A/HRC/60/29 of the United States of America does not recognize Indigenous Peoples, but it provides for Congress to regulate commerce with “the Indian Tribes”.64 75. In the Pacific, the referendum in 1967 to amend the constitution of Australia marked a turning point in removing discriminatory provisions against Indigenous Peoples and allowing Parliament to make specific laws for First Nations. However, it does not explicitly recognize them as First Peoples or First Nations, and a referendum on constitutional recognition failed in 2023.65 The constitution of Fiji recognizes the iTaukei and Rotuman peoples, including their ownership of their lands and their unique culture, customs, traditions and language, and provides for the protection of customary land ownership. 66 76. In Asia, the practice of constitutional recognition varies considerably. In India, the constitution provides for scheduled tribes, but recognition is more administrative than rightsbased. In Nepal, the 2015 constitution does recognize Adivasi Janajatis (indigenous ethnic groups and nationalities), which it differentiates from minorities and other groups. In the Philippines, the constitution of 1987 recognizes Indigenous cultural communities and affirms their rights to their ancestral lands and their rights to preserve and develop their culture, traditions and institutions. 77. The African region has limited constitutional recognition of Indigenous Peoples. The Constitution of Kenya, while not explicitly recognizing Indigenous Peoples, includes Indigenous communities that have “retained and maintained a traditional lifestyle and livelihood based on a hunter or gatherer economy” as a category of the term “marginalized communities”.67 78. Within Europe, the Nordic countries lead on constitutional recognition of Indigenous Peoples. Norway provides for the constitutional protection of the language, culture and way of life of the Sami people.68 In Sweden, the constitution was amended in 2011 to recognize the Sami people. The Russian Federation constitutionally recognizes “numerically small Indigenous Peoples”.69 79. Constitutional recognition of Indigenous Peoples is essential; however, its success relies on sustained political will, supportive legal frameworks and meaningful engagement with rights holders. While there is a global trend towards constitutional recognition, in many cases such recognition is not paired with enabling legislation. Symbolic recognition without the enforcement of substantive rights is likely to negatively affect Indigenous Peoples. 80. Despite advances, challenges remain owing to gaps in implementation and lack of supporting laws and political will. Colonial legacies continue to influence contemporary governance, as States maintain legal frameworks that are not favourable to Indigenous Peoples. The judiciary also plays a significant role, as courts may at times interpret the rights of Indigenous Peoples in a restrictive manner. 81. In addition, States employ varying terminology in their constitutions when referring to groups that self-identify as Indigenous Peoples. In some instances, for example, they may be referred to constitutionally as “ethnic minorities”, “tribal communities”, “traditional communities” or “marginalized communities”. It is essential that Indigenous Peoples are recognized as such to enable the proper and effective implementation of the relevant standards. B. National legislation and jurisprudence 82. Legislation and acts of parliament are the predominant means by which States recognize Indigenous Peoples. These legal instruments provide flexible and accessible 64 65 66 67 68 69 GE.25-12002 United States, Constitution, art. 1, sect. 8. Submission by the Australian Human Rights Commission. Fiji, Constitution, preamble and sect. 28. Kenya, Constitution, 2010, art. 260. Submission by Norway. Russian Federation, Constitution, art. 69. 15