Professor Suzette Malveaux, Judge Bernice Donald, and Dean Lolita Buckner Inniss.

Celebrating its tenth anniversary, the 2021 John Paul Stevens Lecture took place on October 19 virtually and in-person at the University of Colorado Law School. The Honorable Bernice B. Donald of the United States Court of Appeals for the Sixth Circuit spoke on defining the “Rule of Law.”  Opening remarks were given by Dean Lolita Buckner Inniss, Professor Suzette Malveaux, director of the Byron R. White Center and Provost Professor of Civil Rights Law; and Kathryn A. Starnella, president-elect of the Colorado Women's Bar Association, a co-sponsor of the event.

In her lecture, Judge Donald reflected on the judiciary and the legal system as she prepares to take senior status. Before the backdrop of the Memphis Massacre of 1866, Judge Donald spoke about the hope that the law would someday be viewed as a system that was applied equally to all people. In a symbolic story, Judge Donald told the crowd of one of her earliest experiences as a judge in Mississippi. On her first day as a judge, she, a Black judge, had two Black clerks, a Black bailiff, Black guards, a Black prosecutor, and a white male defendant. Judge Donald recalls that the defendant, having walked into a courtroom where no one looked like him, asked for a continuance, which she granted. When the defendant returned weeks later, Judge Donald recalls that he had a Black attorney with him. Judge Donald grappled with the fact that the defendant may have felt he could not have received a fair chance because he was white and everyone else in the courtroom was Black. After this experience, Judge Donald asked to diversify her courtroom. The takeaway of this experience was that the perception of justice is just as important as justice itself. That is to say, that in defining the “Rule of Law,” we must not only look at how the law impacts “our” people, or people that look like us, but rather all people.

Professor Suzette Malveaux speaks with Judge Bernice Donald during the 2021 Stevens Lecture.

During the fireside chat with Professor Malveaux, Judge Donald told many short stories, all of which centered around the importance of the perception of justice and the “Rule of Law.” She grappled with the critical question: How do we as a society come to agree on what “Rule of Law” means? A woman of many firsts, Judge Donald has become accustomed to the public gaze. Addressing the perception of herself as a “dissenting judge,” Judge Donald spoke both to the importance of collegiality and to the importance of having her voice heard, referencing Justice Harlan's dissent in Plessy, in which it took 50 years for the dissent to become the majority. Speaking on courage, Judge Donald told the audience about her parents who grew up with far fewer opportunities than she did and how, because of that, she had the courage to go forward. She recalled the words of her mother: “You are just as good as everyone else.”

Jude Donald’s insights into the legal profession were brought to the forefront as student leaders asked her questions ranging from what her decision-making process looks like and how it has changed over the years to how the tensions between the First Amendment and civil rights should be resolved. When she was asked if she thought whether Black women have truly made progress in the legal field since the 1960s and 70s, or if she still thinks there is a long way to go, she answered, “yes and yes.” Ultimately, Judge Donald emphasized the importance of reaching back to help those who are coming after you once you have arrived at where you are going.

April Jones, president of the Sam Cary Bar Association, a co-Sponsor of the event, gave closing remarks and presented Judge Donald with a gift from the community. Following the lecture and fireside chat, there was an outdoor reception and intimate dinner with invited guests at Hotel �鶹ӰԺado.

In the days following the Stevens Lecture, April Fortner, student and Fellow of the Byron White Center says, “My biggest takeaway was to go for your goals, even if the road is long and hard. Persevere, don't give up. She faced an incredibly challenging road to get where she is, and I am truly inspired by Judge Donald.”

L-R: Kathryn Starnella (president-elect of Colorado Women’s Bar Association); Kehinde Winful, BWC Fellow; Professor Suzette Malveaux; Judge Bernice Donald; Dean Lolita Buckner Inniss; Veronica Gonzalez; and Erin Vanek, BWC Fellow.

Watch a recording of the 2021 Stevens Lecture

[video:https://youtu.be/fGBxG-e5NUI]

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, clinical professor at the University of Colorado Law School, is the 2020 recipient of the Colorado Criminal Defense Bar’s “Advancing Justice” Award.

Ann England accepting the "Advancing Justice" Award on Sept. 10, 2021.

The award recognizes England’s years of teaching aspiring lawyers in Colorado Law’s Criminal Defense Clinic and serving as a role model and mentor for those new to criminal law. Over 120 of England’s former students have gone on to work as public defenders in Colorado and across the nation. The award, which honors those whose work has had an “exceptional impact on the criminal justice system and those accused of crimes, or for outstanding service to the criminal defense community,” also recognizes her prior work as both a state and federal public defender.

“I am honored to have been given this award by the Colorado Criminal Defense Bar and to have had the privilege of teaching so many dedicated law students who are going to change our world for the better,” England said. “In my heart, I am a public defender, and getting the opportunity to continue to be a public defender, represent clients, and teach students has been amazing.”

England leads the Criminal Defense Clinic, in which law students defend clients who are charged with misdemeanor crimes in �鶹ӰԺ County and municipal courts in both Aurora and �鶹ӰԺ. She also serves as faculty director of the Korey Wise Innocence Project, which she helped to establish at Colorado Law in 2010 and secure permanent funding for in 2015. Additionally, she coordinates the annual National College of Capital Voir Dire, which trains capital defense lawyers on the Colorado Method of capital voir dire.

Since joining Colorado Law in 2005, England has acted as assistant dean of admissions, coached mock trial, taught Trial Advocacy numerous times, created a jury selection course, and is currently teaching a course on poverty law.

Ann England, center, with Colorado Law students and Korey Wise Innocence Project volunteers

In recognition of her dedication to public service, in 2014 she received the Clifford Calhoun Public Service Award, given annually to the person who contributes to the public service of Colorado Law in the spirit and tradition of the contributions made by Professor Emeritus Clifford Calhoun during his 29-year law school career.

Before joining Colorado Law, England worked at the Federal Public Defender's Office and the Colorado State Public Defender's Office. At the Colorado State Public Defender's Office, she worked in Arapahoe, Adams, Weld, Logan, and Denver counties as a deputy state public defender. She later became a division lead at the Colorado State Public Defender's Office in Denver.

Several of England’s former students and friends organized a special dinner in her honor following the award ceremony on September 10.

“It’s not every day that a law professor is recognized by the legal community for contributions to the practice, and I am so proud to be Ann’s colleague,” said Clinical Professor Colene Robinson, who co-teaches the Comparative Family Law course with England.

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Last spring, University of Colorado Law School Professor concluded two terms as the North American member of the United Nations Expert Mechanism on the Rights of Indigenous Peoples. Her work connecting international human rights standards to domestic policy, however, is far from over.

Kristen Carpenter addresses the High Level Closing of the International Year of Indigenous Languages, Los Pinos, Mexico, 2019.

From 2017 until 2021, Professor Kristen A. Carpenter served on the United Nations Expert Mechanism on the Rights of Indigenous Peoples (EMRIP). EMRIP is a subsidiary body of the U.N.’s Human Rights Council, charged with advising the council on the human rights of Indigenous Peoples. More specifically, EMRIP is mandated to “assist states and Indigenous Peoples in realizing the aims of the U.N. Declaration on the Rights of Indigenous Peoples.”

Comprising seven individuals, EMRIP is tasked with advancing Indigenous Peoples’ human rights around the world. During her two terms, Carpenter worked on matters involving Indigenous Peoples in Brazil, Canada, Democratic Republic of Congo, Finland, Japan, Kenya, Mexico, Russia, South Africa, Sweden, Thailand, and the United States. She provided advice on issues including Indigenous Peoples’ rights in the context of migration and borders; free, prior, and informed consent; land; the well-being of children; and cultural rights.

Alexey Tsykarev, former EMRIP member from the Russian Federation and Eastern Europe, said that Carpenter was “strong and strategic, smart and open-minded, while speaking at the U.N. General Assembly, meeting ambassadors, drafting studies, and leading negotiations. She showed compassion and solidarity even with those who had different views; her sense of justice and ability to build on collective wisdom were a source of inspiration.”

Carpenter notes that she could not have taken the position without the support of colleagues and students at Colorado Law.

Indigenous Peoples in International Law

Colorado Law has a decades-long commitment to federal Indian law, going back to American Indian alumni of the late 1960s and early 1970s including Vine Deloria ('70) and Thomas Fredericks ('72). The late Dean David H. Getches, along with Professors Rick Collins, Carla Fredericks, Sarah Krakoff, Jill Tompkins, and Charles Wilkinson, established an unparalleled reputation for scholarship, teaching, and service to tribes in the U.S. through Colorado Law’s American Indian Law Program.

With the arrival of Dean S. James Anaya, the law school embraced the internationalization of the field. Before becoming dean, Anaya served for six years as the U.N. Special Rapporteur on the Rights of Indigenous Peoples and authored major texts on Indigenous Peoples and self-determination. When the EMRIP position in North America opened, Anaya encouraged Carpenter to enter into the nomination and vetting process, including letters of support from Indigenous Peoples and interviews by a group of ambassadors based in Geneva.

Once appointed by the president of the Human Rights Council in 2017, however, Carpenter’s first trip was not to an international destination but rather to Oklahoma. Judge Greg Bigler invited Carpenter to meet with Muscogee, Cherokee, Shawnee, Euchee, and Seminole ceremonial leaders who had been following activities at the U.N. since the 1970s when the Muscogee leader Philip Deere had gone to Geneva advocate for his people.

“For us as traditional people, the goal of engaging with the U.N. is to better protect our unique identity, culture, and society,” Bigler said.

For Carpenter, the visit emphasized the importance of being grounded at home. “It was clear to me that while I might be traveling all over the world, I should keep the concerns and values of American Indian cultural leaders very close to my heart,” she said.

Kristen Carpenter with tribal ceremonial leaders in Oklahoma.

Making a Difference

In 2019 Carpenter was elected to serve as EMRIP’s chair-rapporteur, a role that exposed her to the challenges of diplomacy and the urgency of human rights. That summer, several Indigenous representatives who spoke at EMRIP’s annual session faced reprisals in their home countries, including the killing of family members and destruction of their home villages. Carpenter held meetings with ambassadors from those countries, urging investigation and protection for the Indigenous human rights defenders. Some of her fellow EMRIP members also faced reprisals, losing their jobs at home or being denied entry into other countries.

“States are not always eager to have an international human rights body come into their sovereign territory,” Carpenter said. “Even though EMRIP’s mandate aims for constructive solutions, versus critical reports, it still took many discussions to arrive at a mutually amenable plan and then carry it out in a meaningful way.”

In Mexico City, EMRIP worked with Indigenous Peoples and the government regarding the implementation of a new constitution, the first to explicitly adopt the U.N. Declaration on the Rights of Indigenous Peoples.

During a visit to an Indigenous community within the city boundaries, Carpenter recalled leaders taking out documents written in the Nahua language that dated back to the 1500s, raising the issue of how the new law would intersect with the old. In some of the Indigenous villages, women did not have access to information about political developments in Mexico City. EMRIP members brought these questions and other issues back to training sessions with government ministers to advance attentiveness to Indigenous rights.

In 2020, following two years of preparation, EMRIP facilitated a dialogue between the Yaqui people and the Swedish Museum of World Culture, which led to an historic agreement in principle to repatriate the Maaso Kova, a ceremonial deer head. The deer head had been acquired from the Yaqui decades earlier when they were relocated from their homelands by the Mexican army. Carpenter, drawing from her expertise in cultural rights, served as EMRIP’s lead member on this matter.

The Yaqui delegation informs Carpenter about their claim for repatriation of a ceremonial object from the Swedish Museum of World Cultures.

“EMRIP’s engagement produced advances for other Indigenous Peoples engaged in repatriation efforts, including endorsing the establishment of an effective international mechanism for repatriation based on the recognition of Indigenous Peoples’ own laws governing the use and treatment of our sacred items in accordance with Article 11 of the U.N. Declaration,” said Andrea Carmen, executive director of the International Indian Treaty Council.

Bringing Human Rights Home

Together with counterparts at the Native American Rights Fund (NARF), Carpenter co-founded the . The project seeks to provide education and access regarding international human rights frameworks as tools in American Indian law challenges. Carpenter’s role at the U.N. coupled with her relationships in tribal communities, helped bridge a gap between the human rights sphere as it exists in spaces like the U.N. and the realities lived by those in marginalized communities.

The NARF-Colorado Project also provides opportunities for Colorado Law students to gain practical experience in human rights.

Edyael Casaperalta ('18) attended sessions on the Tohono O’Odham Reservation in Arizona and in Chiang Mai, Thailand, which contributed to EMRIP’s study on Indigenous Peoples’ rights in the global migration context. Casperalta assisted with the first report of the NARF-Colorado Law Project, as well as its inaugural conference in 2018 that brought together lawyers and non-lawyers to discuss the needs of Indian country. Casaperalta was recently named senior policy advisor for the Rural Utilities Service Agency in the Department of Agriculture.

Edyael Casaperalta (’18), far right, and Kristen Carpenter, center, attend a meeting with Indigenous human rights defenders at the Asia Pacific Peoples Pact in Chiang Mai, Thailand (2018).

While students at Colorado Law, Marissa Weber (‘19) and Cierra White (’19) attended EMRIP’s annual session in Geneva. Weber went on to become an attorney with the International Criminal Court and is now an assistant district attorney in New York. White is a partner at a firm in Florida, licensed to practice before the Poarch Creek Tribal Court.

Alexandra Payan (’21) took Carpenter’s Indigenous Peoples and International Law class. The syllabus that year included training from guest experts on conducting negotiation and dialogue in the international human rights context and a simulation in which students took on the roles of advocates for Indigenous Peoples and national governments.

“Professor Carpenter’s personal expertise was both inspiring and incredibly helpful in understanding how and why Indigenous Peoples law should be conceptualized as a relevant matter in all areas of study and practice,” said Payan, who has since worked on Indigenous Peoples’ issues at the U.S. Agency for International Development.

In one of EMRIP’s last engagements before the COVID-19 pandemic, Noriana Franco Novoa (LLM ’20), together with former American Indian Law Program Fellow Danielle Lazore-Thompson, assisted with a seminar at the University of British Columbia regarding the repatriation of human remains and sacred objects. Novoa applied her experience as a lawyer in Colombia, as well as Spanish language skills, to help EMRIP draft a report urging that international covenants such as the UNESCO 1970 Convention should be interpreted consistent with the U.N. Declaration’s recognition of Indigenous Peoples’ rights to culture, religion, and property.

Noriana Franco Novoa (LLM ’20), Kristen Carpenter, and former American Indian Law Program Fellow Danielle Lazore-Thompson at a cultural rights seminar in Vancouver, British Columbia.

Current American Indian Law Program (AILP) Fellow Kevin Miller (’20) recently accepted Carpenter’s offer to extend his fellowship through the 2021-22 academic year. They, along with Native American Rights Fund staff attorney Sue Noe, will travel to Indigenous communities in North America to engage in discussions with tribal leaders interested in better understanding how international human rights documents can be given power through tribal-level implementation.

The Colorado Law team, together with colleagues in CU �鶹ӰԺ’s linguistics department, are also deeply involved in preparations for the U.N.’s International Decade on Indigenous Languages, which spans 2022-2032, again helping to ensure that Indigenous Peoples will have a seat at the table when it comes to international measures to advance language rights.

Reflecting on Human Rights and Relationships

“What surprised me most in my five years was just how much the world’s Indigenous Peoples have in common, despite different local circumstances,” Carpenter said. “From the Sami people of Norway to the Khoi and San of South Africa, the Karen people of Thailand to the Mapuche of Chile, and of course the many tribes here in the United States, Indigenous Peoples are closely tied to the land, to ceremonial ways of life, and the collective well-being of their people. They are resilient and determined, even after so many years of conquest and colonization, and in the face of the pandemic, to survive as distinct peoples.”

And what about realizing human rights? There are no easy answers, Carpenter said.

“Indigenous Peoples are leaders in human rights both because their situation is often so tenuous and because they have such deep traditions of humanity and relatedness. They teach about healing past harms and fostering wellbeing for the future. But it’s a long-term commitment. Indigenous Peoples embrace a concept of 'the Seven Generations' in which each person’s responsibility is tied to their relatives in an intergenerational web looking forward and back. This is the model that I am trying to follow and share with my students,” she said.

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Malveaux recently in Tulsa, sharing her insights.

In a May 21 keynote address at a hosted by the Tulsa Law Review at the University of Tulsa College of Law, Malveaux discussed her work serving for six years as pro bono counsel to the plaintiffs in Alexander v. State of Oklahoma, a suit filed in federal court in 2003 against the city of Tulsa on behalf of more than 130 survivors of the 1921 massacre. The plaintiffs asserted that the government violated the constitutional rights of Black citizens when it deputized and armed a white mob who attacked residents, homes, and businesses in the predominantly Black Greenwood district of Tulsa, Oklahoma, in 1921.

"It felt great to share about a case that shaped and inspired my career as a civil rights lawyer," Malveaux said. "When I left civil rights practice after eight years and entered academia (where I’ve been for the last 18), there’s only one case that I held onto during that transition and it was Tulsa. These were formative years for me and I’m grateful to have had the privilege of working on it with an amazing team of lawyers."

Malveaux with her client in 2003 case, 104-year-old Tulsa survivor Otis Clark.

At last week’s symposium in Tulsa, Malveaux shared her experience of what it was like to fight for clients over 100 years old who were attempting to be heard and vindicated for their loss.  

"One of the main things I’ve learned about what it takes to be engaged in transformative justice is it requires a lot of creativity.  And sometimes, when you don’t reach the goal post, you move it and claim victory," she said. "You have to be willing to redefine success—which is the story of our efforts to seek justice for the victims of the Tulsa massacre. We sought relief via litigation filed in the federal courts, claims brought in international tribunals, legislation introduced before Congress, scholarship published in law reviews, and ultimately an educational campaign waged nationwide. While we didn’t succeed in the traditional sense of the law, we gave voice and dignity to our clients. It’s important not to give up and not to forget."

The Tulsa Race Massacre, which occurred May 31–June 1, 1921, remains one of the worst incidents of racial violence in U.S. history. The immaculate homes and businesses in Greenwood’s “Black Wall Street” were looted and burned to the ground. News reports were largely squelched and evidence was suppressed, despite the fact that hundreds of Black citizens were killed and thousands left homeless. Millions of dollars in damage resulted, depriving survivors the ability to pass along generational wealth to their descendants.

Malveaux at a 2007 congressional hearing with renowned historian John Hope Franklin and then-Judiciary Committee chair John Conyers.

Previous attempts at restitution for survivors have been unsuccessful; however, survivors are still fighting for justice. The last living three survivors of the massacre (aged 107, 106, and 100) before Congress in support of new litigation and legislation being pursued to bring relief for the survivors and their descendants.  

Malveaux joined the Colorado Law faculty in 2017 and serves as director of the Byron R. White Center for the Study of American Constitutional Law. Prior to academia, she was a class action litigation specialist who second chaired oral argument before the U.S. Supreme Court and argued before the 11th Circuit Court of Appeals. She teaches Civil Procedure, Employment Discrimination, and Problems in Constitutional Law.

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Read More:

• 100 years later: Colorado Law professor reflects on Tulsa Race Massacre
• Suzette Malveaux interview with 9News:

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Scholars will discuss the ideas explored in University of Colorado Law School Professor Helen Norton's recent book, The Government’s Speech and the Constitution, at the University of Illinois Law Review Symposium on April 16. The symposium aims to influence the conversation about the important yet underexplored constitutional implications of the government’s speech for years to come. Contributors include Erwin Chemerinsky, Danielle Keats Citron, Kate Shaw, Michael Kang, William Araiza, Alex Tsesis, Mary-Rose Papandrea, Wendy Parmet, Claudia Haupt, Ciara Torres-Spelliscy, Jacob Eisler, and Clifford Rosky.

Symposium Description

The government’s speech is inevitable and often constitutionally valuable: even at its most infuriating, the government’s speech informs the public about its government’s principles and priorities, providing us with important information that helps us evaluate our government. The Supreme Court has thus appropriately recognized that the Free Speech Clause generally does not bar the government’s ability to express its own views when doing the government’s work.

But as the government’s expressive capacities grow, so too does the potential for undermining others’ speech and distorting public discourse. Indeed, the government is unique among speakers because of its coercive power as sovereign, its considerable resources, its privileged access to key information, and its wide variety of speaking roles as policymaker, commander-in-chief, employer, educator, health care provider, property owner, and more. Yet, as Helen Norton suggests in her recent book on “The Government’s Speech and the Constitution,” the Court’s government speech doctrine to date remains dangerously incomplete in its failure to wrestle with the ways in which the government’s speech sometimes affirmatively threatens specific constitutional values.

When we discuss constitutional law, we usually focus on the constitutional rules that apply to what the government does. Far less clear are the constitutional rules that apply to what the government says. This Symposium will engage a variety of questions explored in Norton’s book: When does the speech of this unusually powerful speaker violate our constitutional rights and liberties? More specifically, when does the government’s expression threaten liberty or equality? And under what circumstances does the Constitution prohibit our government from lying to us?

Agenda
(all times Central Time)
 
10:00-10:05: Welcoming Remarks
Vikram D. Amar, University of Illinois College of Law

10:05-10:15: Opening Keynote
Helen Norton, University of Colorado Law School

10:15-11:20: Panel I
Panelists
Claudia E. Haupt and Wendy E. Parmet, Northeastern University School of Law
Kate Shaw, Cardozo School of Law
Danielle K. Citron, University of Virginia School of Law
Moderator
Jason Mazzone, University of Illinois College of Law

11:20-11:30: Break

11:30-12:50: Panel II
Panelists
William Araiza, Brooklyn Law School
Mary-Rose Papandrea, UNC School of Law
Clifford Rosky, University of Utah S.J. Quinney College of Law
Alexander Tsesis, Loyola University Chicago School of Law
Moderator
Jason Mazzone, University of Illinois College of Law

12:50-13:00: Break

13:00-14:00: Panel III
Panelists
Erwin Chemerinsky, UC Berkeley School of Law
Michael S. Kang, Northwestern Pritzker School of Law, and Jacob Eisler, University of Southampton Law School
Ciara Torres-Spelliscy, Stetson University College of Law
Moderator
Jason Mazzone, University of Illinois College of Law

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University of Colorado Law School Professor , an American Indian law scholar with expertise in property, cultural property, human rights, and Indigenous peoples, has been appointed as a justice of the inaugural Supreme Court of the .

Following her nomination by Chief Ben Barnes, Carpenter was confirmed by the Shawnee Tribal Council and sworn in during an online ceremony on Dec. 10, 2020, attended by tribal citizens, family, and friends. Tribal attorney Greg Bigler gave remarks on the importance of the court system. The oath was administered in both the English and Shawnee languages.

"I am deeply honored by the confidence entrusted in me by the Shawnee Tribe," Carpenter said. "At a time when Indigenous peoples are rebuilding their legal institutions, with attention to both traditional custom and contemporary circumstances, I will try to carry out my responsibilities with the utmost care and respect for the Shawnee people and all others within the jurisdiction."

"Our Tribe has always maintained and continued our culture and traditions," Barnes said. "It is my hope that with the creation of this Supreme Court for our nation, not only will we continue to grow our sovereignty as expressed through this action, but continue to legislate protections for our peoples' inherent rights to our traditional religions, to practice their culture, and to codify the United Nations Declaration on the Rights of Indigenous Peoples into Shawnee law as well as, ultimately, translate it into our Shawnee language."

Carpenter, who joined the Colorado Law faculty in 2009, is Council Tree Professor of Law and director of the American Indian Law Program. She serves on the United Nations Expert Mechanism on the Rights of Indigenous Peoples as its member from North America, one of seven worldwide experts to provide advice and assistance on Indigenous peoples' rights.

Carpenter is an elected member of the American Law Institute and served for many years on the board of the Federal Bar Association’s Indian Law Section.

She has written extensively on federal Indian law and is the coauthor of the widely used casebook Cases and Materials on Federal Indian Law. Her recent articles include “,” with Alexey Tsykarev, published in the UCLA Journal of International Law and Foreign Affairs, and “,” with Angela R. Riley, published in Stanford Law Review.

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