“The Jurisgenerative Moment in Indigenous Human Rights” by Kristen Carpenter and Angela Riley

As indigenous peoples have become actively engaged in the human rights movement around the world, the sphere of international law, once deployed as a tool of imperial power and conquest, has begun to change shape. International human rights law is now serving as a basis for indigenous peoples’ claims against states and even influencing indigenous groups’ internal processes of decolonization. In this Article, we set out to document and provide a theoretical account of an unprecedented, but decidedly observable, phenomenon: the current moment in indigenous human rights law — manifesting at the tribal, national, and international levels — reflects the convergence of a set of inter-dynamic, mutually reinforcing conditions. The intersection of the rise of international human rights with paradigm shifts in post-colonial theory has, we argue, triggered a “jurisgenerative moment” in human rights law, one that pervades law-making at every level of human experience, and now recognizes indigenous peoples not only as subjects of human rights law entitled to individual rights in the conventional sense but also as “peoples” with interests in self-determination, equality, and cultural survival. Beyond identifying and framing this current moment, this Article also begins to bridge vital conversations occurring among contemporary international law scholars, on the one hand, and indigenous legal scholars on the other, about the formation of human rights law and the extent to which it makes a difference. Using examples of legal implementation on the ground, we examine indigenous human rights development at the tribal, national, and international levels. Through this account — historical, descriptive, theoretical, and exemplary — we describe a jurisgenerative moment in human rights taking shape in indigenous communities today, with the capacity to change the way we think about and realize human rights for all people.

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Kristen Carpenter is Associate Dean for Faculty Development, Associate Professor of Law, and Director of the American Indian Law Program at the University of Colorado Law School.

Angela Riley is Professor of Law and Director of the American Indian Studies Center at the University of California, Los Angeles