Kristen A. Carpenter has published “Living The Sacred: Indigenous Peoples and Religious Freedom” in the Harvard Law Review, reviewing Michael McNally’s “Defend the Sacred: Native American Religious Freedom Beyond the First Amendment.”
On March 24, 2017, at the conclusion of its 34th Session in Geneva, the United Nations Human Rights Council appointed Kristen A. Carpenter as the North American member of the Expert Mechanism on the Rights of Indigenous Peoples. Carpenter serves as Council Tree Professor of Law and associate dean for research at the University of Colorado Law School.
The Expert Mechanism is charged with providing expertise to the Human Right Council and advising states in achieving the aims of the United Nations Declaration on the Rights of the Indigenous Peoples. Adopted by the General Assembly in 2007, the Declaration recognizes indigenous peoples’ rights to self-determination, equality, and non-discrimination, and calls on states to address indigenous peoples’ rights in realms ranging from natural resource development and land tenure to freedom of expression and personal safety from violence.
Carpenter will be one of seven regional members, joining human rights experts from Africa, Asia, the Arctic, Europe, South America, and the Pacific on the Expert Mechanism.
At Colorado Law, Carpenter teaches and writes in the areas of property, cultural property, federal Indian law, and indigenous peoples in international law. She has published several books and many articles on the rights of indigenous peoples, and has represented Indian tribes, individuals, and organizations in cases involving religious freedoms and child welfare.
“The expanded mandate of the Expert Mechanism provides an unprecedented opportunity to implement the aims of the Declaration on the Rights of Indigenous Peoples,” said Dean S. James Anaya, who previously served as the United Nations Special Rapporteur on the Rights of Indigenous Peoples. “We support Professor Carpenter’s work toward fostering the rights and well-being of indigenous peoples around the world, and foresee high levels of educational opportunities for Colorado Law students to study human rights in domestic and international settings.”
“I would like to acknowledge the generations of advocates who have advanced indigenous peoples’ concerns at the United Nations,” said Carpenter. “It is because of their work that I now have the opportunity work with the other members of the Expert Mechanism and the Office of the High Commissioner toward realizing indigenous peoples’ rights. I hope especially to highlight the experiences and needs of traditional cultural practitioners, and to help to ensure a place for indigenous lifeways in the rapidly changing world around us.”
Kristen’s first post in this series is here.
Kristen Carpenter has published “Indian Status Is Not Racial: Understanding ICWA as a Matter of Law and Practice” as part of the CATO Unbound series on the Indian Child Welfare Act.
On August 31, 2013, a little girl clad in a purple shawl, holding the hands of her father and stepmother, skipped into the grand entry of the Cherokee Nation’s annual powwow. An honored participant, the little girl followed in the steps of the Nation’s principal chief and first lady, and behind them a long line of Cherokees wearing U.S. military uniforms, tear dresses and ribbon shirts, buckskin, and jingle dresses fell into the circle. In brush arbors and bleachers, spectators visited with friends and relatives, and even deeper outside, the thick dark northeastern Oklahoma night, full and bright with crickets, stars, and spirits. At the very center of it all, the little girl smiled in the embrace of her Cherokee people. She danced in the heart of their landscape and in the landscape of their hearts.
Then the drum stopped, cameras flashed, and the little girl was whisked away to a tribal safe house. A contentious legal battle was being waged over her future, and there had been threats against her and her family. Beauty in a fade, to quote the immortal John Trudell.
Within weeks, the little girl, clutching a teddy bear, would be strapped into a car seat, and driven a thousand miles away from her family and home. The Supreme Court ruled the Indian Child Welfare Act did not apply, that her dad – her own loving biological Cherokee dad who had just served a tour of duty in Iraq and was adjudicated “fit” for parenthood – didn’t have a case for custody. As a result, the little girl, like generations of Indian children before her, was taken from her Indian family. Taken away from her sister, cousins, grandparents and great-grandparents, away from her princess toys and pet geese, away from shell-shaker lessons and stomp grounds – to wake up and begin her life anew in a different home, with non-Indian adoptive parents. Across Indian Country, people prayed that she would survive this experience and promised to be there one day when hopefully she would return.
Angela R. Riley and Kristen A. Carpenter have published “Owning Red: A Theory of Indian (Cultural) Appropriation” (PDF) in the Texas Law Review.
Here is the abstract:
In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group of the cultural expressions and resources of another. While these and other incidents make contemporary headlines, American Indians often experience these claims within a historical and continuing experience of dispossession. For hundreds of years, the U.S. legal system has sanctioned the taking and destruction of Indian lands, artifacts, bodies, religions, identities, and beliefs, all toward the project of conquest and colonization. Indian resources have been devalued by the law and made available for non-Indians to use for their own purposes. Seeking redresses for the losses caused by these actions, tribes have brought claims under a variety of laws, from trademark and copyright to the First Amendment and Fifth Amendment, and some have been more successful than others. As a matter of property law, courts have compensated—albeit incompletely—the taking of certain Indian lands and have also come to recognize tribal interests in human remains, gravesites, and associated artifacts. When it comes to intangible property, however, the situation is more complicated. It is difficult for legal decision makers and scholars alike to understand why Indian tribes should be able to regulate the use of Indian names, symbols, and expressions. Indeed, non-Indians often claim interests, sounding in free speech and the public domain, in the very same resources. To advance understanding of this contested area of law, Professor Riley and Professor Carpenter situate intangible cultural property claims in a larger history of the legal dispossession of Indian property—a phenomenon they call “Indian appropriation.” It then evaluates these claims vis-à-vis prevailing legal doctrine and offers a normative view of solutions, both legal and extralegal.
Angela Riley and Kristen Carpenter have posted “Owning Red: A Theory of Indian (Cultural) Appropriation,” forthcoming in the Texas Law Review, on SSRN.
Here is the abstract:
In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group the cultural expressions and resources of another. While these and other incidents are currently in the headlines, American Indians often experience these claims within an historical and continuing experience of dispossession. For hundreds of years, the U.S. legal system has sanctioned the taking and destruction of Indian lands and artifacts, bodies and religions, identities and beliefs, all toward the project of conquest and colonization. Indian resources have been devalued by the law and made available for non-Indians to use of their own purposes. Seeking redresses for the losses caused by these actions, tribes have brought claims under a variety of laws, from trademark and copyright, to the First Amendment and Fifth Amendment, and some have been more successful than others. As a matter of property law, courts have compensated – albeit incompletely – the taking of certain Indian lands and has also come to recognize tribal interests in human remains, gravesites, and associated artifacts. When it comes to intangible property, however, the situation is more complicated. It is difficult for legal decision-makers and scholars alike to understand why Indian tribes should be able to regulate the use of Indian names, symbols, and expressions. Indeed, non-Indians often claim interests, sounding in free speech and the public domain, in the very same resources. To advance understanding of this contested area of law, this Article situates intangible cultural property claims in a larger history of the legal dispossession of Indian property – a phenomenon we call “Indian appropriation.” It then evaluates these claims vis à vis prevailing legal doctrine, and offers a normative view of solutions, both legal and extralegal.
Highly, highly recommended! I had a chance to review a draft of this paper and Profs. Riley and Carpenter are changing the way Indian law scholars and property law scholars think about cultural property. A terrific contribution.
Tribal Rights, Human Rights
Kristen A. Carpenter & Angela R. Riley
2013 Mich. St. L. Rev. 293 | Download PDF
Nenabozho’s Smart Berries: Rethinking Tribal Sovereignty and Accountability
Heidi Kiiwetinepinesiik Stark
2013 Mich. St. L. Rev. 339 | Download PDF
Jurisdiction and Human Rights Accountability in Indian Country
Kirsten Matoy Carlson
2013 Mich. St. L. Rev. 355 | Download PDF
First “Review” of Scholarly Promise and Achievement
2013 Mich. St. L. Rev. 291 | Download PDF
Tribal Sovereignty and Human Rights
Joseph William Singer
2013 Mich. St. L. Rev. 307 | Download PDF
A Most Grievous Display of Behavior: Self-Decimation in Indian Country
Kristen Carpenter and Lorie Graham have posted a very compelling and powerful paper about the Supreme Court’s decision in Adoptive Couple v. Baby Girl. It is required reading for anyone interested in the case, and is destined to be the definitive paper on the international human rights aspects of the case.
The article is titled Human Rights to Culture, Family, and Self-Determination: The Case of Adoptive Couple v. Baby Girl. Here is the abstract:
The well-being of indigenous children is a subject of major concern for indigenous peoples and human rights advocates alike. In 2013, the U.S. Supreme Court decided in Adoptive Couple v. Baby Girl that the Indian Child Welfare Act did not prevent the adoption of a Cherokee child by a non-Indian couple. This occurred over the objections of her Cherokee biological father, extended family, and Tribal Nation. After the decision, Baby Girl’s father and the adoptive couple contested the matter in a number of proceedings, none of which considered the child’s best interests as an Indian child. The tribally-appointed attorney for Baby Girl, as well as the National Indian Child Welfare Association and National Congress for American Indians, began examining additional venues for advocacy. Believing that the human rights of Baby Girl, much like those of other similarly situated indigenous children, were being violated in contravention of the United Nations Declaration on Indigenous Peoples Rights, and other instruments of international law, they asked us to bring the matter to the attention of the United Nations Special Rapporteur for Indigenous Peoples Rights (“UNSR”). We prepared a “statement of information” to alert the UNSR of the human rights violations occurring in the case. With the permission of the attorneys and organizations involved, this chapter introduces the Baby Girl case, contextualizes the claims in international human rights law, and then reproduces the statement of information, and portions of the UNSR’s subsequent public statement. It concludes with an update on the Baby Girl case and broader discussion about the potential for using international law and legal forums to protect the human rights of indigenous children.
Kristen A. Carpenter has published her paper, “Limiting Principles and Empowering Practices in American Indian Religious Freedoms” (PDF) in the Connecticut Law Review. We highly recommend this paper.
Employment Division v. Smith was a watershed moment in First Amendment law, with the Supreme Court holding that neutral statutes of general applicability could not burden the free exercise of religion. Congress’s subsequent attempts, including the passage of Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act, to revive legal protections for religious practice through the legislative and administrative process have received tremendous attention from legal scholars. Lost in this conversation, however, have been the American Indians at the center of the Smith case. Indeed, for them, the decision criminalizing the possession of their peyote sacrament was only the last in a series of Supreme Court cases denying American Indian Free Exercise Clause claims. Moreover, the Supreme Court’s Indian cases share a common and previously overlooked feature: in all of them, the Court assessed the Indian claims as too broad or too idiosyncratic to merit Free Exercise Clause protection and instead denied them through a succession of bright line formulations. Identifying the unrequited search for a “limiting principle” as a basis for analysis, this Article reassesses the religion cases and underlying theoretical questions of institutionalism and equality, in their Indian context. It then identifies two contemporary policy shifts—namely Congress’s decision to entrust accommodation of Indian religious freedoms to federal agencies and its decision to do so at the tribal, versus individual, level—that have, in some respects, facilitated an “empowering practices” approach to American Indian religious liberties in the post-Smith era. Taking a descriptive and contextual approach, the Article illuminates opportunities for additional law reform in the American Indian context and also larger questions of institutionalism, equality, and pluralism in religious freedoms law.
Professor Carpenter’s paper already has an impressive impact. Ninth Circuit Judge William A. Fletcher based his keynote address at Berkeley Law School’s symposium on Phil Frickey’s legacy on her paper.