The right of Indigenous Peoples to maintain and develop their justice systems

The right of Indigenous Peoples to maintain, strengthen, promote and develop their legal institutions and juridical systems and customs is recognized in international human rights law. Despite this clear protection, the recognition, functions and use of Indigenous justice systems and customary laws are frequently disregarded and subject to myriad restrictions in countries around the world.¹

1. A/HRC/42/37, paras. 52 and 62–67. ↩

Indigenous justice systems are central to the right of Indigenous Peoples to self-determination and to their ability to retain their territories, governance systems and customary ways. It is often difficult to separate the principles and practices of these justice systems from the set of daily cultural practices of Indigenous Peoples.²

2. Submission by Plataforma de Mujeres Indígenas de Guatemala. ↩

Indigenous justice systems resolve disputes and ensure access to justice, continuing processes maintained for countless generations. They include mechanisms, laws and processes pertaining to a wide range of disputes and important matters, including the use and management of territories, issues of governance and family and spiritual matters.

In the present report, the Special Rapporteur on the independence of judges and lawyers, Margaret Satterthwaite, examines persistent challenges to the right of Indigenous Peoples to maintain and develop their own justice systems. It presents good practices and recommended measures so that Member States and others can ensure respect for the right of Indigenous Peoples to their autonomous legal institutions and processes. The report builds on studies and recommendations of previous Special Rapporteurs,³ as well as the Special Rapporteur on the rights of Indigenous Peoples,⁴ the Expert Mechanism on the Rights of Indigenous Peoples⁵ and various United Nations treaty bodies and other international authorities and experts. The Special Rapporteur is deeply grateful for the collaboration of Indigenous Peoples’ institutions, organizations, judges, lawyers, community justice workers and experts, who contributed to the report through 11 in-person or virtual consultations and 49 written submissions.⁶

3. A/HRC/50/36/Add.1, para. 119 (in Spanish); and A/HRC/17/30/Add.3, paras. 93–94. ↩
4. A/59/258; E/CN.4/2004/80; A/HRC/24/41; and A/HRC/42/37. ↩
5. A/HRC/24/50 and A/HRC/24/50/Corr.1. ↩
6. Submissions are available at: https://www.ohchr.org/en/calls-for-input/2024/call-input-special-rapporteur-independence-judges-and-lawyers-next-thematic-0#:~:text=Please%20send%20your%20submission%20via%20email%20to%20hrc-sr-independencejl%40un.org,considered%20and%20made%20public%20on. ↩

Indigenous Peoples often live in contexts of ongoing colonization and dispossession. In many countries, ordinary justice systems continue to be a force of colonialization in relation to Indigenous Peoples.⁷ From the moment of first contact, colonizers used the law to dominate Indigenous Peoples: relying on concepts such as the doctrine of discovery and terra nullius,⁸ colonizing powers stole land through military conquest and terror, coercion and trickery and subdivision and sale.⁹ Colonizers employed legal operators “to ‘validate’ juridically the organized plunder at the various stages of the colonial enterprise”.¹⁰ At the same time, traditional justice systems were frequently the subject of disdain by colonizers, who set out to ignore, disregard or supplant them.¹¹

7. Submission by the Ontario Federation of Indigenous Friendship Centres. ↩
8. Submission by Victorian Aboriginal Legal Service. ↩
9. See H.R. 5088 - Fort Belknap Indian Community Water Rights Settlement Act of 2023, U.S Congress, Congressional Record, vol. 169, No, 131 (28 July 2023). ↩
10. E/CN.4/Sub.2/1999/20, para. 196. ↩
11. David Wilkins, Indigenous Governance: Clans, Constitutions, and Consent (2024), pp. 313–314. ↩

States continue to use property and land laws to exclude and dispossess Indigenous Peoples from their traditional lands and ancestral territories.¹² Even in places where some limited forms of land rights have been recognized, Indigenous Peoples have often seen treaties, agreements and other legal commitments violated and abrogated through ordinary justice systems.¹³

12. Submissions by Articulation of Indigenous Peoples and Organizations from Northeast, Minas Gerais and Espírito Santo. ↩
13. E/CN.4/Sub.2/1999/20, para. 275. ↩

Other facets of ordinary justice systems – especially criminal law and personal and family law – have been used to imprison, separate and forcibly assimilate Indigenous Peoples for centuries. Indigenous Peoples are exposed to elevated risks of criminalization and experience alarmingly disproportionate rates of policing,¹⁴ arrest, including arbitrary arrest for exercising their rights,¹⁵ pretrial detention,¹⁶ incarceration,¹⁷ solitary confinement,¹⁸ recidivism¹⁹ and deaths in custody.²⁰ In some States, Indigenous religious and cultural practices are criminalized.²¹ In the context of armed conflict, Indigenous territories may be used by combatants, leading to the criminalization of Indigenous Peoples, or worse, on suspicion of harbouring or joining armed groups or terrorists.²²

14. A/HRC/EMRIP/2013/2, para. 41; and virtual consultation 6 (Australia). ↩
15. E/CN.4/2004/80, para. 30; A/HRC/WGAD/2024/30, paras. 89 and 127; and submission by Ontario Native Women’s Association. ↩
16. CAT/C/AUS/CO/6, para. 15. ↩
17. A/HRC/42/37, paras. 21–23. ↩
18. CCPR/C/86/D/1184/2003, para. 9.4. ↩
19. Lynn A. Stewart and others, A Comprehensive Study of Recidivism Rates among Canadian Federal Offenders (Correctional Service of Canada, August 2019). ↩
20. Lorena Allam and others, “The facts about Australia’s rising toll of Indigenous deaths in custody”, The Guardian, 8 April 2021. ↩
21. Submission by Ismail Mahomed Centre for Human and Peoples’ Rights. ↩
22. Consultations 3 (Asia) and 7 (global consultation). ↩

High rates of incarceration are especially concerning considering that for “many indigenous persons, imprisonment constitutes cruel, inhuman and degrading treatment and even a form of torture”.²³ In detention, Indigenous individuals are particularly vulnerable to physical abuse and violence, with reports of mistreatment, including segregation and inadequate access to healthcare or support.²⁴ Indigenous Peoples are often at higher risk of dying in prison than others.²⁵ Factors such as racial profiling, systemic socioeconomic disadvantage and legacies of colonialism and historical trauma contribute substantially to this inequity.²⁶ Furthermore, criminalization and incarceration affect Indigenous women in gender-specific ways.²⁷ In some countries, Indigenous children and adolescents are imprisoned for even minor offenses, while being themselves disproportionately victims of crime.²⁸

23. CAT/C/50/2, para. 93. ↩
24. E/CN.4/2004/80, para. 33. ↩
25. Submission by Ontario Federation of Indigenous Friendship Centres. ↩
26. E/CN.4/2004/80, paras. 30 and 42. ↩
27. A/HRC/54/31/Add.2, para. 42. ↩
28. CAT/C/AUS/CO/6, para. 37; CRC/C/CAN/CO/5-6, para. 45 (b); and A/HRC/50/26, para. 55. ↩

Additionally, in many cases, Indigenous individuals are denied equitable access to justice. Indigenous Peoples facing criminal charges often do not receive fair access to legal counsel, with limited resources to defend themselves adequately.²⁹ Many Indigenous individuals speak languages or dialects not understood by the ordinary justice system, making it difficult for them to participate in their own defence when translation is unavailable, inadequate or even denied.³⁰

29. Submission by Ontario Federation of Indigenous Friendship Centres. ↩
30. A/HRC/WGAD/2024/30; para. 74. ↩

Moreover, legal practitioners and justice operators, including police, prosecutors, court staff and judges³¹ from non-Indigenous backgrounds may inherit racist and colonial attitudes, which can lead to further victimization.³² Less serious but deeply impactful cultural biases, combined with the failure to adapt services for Indigenous Peoples, also contribute to systemic discrimination and marginalization. As one Indigenous expert explained, judges “do not understand or recognize that there are visions that are not occidental. For us there is a spiritual connection with the land. So many times, the judges judge in favour of economic actors or interests and not spiritual interests”.³³

31. Committee on the Elimination of Racial Discrimination, general recommendation No. 36 (2020), paras. 10–11; see CCPR/C/102/D/1610/2007; consultations 1 (Canada) and 4 (Latin America). ↩
32. A/HRC/42/37, para. 48. ↩
33. Consultation 4 (Latin America). ↩

Indigenous Peoples are often left without judicial recourse when abused by non-State actors. Inadequate State support for policing, law enforcement bias, failure to investigate or record complaints and, in some cases, refusals to prosecute have fuelled deep mistrust in the ordinary justice system, leading to underreporting and significant lack of access to justice.³⁴ While this issue affects the entire range of human rights, especially egregious cases include barriers to justice following extrajudicial executions and the targeting of Indigenous leaders, land grabbing – often by commercial enterprises – and violence against women and girls.³⁵

34. A/HRC/EMRIP/2013/2, para. 42. ↩
35. Consultation 4 (Latin America). ↩

There is an urgent need to attend to the persistent, ongoing discrimination and inequality faced by Indigenous Peoples in ordinary justice systems.³⁶ However, the report has a different focus: it examines the ability of Indigenous Peoples to maintain, strengthen, promote and develop their legal institutions, customs and juridical systems, in accordance with international human rights standards.

36. See communication CHL 1/2025. All communications mentioned in the present report are available at http://spcommreports.ohchr.org/TMSearch/TMdocuments. ↩

Indigenous Peoples have the right to maintain, strengthen, promote, and develop justice systems, whatever their quality or characteristics. But by resolving disputes, restoring harmony and protecting rights, Indigenous Peoples’ justice systems in fact play a vital role in advancing justice around the world.³⁷ It would be impossible in this short section to describe the many ways such systems have contributed to the survival, advancement, innovation, and vitality of Indigenous Peoples, or the ways they have benefitted those outside these systems. Briefly, several essential contributions were emphasized to the Special Rapporteur.

37. A/HRC/42/37, paras. 62–67. ↩

First, Indigenous justice systems are inextricably tied to the self-determination of Indigenous Peoples and thus an element of their identities, continued survival, vitality and development. As one Native American judge explained, the “flame of sovereignty continues to burn through oral traditions given to us throughout time. This is our true law – our language, tradition and customs”.³⁸

38. Gregory S. Arnold, “Hon. William D. Johnson Chief Judge, Umatilla Tribal Court Confederated Tribes of the Umatilla Indian Reservation, Pendleton, Oregon” (Federal Bar Association, April 2015). ↩

Second, Indigenous justice systems advance access to justice for Indigenous Peoples in ways that are culturally resonant, responsive, accessible and effective.³⁹ In many contexts, Indigenous Peoples express a preference for their own legal systems.⁴⁰ Third, studies show that there is less crime and more effective conflict resolution where Indigenous law is freely applied.⁴¹

39. A/HRC/42/37 paras. 62–67; see submissions by Ismail Mahomed Centre for Human and Peoples’ Rights, Ontario Native Women’s Association, Shaheed Zulfikar Ali Bhutto Institute of Science and Technology, Altaf Hussain Wani and the United Nations Development Programme (UNDP). ↩
40. International Commission of Jurists, “Indigenous and other traditional or customary justice systems in the Asia-Pacific region: Report of the 2018 Geneva Forum of Judges and Lawyers” (Geneva, 2019). ↩
41. Julie A. Davies, “Indigenous law in Central America: A key to improving life and justice”, Michigan State Law Review (2018), p. 673. ↩

Sustainable land management may form part of an Indigenous justice system.⁴² Indigenous-managed lands tend to be more biodiverse, less deforested and less degraded than land managed privately or by Governments.⁴³ While the human right to exercise Indigenous justice systems should not be dependent on instrumentalist reasoning, their contributions to current global crises must be recognized.

42. Submission by Global Justice Clinic and South Rupununi District Council. ↩
43. Katie Reytar and others, “Protecting biodiversity hinges on securing indigenous and community land rights”, World Resources Institute (2024). ↩

The right of Indigenous Peoples to maintain, strengthen, promote and develop their legal institutions and juridical systems and customs is set out in the United Nations Declaration on the Rights of Indigenous Peoples, article 5 of which states that Indigenous Peoples “have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.” Article 34 set out the right of Indigenous Peoples to “promote, develop and maintain” their “juridical systems or customs, in accordance with international human rights standards”. The Special Rapporteur concurs with the Expert Mechanism on the Rights of Indigenous People that the United Nations Declaration is “a contextualized elaboration of general human rights principles” and that the standards it sets out “connect to existing State obligations under international human rights law”.

The rights in Declaration on the Rights of Indigenous Peoples are “the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world”,⁴⁴ and each is a high priority and cross-cutting value in human rights law. Further, the rights in the Declaration may only be subject to limitations that are strictly necessary to protect rights and democratic society; determined by law; and in accordance with human rights.⁴⁵

44. United Nations Declaration on the Rights of Indigenous Peoples, art. 43. ↩
45. Ibid., art. 46 (2). ↩

Multiple human rights treaty bodies, including the Committee on the Elimination of All Forms of Discrimination against Women,⁴⁶ the Committee on the Elimination of Racial Discrimination,⁴⁷ the Committee on the Rights of the Child,⁴⁸ and the Human Rights Committee have reaffirmed the importance of State recognition of Indigenous justice systems and the need to ensure human rights standards in these systems, including women’s equality, the right to a remedy and fair trial standards.⁴⁹ Furthermore, some of these bodies,⁵⁰ together with the Committee on Economic, Social and Cultural Rights⁵¹ have emphasized the centrality of these systems to Indigenous Peoples’ autonomy and self-determination. The Special Rapporteur observes that, for the rights guaranteed in relation to Indigenous justice systems to be effective, Indigenous decision-makers, empowered by their communities, must be recognized as such by the State and must be able to operate independently from the types of restrictions, threats or interference that are also prohibited concerning judges in the ordinary justice system.⁵² In the absence of such protections, the autonomy of such systems would be wholly undermined.

46. Committee on the Elimination of Discrimination against Women, general recommendation No. 39 (2022), paras. 25 and 27. ↩
47. CERD/C/ECU/CO/25, para. 35 (c). ↩
48. Committee on the Rights of the Child, general comment No. 11 (2009), para. 75. ↩
49. Committee on the Elimination of Discrimination against Women, general recommendation No. 35 (2017), para. 26 (a); and Human Rights Committee, general comment No. 32 (2007), para. 24. ↩
50. CERD/C/106/D/61/2017, para. 4.6; and Committee on the Elimination of Discrimination against Women, general recommendation No. 39 (2022), para. 25. ↩
51. E/C.12/BOL/CO/3, paras. 12–13. ↩
52. Basic Principles on the Independence of the Judiciary, principles 2 and 4. ↩

The Special Rapporteur stresses that respect for Indigenous justice systems does not imply that the State is exempt from providing services to Indigenous people in the ordinary justice system. Indeed, since Indigenous people are guaranteed non-discrimination and substantive equality under the International Convention on the Elimination of All Forms of Racial Discrimination, meaning that States must take active measures to remove obstacles and ensure equality in practice, not only in law. This guarantee includes the right to equality before courts and tribunals and the right to procedural fairness and equality of arms, including access to free interpretation, being informed promptly of charges in criminal settings and having representation by counsel of one’s choice and legal aid, where needed.⁵³ It also requires that steps be taken to dismantle discriminatory anti-Indigenous attitudes or practices among justice operators, such as judges, prosecutors and lawyers, as well as cultural competency training and skills. In the civil sphere, justice systems may need to be adapted to take into account the particular needs of Indigenous Peoples, including women and girls, LGBTI+ persons and people with disabilities.⁵⁴

53. See Human Rights Committee, general comment No. 32 (2007), para. 40; and Committee on the Elimination of Racial Discrimination, general recommendation XXXI (2005) ↩
54. Committee on the Elimination of Discrimination against Women, general recommendation No. 39 (2022), para. 25. ↩

International human rights bodies have also provided some guidance on the interaction between Indigenous and ordinary systems. Indigenous Peoples’ authorities should be able to “actively participate in the preparation, implementation and evaluation of the States’ criminal policies” and “relations of dialogue and cooperation” should be established between Indigenous authorities and ordinary justice systems.⁵⁵ Furthermore, the Expert Mechanism on the Rights of Indigenous People has emphasized that States should “provide support for indigenous peoples’ own justice systems and should consult with indigenous peoples on the best means for dialogue and cooperation between indigenous and State systems”.⁵⁶

55. CERD/C/106/D/61/2017, para. 4.12; Committee on the Rights of the Child, general comment No. 24 (2019), para. 104; and Committee on Economic, Social and Cultural Rights, general comment No. 26 (2023), para. 61. ↩
56. A/HRC/24/50 and A/HRC/24/50/Corr.1, annex, para. 6. ↩

Many of the rights relevant discussed herein are also protected by regional human rights law and by the International Labour Organization (ILO) Indigenous and Tribal Peoples Convention, No. 169 (1989). These issues are also intrinsic to the 2030 Agenda for Sustainable Development and the Sustainable Development Goals. Sustainable Development Goal 16, in particular, promotes independent and impartial justice based on effective and accessible systems. Referring to Goal 16, a former Special Rapporteur on the rights of Indigenous Peoples observes that “indigenous and State justice systems should be seen as complementary and necessary to guarantee effective and equal access to justice for indigenous peoples”.⁵⁷ For Indigenous Peoples, effective access to justice requires both equal access to State judicial mechanisms and the ability to maintain and develop their own justice systems.

57. A/HRC/45/34/Add.3, para. 10. ↩

Despite the established right of Indigenous Peoples to maintain and develop autonomous legal and juridical systems, the status of Indigenous justice systems varies greatly across countries and regions. In some States, including States where Indigenous Peoples are not officially recognized as such, their juridical systems are not either. In some cases, indigenous systems – and the authorities who practice within them – are criminalized. In other countries, the ordinary legal system neither recognizes nor criminalizes Indigenous justice systems, leaving some space for their de facto jurisdiction. While some States have officially recognized Indigenous justice systems, they have also placed restrictions on their jurisdiction, subordinated them to ordinary courts and/or deprived them of resources, thus limiting their ability to advance access to justice.

In some countries, the status and/or legal personality of Indigenous Peoples is not formally recognized, for instance because governments deny the existence of Indigenous Peoples within its territory or because they consider the entire population to be “indigenous”.⁵⁸

58. Consultation 3 (Asia). ↩

The justice systems of the Amazigh (Berber), communities, which are not formally recognized by some North African States, have helped to preserve traditions and solve community conflicts for centuries.⁵⁹ However, in recent years, jurisdictional, territorial, material and other restrictions have gradually limited their scope, leading, in some cases, to their total prohibition.⁶⁰ In the most severe instances, “even mentioning indigenous rights is prohibited, and one can face legal consequences for doing so”.⁶¹

59. Consultation 9 (North Africa). ↩
60. Ibid. ↩
61. Ibid. ↩

In other countries where Indigenous Peoples are not recognized, their customary law is given some status as the law of “minority groups”.⁶² The Special Rapporteur was informed that, owing to this status, jurisdiction is normally limited to personal status matters such as marriage, maintenance and inheritance, but clearly demarcated from jurisdiction over land rights or other core rights accorded to Indigenous Peoples.⁶³

62. Submission by Shaheed Zulfikar Ali Bhutto Institute of Science and Technology. ↩
63. Consultation 3 (Asia). ↩

In Australia, the State has never concluded treaties with Aboriginal and Torres Strait Islander peoples and does not accord them formal recognition as such in its constitution. In 2023, a referendum seeking to embed an Indigenous “Voice to Parliament” into the constitution was rejected.⁶⁴ While some Indigenous practices have been integrated into the criminal legal system (see below), the systems from which these practices originate have no recognized status under Australian law.

64. Submission by Maat for Peace, Development and Human Rights. ↩

Representatives of treaty bodies and Indigenous experts stressed that a group’s ability to define itself as Indigenous is fundamental to self-determination; State recognition is declarative and not a condition or requirement.⁶⁵ It is important for national Governments to recognize the pre-existence of Indigenous Peoples and their justice systems. If State recognition is needed to avoid criminalization and to obtain enforceability of decisions by Indigenous systems, Indigenous Peoples are left vulnerable to the vicissitudes of the larger nation State. There are recorded instances of States that once recognized Indigenous Peoples and their justice systems withdrawing such recognition at a later date, either entirely or in respect of specific Indigenous Peoples.⁶⁶ The refusal or withdrawal of recognition of the status of Indigenous Peoples by national governments entails a denial of their rights to self-determination and collective legal personality as well as other core rights.⁶⁷

65. Consultation 7 (global consultation); Committee on the Elimination of Racial Discrimination, general recommendation No. 8 (1990); and CEDAW/C/81/D/68/2014, para. 18.4. ↩
66. Consultation 7 (global consultation); Submission Shaheed Zulfikar Ali Bhutto Institute of Science and Technology. ↩
67. Consultation 8 (New Zealand); and submission by the Victorian Aboriginal Legal Service. ↩

Numerous countries formally recognize the existence of Indigenous Peoples but fail to accord any legal status or recognition to their justice systems. In Argentina, the existence and the land rights of Indigenous Peoples are recognized in the constitution although not, except in very limited cases, their justice systems.⁶⁸ The Nordic countries of Finland, Norway and Sweden recognize the existence of the Sami People but do not recognize their customary juridical systems.⁶⁹ Similarly, in Canada, the federal Government “acknowledges Indigenous peoples hold the inherent right to self-government” but has largely focused on strengthening Indigenous Peoples’ authority over governing institutions apart from their justice systems .⁷⁰

68. Constitution of Argentina, art. 75(17). ↩
69. Constitutions of Finland, Norway and Sweden. ↩
70. Consultation 7 (global consultation); and submission by Ontario Federation of Indigenous Friendship Centres. ↩

Indigenous justice authorities and those relying on customary laws or justice practices may face criminalization. For example, Indigenous leaders in Nepal can face criminal charges for providing assistance in the resolution of community conflicts using customary law.⁷¹

71. Consultation 3 (Asia). ↩

However, in some countries where the existence of Indigenous Peoples is recognized, traditional systems often survive – and may even flourish – by remaining under the radar⁷² or coming to agreements with local government authorities.⁷³ As one Indigenous judge explained, the degree of involvement of such systems is increasing in many places in response to community demand and awareness of the inherent right of Indigenous Peoples to their own justice systems.

72. Consultations 8 (New Zealand), 3 (Asia), 9 (North Africa) and 10 (Southern Africa). ↩
73. Submission by Professor Silvina Ramirez, Faculty of Law, University of Palermo. ↩

In New Zealand, in 1840, the colonial British Government concluded the Te Tiriti o Waitangi/Treaty of Waitangi with Māori chiefs (Rangatira), recognizing Māori sovereignty. However, despite the treaty, the legal system of New Zealand is a “mono-legal imposed system” that does not recognize Indigenous justice systems per se. In the last 15 years, aspects of tikanga Māori (custom and values) have been integrated into New Zealand ordinary law “by courts through the common law and by Parliament in legislation”.⁷⁴ Such efforts at “blending” Indigenous practices into State systems are discussed below.

74. Te Aka Matua o te Ture | Law Commission, He Poutama (Pūrongo Rangahau | Study Paper 24, 2023), para. 15. ↩

Numerous constitutions in countries in sub-Saharan Africa recognize the existence of Indigenous Peoples and some also recognize their customary laws as part of the broader acceptance of the customary norms of the many peoples in nations that pre-date colonization.⁷⁵ Some such States have customary courts.⁷⁶ However, research suggests that in many African countries, Indigenous justice systems are not recognized as such and do not have the ability to exercise separate jurisdiction even where customary courts exist.⁷⁷

75. See Constitutions of Burundi, Cameroon, Central African Republic, Kenya and South Africa. ↩
76. Submission by Ismail Mahomed Centre for Human and Peoples’ Rights. ↩
77. Consultation 10 (Southern Africa). ↩

States have adopted a range of approaches when recognizing Indigenous justice systems. Some States recognize them in their constitutions or implicitly as an aspect of the self-determination of Indigenous Peoples through constitutional plurinationality.⁷⁸ For example, the Constitution of the Plurinational State of Bolivia embraces “the native indigenous nations and peoples” as essential to the multiple communities that make up the nation⁷⁹ and the Constitutional Court has clarified that Indigenous Peoples’ self-determination existed before colonization.⁸⁰ Indigenous Peoples are guaranteed “self-determination and territoriality” and the right to practice “their political, juridical and economic systems in accord with their world view”.⁸¹ This approach is common to that of Ecuador, whose constitution describes the country as a plurinational State and recognizes the right of “indigenous communities, peoples and nations” to “perform jurisdictional duties, on the basis of their ancestral traditions and their own system of law”.⁸²

78. Consultation 7 (global consultation); and constitutions the Bolivarian Republic of Venezuela and Colombia. ↩
79. Constitution of the Plurinational State of Bolivia, art. 3. ↩
80. See Plurinational Constitutional Tribunal, Judgment 260/2014; submissions by María Elena Attard Belido and José Antonio Landriel Pedraza. ↩
81. Constitution of the Plurinational State of Bolivia, art. 30 (II) (4) and (14). ↩
82. Constitution of Ecuador, art. 171. ↩

While the recognition of plurinationalism by States is a commendable step forward, concerns about the criminalization of the authority of Indigenous justice systems persist. In February 2024, the largest Indigenous organization in Ecuador, the Confederation of Indigenous Nationalities of Ecuador, filed a complaint before the Inter-American Commission on Human Rights, denouncing the prosecution of at least 29 cases involving indigenous justice and urging the State to uphold its constitutional commitment to an intercultural and plurinational legal framework.

Other States recognize multiculturalism and acknowledge Indigenous justice systems as the prerogative of Indigenous Peoples. The Mexican constitution identifies the State as “multicultural, based originally on its indigenous peoples”⁸³ who apply “their own legal systems to regulate and solve their internal conflicts”.⁸⁴ In Guatemala, the Supreme Court and the Constitutional Court have recognized legal pluralism. However, in a number of instances when Indigenous authorities detained suspects they were charged with illegal detention or kidnapping.⁸⁵

83. Constitution of Mexico, art. 2. ↩
84. Ibid., art. 2 (A) (II). ↩
85. Rachel Seider, “The judiciary and Indigenous rights in Guatemala”, International Journal of Constitutional Law, vol. 5 (2007), pp. 211–241. ↩

In other States, Indigenous justice systems are the subject of statutory frameworks⁸⁶ that both recognize and limit their powers. In the United States of America, after waves of ethnic cleansing and dispossession, the federal Government finally recognized the authority of Native American tribes to develop and maintain their own judicial systems through the Indian Reorganization Act of 1934. Through the Act, tribal constitutions were introduced, enabling – some would say forcing – Indigenous Peoples to establish divided governments and tribal courts led by judges accountable to their nation⁸⁷ in order to “ensure justice on tribal land by upholding the codes and laws of the tribe”.⁸⁸ Over decades, the subject matter under the jurisdiction of tribal courts has expanded to include not only criminal matters but also civil suits, including family matters, although their personal jurisdiction has largely remained limited to Native Americans. There are now some 400 native court systems within the boundaries of the United States.⁸⁹

86. See A/HRC/57/47/Add.1; and Indigenous Peoples’ Rights Act, sect. 15 (Philippines, 1997). ↩
87. David Wilkins, Indigenous Governance, p. 316. ↩
88. Submission by Amnesty International. ↩
89. David Wilkins, Indigenous Governance, pp. 312 and 317. ↩

In Canada, First Nations, Inuit and Métis peoples have asserted their inherent right to exercise their jurisdiction since contact with colonial powers, and the issue remains one of much contemporary debate. In 2019, legislation was adopted recognizing that the inherent right to self-government of Indigenous Peoples includes jurisdiction over child and family services.⁹⁰ However, the implementation of autonomous justice systems, including “the establishment of Aboriginal courts or tribunals”, is subject to specific, ongoing and often protracted negotiations.⁹¹

90. Sara Fryer and Olivier Leblanc-Laurendeau, “Understanding federal jurisdiction and First Nations” (Library of Parliament Background Paper, November 2019), p. 7. ↩
91. “The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government” (online publication, 2023). ↩

States that uphold the right of Indigenous Peoples to maintain and develop their justice systems often place limits on the jurisdiction of those systems that go far beyond any limits acknowledged under human rights law.

The jurisdiction of Indigenous courts of justice are often strictly limited to the territory of a given Indigenous People or community.⁹² Such geographical limitations can be especially problematic for urban and displaced Indigenous Peoples and those whose lands have been diminished, stolen or unrecognized. In recent years, a number of Native American nations were able to extend the geographical reach of their tribal courts when their reservation lands were recognized as encompassing the entirety of their treaty lands.⁹³

92. See Constitution of Ecuador (art. 171); Constitutional Court of Colombia, Judgement T-617 (2010); and submissions of Argentina, Colombia and the World Justice Program. ↩
93. Supreme Court of the United States, McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). ↩

Furthermore, the jurisdiction of Indigenous courts is often restricted in terms of subject matter, limited to “internal” matters, conflicts or disputes among members but excluding major crimes.⁹⁴ Although the Human Rights Committee stated, in 2007, that State-recognized “courts based on customary law” should be “limited to minor civil and criminal matters”, that language predated the promulgation of the United Nations Declaration on the Rights of Indigenous Peoples, is not specific to Indigenous Peoples and, as recommended by the Special Rapporteur on Indigenous Peoples, should be reviewed.⁹⁵ Such limitations have proven ambiguous and have at times resulted in unpredictable outcomes. In Guatemala, the Supreme Court has limited Indigenous jurisdiction to values and interests protected by the community’s culture,⁹⁶ an inherently ambiguous standard. In Ecuador, the Constitutional Court recently overturned a decision by the Confederation of the Kayambi People that resolved a conflict between community members and a private company, declaring that the Confederation had “exceeded the scope of ‘internal conflict’ allowed for indigenous justice systems”.⁹⁷

94. Constitution of Ecuador (art. 171); Constitution of Mexico (art. 2 (A) (II)); submissions by Colombia and the Sioux Nation Treaty Council. ↩
95. Human Rights Committee, general comment No. 32 (2007), para. 24. ↩
96. Guatemala, Constitutional Court, Expediente 1467–2014 (10 March 2016). ↩
97. Submissions by Confederation of Indigenous Nationalities of Ecuador and Daqui Lema. ↩

Indigenous justice systems are often limited in terms of the communities over which they exercise jurisdiction, which usually encompass members of specific Indigenous nations or Indigenous Peoples more generally and often exclude non-Indigenous persons or entities.⁹⁸ This leaves Indigenous Peoples vulnerable to the activities of on-Indigenous persons who may come onto their territories, enter into business relations or harm members of the community. It greatly “hinders the ability of communities to address complex problems that affect their well-being”, such as disputes with non-Indigenous persons or companies, including “conflicts that arise around mining, hydroelectric power and/or expropriation of territories”.⁹⁹

98. Submissions by Argentina; Colombia; Guatemala; the World Justice Program; and the Constitutional Court of Colombia, Judgment T-617 (2010). ↩
99. Submission by Confederation of Indigenous Nationalities of Ecuador. ↩

Multiple and overlapping jurisdictional limitations on the operation of Indigenous justice systems can have devastating consequences. Measures that prohibit Indigenous Peoples from using their own laws to combat colonial projects, such as oil or other resource extraction activities, result in “loss of their territories, crimes against environmental defenders and increasing deforestation”.¹⁰⁰ In the United States, restrictions on tribal courts “regarding jurisdiction, territory, sentencing power and subject matter have helped create a culture of impunity for perpetrators and exacerbated high rates of rape and other sexual assault” against Indigenous women on reservation lands.¹⁰¹ Non-Indigenous perpetrators of sexual violence were often not held accountable for sexual violence, as they fell outside tribal court jurisdiction, while the federal agencies with jurisdiction over such cases often failed to prioritize them. Following concerted efforts by Indigenous women’s organizations in 2013 and 2022, Congress passed legislation creating “special tribal criminal jurisdiction” for crimes involving sexual violence when the victim is Indigenous and the defendant is not.¹⁰² However, the federal Government imposes strict limits on the sentencing powers of tribal courts, including through specific procedural requirements.¹⁰³ The impact of this legislation differs greatly across tribes, as financial means and “institutional capacity vary significantly”, with some having “developed sophisticated justice systems that can handle serious crimes and civil matters”, while “others, especially smaller or more isolated tribes, struggle with a lack of resources and trained personnel”.¹⁰⁴ The Committee on the Elimination of Discrimination against Women has underscored the importance of adequate funding for judicial services – both ordinary and Indigenous – so that Indigenous women can access justice in both systems.¹⁰⁵

100. Consultation 4 (Latin America). ↩
101. Submission by Amnesty International. ↩
102. David Wilkins, Indigenous Governance, pp. 318–319. ↩
103. Submission by Amnesty International. ↩
104. Submission by Parnall Adams Law. ↩
105. Committee on the Elimination of Discrimination against Women, general recommendation No. 39 (2022), paras. 28 and 42 (c). ↩

Beyond formal restrictions, experts informed the Special Rapporteur that, owing to racism and epistemic prejudices, ordinary courts sometimes take over jurisdiction of cases that would properly be heard in Indigenous courts.¹⁰⁶ For example, the Special Rapporteur heard that a judge told a lawyer who argued that proper jurisdiction should stay with the Indigenous system that “we don’t do things that way”, without citing a law or rule. Similarly, Indigenous leaders from Ecuador and the Plurinational State of Bolivia report that ordinary justice authorities sometimes improperly control which cases are retained by or transferred to Indigenous justice systems, in spite of the fact that the Constitution clearly mandates the deferral of some cases upon request from Indigenous authorities.

106. Consultations 2 (Oklahoma, United States of America) and 4 (Latin America). ↩

Some countries have taken measures to resolve jurisdictional conflicts. In Colombia, prosecutors are required to conduct a comprehensive analysis of the facts and available evidence to determine whether a case falls under the jurisdiction of an Indigenous justice system. If there is any uncertainty regarding the applicable jurisdiction, they must consult a technical-legal committee before initiating a jurisdictional dispute. The process must be conducted “with a view to protecting the rights of the victims, the rights of the accused and the integrity of the indigenous community in terms of its cultural values and its particular worldviews and ways of life”.¹⁰⁷

107. Colombia Office of the Attorney/Prosecutor General of the Nation, Directive 0012 (2016). ↩

Even where apex courts acknowledge the human rights obligation to recognize the validity of the decisions and penalties of Indigenous authorities, such recognition remains limited and largely contingent on the attitudes of the magistrates and judges.¹⁰⁸

108. Consultation 4 (Latin America); and see A/HRC/WGAD/2017/19. ↩

The Special Rapporteur observes that the right of Indigenous Peoples to promote, develop and maintain their justice systems in accordance with international human rights standards is akin to the requirement that State justice systems must concord with relevant human rights law.¹⁰⁹ Reasons that are cited to justify interference with the jurisdiction of indigenous justice systems must be limited and based on compelling grounds, such as the violation of certain international human rights obligations. Moreover, limitations must be determined by law and in accordance with international human rights obligations, be non-discriminatory and be strictly necessary solely for the purposes of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.¹¹⁰ However, many States have imposed more intrusive measures on Indigenous justice systems, which may not be consistent with Indigenous Peoples’ autonomy or self-determination.

109. Brendan Tobin, Indigenous Peoples, Customary Law and Human Rights (Routledge, 2014), p. 90. ↩
110. United Nations Declaration on the Rights of Indigenous Peoples, art. 46 (2). ↩

Some States recognize Indigenous jurisdiction while subordinating Indigenous justice systems to domestic norms, a practice that the Expert Mechanism on the Rights of Indigenous People has found to “undermine and discriminate against indigenous peoples’ legal systems”.¹¹¹ In the United States, the Indian Civil Rights Act of 1968 gives litigants the right to challenge decisions of tribal courts in federal courts on certain rights grounds.¹¹² The constitutions of Ecuador and Mexico link the recognition of Indigenous justice systems to respect of specific rights, such as those related to gender equality and the protection of vulnerable groups. While those rights must be upheld, this approach may impose improper restrictions on Indigenous Peoples.¹¹³

111. A/HRC/24/50, para. 55. ↩
112. David Wilkins, Indigenous Governance, pp. 317–318. ↩
113. Constitution of Ecuador, art. 57 (10); and Constitution of Mexico, art. 2 (A) (II). ↩

The mention of the rights of women common to the constitutions of Ecuador and Mexico suggests a desire to protect these rights in contexts where both Indigenous organizations¹¹⁴ and international bodies have expressed concern about male domination, gendered violence and gender stereotypes. These issues are of crucial importance and must be addressed by Indigenous justice systems. The Committee on the Elimination of Discrimination against Women recommends that Indigenous and non-Indigenous systems both adopt measures to comply with human rights law,¹¹⁵ rather than imposing special rules limiting the jurisdiction of Indigenous justice systems. An expert from New Zealand emphasized that the “most important people in those debates” should be Indigenous women and gender-equality advocates.¹¹⁶

114. Consultation 5 (Mexico); and submission by Fundación Regional de Asesoría en Derechos Humanos. ↩
115. Committee on the Elimination of Discrimination against Women, general recommendation No. 39 (2022), para. 31. ↩
116. Consultation 8 (New Zealand). ↩

Trust, respect and exchanges among juridical authorities in both systems was recommended by many participants in the consultations.¹¹⁷ Expert opinions, submissions and research all suggest that more work is needed in this area and that good practices should be identified and shared.

117. Consultations 2 (Oklahoma, United States) and 11 (global intergenerational). ↩

As explained by the Expert Mechanism on the Rights of Indigenous People, “the right to self-determination requires both recognition of indigenous peoples’ systems and the need to overcome historic factors and related contemporary factors that negatively affect indigenous peoples in the operation of State systems”.¹¹⁸ In section VI, the Special Rapporteur examines some priority areas where adaptations are needed and also considers what Indigenous scholar Beverly Jacobs has called blending justice – “the application of various principles of Indigenous legal orders/customary laws integrated into the Eurocentric criminal legal system”.¹¹⁹ The Special Rapporteur emphasizes that States have the obligation to adapt their ordinary justice systems to ensure access to justice for Indigenous Peoples. Whether and how blending approaches may be appropriate is a question for Indigenous Peoples in their relationship with State systems.

118. A/HRC/24/50 and A/HRC/24/50/Corr.1, annex, para. 3. ↩
119. Beverley Jacobs, “Indigenous justice in Oceania and North America”, Oxford Research Encyclopedia of Criminology (online, 2021), p. 6. ↩

There are many positive examples of efforts to ensure that ordinary systems comply with due process guarantees and make them more accessible and effective for Indigenous Peoples. Some countries offer specific legal aid programmes aimed at ensuring access to justice for Indigenous communities.¹²⁰ Equally important are cultural expertise and facilitation, as contemplated in Chile and the Plurinational State of Bolivia, especially when Indigenous individuals are facing criminal charges or are seeking justice.¹²¹

120. Consultation 2 (Oklahoma, United States); and submissions by Argentina and Chile. ↩
121. See submission by Attard Belido. ↩

Training and education for non-Indigenous judges, lawyers and other legal professionals in Indigenous rights, cultures, languages and juridical systems are essential to ensuring competent legal assistance, fair trial and defence of Indigenous rights in the ordinary justice system. In Colombia, the law school of the Superior Council of Judicature offers training to both judicial operators in ordinary systems and Indigenous authorities on Indigenous Peoples in legal history, their rights in national and international law, the national special Indigenous jurisdiction and interjurisdictional coordination as a mechanism for justice administration.¹²²

122. Consultation 4 (Latin America). ↩

Numerous high-level courts or systems, including those in Chile, Mexico and Paraguay, provide guidelines, handbooks and training for ordinary justice mechanisms to use in adapting services to ensure access to justice for Indigenous Peoples.¹²³ In Paraguay, consulting experts in Indigenous matters prepare legal-anthropological reports for sentencing judges that summarize economic, social and cultural characteristics of Indigenous defendants. Judges are mandated to consider such reports and information about culturally relevant conditions in prisons when making sentencing decisions.¹²⁴

123. Submissions by Chile, Paraguay and World Justice Program. ↩
124. Submission by Paraguay. ↩

However, achieving meaningful inclusion within the legal system also demands greater representation and respect for Indigenous judicial systems and their decisions. Crucially, Indigenous legal professionals and judges should be recruited and considered for promotion within the ordinary system.

Some jurisdictions have introduced innovated to their court structures. In Argentina, some provinces have developed “multicultural” or Indigenous juries.¹²⁵ States and domestic courts have also taken steps to adapt procedural rules and legal frameworks to Indigenous rights. In Peru, protocols have been developed to coordinate and harmonize relations between Indigenous justice and ordinary justice systems, as well as to establish guidelines for judges in order to ensure fair trials and improve access to justice for Indigenous persons.¹²⁶ The Plurinational Constitutional Tribunal of the Plurinational State of Bolivia has developed “the principle of intra-cultural interpretation”, which uses an intersectional approach.¹²⁷

125. Submission by Silvina Ramirez, University of Palermo. ↩
126. Submission by Javier La Rosa Calle; and see Judiciary of Peru, administrative resolution No. 3332013-CE-PJ. ↩
127. Submissions by Attard Belido and Paraguay. ↩

Numerous countries have taken steps to implement the requirement in article 10 of ILO Convention No. 169 (1989) that deprivation of liberty should only be used as a last resort measure for Indigenous individuals. In Canada, a series of Supreme Court cases, commencing with R v. Gladue (1999), prompted the passage of a law that “requires sentencing judges to consider the systemic/background factors that impact an Indigenous accused in appearing before the courts” and to consider all available reasonable sanctions other than imprisonment in the light of the harm done.¹²⁸ While this has been a crucial corrective, its impacts have been insufficient as Indigenous Peoples – especially women – in Canada continue to be significantly overrepresented among the incarcerated population.¹²⁹ Information provided to the Special Rapporteur suggests that a lack of financial and human resources to implement the decision in the Gladue case have led to its ineffectiveness and have shifted responsibility for the creation of alternatives to incarceration onto Indigenous community organizations.¹³⁰

128. Submissions by Ontario Native Women’s Association and Ontario Federation of Indigenous Friendship Centres. ↩
129. Consultation 11 (global intergenerational); and submissions by Ontario Native Women’s Association and Ontario Federation of Indigenous Friendship Centres. ↩
130. Ibid. ↩

Moving beyond adaptation, “blended justice” involves integrating Indigenous justice approaches, values and practices into ordinary justice systems. As part of this process, attention to foundational standards – such as dignity – is essential to rebuilding Indigenous legal practices with cultural integrity within broader legal systems.¹³¹ This approach has gained prominence in countries where Indigenous justice systems have not been formally recognized but where established legal traditions are de facto exercised in Indigenous spaces. An Australian law reform commission describes the following approach: “local Aboriginal law runs, and it should be seen to run, alongside, but subject to statute law and the common law. This narrative is one of survival, resistance, resilience, dignity and hope”.¹³² The independence of the judiciary is central to enabling judges to innovate by blending justice.

131. Consultation 11 (global intergenerational). ↩
132. Northern Territory Law Reform Committee, Two Systems Working Together: Report on the Recognition of Local Aboriginal Laws in Sentencing and Bail (2020), para. 286. ↩

As the Governments of Australia and Canada¹³³ continue to negotiate treaties and other forms of agreements with Indigenous Peoples concerning justice systems, and to the extent that courts in New Zealand recognize some Māori law, these States as well as the United States and other countries, are – in limited ways – “blending justice”.¹³⁴

133. Submission by Victorian Aboriginal Legal Service. ↩
134. Beverley Jacobs, “Indigenous justice in Oceania and North America”, pp. 7–8; and David Wilkins, Indigenous Governance, p. 11. ↩

Additionally, many post-colonial States grant the customary law of Indigenous Peoples some status in the ordinary legal order, although debates continue about whether and to what extent the incorporation model, as compared to the jurisdiction/recognition model, genuinely supports Indigenous self-determination. As noted during the New Zealand consultation, “This mono-legal system has had a devastating effect on the ability of Indigenous Peoples to practice traditional justice mechanisms”.¹³⁵

135. Consultation 8 (New Zealand). ↩

Canada is home to many such “blended justice” practices.¹³⁶ In the criminal legal system, the principles of the Gladue case have opened the door for the creation of stand-alone Gladue courts. The practice of these courts varies across regions, but they often include Indigenous caseworkers, elders and knowledge keepers who contextualize information about the defendant’s background and community, deepening the understanding of issues such as intergenerational trauma. Some Gladue courts are led by Indigenous judges and duty counsel, who receive specialized training from Indigenous civil society organizations.¹³⁷

136. Submissions by Ontario Native Women’s Association and Ontario Federation of Indigenous Friendship Centres. ↩
137. Consultation 1 (Canada). See also Paula Maurutto and Kelly Hannah-Moffat, “Aboriginal knowledges in specialized courts: emerging practices in Gladue courts”, Canadian Journal of Law and Society, vol. 31, No. 3 (2016), pp. 451–471. ↩

An Indigenous judge in Canada explained that family law courts in the ordinary justice system have also been “indigenized” in some regions under the leadership of Indigenous judges, who have integrated elders and traditional practices into their courts.¹³⁸ Indigenous communities have welcomed this development and have demanded similar practices, as well as the use of healing lodges, which combine traditional practices with rehabilitation.¹³⁹

138. Interview with Canadian Indigenous judge. ↩
139. Submission by Broken Chalk. ↩

Experiences are mixed, however: some Gladue courts do not have Indigenous judges; duty counsel continue to be ill-informed; and Indigenous organizations have been “left to cover the costs of honorariums for Indigenous elders, who are critical to the operationalization” of blended justice programming.¹⁴⁰ The Special Rapporteur has received information suggesting that leaders of ordinary justice system depend on Indigenous Peoples to drive innovation, leaving the responsibility for blended justice to groups of highly motivated individuals from Indigenous communities.¹⁴¹ Additional funding and infrastructure commitments are evidently needed.

140. Consultation 1 (Canada). ↩
141. Submission by Ontario Federation of Indigenous Friendship Centres. ↩

In Australia, both federal and State governments have adopted blended justice models. The governments of some States have entered into agreements with Indigenous communities for greater self-determination in criminal legal matters. The State of Victoria has concluded Wirkara Kulpa, an Aboriginal youth justice strategy, and Burra Lotjpa Dunguludja, an Aboriginal Justice Agreement. The latter agreement, which is currently in its fourth iteration, is overseen by the Aboriginal Justice Caucus and the Aboriginal Justice Forum.¹⁴² These governance bodies have advisory functions but lack binding authority. State-level Indigenous sentencing courts have been created in Queensland, New South Wales, South Australia and Victoria.¹⁴³ The courts, which differ in their specifics, include local elders and other knowledge holders working with judges to create rehabilitative and culturally sensitive sentences.¹⁴⁴ While some Indigenous sentencing courts operate under ordinary sentencing laws, in other States specific legislation, guidelines and practice directives have been created.¹⁴⁵ In the Koori Court for Aboriginal and Torres Strait Islander people in Victoria, “elders and respected persons sit on the court and assist the Magistrate or Judge to create more culturally appropriate sentencing orders for participants”.¹⁴⁶

142. Submission by Victorian Aboriginal Legal Service. ↩
143. “Indigenous Law (Australia)”, University of Melbourne, 29 January 2025. ↩
144. Consultation 6 (Australia). ↩
145. Elena Marchetti and Kathleen Daly, “Indigenous sentencing courts: towards a theoretical and jurisprudential model”, Sydney Law Review, vol. 29, No. 3 (2007), pp. 430–435. ↩
146. Submission by Victorian Aboriginal Legal Service. ↩

According to academic research, Aboriginal sentencing courts have improved communication between defendants, judges and Indigenous communities and have resulted in more tailored sentences.¹⁴⁷ Whether they have impacted recidivism or incarceration rates remains to be seen.¹⁴⁸

147. Elena Marchetti and Kathleen Daly, “Indigenous sentencing courts”, pp. 437–438. ↩
148. Ibid., p. 443. ↩

In New Zealand, both the legislature and the courts have integrated elements of tikanga Māori into the ordinary justice system. The group of Te Kōti ā Rohe | District Courts “has begun a process incorporating tikanga into the fabric of its operation”.¹⁴⁹ This process has been supported and led by the Supreme Court, and tikanga is now applied on occasion by the High Court.¹⁵⁰ He Poutama, an extensive report by the statutory Te Aka Matua o te Ture | Law Commission, published in 2023, explores core tikanga concepts and sets out a “guide for tikanga engagement” alongside hypothetical case studies.¹⁵¹ The guide reveals the deep expertise required by ordinary court justices in order to succeed in blending justice. As one expert explained, “judges are only as good as the arguments brought before them”. Furthermore, the defence bar suffers from lack of Māori representation and insufficient knowledge of relevant principles.¹⁵²

149. Te Aka Matua o te Ture | Law Commission, He Poutama (Pūrongo Rangahau | Study Paper 24, 2023), para. 12. ↩
150. See Supreme Court of New Zealand, Ellis v. R., Continuance, 7 October 2022. ↩
151. Te Aka Matua o te Ture | Law Commission, He Poutama (2023). ↩
152. Consultation 8 (New Zealand). ↩

In addition to work to integrate tikanga Māori into the official law of New Zealand, the country has set up a Māori sentencing court similar to those in other countries. Te Kooti Matariki is an Indigenous court for adults that applies tikanga Māori in sentencing and offers those convicted the opportunity to participate in a culturally adapted rehabilitation programme.¹⁵³ The State has also established 16 Rangatahi courts, which are marae-based (traditional-setting) courts for youth in which the focus is on reconnecting youth to their culture and community. Both Māori and Pasifika courts are available to youth who have admitted the charges against them.¹⁵⁴ Both courts use restorative justice approaches and are credited with having positive results, which one judge identified as changes in attitude, response and engagement.¹⁵⁵

153. District Court of New Zealand, Matariki Court, “Matariki: Huarahi ki te orange tangata”. ↩
154. Youth Court of New Zealand, “Rangatahi Courts & Pasifika Courts”. ↩
155. “Over-representation of Māori in the criminal justice system”, Indigenous Justice Conference,25–26 August 2016, p. 4. ↩

In places as disparate as Canada and the Philippines, Indigenous authorities seek enforcement of their decisions by obtaining ordinary court approval using official alternative dispute resolution mechanisms or terminology.¹⁵⁶

156. Consultation 3 (Asia); and interview with Canadian Indigenous judge. ↩

Efforts at creating blended justice practices have been praised by many Indigenous experts, although many have also noted the significant limitations to such programmes. Lack of funding and resources are the primary constraints on the development of blended justice practices, as are low levels of Indigenous representation among judges and legal practitioners.¹⁵⁷ Because these innovations have predominantly been adopted in the context of sentencing, only individuals who acknowledge or are found to have offended are able to benefit from blended mechanisms. Furthermore, there are continued misinformed critiques of the programmes as providing “special” or “extra” benefits.¹⁵⁸ States should make clear to the public at large that Indigenous Peoples have a right to substantive equality before the law, and that adapted court and other services are needed to ensure non-discrimination in practice.

157. Consultation 8 (New Zealand). ↩
158. Consultations 1 (Canada), 6 (Australia) and 8 (New Zealand). ↩

Many Indigenous leaders, judges and experts articulated the need for coordination and exchange – not based on subordination¹⁵⁹– between Indigenous justice systems and ordinary justice systems.

159. International Commission of Jurists, “Indigenous and other traditional or customary justice systems in the Asia-Pacific region”, pp. 10–11. ↩

Good practices such as the groups in the United States that are composed of representatives from tribal groups and from State or federal governments “to cross-pollinate information”¹⁶⁰ or examine specific issues may prove to be fruitful. The State of Oaxaca in Mexico has developed a “Protocol for harmonization and coordination between State and Indigenous-Afro-Mexican jurisdictions”, which some consider to be a good practice.¹⁶¹ In Peru, “intercultural justice meetings” bring together representatives of Indigenous and State jurisdictions to address problems.¹⁶² All coordination mechanisms must be consulted “negotiated, tested and modulated” rather than being imposed.¹⁶³ They should be “mixed entit[ies] that pragmatize” relationships between the two systems¹⁶⁴ and should include strong leadership from Indigenous communities as well as recognition of Indigenous autonomy and autonomous action.¹⁶⁵

160. Submissions by Cindy K. Smith, Tribal Court Judge, p. 5. ↩
161. Submission by Universidad Nacional Autónoma de México, p. 6. ↩
162. Submission by Javier la Rosa Calle. ↩
163. Brendan Tobin, p. 194. ↩
164. Submission by Fundación Regional de Asesoría en Derechos Humanos. ↩
165. Consultation 4 (Latin America). ↩

The peace and dialogue centres established in 2019 by the Judiciary of the State of Mexico are community-led mediation centres. The centres, which are operated by Indigenous authorities or appointed local members, receive support from the ordinary justice system through the provision of training, operational guidance and infrastructure improvements. While the lack of funding affects the availability of mediators, the centres, which encourage dialogue and collaboration with traditional authorities and cultural relevance in conflict resolution, have resulted in increased complementarity and harmonization with the ordinary system.¹⁶⁶

166. Submission by World Justice Program. ↩

One non-governmental organization emphasized in its submission that transitional justice processes frequently overlook Indigenous communities, despite their disproportionate suffering in conflicts.¹⁶⁷ However, Indigenous leaders have pointed to successful transitional justice efforts in Colombia, where intercultural conversations facilitated the resolution of interjurisdictional cases involving the murder of Indigenous Peoples by armed groups. Experts underlined that such horizontal conversations, which ensure that rulings are coordinated and prevent double jeopardy, may represent best practices on how to address the challenges associated with Indigenous justice systems.

167. Submission by Maat for Peace, Development and Human Rights, p. 3. ↩

The Special Rapporteur observes that, as an essential facet of their autonomy and right to self-determination, Indigenous Peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State. In particular, Indigenous Peoples have the right to promote, develop and maintain their own juridical systems or customs, in accordance with international human rights standards.

Drawing on the recommendations made by other United Nations mechanisms,¹⁶⁸ the Special Rapporteur recommends that States and ordinary justice systems:
(a) Explicitly recognize the right of Indigenous Peoples, where they so choose, to maintain and develop their own legal systems and customary law institutions;
(b) Safeguard the formal recognition of Indigenous justice systems and customary law from revocation by subsequent administrations by ensuring that their recognition is set out in constitutional or other higher order legal provisions;
(c) Include compulsory training on the status, rights, jurisdiction, concepts and methods of Indigenous justice systems and justice practices in the formal education of judges, lawyers, prosecutors and law enforcement officials;
(d) Coordinate with international development actors, civil society and other interested parties to provide Indigenous Peoples with the necessary funds and logistical support to advance their right to their justice systems;
(e) Refrain from criminalizing or otherwise suppressing Indigenous justice systems or justice practices, Indigenous authorities practicing within those systems or individuals relying on those systems, customary or otherwise, regardless of whether Indigenous justice systems are formally recognized;
(f) Respect the jurisdiction and decisions of Indigenous justice systems and refrain from enforcing ambiguous or unduly limiting geographic boundaries, subject matter or personal jurisdiction limitations on them, especially where such restrictions are not grounded in core human rights interests that may be addressed in a less restrictive manner or that prohibit such systems from utilizing customary laws to combat resource extraction and deforestation activities that exploit and reduce Indigenous Peoples’ lands;
(g) Refrain from improperly usurping the jurisdiction of Indigenous justice systems;
(h) Reject the subordination of Indigenous justice systems to State systems and ensure that any State review of their decisions, where permitted, is limited to that which is strictly necessary to protect human rights;
(i) When adjudicating the rights of Indigenous Peoples, ordinary courts must pay due regard to the right to self-determination, which includes recognition of and respect for Indigenous justice systems and their decisions;
(j) Combat any discriminatory views implying that Indigenous justice systems are more prone to human rights violations than State systems by collaboratively developing measures consistent with the United Nations Declaration on the Rights of Indigenous Peoples to ensure that both systems comply with human rights law through processes rooted in trust, respect and exchanges among juridical authorities in both systems;
(k) Work cooperatively with Indigenous Peoples to address the special needs and concerns of Indigenous women, children, youth, LBGTI+ persons, persons living with disabilities and others who frequently face discrimination and additional barriers to accessing justice within both Indigenous justice systems and ordinary justice systems;
(l) Identify and share good practices for promoting human rights within Indigenous justice systems without limiting their autonomy, authority and jurisdiction.

168. A/HRC/42/37, pp. 18–20; and A/HRC/24/50, pp. 23–26. ↩

To ensure access to justice for Indigenous Peoples in ordinary and blended justice systems, the Special Rapporteur recommends that States and justice practitioners should:
(a) Recognize States’ obligation to adapt their ordinary justice systems to respond to the unique contexts and needs of Indigenous Peoples;
(b) Utilize and provide funding and resources for language and/or intercultural translation and interpretation, as well as cultural experts – such as Indigenous elders or traditional cultural authorities – in cases involving or affecting the rights of Indigenous Peoples;
(c) Adapt procedural rules and legal frameworks that ensure fair trials for Indigenous persons, as well as the services needed to provide access to justice for Indigenous Peoples throughout the entire judicial process, not only during sentencing;
(d) Require that lawyers, judges, court personnel and other justice actors in ordinary justice systems receive training on Indigenous Peoples’ culture and rights to mitigate stereotypes;
(e) Mandate that judges consider the economic, social and cultural characteristics of Indigenous defendants, as well as culturally relevant prison conditions, in making sentencing decisions and that they take steps to implement the requirement that deprivation of liberty only be used as a last resort measure for Indigenous Persons;
(f) Combat misinformed critiques stating that specialized programmes for Indigenous Peoples in ordinary justice systems provide special or extra benefits;
(g) Promote greater representation of Indigenous Peoples within ordinary justice systems by recruiting Indigenous legal professionals and judges across all levels of the judiciary.

To promote effective coordination and exchange between Indigenous justice systems and ordinary justice systems, the Special Rapporteur recommends that States and justice practitioners should:
(a) Work collaboratively with Indigenous justice systems and Indigenous authorities to establish joint mechanisms for coordination and cooperation with State systems;
(b) Ensure that mixed entities include strong leadership from Indigenous communities in equal or higher proportion to State officials;
(c) Support an Indigenous-led process to define principles of interaction between Indigenous justice systems and ordinary justice systems and institutionalize practices for exchange of information, understanding and mutual capacity-building.

The Special Rapporteur gratefully recognizes the partnership of Indigenous Peoples’ Rights International in the preparation of the present report. She also expresses her thanks to Aloysia Sonnet and Katarina Sydow for their outstanding research and analysis and her students at the New York University School of Law for their invaluable assistance.

In preparation for the report, the Special Rapporteur conducted a series of consultations between April 2024 and January 2025, held both in-person and virtually, through the Legal Empowerment and Judicial Independence Clinic of the New York University School of Law, together with esteemed partners, including Indigenous Peoples’ Rights International, the International Work Group for Indigenous Affairs, the International Development Law Organization, Instituto de Investigaciones Jurídicas de la Universidad Autónoma de México, Organización Nacional de los Pueblos Indígenas de la Amazonía Colombiana and the Indigenous Peoples’ International Centre for Policy Research and Education (Tebtebba). These consultations were held with the aim of gathering diverse perspectives and expert insights on the issues addressed in the report. The consultations are listed below, including the reference code used in the report.
Reference Format Date Region/ State/ Area
C1 Virtual 18 November 2024 Canada
C2 In-person 6–8 November 2024 Oklahoma/United States of America
C3 In-person 20–21 September 2024 Asia
C4 In-person 3–5 December 2024 Latin America
C5 In-person 17 April 2024 Mexico
C6 Virtual 15 January 2025 Australia
C7 In-person 20 April 2024 Global consultation
C8 Virtual 16 December 2024 New Zealand
C9 Virtual 25 November 2024 North Africa
C10 Virtual 19 November 2024 Southern Africa
C11 Hybrid 9 December 2024 Global intergenerational

The Special Rapporteur expresses her appreciation to all individuals and organizations who generously shared their time, expertise and experiences in the course of the consultations. She also expresses her gratitude to Indigenous Peoples’ Rights International and International Work Group for Indigenous Affairs for support in organizing and convening these consultations.

Submissions are available at the following site: https://www.ohchr.org/en/calls-for-input/2024/call-input-special-rapporteur-independence-judges-and-lawyers-next-thematic-0#:~:text=Please%20send%20your%20submission%20via%20email%20to%20hrc-sr-independencejl%40un.org,considered%20and%20made%20public%20on.