faculty activities 2023

Colorado Law’s American Indian Law Program supports Tribal Governments at United Nations sessions

Anonymous — Thu, 03 Aug 2023 14:40:56 +0000

Colorado Law’s American Indian Law Program supports Tribal Governments at United Nations sessions Anonymous (not verified) Thu, 08/03/2023 - 08:40

The University of Colorado American Indian Law Program (AILP) attended the 16th Session of the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) at the United Nations (UN) in Geneva, from July 17 to July 23. Indigenous Peoples, national representatives, and civil society gathered to engage in dialogue regarding the rights of Indigenous Peoples. EMRIP advises the United Nations Human Rights Council and helps States and Indigenous Peoples achieve the aims of the UN Declaration on the Rights of Indigenous Peoples (the Declaration).

The AILP attended the UN session in conjunction with The Implementation Project (TIP), a joint initiative of Colorado Law and the Native American Rights Fund (NARF) to advance education and advocacy regarding the Declaration in the United States. TIP was represented by Kristen Carpenter, Council Tree Professor of Law and director of the AILP; S. James Anaya, Distinguished University Professor and Nicholas Doman Professor of International Law; Emiliano Salazar ‘23, AILP Fellow; and Sue Noe, Senior Staff Attorney at NARF.

“I graduated from Colorado Law in May, and as AILP Fellow, I have already taken a trip to Oklahoma to work with the Southern Arapaho, Shawnee Tribe, and Cherokee Nation, and to Geneva to take part in the UN Session.” Salazar said. “The experiential and community-focused aspects of Colorado Law’s approach to American Indian and Indigenous Peoples Law have been important parts of my experience as both a student and fellow.”

A highlight for the AILP was supporting the Coalition of Large Tribes (COLT) at the UN. COLT represents over one million American Indian people and 50 Indian tribes, collectively holding over 50 million acres of land in the U.S. Led by Councilwoman Lisa White Pipe of the Rosebud Sioux Tribe, who also serves as COLT Treasurer, the delegation made official interventions from the floor, met with U.S. State Department representatives, and engaged with Indigenous leaders from around the world. COLT called for an EMRIP country engagement to acknowledge the losses of life, culture, and language caused by federal Indian boarding schools during their 100-year history in the U.S., and to begin to develop approaches to healing and recovery. COLT is represented by attorney Jennifer Weddle, who is an Adjunct Professor at Colorado Law.

The AILP, NARF, and COLT co-sponsored a side event on “Sacred Sites and Human Rights” featuring Indigenous leaders from Norway, Australia, and the U.S. The event addressed challenges both globally and close to home, including a copper mining proposal that threatens to destroy the site of Apache coming-of-age ceremonies at Oak Flat, Arizona. Panelists noted that Indigenous peoples’ sacred sites are being destroyed not only by traditional extractive industries but also activities associated with “green energy,” such as lithium mining for rechargeable car batteries or placement of windmills over tribal objections on traditional lands. Panelists, led by Professor Anaya, himself a former UN Special Rapporteur on the Rights of Indigenous Peoples, discussed ways to use the Declaration’s articles in these cases.

“The EMRIP session follows on the AILP’s attendance at the UN Permanent Forum on Indigenous Issues in April. Prof. Christina Stanton brought a group of American Indian Law Clinic students - including Michele Manceaux ‘24, Chandler Spoon ‘23, and Spencer Garcia ‘24 -- who worked to help prepare tribes and Permanent Forum members for the session,” Carpenter said. “Representatives from the Shawnee, San Carlos Apache, Blackfeet, and Euchee tribal governments, as well as the Navajo Nation Human Rights Commission, attended the Permanent Forum Session. The AILC students were instrumental in helping to ensure tribal leaders’ access to UN, from reviewing draft reports to navigating the badge office.”

This summer, Colorado Law students Taylor Courchaine ’25, Research Assistant at the AILP; and Charlotte Collingwood ’24, a clerk at NARF, are assisting with TIP’s research needs.

Language rights were a strong theme of the session, and Carpenter made an intervention on behalf of the AILP during “Item 7: International Decade of Indigenous Languages.” She highlighted Visions for the International Decade of Indigenous Languages 2022-2032, a special issue of the Colorado Environmental Law Journal edited by Ariel Barbieri-Aghib ‘23 and a team of students. The publication features tribal leaders, lawyers, linguists, and teachers assessing language revitalization as a matter of human rights. Carpenter noted the opportunity for the U.S. to prioritize Indigenous peoples’ language rights, sacred sites protection, and international repatriation as it rejoins the United Nations Educational, Scientific, and Cultural Organization (UNESCO) this year.

Prof. Carpenter, who served on EMRIP from 2017-2021, was recognized at the Session for contributions to Indigenous Peoples’ struggles for international repatriation of cultural objects. Over several years, EMRIP assisted the Yaqui People, a cross-border Indigenous nation from the U.S. and Mexico, in their claim to repatriate a ceremonial deer head known as the Maaso Kova from Sweden. As EMRIP’s Chair, Carpenter facilitated dialogue among Sweden and the Yaqui leading to a 2020 agreement and the ultimate repatriation in 2023. The Yaqui-Sweden matter was hailed as a standard for EMRIP country engagements, which aim to give practical effect to the Declaration.

Recourse to international diplomacy is often vital, especially when the U.S. and other countries violate tribal rights. As AILP faculty and students support Indigenous leaders’ access to international laws and venues, they help facilitate real world solutions to human rights challenges.

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How the 303 Creative SCOTUS decision may change anti-discrimination laws

Anonymous — Thu, 06 Jul 2023 17:25:24 +0000

How the 303 Creative SCOTUS decision may change anti-discrimination laws Anonymous (not verified) Thu, 07/06/2023 - 11:25

Julie Poppen , Nico Goda , originally published in CU ��«��Ƶ Today on July 3 , 2023

Originally published in CU ��«��Ƶ Today on July 3, 2023

Among the high-profile decisions the U.S. Supreme Court handed down last week was the 303 Creative case, in which the court ruled in favor of a web designer in Colorado who refuses to create messages that celebrate same-sex weddings out of religious objections.

The court’s 6-3 decision marks a significant blow to LGBTQ+ protections. Justices grounded the ruling in protections for free speech. The ruling will affect businesses that trade in so-called “expressive” goods.

CU ��«��Ƶ Today interviewed CU ��«��Ƶ Law Professor Scott Skinner-Thompson, who focuses on LGBTQ+ and HIV legal issues, on the application of the First Amendment and the ruling’s legal implications for LGBTQ+ rights.

What can businesses do or not do under this ruling?

Even the majority opinion authored by Justice Neil Gorsuch says that generally speaking, these kinds of public accommodation nondiscrimination laws are unexceptional. And they're part of a long, proud history of protecting people in the marketplace. On the other hand, the majority also suggests that if you can prove that your business is expressive in some way, then you're more likely to be able to fall into this newly created exception to anti-discrimination law and say, ‘Well, I'm exempt because what I do is expressive.’ Going forward we're going to see lots of businesses try to say that they are expressive and therefore don't have to comply with nondiscrimination.

How does that affect the LGBTQ+ community?

Justice Sonia Sotomayor summarized it really powerfully. These (non-discrimination) laws do two things: They guarantee equal access to a product and they communicate and prevent dignitary harms to minoritized groups. There are going to be instances where people in conservative, smaller markets are going to be denied access to services. But even if you are a queer person living in metro Denver and can find a business that will serve you, knowing that a business does not have an obligation to and can openly signal their unwillingness to do so inflicts a dignitary harm on you separate and apart from any unequal access.

How does the definition of ‘expressive’ change with this ruling?

It's a really critical question and there's going to be more and more incentive to cast what a business is doing as expressive. While generally speaking queer people benefit from a broad definition of what counts as expressive because that in turn can protect our expressive identities, in this case the court focused too much on whether the underlying activity was expressive rather than whether the law targeted that expression. As Justice Sotomayor noted, the law didn’t target expression–it was a neutral, generally applicable law that incidentally burdened expression.

People are comparing this to the Masterpiece Cake Shop decision from a few years ago. Do you see similarities?

They're very similar. Five years ago, Masterpiece dealt with cake baking for a wedding as opposed to a wedding website. But the court in that case in large part punted and said that the application in that instance was unconstitutional because of some rhetoric they glommed onto from the state commission that they perceived as anti-religious. But we're dealing with the same statute and similar principles of freedom of expression and/or religion. However, in that instance, a majority of the court seemed to suggest that these kinds of laws generally were unremarkable. And you see both the dissent and the majority from 303 Creative trumpeting that language from Masterpiece in this case.

How can people who want to be LGBTQ+ allies push for change at this point?

This is a time when, despite some measure of progress for some within the queer community, there are incredible attacks on the lives of queer people, in particular trans people, going on. On an individual level, reaching out to those in your orbit who are queer to express solidarity is a great place to start. Also, engagement with civil society to try to change these laws and judicial interpretations is going to be critical.

Could this ruling apply to other groups?

This decision is not limited to queer people. If you think the application of anti-discrimination law is going to force you to express something you don't believe in, like, for instance, interracial marriage, that becomes a possible exception, right? So we're going to see greater segregation within the marketplace. I do think this is a step back. I also think it's really important to affirm that it is still illegal in Colorado for businesses to discriminate against gay people.

CU ��«��Ƶ Today regularly publishes Q&As with our faculty members weighing in on news topics through the lens of their scholarly expertise and research/creative work. The responses here reflect the knowledge and interpretations of the expert and should not be considered the university position on the issue. All publication content is subject to edits for clarity, brevity and university style guidelines.

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