Rael V. Taylor and the Colorado Constitution: How Human Rights Law Ensures Constitutional Protection in the Private Sphere

Article excerpt

I. INTRODUCTION

Many Practitioners and scholars in the United States have adopted the position that the ratification of human rights treaties adds little or nothing to the protection of rights in America.(1) This is due to a perceived advanced state of constitutional rights protection.(2) However, most international human rights advocates have lamented the apparent lack of impact that the ratification of the International Covenant on Civil and Political Rights [ICCPR] has had on U.S. jurisprudence. They blame this on the many reservations, understandings, and declarations attached during its ratification by the Senate.(3)

The impact of the ratification has yet to be fully understood as an extremely important interpretive device for federal and state constitutions.(4) One such area is the vertical and horizontal character of human rights, which means human rights law will have an important evolutionary impact on the application of constitutional rights, not only in the public, but also in the private sphere.(5)

This article will show the vital role the ICCPR should play in resolving a case pending in the Colorado courts since 1981, involving the descendants of the original Mexican settlers to Southern Colorado and their struggle to regain land rights with a 150 year history. The ratification of the ICCPR should profoundly alter the traditional "state action" limitation in cases seeking to vindicate constitutionally protected rights. The ICCPR should form the constitutional arguments made in the case of Rael et al. v. Taylor.(6)

The ICCPR was originally drafted as a blueprint for a society where human rights are respected by all. The effect on traditional constitutional analysis is the creation of a transparent method for the examination of all rights involved and the value judgments underlying them. This is true even when the alleged violator has traditionally been considered a private actor and therefore free from scrutiny.(7)

This article will provide a short history of Rael v. Taylor; outline the constitutional analysis of the case prior to the ICCPR; discuss the ratification of the ICCPR and its meaning; and conclude with a constitutional analysis of the Rael case in light of the ICCPR's ratification.

II. THE HISTORY OF RAEL V. TAYLOR

In 1844, what is now Costilla County, Colorado, was Mexican territory including the land presently in contention in the Rael v. Taylor case.(8) That year the Mexican government issued to Narcisco Beaubien and Stephen Luis Lee the Sangre de Cristo land grant on the condition they encourage settlement in that area.(9) As was the custom at that time, Mexican law granted the businessmen a portion of the land with the remainder to be divided among the successful homesteaders and common areas.(10) These common areas would be used as pastures and a mountain tract for hunting, fishing, wood gathering and as a water supply. The land used for these common areas was held by the community with usufructuary rights to all settlers, however, title to the land reserved for common use was most often held by the local government or community but it could be held by the federal government or by an individual.(11)

In the early 1800's, Mexico and the United States were competing to expand into what is now the Southwestern part of the United States.(12) The Mexican government used attractive incentives to persuade settlers into this area.(13) It allowed title to be recognized without being formalized until after the land had already been settled. Even without formalized title, the general pattern of settlement was well known and systematically followed.(14) This made custom an extremely important part of Mexican land law during this period of rapid expansion.(15)

The original grantees, Narcisco Beaubien and Stephen Luis Lee, were killed in 1847 during the Taos Rebellion.(16) Narcisco's father, Carlos Beaubien, inherited his son's undivided one-half interest in the property and purchased the remaining interest from Lee's estate. …