Law Commons^™

“Aspirations”: The United States And Indigenous Peoples’ Human Rights, Kristen A. Carpenter

Publications

The United States has long positioned itself as a leader in global human rights. Yet, the United States lags curiously behind when it comes to the human rights of Indigenous Peoples. This recalcitrance is particularly apparent in diplomacy regarding the United Nations Declaration on the Rights of Indigenous Peoples. Adopted by the United Nations General Assembly in 2007, the Declaration affirms the rights of Indigenous Peoples to self-determination and equality, as well as religion, culture, land, health, family, and other aspects of human dignity necessary for individual life and collective survival. This instrument was advanced over several decades by Indigenous …

Visions For The International Decade Of Indigenous Languages 2022-2032, Kristen A. Carpenter, Andrew Cowell, Alexis Palmer

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The United Nations General Assembly recently proclaimed the International Decade of Indigenous Languages ( "IDIL") from 2022-2032 to "to draw attention to the critical loss of indigenous languages and the urgent need to preserve, revitalize and promote indigenous languages and to take urgent steps at the national and international levels." The Decade is an opportunity to expose and address the severe loss of Indigenous Peoples' languages locally, regionally, and globally. It is a chance for the entire world community to gather together and commit to bringing Indigenous languages back from the brink of dormancy or extinction.

Algorithmic Impact Assessments Under The Gdpr: Producing Multi-Layered Explanations, Margot E. Kaminski, Gianclaudio Malgieri

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Policy-makers, scholars, and commentators are increasingly concerned with the risks of using profiling algorithms and automated decision-making. The EU’s General Data Protection Regulation (GDPR) has tried to address these concerns through an array of regulatory tools. As one of us has argued, the GDPR combines individual rights with systemic governance, towards algorithmic accountability. The individual tools are largely geared towards individual “legibility”: making the decision-making system understandable to an individual invoking her rights. The systemic governance tools, instead, focus on bringing expertise and oversight into the system as a whole, and rely on the tactics of “collaborative governance,” that is, …

The Law Of Ai, Margot Kaminski

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No abstract provided.

Introduction To The Symposium On The Impact Of Indigenous Peoples On International Law, S. James Anaya, Antony Anghie

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No abstract provided.

Living The Sacred: Indigenous Peoples And Religious Freedom, Kristen A. Carpenter

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No abstract provided.

Decolonizing Indigenous Migration, Angela R. Riley, Kristen A. Carpenter

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As global attention turns increasingly to issues of migration, the Indigenous identity of migrants often remains invisible. At the U.S.-Mexico border, for example, a significant number of the individuals now being detained are people of indigenous origin, whether Kekchi, Mam, Achi, Ixil, Awakatek, Jakaltek or Qanjobal, coming from communities in Venezuela, Honduras, Guatemala and other countries. They may be leaving their homelands precisely because their rights as Indigenous Peoples, for example the right to occupy land collectively and without forcible removal, have been violated. But once they reach the United States, they are treated as any other migrants, without regard …

Indigenous Peoples And Diplomacy On The World Stage, Kristen Carpenter, Alexey Tsykarev

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No abstract provided.

A Prolegomenon To The Study Of Racial Ideology In The Era Of International Human Rights, Justin Desautels-Stein

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There is no critical race approach to international law. There are Third World approaches, feminist approaches, economic approaches, and constitutional approaches, but notably absent in the catalogue is a distinct view of international law that takes its point of departure from the vantage of Critical Race Theory (CRT), or anything like it. Through a study of racial ideology in the history of international legal thought, this Article offers the beginnings of an explanation for how this lack of attention to race and racism came to be, and why it matters today.

The Right To Contest Ai, Margot E. Kaminski, Jennifer M. Urban

Publications

Artificial intelligence (AI) is increasingly used to make important decisions, from university admissions selections to loan determinations to the distribution of COVID-19 vaccines. These uses of AI raise a host of concerns about discrimination, accuracy, fairness, and accountability.

In the United States, recent proposals for regulating AI focus largely on ex ante and systemic governance. This Article argues instead—or really, in addition—for an individual right to contest AI decisions, modeled on due process but adapted for the digital age. The European Union, in fact, recognizes such a right, and a growing number of institutions around the world now call for …

(Indigenous) Language As A Human Right, Kristen Carpenter, Alexey Tsykarev

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The United Nations General Assembly has proclaimed 2022-2032 as the International Decade of Indigenous Languages. Building on lessons of the International Year of Indigenous Languages of 2019, the Decade will "draw attention to the critical loss of indigenous languages and the urgent need to preserve, revitalize and promote indigenous languages." These actions are necessary, in part, because existing laws and policies have proven inadequate to redress the legacy of state suppression of indigenous languages or ensure nondiscrimination in contemporary usage. In light of the International Year and Decade, this Article explores the rights of indigenous peoples to "use, revitalize, and …

Privatizing The Reservation?, Kristen A. Carpenter, Angela R. Riley

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The problems of American Indian poverty and reservation living conditions have inspired various explanations. One response advanced by some economists and commentators, which may be gaining traction within the Trump Administration, calls for the “privatization” of Indian lands. Proponents of this view contend that reservation poverty is rooted in the federal Indian trust arrangement, which preserves the tribal land base by limiting the marketability of lands within reservations. In order to maximize wealth on reservations, policymakers are advocating for measures that would promote the individuation and alienability of tribal lands, while diminishing federal and tribal oversight.

Taking a different view, …

Binary Governance: Lessons From The Gdpr’S Approach To Algorithmic Accountability, Margot E. Kaminski

Publications

Algorithms are now used to make significant decisions about individuals, from credit determinations to hiring and firing. But they are largely unregulated under U.S. law. A quickly growing literature has split on how to address algorithmic decision-making, with individual rights and accountability to nonexpert stakeholders and to the public at the crux of the debate. In this Article, I make the case for why both individual rights and public- and stakeholder-facing accountability are not just goods in and of themselves but crucial components of effective governance. Only individual rights can fully address dignitary and justificatory concerns behind calls for regulating …

Human Rights Racism, Anna Spain Bradley

Publications

International human rights law seeks to eliminate racial discrimination in the world through treaties that bind and norms that transform. Yet law’s impact on eradicating racism has not matched its intent. Racism, in all of its forms, remains a massive cause of discrimination, indignity, and lack of equality for millions of people in the world today. This Article investigates why. Applying a critical race theory analysis of the legal history and doctrinal development of race and racism in international law, Professor Spain Bradley identifies law’s historical preference for framing legal protections around the concept of racial discrimination. She further exposes …

Standing Rock, The Sioux Treaties, And The Limits Of The Supremacy Clause, Carla F. Fredericks, Jesse D. Heibel

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The controversy surrounding the Dakota Access Pipeline (“DAPL”) has put the peaceful plains of North Dakota in the national and international spotlight, drawing thousands of people to the confluence of the Missouri and Cannonball Rivers outside of Standing Rock Sioux Reservation for prayer and peaceful protest in defense of the Sioux Tribes’ treaties, lands, cultural property, and waters. Spanning over 7 months, including the harsh North Dakota winter, the gathering was visited by indigenous leaders and communities from around the world and represents arguably the largest gathering of indigenous peoples in the United States in more than 100 years.

At …

Responsible Resource Development: A Strategic Plan To Consider Social And Cultural Impacts Of Tribal Extractive Industry Development, Carla F. Fredericks, Kate Finn, Erica Gajda, Jesse Heibel

Publications

This paper presents a strategic, solution-based plan as a companion to our recent article, Responsible Resource Development and Prevention of Sex Trafficking: Safeguarding Native Women and Children on the Fort Berthold Reservation, 40 Harv. J.L. Gender 1 (2017). As a second phase of our work to combat the issues of human trafficking and attendant drug abuse on the Mandan, Hidatsa and Arikara Nation (MHA Nation), we developed a strategic plan to better understand the time, scale, and capacity necessary to address the rising social problems accompanying the boom of oil and gas development there. During our process, we discovered, …

Operationalizing Free, Prior, And Informed Consent, Carla F. Fredericks

Publications

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) has acknowledged varying ways in which international actors can protect, respect and remedy the rights of indigenous peoples. One of these methods is the concept of free, prior and informed consent (FPIC) as described in Articles 10, 19, 28 and 29. There has been much debate in the international community over the legal status of the UNDRIP, and member states have done little to implement it. In applied contexts, many entities like extractive industries and conservation groups are aware of risks inherent in not soliciting FPIC and have endeavored to …

Responsible Resource Development And Prevention Of Sex Trafficking: Safeguarding Native Women And Children On The Fort Berthold Reservation, Kathleen Finn, Erica Gajda, Thomas Perin, Carla Fredericks

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In 2010, large deposits of oil and natural gas were found in the Bakken shale formation, much of which is encompassed by the Fort Berthold Indian reservation, home to the Mandan, Hidatsa, and Arikara Nation (“MHA Nation” or “Three Affiliated Tribes” or “the Tribe”). However, rapid oil and gas development has brought an unprecedented rise of violent crime on and near the Fort Berthold reservation. Specifically, the influx of well-paid male oil and gas workers, living in temporary housing often referred to as “man camps,” has coincided with a disturbing increase in sex trafficking of Native women. The social risks …

Zero-Tolerance Comes To International Law, Aya Gruber

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No abstract provided.

Owning Red: A Theory Of Indian (Cultural) Appropriation, Angela R. Riley, Kristen A. Carpenter

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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 …

Report Of The Special Rapporteur On The Rights Of Indigenous Peoples On The Situation Of Indigenous Peoples In The Republic Of The Congo, S. James Anaya

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No abstract provided.

Report Of The Special Rapporteur On The Rights Of Indigenous Peoples On The Situation Of Indigenous Peoples In Canada, S. James Anaya

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No abstract provided.

Plenary Energy, Carla F. Fredericks

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An incompatible relationship exists between the federal trust responsibility over Indian tribes and tribal sovereignty, the conflicting nature of which has been exacerbated by numerous judicial confirmations of the unbridled congressional plenary power over all tribal affairs. Nowhere is there more conflict between the trust responsibility and sovereignty than within the context of mineral resource development on tribal lands. The evolution of the regulatory framework of Indian mineral development can be viewed as a continuum, with maximum trust obligation and minimum tribal sovereignty on one extreme, and an inversion of these two variables on the other. There currently exists pending …

Report Of The Special Rapporteur On The Rights Of Indigenous Peoples On Extractive Industries And Indigenous Peoples, S. James Anaya

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No abstract provided.

Report Of The Special Rapporteur On The Rights Of Indigenous Peoples On The Situation Of Indigenous Peoples In The United States Of America, S. James Anaya

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No abstract provided.

Introduction, S. James Anaya

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No abstract provided.

Revoking Rights, Craig J. Konnoth

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In important areas of law, such as the vested rights doctrine, and in several important cases--including those involving the continued validity of same-sex marriages and the Affordable Care Act--courts have scrutinized the revocation of rights once granted more closely than the failure to provide the rights in the first place. This project claims that in so doing, courts seek to preserve important constitutional interests. On the one hand, based on our understanding of rights possession, rights revocation implicates autonomy interests of the rights holder to a greater degree than a failure to afford rights at the outset. On the other …

Report Of The Special Rapporteur On The Rights Of Indigenous Peoples On The Situation Of Maori People In New Zealand, S. James Anaya

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No abstract provided.

Slides: “Human Sustainability” In Natural Resources Industries: The New Frontier In Compliance, Social Responsibility, Disclosure, And Transparency, T. Markus Funk

Natural Resource Industries and the Sustainability Challenge (Martz Winter Symposium, February 27-28)

Presenter: T. Markus Funk, Partner, Perkins Coie

21 slides

Introductory Remarks, James Anaya

Publications

These remarks were delivered at a Corporate Responsibility and Human Rights panel held on Wednesday, April 9, 2014.