Excerpted From: Tom I. Romero, II, A Brown Buffalo's Observations on Color (Blindness), Legal History, and Racial Justice in the Rocky Mountain West, 2022 Utah Law Review 751 (2022) (197 Footnotes) (Full Document)


TomRomerorClose your eyes and join me on a quintessential American road trip driving west along I-70. As our car hurtles through the corn and wheat fields of western Kansas at over eighty miles an hour, we imperceptibly are gaining altitude. As we cross the 100th meridian, the air becomes drier, the land more barren. Suddenly, a giant brown sign emerges on the horizon. As we approach the sign at nearly 4,000 feet above sea level, it suddenly comes into focus and announces our entry into the Centennial State: “Welcome to Colorful Colorado.” One of the most well-known and beloved state welcome signs, it represents the many promises (and, as I will later argue, the pitfalls) of the Rocky Mountain West.

First created in 1950 and manufactured by inmates at the Colorado State Penitentiary, these signs were designed to provide the state an identity as more than a rural or flyover state. Using posts and planks cut from the state's abundant Lodgepole pines and carved with bold white letters, the sign symbolized the state's connections and its identity to its iconic landscapes of purple mountains majesty, amber fields of grain, soaring red rocks, and blazing orange sunsets.

Though iconic, Colorado's sign is not necessarily unique. Crossing the state lines into other Rocky Mountain States, similar imagery evoking well-known landscapes and related tropes of the “wild” and “untamed” west is part of the state brand. In almost every case, the complexity of human relations, the messiness of cultural interaction, and the fierce struggle of individuals and communities to live in these beautifully brutal environments are rarely, if ever, evoked.

As people who are familiar with my work know, my understanding of these issues is almost fully informed by my family's and my own deep roots in the region. The “Romero” paternal side of my family emerged out of the legacies of conquest, precipitated first by Spanish settlement and occupation of its northern borderlands and its subjection of its indigenous peoples, and then again after the United States War with Mexico and subsequent dispossession and alienation of Mexicans from property, citizenship, and culture. A familiar refrain used by my paternal side of the family (as well as so many others) defiantly states: “We didn't cross the border, but the border crossed us.” As one scholar has noted, the phrase and accompanying imagery “is a reminder of a homeland in existence long before modern borders turned Mexicans into immigrants and the continent's Indigenous communities into oppressed minorities in a colonized nation.”

Settling in what many Americans identify as northern New Mexico and southern Colorado, my paternal grandparents met in Durango, Colorado, where my father was born. My grandparents (with my father and his siblings in tow) followed opportunities afforded by stratified and segregated labor in railroads and mining to Utah. There they settled first in Price and eventually Salt Lake City, where my grandfather worked as a janitor in the Salt Lake City School District and my grandmother as a seamstress for a company that provided apparel and related services for industrial and commercial workers. My father graduated from Salt Lake City's West High School in 1968 and immediately enlisted in the Navy, where he served as a sonar specialist on a destroyer during the Vietnam War until his honorable discharge in 1973, the year I was born. He subsequently worked as a machinist at the Denver Mint and was active in its union until he retired.

My maternal “Rodriguez” side of the family has a more familiar genealogy. My mother's parents migrated to the United States from Mexico as they were fleeing the effects of the Mexican Revolution in the early 1920s. A part of a much larger migratory stream of agricultural laborers, my grandparents eventually settled on the “Western Slope” of Colorado in a small town known as Olathe in the 1940s. They purchased land, built a house, and operated a farm for nearly the next 50 years. I recall fondly spending a few weeks every summer as a child waking up early to eat freshly made tortillas and a bowl of oatmeal, riding the tractor with my grandpa, and learning to swim in the lateral irrigation ditch adjacent to the farm. My mother went to school in a one-room schoolhouse and, after graduation, settled in Denver, where she worked in various state and federal government jobs in human relations and equal opportunity for the next thirty years.

Having myself been born and raised in the metropolitan Rocky Mountain West, being bussed as part of a school desegregation order in the Denver Public Schools, and ultimately in becoming a legal, social, and political historian as well as law professor in this region, I have long worked to connect my own family's past to a larger excavation of the long history of human relations. In the process, I have strived to reframe how and in what ways we collectively imagine and understand color as part of our collective identity, contested history, and shared future.

In my own personal and professional life, color is not used to describe natural landscapes, but instead is the framework to understand law's primary role in determining benefits, rewards, access, opportunity, penalties, and punishment depending upon where one sits in relation to an enforceable and durable color line of Whiteness and non-Whiteness. The “colorful” Rocky Mountain West that I ask the reader to not only imagine, but to confront are the racialized human landscapes in the region that have been created, reinforced, and sustained by law. In a multitude of different contexts--from the sometimes-violent enforcement of immigration law, to racially segregated neighborhoods, unequal and inequitable schools, the school to prison pipeline, or a fundamental lack of access to employment, clean water, and other vital services necessary for the protection of fundamental rights--the Rocky Mountain West is at the center of many of the nation's seemingly impossible to scale challenges around racial equity and justice. It is also a region made more vibrant by the persistent refusal of racially minoritized communities to abandon their language, culture, and historical memories. Indeed, it is these multilayered claims to the history, mythology, values, politics, and legal culture that makes the region a harbinger of similar struggles shaping our current American nation.

I began this Essay to honor the Utah Law Review symposium theme to “tell my story.” My story and those of so many others in this collection are “critical counter-narratives” to interrogate larger systemic and institutional patterns and practices of racial and other inequities in American law. Counter-narratives--which are one of the primary methodological tools used in Critical Race Theory, of whom I consider myself an early generation practitioner as mine and those of my family provide context and complexity to the lived experience of the law very rarely acknowledged in legal jurisprudence, legislative texts, municipal codes, or regulatory rules. In so contesting mainstream narratives about whom the law benefits, Critical Race Theory also provides permission for legal academics to self-consciously and intentionally advocate for racial justice as a larger scholarly project.

This Essay is accordingly a series of observations about interrogating and complicating the meaning of color for all of us who call the Rocky Mountain West home. These observations are divided into three sections. First, in Part II, I explore what has long been the defining feature of race relations in the Rocky Mountain West--the persistent tension between the region as a racial Utopia free from de jure racial inequities and the legacy of state-sanctioned racial violence and deep-rooted nurturing of White supremacy. Trekking through some of the legalscapes of property, state constitutional, civil rights, and martial law, this section spotlights the legal creation and negotiation of color lines across the region's multi-racial geography.

Part III connects this history to the present day, detailing some of the ways that the region continues to struggle with and be in tension with its ability to confront forthrightly deep-rooted racial inequities. The section begins by situating the analysis within the racial reckonings of 2020 and the backlash against Critical Race Theory in K-12 public education that followed in 2021. I examine the lessons of those tensions by detailing the political and legal reaction to the death of Elijah McClain after being detained by the Aurora, Colorado Police Department in August 2019. Understanding this tragedy as part of a larger history of colorblindness demonstrates the legacies as well as challenges of racial disparity and inequity in the current geography of the Rocky Mountain West.

I conclude in Part IV by offering some brief observations on the legal, moral, and professional needs for all of us, as practitioners and human beings, to become color conscious as we live, learn, work, and pray in the Rocky Mountain West.

[. . .]

As Oscar Zeta Acosta himself so eloquently stated, “I speak as a historian, a recorder of events with a sour stomach. I have no love for memories of the past.” That past and the stories of my family and those of so many others represented in this brief history are by no means monolithic or easy to understand. Yet, they paint a picture and invoke powerful images, like those welcome signs greeting travelers entering Colorado, Utah, New Mexico, Wyoming, and Montana of seemingly insurmountable landscapes. Implicit within those welcome signs and the larger community they represent is the unyielding belief that the harsh, imposing, dangerous conditions--from seemingly un-scalable mountains to dangerous dry deserts--were challenges that nevertheless could and should be overcome.

So too should this brief history and the picture it paints be understood with the same resolve of all those in the Rocky Mountain West who collectively have found no physical encounter too big to address. To be sure, in boring tunnels through mountain peaks, making the desert bloom with irrigated agriculture, or growing vibrant metropolises in places like Denver and Salt Lake, all of us in the Rocky Mountain West have invested in our shared and collective future by understanding the history and reality of the harsh natural landscapes and environments in which we live, work, and play.

The picture this Essay paints poses no less daunting, yet no less surmountable of a challenge. As the historian Gordon Word wrote, “[h]istory imparts powerful restraints on what we can think and do. ... [A] historical sense makes true freedom and moral choice--and wisdom--possible.” Understanding the history of race relations in the American West gives us a powerful tool to confront and address, honestly and forthrightly, enduring patterns of racial inequity and inequality in the region. It also helps us acknowledge that our “colorful” region is more than just vibrant landscapes and awe-inspiring topography. Rather, it embodies the rich and textured context of the nation's larger and still ongoing struggle of racial and civic nationalism.

Nearly twenty years ago, Justice Sandra Day O'Connor declared that “race unfortunately still matters” in the United States. In an opinion that had a direct connection to my own law school admissions experience, I argued that the statement “represented perhaps the biggest understatement and most obvious part of the decision.” For us studying and practicing law, the resulting years have given us two irreconcilable choices. We could, as Justice Roberts argued in Parents Involved in Community Schools v. Seattle School District No. 1, be color-blind in our practice to avoid a “politics of racial hostility.” Or, as Justice Ruth Bader Ginsberg argued in her dissent in Shelby County v. Holder, we can open our eyes to the reality of present-day racial inequity and discrimination. Indeed, as Justice Ginsberg declared: “what's past is prologue ... [t]hose who cannot remember the past are condemned to repeat it.” Understanding the long history of the color-line in the Rocky Mountain West helps us to confront the current and future impact of ongoing racial disparities, inequities, and sometimes violence. Our challenge, in this regard, is to become color-conscious in our legal practice.

I end this Essay as I started. I ask you, the reader, to close your eyes and travel with me, not in a car, but in an airplane. As our plane arrives at Denver International Airport, we disembark and make our way to the main terminal to pick up our luggage. When we round the corner to the baggage claim, we encounter a brightly colored, massive 10ʹ high by 55ʹ long digital mural on aluminum substrate hanging on a wall in the main terminal. Titled “La Memoria de Nuestra Tierra” / “Our Land Has Memory,” and created by Judy Baca and her team of students, the mural recreates those familiar natural landscapes and topography of the American West.

Yet, the mural does so much more. It depicts the story of Mexican migration during the 1910-1917 Mexican Revolution that brought the artist's family, like my own maternal grandparents, to Colorado. Indeed, the artist's grandfather, Teodora Baca is one of the images on the mural, and her mother's visit to Teodora's grave in La Junta, Colorado, inspired Baca “to create artwork that would give dignity to the mestizo's story and the stories of countless others who toiled in the mines, fields, and railroads of Colorado.”

Judy Baca's mother's efforts to locate her grandfather's grave speak directly to the deep-rooted color lines referenced in this Essay. The cemetery had been historically segregated between “Whites” and “Mexicans.” While the “White” section of the cemetery was “green and well maintained,” the “Mexican” section was in a state of disrepair. “After much searching among the fallen gravestones,” the artist's mother found the grave “in a junkyard of old, unmarked stones and loose dirt.” According to Baca, “the simple reality that even in death the bodies of racially different people were separated” inspired her to create a counter-narrative of the color lines shaping our “shared human condition as temporary residents” of these beautiful and unforgiving landscapes.

Also appearing prominently in the mural is Rodolfo “Corky” Gonzales, who organized the Crusade for Justice to challenge discrimination against Chicanx in Denver's neighborhoods, workplaces, and schools; as well as Reies López Tijerina, who sought to reclaim the rights of Chicanx communities in New Mexico who had been dispossessed from Mexican land grants. In different ways, both provided compelling and militant alternatives to more mainstream non-violent activism of the time. There are also those anonymous and faceless others who bravely traversed dangerous borders and nevertheless had the courage to contest racial oppression in railroads, mines, fields, and schools. The mural also depicts those indigenous peoples who have been removed from the landscape, but nevertheless continue to shape its memories. Indeed, in its depiction of those majestic cliff dwellings that have stood the test of time, the mural recognizes those who first imagined settling and bringing order to the land.

More than any other sign marking my arrival and connection to the physical space, this mural captures for me the most authentic representation of the “colorful” Rocky Mountain West. By candidly detailing a history of both racial oppression as well as justice and liberation, La Memoria de Nuestra Tierra compels all of us to know that we travel, live, learn, and work in places with ongoing racial memories. As practitioners of law, we have an obligation to confront the role of our discipline and profession in creating and perpetuating the color lines in which we work. What we do with that “wisdom” is the challenge that we must embrace.

Tom I. Romero, II. J.D., Ph.D. Associate Professor of Law, University of Denver Sturm College of Law. Affiliate Faculty, University of Denver, Department of History. Director, University of Denver's Interdisciplinary Research Institute for the Study of (in)Equality.