A/HRC/21/47/Add.1
and proposed by the executive to extend protection for indigenous women against
violence by, inter alia, enlarging the law enforcement capacities of tribal authorities.
99.
Following up to the hearing on the Declaration held by the Senate Committee
on Indian Affairs on 9 June 2011, Congress should hold hearings to educate its
members about the Declaration on the Rights of Indigenous Peoples and to consider
specific legislative measures that are needed to fully implement the rights affirmed
therein. Attention should be paid to aspects of already existing legislation that should
be reformed, and to new legislation that could advance needed measures of
reconciliation. Consideration should also be given to providing judicial remedies for
infringements of rights incorporated in the Declaration.
100. Congress should, in consultation with indigenous peoples, enact legislative
reforms or altogether new legislation as required to achieve the reconciliation called
for in its apology resolution of 2010.
101. Any legislation adopted by Congress should be in alignment with the human
rights standards represented by the Declaration. To this end Congress should consider
adopting a resolution affirming the Declaration as the policy of United States and
declaring its resolve to exercise its power to advance the principles and goals of the
Declaration.
102. At a minimum, Congress should continuously refrain from exercising any
purported power to unilaterally extinguish indigenous peoples’ rights, with the
understanding that to do so would be morally wrong and against United States
domestic and foreign policy, and that it would incur responsibility for the United
States under its international human rights obligations.
The federal judiciary
103. The federal judiciary, in particular the United States Supreme Court, has
played a significant role in defining the rights and status of indigenous peoples. While
affirming indigenous peoples’ rights and inherent sovereignty, it has also articulated
grounds for limiting those rights on the basis of colonial era doctrine that is out of step
with contemporary human rights values.
104. Consistent with well-established methods of judicial reasoning, the federal
courts should discard such colonial era doctrine in favour of an alternative
jurisprudence infused with the contemporary human rights values that have been
embraced by the United States, including those values reflected in the United Nations
Declaration on the Rights of Indigenous Peoples. Furthermore, just as the Supreme
Court looked to the law of nations of the colonial era to define bedrock principles
concerning the rights and status of indigenous peoples, it should now look to
contemporary international law, to which the Declaration is connected, for the same
purposes.
105. Accordingly, the federal courts should interpret, or reinterpret, relevant
doctrine, treaties and statutes in light of the Declaration, both in regard to the nature
of indigenous peoples’ rights and the nature of federal power.
The states of the United States
106. Although competency over indigenous affairs rests at the federal level, states of
the United States exercise authority that in various ways affects the rights of
indigenous peoples. Relevant state authorities should become aware of the rights of
indigenous peoples affirmed in the Declaration on the Rights of Indigenous Peoples,
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