Law Commons^™

Sovereignty In Spiritual Perspective, Perry Horse

St. Thomas Law Review

When my forebears entered the Twentieth Century one hundred years ago they were dispirited because of what was lost. Gone was the old religion of K'caawT'doh (the Medicine Lodge). Gone were the On'gma Peenh (our own food), i.e., the buffalo. Gone were the days of a free, independent lifestyle. Gone was the old economy of self-sufficiency, hunting, and trade. All that was left was our native language, remnants of our aboriginal territory, our traditions and beliefs, and many of the old songs, dances, and rituals. The last century was one of transition for the Kiowas as well as all other …

Forces Of Light: The Spiritual Battle For The Miami Circle, Geeta Sacred Song

St. Thomas Law Review

The land is my body, the water my blood. The wind is my nourishment, the fire my spirit. On the sacred path, we relate to every thing. We are deeply appreciative of all creation. Every thing is living and breathing, and every thing is a reason to rejoice. Therefore, every thing needs to be in its proper order, and when it is not, we must defend it. It is not that we want to defend it, we must defend it. I am sure that everyone here feels that they have a job, a job to be a student, to be …

Grounded Visions: Native American Conceptions Of Landscapes And Ceremony, Russel L. Barsh

St. Thomas Law Review

When the first wild strawberries flowered, my friend Chris Jocks, a Mohawk professor of comparative religion at Dartmouth, took his students to meet me at the old beaver pond on Thetford Hill. As the sun set behind a warm sprinkling of rain, we sat on top of the beaver dam and listened to successive waves of croaking, roaring, warbling, chirping, and hooting. "In the beginning," we explained that ''the Beaver made the world out of mud from the bottom of the waters. All the animals came and thanked the Creator. That is the way it was, and the way it …

The League Of The Iroquois: From Constitution To Sovereignty, Charles Radlauer

St. Thomas Law Review

Iroquois oral tradition relates that in early pre-colonial times, a peacemaker came to the Five Nations of the Iroquois, bringing a message of peace and establishing the Iroquois Confederation. The peacemaker, Deganawidah, also established a system of governance for the Five Nations,' which was incorporated into the earliest constitution of an American people. Numerous authors such as Bruce Johansen, Donald Grinde, and Gregory Schaaf have suggested that this oral tradition served as the foundation for the American Constitution. Other authors, such as Eric Jensen, have described these writings as fanciful and not based in fact; believing that many of the …

Re-Orienting Law And Sexuality , Ratna Kapur, Tayyab Mahmud

Cleveland State Law Review

This symposium issue of the Cleveland State Law Review emerges from the Reorienting Law and Sexuality Conference hosted by Cleveland-Marshall College of Law in October 1999. The symposium locates itself as a continuation of the discourse that surfaced in the American legal academy in 1979 with a symposium issue of the Hastings Law Review. It is a discourse that brings into sharp relief technologies of power and strategies of resistance that contend at all sites where law aims to regulate human sexuality. While the initiative of 1979 was further cultivated by other forums of knowledge production within the American legal …

The Miami Circle And Beyond, Bobby C. Billie

St. Thomas Law Review

My name is Bobby C. Billie. I am the Spiritual Leader, and a Clan Leader of the Independent Traditional Seminole Nation of Florida. The Independent Traditional Seminole Nation of Florida has been organized under the Natural Law System and follows the Traditional Laws, and has been recognized under the Creator's Law. My grandpa was Ingraham Billie. His great, great, great grandpa was Sam Jones or Arpeika. These were two Leaders of my Nation over the past three hundred years. But there have been more beyond these three hundred years. Indigenous Natural People know and feel all Creation of the Earth …

The Appeal Of Therapeutic Jurisprudence, Shirley S. Abrahamson

Seattle University Law Review

If therapeutic jurisprudence is so good, its applicability should not be limited to the trial courts. This Article offers some examples of how appellate courts can join the trial courts in applying therapeutic jurisprudence, but it also raises some concerns.

Enacting And Enforcing Felony Animal Cruelty Laws To Prevent Violence Against Humans, Joseph G. Sauder

Animal Law Review

Felony animal anti-cruelty laws should be enacted and strictly enforced to protect animals and humans. Studies show that violence in the home, of any type, is self-perpetuating, creating generations of abusers and victims. Children who witness abuse are more likely to abuse animals and eventually humans; even minor acts of animal abuse are signs of a disturbed individual and should be taken seriously. Current animal anti-cruelty laws fail to prevent this violence. This article proposes that stronger anti-cruelty laws must be enacted and properly enforced to prevent this cycle of violence.

Animal Welfare Law In Canada And Europe, Elaine L. Hughes, Christiane Meyer

Animal Law Review

The idea that animals are entities that deserve protection, irrespective of their utility to man, is firmly grounded in the Enlightenment. The principle that a creature's need for considerate treatment did not depend on the possession of a soul or the ability to reason, but on the capacity to feel pain was formulated and debated at that time. The debate continues today-Canada is in the midst of examining its own ethical, philosophical and legal beliefs about animal welfare and cruelty. This article examines the current state of animal welfare and cruelty laws and recent attempts through federal legislation to modernize …

New Zealand's Animal Welfare Act: What Is Its Value Regarding Non-Human Hominids?, Paula Brosnahan

Animal Law Review

New Zealand's Animal Welfare Act has been touted as a world first in great ape protection, and that may be true. However, it has also been depicted as an act conferring basic legal rights on great apes, and that is an exaggeration. Challenging the legal status of great apes in any jurisdiction requires sound, factual propositions. Therefore, the background and breadth of New Zealand's protections must be understood before proponents of change employ them as precedent. This essay offers a brief history of the non-human hominid provisions of New Zealand's Animal Welfare Act.

Therapeutic Jurisprudence In The Appellate Arena, David B. Wexler

Seattle University Law Review

In this Introduction, I will briefly summarize Des Rosiers' Court Review article, entitled From Telling to Listening: A Therapeutic Analysis of the Role of Courts in Minority-Majority Conflicts, placing it in a framework that transcends minority-majority conflicts and encourages discussion regarding the use of therapeutic jurisprudence by appellate tribunals. My brief summary is followed by a series of comments that have the potential of launching a refreshing line of inquiry into the appellate process, opinion writing, and the formulation of legal doctrine.

The Ethics Of Advocacy For The Mentally Ill: Philosophic And Ethnographic Considerations, Bruce A. Arrigo, Christopher R. Williams

Seattle University Law Review

In this Article, we critically address several philosophical underpinnings of ethical decision-making that impact persons with psychiatric disorders. We focus our attention, however, upon an admittedly limited target area. Thus, we canvass a select number of significant issues that pose unique problems for humanity. The purpose of these excursions is that of reflection. In brief, we will speculatively examine: (1) the relationship between human rights and the law; (2) the relationship between mental illness and the law (i.e. the rights of the mentally ill); (3) the ethics of involuntary confinement (i.e., taking away and giving back rights to the mentally …

Judicial Auditing, Matthew L. Spitzer, Eric L. Talley

Faculty Scholarship

This paper presents a simple framework for analyzing a hierarchical system of judicial auditing. We concentrate on (what we perceive to be) the two principal reasons that courts and/or legislatures tend to scrutinize the decisions of lower echelon actors: imprecision and ideological bias. In comparing these two reasons, we illustrate how each may yield systematically distinct auditing and reversal behaviors. While auditing for imprecision tends to bring about evenhanded review/reversal, auditing for political bias tends to be contingent on the first mover's chosen action. Examples of these tendencies can be found in a number of legal applications, including administrative law, …

Law And The Sexual Subaltern: A Comparative Perspective , Ratna Kapur

Cleveland State Law Review

I am entering this conversation as a comparativist who wants to complicate the received wisdom about India in the West in regard to matters of sex, desire and the law. I want to address three issues:* First, how sex generally and alternative sexuality more specifically, are emerging as zones of contest in the legal arena and are simultaneously cast as cultural controversies in post-colonial India.* Second, I address how sexual subalterns, that is, gays, lesbians and sexworkers, are challenging dominant sexual and cultural norms.* And finally, I examine why a project of pleasure and desire is an important political goal …

Front Matter

St. Thomas Law Review

Front Matter includes Title Page, Table of Contents for St. Thomas Law Review Volume 13, Issue 1, Fall 2000.

Editor-In-Chief's Welcome, D. Michael Bitz

St. Thomas Law Review

The St. Thomas Law Review is pleased to present a series of essays and articles that relate to the Fifth Annual Tribal Symposium given at St. Thomas University School of Law in February of 2000. It is part of the mission of the Law Review to give recognition to voices less commonly heard. I wish to acknowledge and give special thanks to the staff of the St. Thomas University Law Review for their tireless efforts which enabled us to achieve the diversity of materials presented.

Dean's Welcoming Remarks, John Makdisi

St. Thomas Law Review

I also would like to welcome you to this wonderful conference the fifth that has been sponsored at this school. As many of you know, I am new to the school, but my friendship with the director and with the co-host of this conference extend back many years to the time I was in Tulsa, Oklahoma. At that time, I had the good fortune to meet Professor Seigfried Wiessner, the director, and Professor Kirke Kickingbird, our co-host. Tulsa hosted a Sovereignty Symposium every year, and it was then that I was introduced to the mysteries and to the sacredness and …

Welcoming Remarks, Joseph P. Farina

St. Thomas Law Review

Good morning. It is a personal privilege to be here today as a strong and compassionate supporter of this Conference, and to share this beginning of what will be a very important two days. I extend to you a most cordial welcome on behalf of the judiciary 111 judges of the Eleventh Judicial Circuit of Florida.

Tribal Governments And The Protection Of Watersheds And Wetlands In Indian Country, Dean B. Suagee

St. Thomas Law Review

This paper will focus on the protection of watersheds and wetlands within Indian country under the federal environmental scheme. In section II, we discuss the authorization of tribal programs under the Clean Water Act (CWA) and Safe Drinking Water Act (SDWA). In section III, we provide a detailed discussion of the programmatic and legal developments in tribal implementation of the water quality standards programs under the CWA. Section IV discusses EPA's authority to directly implement the CWA and SDWA in Indian country. In Section V, we summarize EPA's strategy to create partnerships with tribes to protect water resources in Indian …

Preserving The Oneida Nation Culture, Brian Patterson

St. Thomas Law Review

The topic of this symposium - "Sacred Sites and Modem Lives" - is very timely. We often hear news about some building project that has unearthed an ancient village or burial ground. For every building project that is unearthed you also hear great debate about what to do about the building project, or what to do with the artifacts and the human remains. There exists a big struggle - on the one hand, the needs of society and science, and on the other hand, respect for places and things and people that came long before.

Florida's War On Indian Gaming: An Attack On Tribal Sovereignty, Jerry C. Straus

St. Thomas Law Review

In 1988 Congress passed the Indian Gaming Regulatory Act (IGRA). The states, disappointed with certain aspects of the IGRA legislation, launched a war against Indian tribes to stop them from conducting the gaming which Congress had determined was a vital source of economic development for tribes and a proper exercise of tribal sovereignty. In 1994 governors from forty-nine states signed and sent a letter to Congress urging drastic revisions in the law purportedly to protect states' rights. To this day, every Session of Congress brings the introduction of legislation that would curtail or destroy Indian gaming rights. The states viewed …

The Miami Circle: Teacher Of Respect For Nature, People, History, And Place, Dennis Wiedman

St. Thomas Law Review

Cut into the limestone bedrock shore of the Miami River where it enters Biscayne Bay, the Miami Circle has captured local, state, national and international attention since its discovery in September 1998. This paper captures the information, insight, and cultural values expressed by the various contributors to the conference on "Sacred Sites and Modem Lives: The Miami Circle and Beyond." It highlights the lessons that enable us to better understand the significance of the Miami Circle's past, its present implications for the South Florida community, and visions of its future.

The 2000 Revision Of The United Nations Draft Principles And Guidelines On The Protection Of The Heritage Of Indigenous People, Siegfried Wiessner, Marie Battiste

St. Thomas Law Review

No abstract provided.

Will The Circle Be Unbroken--The Miami Circle Discovery And It's Significance For Urban Evolution And Protection Of Indigenous Culture, Pamela G. Levinson

St. Thomas Law Review

A mysterious, ancient stone circle carved into limestone bedrock discovered on a downtown Miami bayfront lot has set a legal precedent for the world. The unique formation known as the Miami Circle has been saved by the exercise of the ultimate power of government - eminent domain. Thus its relevance stretches beyond the local struggle to save one ancient archaeological curiosity. Rather, it stands as a model for the preservation of similar archaeological structures and artifacts found on private lands, which up to now have been vulnerable to destruction. It also stands as a model of hope for other sites …

Principles And Guidelines For The Protection Of The Heritage Of Indigenous People

St. Thomas Law Review

No abstract provided.

The Constitutionality Of The Children's Internet Protection Act, Adam Horowitz

St. Thomas Law Review

Congress is presently considering the Children's Internet Protection Act ("CIPA"). CIPA requires schools and libraries that have computers with Internet access to certify to the Federal Communications Commission (FCC) that they (1) have selected a technology for such computers which filters or blocks access to child pornography and obscene material on the Internet; and (2) are enforcing a policy to ensure the operation of such technology during any use of such computers by minors Schools and libraries failing to submit a good-faith certification to the FCC within thirty days of the bill's enactment are ineligible to receive or retain the …

Human Rights Of Indigenous Peoples: Report Of The Seminar On The Draft Principles And Guidelines For The Protection Of The Heritage Of Indigenous People, Erica-Irene Daes

St. Thomas Law Review

1. By its resolution 1997/13, the Sub-Commission on the Promotion and Protection of Human Rights (formerly Sub-Commission on the Prevention of Discrimination and Protection of Minorities) requested the United Nations High Commissioner for Human Rights to convene, prior to the sixteenth session of the Working Group on Indigenous Populations and the fiftieth session of the Sub-Commission, a seminar on the draft principles and guidelines for the protection of the heritage of indigenous peoples elaborated by the Special Rapporteur, Mrs. Erica-Irene A. Daes, with her participation and the participation of representatives of Governments, United Nations bodies and organizations, specialized agencies, organizations …

Preface, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Journals Of The Century In Law, Christopher Byrne

Library Staff Publications

In this essay I will humbly add my contribution to this vast literature by ranking the twentieth century's best law journals. I am not treading upon virgin ground. Over the past twenty years a number of scholars have ranked law reviews and journals using a variety of methodologies.

On The Evolution Of The Canonical Dissent, Anita S. Krishnakumar

Faculty Publications

Legal theorists increasingly have come to recognize and study the existence of a constitutional canon composed of highly authoritative legal texts that command special reverence in the law. Among these highly authoritative texts are a series of dissenting opinions—e.g., Justice Holmes's in Lochner v. New York, and Justice Harlan's in Plessy v. Ferguson—that ironically are more famous than the majority opinions in most other cases. This Article examines the evolution of the dissenting canon, seeking to explain both the methods by which various dissenting opinions became canonized and the motivating factors behind these canonizations.

Specifically, the Article argues that the …