
PATRICIA AND THABISO Born to Zimbabwean parents, Patricia escaped xenophobia in her home country of South Africa and arrived in the United States with her son, Thabiso, now 8, by way of Central America. The Legal Services Clinic helped her with complicated questions of citizenship in both Zimbabwe and South Africa, filing an asylum application and getting her work renewals in place. Social work students working in the University of St. Thomas Interprofessional Center for Counseling and Legal Services also supported Patricia in her efforts to find employment and child care.
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“Patricia’s resilience, perseverance and positivity in the face of enormous challenges were such an inspiration to me, and continue to inspire me years later. In representing my clients, I remember the dignity and grace with which she approached unimaginably difficult experiences of flight to the U.S. and applying for asylum here, and try to achieve some modicum of that spirit.” – Alison Griffith ’14, who worked on Patricia’s case in 2013 and 2014
MILLET Fifteen-year-old Millet was born in Mexico, but became separated from her mother at the border. She came to Minnesota to live with an aunt and uncle, and was receiving therapy from social work students in the Interprofessional Center in 2014 when she was referred to the Legal Services Clinic. With the help of clinical student attorneys, she applied for special immigrant juvenile status, adjustment of status and a work permit in March 2016, and is awaiting final approval of permanent residence. “[This experience] helped prepare me to be a lawyer by introducing me to some of the most resilient people I’ve ever met, which encourages me to continue pushing forward despite disappointing outcomes. I came to law school with a strong interest in all aspects of immigration law, which is why I applied to work as a student attorney for U.S. Immigration and Customs Enforcement. By being part of the clinic for a year prior to starting with ICE in August, I see the respondents as people with stories, but also recognize what the law allows.” – Kelsey Allen ’17, who worked on Millet’s case in 2015 and 2016 Spring 2017 Page 17
A CHAMPION FOR THE COMMON GOOD By Molly Butler ’18 J.D. Photo by Mike Ekern ’02 On Thanksgiving Day, Amanda Mortwedt Oh moved from Washington, D.C., to South Korea with her husband and their 10-month-old twin daughters. No small feat, yet she didn’t think twice about the opportunity. Having worked with the Committee for Human Rights in North Korea (HRNK) while in D.C., moving to South Korea allows her greater access to escapees from North Korea – an estimated 30,000 people compared to the 200 or so living in the United States. The proximity will increase Mortwedt Oh’s understanding of the issues that drive her life’s work: promoting human rights through monitoring and investigating North Korea’s political prison camps. HRNK is a bipartisan nonprofit organization that conducts original research and publishes information about North Korea’s human rights abuses. One of its main priorities is to increase awareness of North Korea’s political prison camp system with the hope that intensified pressure will result in improvement in the daily lives of prisoners and the end of the gulag system. Page 18 St. Thomas Lawyer
“I like to think of HRNK as a small organization with a big mission,” said Mortwedt Oh, a 2012 J.D. graduate of the University of St. Thomas School of Law and 2013 LL.M. graduate of The Fletcher School of Law and Diplomacy at Tufts University. The human-rights abuses occurring in North Korea have been referred to as a slow-motion holocaust by experts on North Korea, including HRNK’s executive director Greg Scarlatoiu. Mortwedt Oh explained, “It doesn’t mean that the situations are the same, but this description has helped me think about a place that carries out the systematic killing of people through a political system that sends them, and up to three generations of their families, to political prison camps and labor camps where they typically succumb to starvation, disease, torture or execution.” In March 2013, the United Nations Human Rights Council established the Commission of Inquiry (UN COI) on Human Rights in the Democratic People’s Republic of Korea (official name of North Korea). Drawing from HRNK’s research
and publications on human rights abuses in North Korea, Mortwedt Oh made significant contributions to a report that was submitted to the UN COI for consideration during its investigation. The report was influential in the UN COI’s unequivocal conclusion in February 2014 that “[s]ystematic, widespread and gross human rights violations have been, and are being committed by the Democratic People’s Republic of Korea, its institutions and officials. In many instances, the violations of human rights … constitute crimes against humanity.” “It has been nearly three years since the international community was informed that heinous, unjustifiable and egregious acts were being committed against fellow human beings,” Mortwedt Oh said. “My job at HRNK is to help remind others of this very troubling fact through giving voice to those victims who unfortunately can’t speak for themselves. Right now, people are being imprisoned, tortured and murdered based on their perceived political loyalty to Kim Jong-un’s regime.”
Human Rights Issues in Cambodia and North Korea Prior to attending St. Thomas Law, Mortwedt Oh was on active duty with the U.S. Army. She is now a captain in the Reserve Judge Advocate General’s Corps. She entered law school with a strong leaning toward international law, and through opportunities while in school, was able to determine that she really wanted to work on human rights issues. A summer abroad program was one of her most formative experiences: She participated in an externship at the Khmer Rouge Tribunal, a hybrid court in Cambodia.
“I really saw the aftermath and consequences of a terrible, controlling and deadly regime,” Mortwedt Oh said. “The Khmer Rouge killed an estimated 2 million Cambodians. This level of atrocity simultaneously riveted my attention yet horrified me.”
manages the implementation of research involving former prisoner testimony and satellite imagery analysis, culminating in publications designed to advocate on behalf of victims and inform human rights policy decisions.
She shared her experiences at the court in a 2012 article, “A House Divided Against Itself Cannot Stand: The Case for Ending the Extraordinary Chambers in the Courts of Cambodia,” published by the University of St. Thomas Law Journal. The lessons she learned in Cambodia inform her current work.
She admits that what she sees and hears can be very disturbing – that the various forms of torture happening in the camps make her feel physically ill at times – but is quick to add that the strength she maintains to endure the work is “nothing compared to the strength of the former prisoners and North Korean escapees who make it out to share their stories.” ■
As the project officer for HRNK’s prison camp monitoring, she
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BEYOND STANDING ROCK Tribal Sovereignty and the U.S. Government By Helen Clarke Ebert Photos by Annabelle Marcovici
When news broke of an oil pipeline protest at a reser vation in northwestern North Dakota in the summer of 2016, hardly anyone batted an eye. The American public was caught up in a tumultuous presidential campaign that promised up-to-the-minute shock and awe. Yet as the days and weeks went on, the crowd of protes tors grew both in number and voice, encompassing tribal members from across the country. By September, the protest – and its home tribe, the Standing Rock Sioux, and nemesis, the Dakota Access Pipeline – had become front page news.
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The Duty to Consult So how did we get here? How did a project such as DAPL, which was announced in June 2014, find itself stalled and the subject of national debate two and a half years later? For Travis Clark ’14, it all comes down to the duty to consult – as laid out in Executive Order 13175. A complicated and somewhat vague rule, it charges executive departments and agencies with “engaging in regular and meaningful consultation and
collaboration with tribal officials in the development of federal policies that have tribal implications.” The order also notes that those agencies are “responsible for strengthening the government-to-government relationship between the United States and Indian tribes.” “The magic language in that executive order is, whenever the rights of the tribes are ‘implicated,’ it requires the government agency to provide substantive consultation early in the decision-making process,” said Clark, an enrolled tribal member of the Osage Nation in Oklahoma. “But there’s not a ton of guidance on how, when and where the consultation duty kicks in and what procedurally and substantively is required for adequate consultation.” In the case of the DAPL, Clark said, those efforts came too little, too late, and the tribes “have been written out of the equation.” He said the U.S. Army Corps of Engineers sent a “Dear Tribal Leader” letter notifying the affected tribe that a permit was being considered, and later held a listening session with tribal members. “There wasn’t very much in the way of ‘consultation,’” Clark said. “This was in January; construction was going to begin in March. The tribes were extremely upset because the executive order calls for ‘substantive consultation.’ You can’t just come out here and amuse us; it has to be early in the decision-making process. Their feeling is that tribal consultation meant just checking a box.”
Some have argued that the land doesn’t belong to the tribes, but the tribes contend that the land is still protected by treaty, so they still have rights to it. “Building a pipeline injures our existing treaty rights to this land, even though it’s not trust land,” Clark said. “The building of this project injures and has the potential to injure our rights to that land. We absolutely should be at the table.” In his mind, the “aggressive” actions of Energy Transfer Partners to initiate permits and construction on the DAPL “forced the hand of the tribes to take protest action.” He believes the protest, which gained the attention of the mass media in late 2016, is responsible for persuading the Army Corps to take another look at the project. As of press time, a federal judge denied a last-ditch effort by the Cheyenne River Sioux and Standing Rock Sioux Tribes to halt the flow of oil through the Dakota Access pipeline. Trust Lands and Treaty-Protected Lands Until recently, Clark served as lead attorney with the Rapid City, South Dakota-based firm that represented the Cheyenne River Sioux Tribe for the Keystone XL Pipeline and Dakota Access Pipeline matters. The bulk of his work there was connected to the Keystone XL Pipeline project and its impact on the Cheyenne River Sioux Tribe. He said the situation with DAPL and the Standing
Rock Sioux is nearly identical, with both projects impacted by the highly regulated issue of Indian trust land. “It’s a headache for companies like Energy Transfer Partners or TransCanada to build on unless the tribes are on board, and in western South Dakota, that sort of cooperation is just not going to happen,” Clark said. “Some other tribes make other decisions – at Osage [in Oklahoma], natural gas is all over the reservation. But these infrastructure projects are in the northern plains around tribes that put their foot down.”
“The magic language in that executive order is, whenever the rights of the tribes are ‘implicated,’ it requires the government agency to provide substantive consultation early in the decision-making process.” – Travis Clark ’14 The solution? Reroute to avoid Indian trust land altogether. Still, in the case of both projects, the routes cross land for which the tribes have treaty-protected use rights, largely for gathering cultural resources through hunting, fishing and foraging. And even when the paths are rerouted, they still end up immediately adjacent to trust lands. “The company has plausible deniability – you’ll hear Energy Spring 2017 Page 21
Transfer Partners say the pipeline is not on any part of the reservation,” Clark said. “It’s kind of a half-truth. It’s 100 yards away.”
have incentives too. Wind energy development is a potential source of financial benefit for tribes in the Dakotas.
For the Cheyenne River Sioux, Clark said the Keystone XL proposed crossing was a drill underneath the tribe’s primary clean drinking water source. When a pipeline crossing the Yellowstone River in Montana burst in early 2015, more than 50,000 gallons of oil spilled into the river, prompting the governor to declare a state of emergency, and leaving residents without clean water. Critics of the DAPL project have expressed concern that a break could happen in the Missouri River too.
“In the instance of the DAPL, the tribes have no benefit whatsoever. They basically carry all of the risk of a spill and get zero benefit,” Clark said.
So, why are some tribes, like those in the Dakotas, less likely to allow development on their land than tribes in other parts of the country? Clark believes the answer is, in part, historical. “Back home (in Oklahoma), oil and gas development started around the turn of the century,” Clark said. “For instance, Keystone would have gone through my home reservation, and the tribe was fairly OK with it. It’s been such a part of existence in Oklahoma for Oklahoma tribes that no one really bats an eye when a pipeline is built. This is fairly new in the Dakotas.” There also are incentives to consider. Tribes have mineral rights to their land, so when a pipeline is built, the tribe has an incentive to get oil to market. This isn’t the case just with oil – other infrastructure projects Page 22 St. Thomas Lawyer
For Charles Dolson ’14, the DAPL conflict took a different turn. As executive director of the Red Lake Band of Chippewa in northern Minnesota, Dolson had worked with Enbridge Energy, which has an ownership stake in the DAPL, to finance a 10-megawatt solar project for the tribe. “Our goal is to be energy independent,” said Dolson, who grew up on the Red Lake Indian Reservation. “Enbridge helped us put together the financing package so we could do that. We were on the verge of having an agreement when we hit September, a time when the protest was becoming very loud.” The clash between law enforcement and protestors resulted in Red Lake tribal leaders pulling the deal with Enbridge. Dolson
“Our goal is to be energy independent. Enbridge helped us put together the financing package so we could do that. We were on the verge of having an agreement when we hit September ...” – Charles Dolson ’14
said they viewed the partnership as political “poison,” though he still sees Enbridge as an organization that wants to pursue renewable energy. Assimilation Take one look at history, and it’s easy to see why Dolson’s tribal council was hesitant to put its tribe’s interests above those of another. The relationship between tribal nations and the U.S. government has been, at times, heartbreaking. Most notably when it comes to assimilation. Efforts to assimilate tribes and their members into American society are a complicated part of our history, with initiatives waffling over the years. In the decades that followed the dismantling of more than 100 tribal nations through 1930s legislation, Indian children affected by child welfare situations were moved from their homes and placed into the foster care system outside of their tribal communities. “It was well-intentioned, but had terrible traumatic effects on tribes and their culture,” said Ron Walters ’10, a staff attorney at the Indian Child Welfare Act (ICWA) Law Center in Minneapolis. The ICWA, passed in 1978, makes tribes a party to the proceedings, allows families to transfer cases to tribal court and provides tribes with exclusive jurisdiction to hear cases for tribal members living on the reservation.
Through ICWA, Walters said, more services are provided and more active steps are taken with the goal of getting kids back to their own families. Walters worked for five years after law school for the Mille Lacs Band of Ojibwe in a legal aid office. There, he handled evictions, disability benefits and child protection cases – “their problems were basically the same as anybody else in the county” – but with the added complications of ICWA and Public Law 280. But Walters stumbled into Indian law almost literally, as his introduction to the subject came from meeting an ICWA Law Center volunteer coordinator at the public interest fair during his first year of law school. “I started volunteering there and was able to work on research projects for actual cases, like big, contested adoption cases that were really interesting legally, touching on unsettled areas of the ICWA, and also factually very interesting,” he said. “I got pretty intrigued with what I was doing right away. I just found a groove there and never really left.” He started working with the Mille Lacs Band as a law clerk and was hired on as a staff attorney after passing the bar. He returned to the ICWA Law Center full time in 2016 and runs an estate planning practice on the side. As a non-native person working exclusively with native populations, Walters has experienced the complicated relationship between the U.S. and tribal nations in
a more personal way. He has witnessed racism toward his clients, as well as distrust from them – some questioning whether a white lawyer truly could be an advocate for a native family. “You still have grandparents on the reservation whose memory from childhood was being told to go run and hide in the woods because social workers were coming with school buses to take kids away to foster homes,” he said. “Hiding from social workers was a very real part of childhood. ... The shorter answer is, there has always been a conflict between white culture and native culture, either in terms of control of land or control of resources or approaches to living.” The Dawes Act is a major result of those early assimilation efforts and still complicates lives today. This 1887 initiative authorized the U.S. government to divide tribally held trust land into parcels for individual tribal members, effectively separating native people from their communities. The lasting impact: complicated divisions of assets
for heirs and jagged, disconnected parcels of protected tribal land that are playing out in the pipeline route disputes we’re seeing today. A Call for Awareness and Tribal Unity Clark sees tribal sovereignty as a “black hole” in most Americans’ understanding of how their nation works. The attention given to the DAPL protest has the potential to change the narrow understanding of Indian culture shared by many Americans today, including the level of influence tribes have on the U.S. government. “Everyone is familiar with federalism and the general idea where the central national government shares power and sovereignty and governance with 50 states, but that’s where 99 percent of people’s understanding stops,” Clark said. “In reality, it’s not just federal government and state governments, but also tribal government.” Walters, too, added that it’s important for people to “view Spring 2017 Page 23
Indian culture as being dynamic – it hasn’t been frozen in time,” he said. “A lot of the practices you see in native culture are historically based, but a lot of them are in response to day-to-day issues that are going on right now.” Yet in some ways history and present day culture for native communities are all too similar. The number of native children in foster care in the United States is disproportionately high compared to the number of non-native children, and it’s stayed at roughly the same rate for decades. Most of Walters’ cases involve a parent struggling with chemical dependency. “When you look at how raw the history has been and how recent and traumatizing it has been, it’s not hard to guess why the community is still struggling,” Walters said. “These aren’t simple problems, and there has obviously been a long-standing history of poor treatment of native tribes by the federal government, so it’s easy to look at the Dakota Access Pipeline situation as being another chapter in that history.” For Clark, he sees the protest as an impetus for change in the way tribes support one another. He uses the Three Affiliated Tribes in North Dakota as an example of this – the tribe sells oil from its reservation, much of which would be transported by the DAPL. However, when Standing Rock opposed the pipeline’s development, Three Affiliated stood behind them, elevating Standing Rock’s concerns above their own financial interests. Page 24 St. Thomas Lawyer
“We haven’t seen tribal unity at this level for a long time,” Clark said. “It’s the mindset that, ‘If they can treat Standing Rock this way, then next they’ll treat us this way.’ I have a lot of hope that what’s going on in North Dakota will bring tribes closer together and there will be a lot more unity going forward.” Tied Up in Federal Funds and Contracts There’s no path out of this conflict without unity between tribal nations and the U.S. government, as well. When Congress passed the Indian Self-Determination Act in 1975, sovereignty was expanded, and authority was given to U.S. government agencies to contract and make grants with Indian tribes for the purpose of providing federal services. These contracts have affected tribal nations in unforeseen ways, demanding constant partnership among communities. The government provides funding for tribal programs, and the tribes administer them, just as any private company does. Congress also is obligated to pay for cost overruns with these contracts, including travel expenses, workers’ compensation, insurance and legal fees. Cost overruns make for a major issue in the debate on how to manage federal dollars, but in Indian country, they’ve had a deeper impact. Because tribes don’t generally collect taxes on their people or benefit from the local property
tax base, they rely on these federal dollars to maintain the same community services afforded to American cities, counties and states. When the government doesn’t make good on its promise to pay the overruns, tribes are left with the bill, resulting in deep cuts to education, health care and public housing in tribal nations. In a nation such as White Earth, where Dan Hickey ’13 worked, drugs have been a problem, and cuts to health care only made things worse. Hickey, a tribal member of Lac du Flambeau in northern Wisconsin, has spent the bulk of his young career working in Indian child welfare – as a student attorney with the Regional Native Public Defense Corporation, as an intern with the Indian Child Welfare Law Center, as an intern with the U.S. Senate Committee on Indian Affairs and as a child welfare attorney for the White Earth Nation. “When you think of sovereignty, you think you’re entirely independent from the federal government, but it’s not really the case,” Hickey said. “Even if the tribes get paid what they’re owed, a lot of damage was already done.” Still, Dolson added, the state of Minnesota in particular has been very good at working with tribes, especially when it comes to increasing social services. Dolson regularly works with Emily Johnson Piper ’05, commissioner of the Minnesota Department of Human Services.
“We’ve worked with Emily really closely to help build up and greatly expand Red Lake’s existing services program,” he said. “It’s been helpful in allowing us to speed up the process of rehabilitating children under targeted case management and getting them back in place with their families.”
as the lack of bottom-line funding that would come to a municipality or county through the state or federal government, all contribute to the problem. And while casinos can be a source of financial relief for tribes, in northern Minnesota, where the casino market is saturated and the population is sparse, the revenue can’t solve the tribal communities’ woes.
“When you think of sover eignty, you think you’re entirely independent from the federal government, but it’s not really the case.”
Looking Ahead
– Dan Hickey ’13 Walters, too, praised the work of his government partners. “Although not perfect, Hennepin County has really embraced the spirit of ICWA and the historical difficulties tribes have had and the roles county governments have played in this area,” he said. “The judges, attorneys and social workers really do seem to have buy-in to the spirit of ICWA.” Dolson acknowledged that the healthy relationship he enjoys with the state doesn’t exist between all tribes and communities. “Anywhere you govern is very expensive to operate, and tribes do it with so much less that it can become a burden on their community counterparts,” he said. He said the tribes’ inability to tax and enforce certain laws, as well
Infrastructure and development are the two leading issues that contribute to tension between tribes and the U.S. government today, Clark said. In other capacities, the relationship is good, albeit “complex.” “It’s hard to say it’s better now or it’s worse now,” he said. “It’s sort of a marbling between the two. It’s such a close and complex relationship; I think it’s impossible to answer.” As senior adviser with the Bureau of Indian Education, Clark works with tribes around the country to ensure the 183 schools within the bureau’s system are equipped with the resources necessary to provide a quality education to tribal children. The bureau’s work with tribal schools, he said, is “a partnership.” “Every agency with the government, at some point – as the Army Corps of Engineers is learning right now – needs to have a relationship with tribes,” Clark said. “The agency needs to foster that relationship to make sure it’s strong and cooperative.”
With a new administration in the White House, some who work with tribal populations are left holding their breath. Dolson said he expects to see some deregulation (potentially positive for tribes), but anticipates backlash from President Donald Trump tied to the businessman’s history in casinos. The president’s commitment to increasing infrastructure also would benefit some tribes, Dolson said. Following a listening session with the president’s transition team in December, Dolson said he was left with the impression that “they really want to work closely and help accomplish some goals for Indian country that are very positive.” Looking forward, Walters, too, is optimistic. “While the Dakota Access Pipeline situation seems sad and frustrating and upsetting in terms of corporate interest being allowed to threaten the livelihoods of disenfranchised people, I’ve also seen governments and tribes work well together and pursue common goals and values in a way that’s really respectful and positive,” Walters said. “I don’t think I could do the work that I do if I saw the system as faulty from the ground up. We’re struggling to make sense of what the history of all this treatment has been and how the legacy is affecting modern-day issues, but there does seem to be opportunity for things to be done differently.” ■
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FOSTERING A CULTURE OF SOLIDARITY By Kate Norlander ’07 M.B.C. Photos by Mark Brown
“ The many situations of inequality, poverty and injustice are signs not only of a profound lack of fraternity, but also of the absence of a culture of solidarity. New ideologies, characterized by rampant individualism, egocentrism and materialistic consumerism, weaken social bonds, fueling that ‘throw away’ mentality which leads to contempt for, and the abandonment of, the weakest and those considered ‘useless.’” – Pope Francis
Pope Francis spoke about “the absence of a culture of solidarity.” At St. Thomas Law, nothing could be further from the truth. “Solidarity reminds us that we are called to be the neighbor of every person without exception,” said Dean Robert Vischer.
Former Minneapolis mayor R.T. Rybak listens to Cedric Alexander, CNN law enforcement analyst and member of the White House Task Force on 21st Century Policing, during a forum at the School of Law on finding common ground between public safety and racial justice.
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The law school’s commitment to solidarity shows itself in many facets of the school’s work, such as its Mentor Externship Program, which places each student in a relationship with a mentor from the beginning of their school experience; its legal clinics, which allow students to work with people who are victims of injustice; its Prolife Center, which promotes effective legal protection of human life at all stages; its 50-hour public service
requirement, which ensures that students utilize their gifts to help the less fortunate; and its commitment to addressing issues related to race in the United States. After they graduate, alumni carry this commitment to solidarity with them. Visiting professor of law Carl Warren, who teaches with the Community Justice Project at the School of Law, said, “A law degree is a powerful tool. While it gives students access to a profession and a career, it also equips them with tools to achieve effective change, no matter what their career.” Some alumni help others through pro bono work while they are involved in traditional practice, and others serve “the weakest and those considered ‘useless’” full time. A Supportive Community When Sarah Brenes ’08 was looking for a law school, she knew that she wanted a career in which she could reach out to others and engage in meaningful, transformative conversations and actions. She found it at the St. Thomas School of Law. “There was a lens of service at St. Thomas that I valued. There was also a sense of community, of helping each other as colleagues, that made the school more welcoming,” she said. She found that clinical work was one way she could work in solidarity with those seeking to create a new home in the U.S. But she
also found that she was fostering solidarity with students from St. Thomas’ Graduate School of Professional Psychology and the St. Catherine-St. Thomas School of Social Work as they worked together to meet clients’ needs. Now, as director of the Refugee and Immigrant Program at The Advocates for Human Rights, Brenes continues to collaborate with other professionals and organizations. Refugees need services from different agencies – an asylum-seeker fleeing a dangerous situation might need legal assistance from The Advocates for Human Rights, counseling services from the Center for Victims of Torture, and help finding a job from the International Institute of Minnesota. Because these different organizations all have an interest in serving refugees, Brenes worked along with partners at the International Association for Refugees to start the Minneapolis-St. Paul Asylum Support Network. The agencies in the informal network engage in brainstorming sessions
“There was a lens of service at St. Thomas that I valued. There was also a sense of community, of helping each other as colleagues, that made the school more welcoming.” – Sarah Brenes ’08
together and share knowledge in order to collectively support asylum seekers. The network has brought about changes that seem simple, but are immensely helpful to clients, such as adding a play area to an immigration court and providing groceries to clients who are unable to access transportation to food shelves. The collaborative and innovative nature of Brenes’ service both during and after her time at St. Thomas is not unusual. Solidarity compels members of the School of Law community to think not just about those on society’s margins who will benefit from legal expertise, but also about partnerships that can help reach those who need more than legal expertise. Difficult but Respectful Conversations St. Thomas Law’s work to foster solidarity also includes efforts to provide venues for civil discussions related to race in the United States. Last fall, the School of Law’s Murphy Institute for Catholic Thought, Law, and Public Policy hosted a large public forum on public safety and racial justice, along with subsequent opportunities for students to gather and reflect on the event and brainstorm follow-up ideas. Professors Robert Delahunty and Thomas Berg hosted a listening session on how issues related to race are discussed in their Constitutional Law classes. Faculty and students worked together to convene book Spring 2017 Page 27
discussion groups focusing on different texts related to racism and cross-cultural empathy. Dean Vischer notes that it’s relatively easy to put on a stand-alone event; the challenge is to make sure that an event is just one component of an ongoing conversation.
changes that lead to solidarity. “When I told my mom about the book discussion, she asked, ‘What’s that going to do?’ I told her we’ll touch someone, change someone, even just a little. That’s better than nothing.” Oseid, too, hopes for continuing
conversations in the future. “Our school can take a leadership role of offering healing in a broken world. The world needs models of places where conversations happen, not just in book groups. We need to be able to discuss issues of diversity civilly, deeply and safely.” ■
The book discussions grew out of an idea proposed by professor Julie Oseid, who emphasized that each gathering should include two leaders: one professor and one student. The original plan was to form each group around a small number of student participants, but they generated more interest than expected. As the conversations were opened to faculty and staff members and participant numbers approached 20, Dean Vischer asked for additional leaders so that there could be more groups. Participants discussed one of three books: The New Jim Crow by Michelle Alexander, Between the World and Me by Ta-Nehisi Coates and Hillbilly Elegy by J.D. Vance. Oseid and first-year student Kay Bolanos were two of the co-leaders for the discussion of Between the World and Me. “Literature has always been a way into someone else’s experience – one that’s different from your own,” Oseid said. “I want participants to experience life in America for someone different from themselves.” Bolanos said that it was important to provide a space for people to have an open conversation – something she has tried to foster with fellow students. For her, the book discussions open the door to future dialogues and to small Page 28 St. Thomas Lawyer
The first book discussion group was held in professor Julie Oseid’s home. Top: Here, she shares a laugh with her discussion co-leader, Kay Bolanos, a first-year student, while Scott Fulks, another student discussion co-leader, looks on. Middle: Professor Thomas Berg joins the discussion about Between the World and Me. Left: Law student Ashley Menzel smiles during the book discussion, as fellow student Megan Parks looks on.
Professor Robert Delahunty
A GENTLEMAN AND A SCHOLAR Professor Robert Delahunty’s career as an academic tracks a history of success that spans two continents, four decades and some of the most prestigious institutions in the Englishspeaking world. Before coming to the University of St. Thomas as one of the school’s resident experts on constitutional law, he taught as a tenured lecturer in classical philosophy in Oxford and Durham, England, before taking his law degree at Harvard and serving as counsel in both the U.S. Department of Justice and the Office of Homeland Security.
As a scholar, Delahunty’s writings are as broad and diverse as his professional life, having written on topics ranging from the international law of war to immigration, constitutional originalism, Shakespeare, Descartes and Spinoza. Recently generating interest after the fallout of the November election with his work on the laws governing the Electoral College, on which he lectured at his investiture of the Laurence and Jean LeJeune Distinguished Chair last spring, his interest in topical subjects as well as academic ones is just as diverse. As a regular contributor
By Andrew Ratelle ’14 J.D. Photo by Mark Brown
to the National Review and blogs like the Federalist and St. John’s Center for Law and Religion Forum, his work is just as accessible online as it is in a more scholarly journal. More recently, his piece discussing the possibility of a Concert in Asia (a group of countries forming an alliance), viewed through the historical lens of the 19th century post-Napoleonic Concert of Europe, is slated to be featured in a forthcoming edition of the University of Pennsylvania’s East Asian Law Review.
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But despite his work and accomplishments as an attorney, lecturer, writer and scholar, Delahunty’s primary contribution to the life of the University of St. Thomas is of a rather different character. Having been trained and tutored in the Oxford way before he would became a tutor at Oxford himself, it was those formative years that taught him to be more than just a scholar, but a teacher and mentor, as well. Although an American and, to some extent, an outsider to the life and culture at Oxford, his own teachers and colleagues there taught him what it truly means to teach. The life of a scholar, and indeed any true thinker, is not something that can be transmitted purely in the abstract – relying only on lectures, tests and assignments – but is much more holistic in nature. It is a life lived in a community of like-minded individuals who share a similar goal or pursuit, and develop their proficiency with a subject as part of a learned whole. The relationships formed, just as much as the ideas themselves, were responsible for the intellectual, and ultimately personal, development of all involved. Delahunty exemplifies this in the same way he was taught at Oxford. With generosity to match academic rigor and hospitality to match scholarly nuance, he seeks to honor the legacies of those men whom he admired and who taught him so much during his time as a student. “I recall with special fondness the
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older fellows,” he said, “who treated their young American colleague with immeasurable kindness. These were like fathers to me. Several were veterans of the Second World War and had fought in the Battle of Britain or in France or Crete. Some were refugees from Hitler. They were learned, witty, traveled, urbane and intensely civilized. They were old-fashioned English gentlemen. I might join them on a Saturday morning to read Sophocles aloud together in Greek or Racine in French. And they cared for their students as close friends.”
Having been trained and tutored in the Oxford way before he would became a tutor at Oxford himself, it was those formative years that taught him to be more than just a scholar, but a teacher and mentor, as well. These experiences inform his role at the law school today, and the teachers he knew and was mentored by have become models for his own teaching style. Opening his home countless times throughout the year to host students for dinner, school-related events or simple social gatherings, he has, in his own way, brought the flavor and environment of one of the most renowned universities in the world to the University of St. Thomas. These social and relational elements turn
education into formation – formation not just of the mind, intellect or capacity to study, but of the whole person. Culture as much as classroom hours are central to developing individuals who can think, reason and ultimately live out their careers as more complete men and women who are more able to meet the needs of those they encounter. Education unmoored from virtue, magnanimity and kindness becomes stale, rote learning devoid of any humanity. But when character is formed along with the mind, and is imparted with the grace and generosity that comes from a shared and mutual conviviality with one’s peers, the learning takes on a refinement in which it becomes about more than itself, but about the people with whom one shares it. Though valuable for its own sake, knowledge does not have such stringent limits, and it is just as desirable for the sake of others as well. For Delahunty, this is a principle to live by. The students of the law school, even more so than the study, honors and scholarship, are at the heart of his role as teacher. And it is in such a way that a professor who teaches law can become a mentor who raises up fully formed men and women to be nothing less than what the Gospel enjoins us all to be: the light of the world and the salt of the earth. ■
PUBLISHED OPINION A Case for Cuba By Santo Cruz ’10 J.D.
Cuba is a country full of contrasts. American classic vehicles from the 1950s maneuver between shiny new tour buses, Chinese bicycles and mules attached to buggies, driving past a clash of European architectural styles. Cuban Spanish is very fast, and Cuban traffic is very slow. Most domino tables are full, and most grocery shelves are empty. The fallow countryside abruptly gives way to large tobacco fields. A country with one of the highest literacy rates in the world has no freedom of the press. The people share diverse origins, but maintain an intense, almost defiant, Cuban identity. The Cuban people have a saying that originates from José Martí, a turn-of-the-century Cuban literary figure: “Our wine may be bitter, but it’s our wine.” In a moment of self-aware juxtaposition, our guide announced as we met in Havana, “Hello everyone, my name is Hiroshi. So I know what you’re thinking: Why is this African man with a Japanese name speaking English with a Spanish accent? Welcome to Cuba, my friends.” About a year ago, I returned from leading a delegation of Minnesota’s agricultural business sector to Cuba. At the time, I was the general counsel and assistant commissioner for the Minnesota Department of Agriculture. As general counsel, I served as the
chief legal counsel for the department, and as assistant commissioner, I oversaw several divisions, including the department’s international trade promotion authority. Our mission was to explore potential opportunities for trade in anticipation of the possibility that, one day soon, the 55-yearold trade embargo between the United States and Cuba would be lifted. We attended seminars in which local professors and international business lawyers outlined Cuban history, trade process and communist bureaucracy. We toured facilities and farms, and ate with trade officials in paladares. The paladares are as good a symbol as anything else of what is changing in Cuba: They are privately owned and operated restaurants that typically originate out of someone’s home, and some have expanded to look very much the same as any of the government-run eateries around Cuba. It remains to be seen if the paladares will lead to more private businesses, but the hope and pride on the proprietors’ faces are impossible not to notice. The hope within the Cuban people can seem small at times, but it doesn’t come with an expiration date. This is to say, I found Cuba to be a very patient country. Our guide broke his phone one evening by accident on the sidewalk. I asked him how long it would take to get it fixed, and he told me, with a tone of certainty, three months. In this way, Cubans are profoundly
different than Americans. They are used to waiting; they expect to wait. They do so with an ease and endurance Americans associate with distance runners. They wait for overdue deliveries, they wait for food at the ration stores, they wait for crowded buses. They wait for the bank to open, the internet to load, and, of course, they wait for opportunity and change. Waiting is their witness to hope. Now it is our turn to wait as Americans to see what our government will do to move forward or roll back the normalization process that has begun between us and our Cuban neighbors. I am hopeful, and I know the Cuban people are waiting. Santo Cruz serves as assistant commissioner of the External Relations Administration at the Minnesota Department of Human Services, overseeing the department’s legislative and communications areas. He also is an adjunct professor at St. Thomas Law. Spring 2017 Page 39
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Advocacy director for criminal justice of the Open Society Foundations Nkechi Taifa speaks during a forum on finding common ground between public safety and racial justice at the School of Law.
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