14th Annual William C. Canby Jr. Lecture feat. Kristen Carpenter

Indigenous Rights, Human Rights: It’s Time for the Declaration

Wednesday, March 16, 2022 | 12:00pm MST | Zoom Webinar

Register at: law.asu.edu/canby

Kristen Carpenter

Council Tree Professor of Law
Director, American Indian Law School
University of Colorado Law School

Kristen Carpenter is a Council Tree Professor of Law and Director of the American Indian Law Program at the University of Colorado Law School. Professor Carpenter served as a member of the United Nations Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) from 2017-2021, as its member from North America. While serving at the United Nations, Professor Carpenter worked on human rights issues regarding Indigenous Peoples in all regions of the world. With colleagues at the Native American Rights Fund, Carpenter is now co-lead on “The Implementation Project,” an effort to realize the aims of the UN Declaration on the Rights of Indigenous Peoples in the United States. She is also a Supreme Court Justice of the Shawnee Tribe.

At Colorado Law, Professor Carpenter teaches and writes in the areas of Property, Cultural Property. American Indian Law, Human Rights, and Indigenous Peoples in International Law. She has published several books on these topics and her articles appear in leading law reviews. Professor Carpenter has served in various Associate Dean roles and as a founding member of the campus-wide Center for Native American and Indigenous Studies at CU-Boulder. In 2016 she was the Oneida Indian Nation Visiting Professor of Law at Harvard Law School. Professor Carpenter is an elected member of the American Law Institute and former member of the Federal Bar Association’s Indian Law Section Board. She is a graduate of Harvard Law School and Dartmouth College.

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The State Bar of Arizona does not approve or accredit CLE activities for Mandatory Continuing Legal Education requirement. This activity may qualify for up to 1 hour toward your annual CLE requirement for the State Bar of Arizona.

Questions? Contact ilp@asu.edu
This Zoom Webinar is free and open to the public.

New Scholarship on the Sarayaku v. Ecuador Inter-American Court of Human Rights Decision

Thomas M. Antkowiak has posted “Rights, Resources, and Rhetoric: Indigenous Peoples and the Inter-American Court,” forthcoming in the University of Pennsylvania Journal of International Law, on SSRN. Here is the abstract:

In 2012, the Inter-American Court of Human Rights handed down Sarayaku v. Ecuador, a crucial decision on indigenous rights. This Article considers how the Sarayaku judgment impacts the Court’s case law on indigenous lands and resources, and evaluates that jurisprudence as a whole. Examining the cases, it becomes evident that the Tribunal now connects a number of key indigenous rights to the right to property, Article 21 of the American Convention on Human Rights. When traditional lands are involved, the right to property has become the Court’s structural basis for indigenous rights.

For significant reasons, however, the right to property cannot serve as the conceptual stronghold for indigenous peoples’ survival and development. First, the Court’s approach limits the autonomy of indigenous peoples and their capacity for change. Second, the right to property inherently has difficulty providing even basic protection for ancestral lands because domestic and international law grants states wide latitude to interfere with property. Though the Court has attempted to create special ‘safeguards’ for indigenous lands and resources, they have proven inadequate.

In response, I urge a distinct way for the Court to conceptualize indigenous rights. The right to property must be subsumed by, and anchored to, a stronger configurative principle to defend indigenous peoples’ livelihood. Other human rights regimes offer the right to self-determination or specific minority protections that can safeguard indigenous rights. The relevant Inter-American legal instruments fail to establish such principles. As a result, I propose that a broad right-to-life concept, known as vida digna in the Court’s case law, serve as the new structural basis for an array of essential indigenous norms — including cultural integrity, nondiscrimination, lands and resources, social development, and self-government.

Jacob Levy on Indigenous Rights, Modern Political Concepts, and the State

Jacob Levy has posted his new paper, “Indigenous Rights, Modern Political Concepts, and the State,” on SSRN.

Here is the abstract:

This paper considers the relationship of indigenous rights to four foundational principles of modern political theory: sovereignty, the nation, property, and constitutionalism. All took their familiar intellectual forms as the European state was crystallizing – and as European states were embarking on their imperial projects around the world. All were reshaped by both the development of the state and the European encounter with indigenous peoples. The absolutist idea of state sovereignty, developed as the modern Weberian state was crystallizing in Europe, was deeply connected with the justifications of imperial power that could lawfully conquer, expropriate, and kill indigenous peoples. The subsequent joining of the idea of the nation to state sovereignty heightened the latter’s absolutism. Settler states conceived as sovereign unitary nation-states left no normative legal space for indigenous rights, and indeed were profoundly hostile to them. By contrast, property and constitutionalism drew on natural law ideas and pluralist political traditions and were sometimes developed in ways that made room for indigenous rights, even as rival interpretations were developed in ways that subordinated both property and constitutionalism to state sovereignty. The paper argues that both nationhood and sovereignty are problematic ways to conceive of indigenous rights today, and that property and constitutionalism offer the more promising foundation.