Kristen A. Carpenter

Kristen Carpenter Publishes “Limiting Principles and Empowering Practices in American Indian Religious Freedom”

January 9, 2013Matthew L.M. Fletcher

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.

The abstract:

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.

Congrats to Kristen Carpenter — The New Associate Dean for Faculty Development at Colorado Law School!

July 27, 2011Matthew L.M. Fletcher1 Comment

Associate Dean for Faculty Development and Associate Professor of Law

Associate Dean for Faculty Development and Associate Professor of Law

“In Defense of Property” in the Yale Law Journal

July 16, 2009Matthew L.M. Fletcher

Here.

Written by Kristen A. Carpenter, Sonia K. Katyal, and Angela R. Riley [View as PDF]

118 Yale L.J. 1022 (2009).

This Article responds to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous cultural heritage. Recent critiques suggest that propertizing culture impedes the free flow of ideas, speech, and perhaps culture itself. In our view, these critiques arise largely because commentators associate “property” with a narrow model of individual ownership that reflects neither the substance of indigenous cultural property claims nor major theoretical developments in the broader field of property law. Thus, departing from the individual rights paradigm, our Article situates indigenous cultural property claims, particularly those of American Indians, in the interests of “peoples” rather than “persons,” arguing that such cultural properties are integral to indigenous group identity or peoplehood, and deserve particular legal protection. Further, we observe that whereas individual rights are overwhelmingly advanced by property law’s dominant ownership model, which consolidates control in the title-holder, indigenous peoples often seek to fulfill an ongoing duty of care toward cultural resources in the absence of title. To capture this distinction, we offer a stewardship model of property to explain and justify indigenous peoples’ cultural property claims in terms of nonowners’ fiduciary obligations toward cultural resources. We posit that re-envisioning cultural property law in terms of peoplehood and stewardship more fully illuminates both the particular nature of indigenous claims and the potential for property law itself to embrace a broader and more flexible set of interests.

Kristen Carpenter: “Real Property and Peoplehood”

July 10, 2008Matthew L.M. Fletcher

Kristen Carpenter has published her excellent paper “Real Property and Peoplehood” in the Stanford Environmental Law Journal. Here is the abstract:

This Article proposes a theory of “real property and peoplehood” in which lands essential to the identity and survival of collective groups are entitled to heightened legal protection. Although many Americans are sympathetic to American Indian tribes and their quest for cultural survival, we remain unwilling to confront the uncomfortable truth that the very thing Indian peoples need is their land, the same land that the United States took from them. This is especially true with regard to Indian “sacred sites.” These are features of the natural landscape holding religious and cultural significance for American Indian tribes. The Supreme Court has held that destruction of sacred sites located on the public lands does not impinge on individual religious belief and falls within the government’s powers as a landowner. This is true even if the sacred site is unique and essential to a particular religious practice. Although recent federal policy has evolved in favor of accommodating Indian sacred sites practices, land management agencies use their considerable discretion to permit competing uses of the public lands–such as natural resource development and tourism–that threaten the physical integrity of sacred sites. Such decisions devastate Indian people and undermine our shared expectation of free exercise rights for all Americans. Thus, federal law needs to prioritize Indian interests in sacred sites over competing uses of the public lands. Unfortunately, we do not yet have a legal theory justifying such a position.

My theory of real property and peoplehood furthers the work of scholars who have recognized the relationship between human beings and property, albeit in other contexts. Most influentially, Professor Margaret Jane Radin *314 has long argued for special legal protection of property that expresses an individual’s sense of self and therefore cannot be translated into a monetary value. But whereas Radin focuses on property that expresses individual personhood, I am interested in property that expresses collective “peoplehood.” As a descriptive matter, this concept of peoplehood reflects that, even in the United States where the individual rights paradigm dominates, individuals affiliate themselves along sub-national political, religious, ethnic, and cultural lines and their exercise of fundamental liberties occurs in those contexts. As a normative concept, John Rawls has argued that as a matter of “reasonable pluralism,” liberal states like the United States should recognize peoples and treat them fairly. To do otherwise is to fall short of our best democratic principles, such as the idea that all Americans are entitled to religious freedom. Working at the confluence of Radin and Rawls, the Article argues that Indian tribes are peoples whose legitimate interests in sacred sites deserve special legal protection as a testament to American liberty for both individuals and groups.