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Abstract

Critical Race Theory identifies two of the United States’ original sins: slavery and conquest; yet, while the former is well known, the latter is simultaneously obvious and unknown, creating a disconnect between the history of violent conquest to the disparities that continue to afflict indigenous communities today. This lack of understanding and acknowledgement also permeates the federal courts—an issue extensively documented by Critical Race Theory and federal Indian law academics. Yet, limited scholarship has interrogated if and how state judicial systems may parallel the failures of federal benches. This Note examines the “hidden,” yet enduring impact of conquest by applying Critical Race Theory perspectives to cultural resources protection, as safeguarded (or hindered) by state court interpretations of both historic preservation laws and environmental review processes. Specifically, this research focuses on the state judicial systems of California, Hawai‘i, and Washington—predominantly liberal and social justice-oriented political arenas with large indigenous populations—to investigate if and how state court approaches to statutory interpretation affect the protection, preservation, and tangible and intangible rights to land of Native Americans, Alaskans, Hawaiians, and other Pacific Islanders. As the Western United States’ “liberal sisters,” do California, Hawai‘i, and Washington’s politics foster judicial interpretations favorable to indigenous communities? Or, conversely, do liberal legislative and popular appeals to civil rights and environmental protection fail to facilitate judicial respect for Native knowledge and sovereignty? By applying a Critical Race Theory lens, this Note reveals that even in liberal enclaves, state courts uphold interpretations rooted in white supremacy and settler colonialism that diminish indigenous cultural resources protections and thereby perpetuate modern day conquest.

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