Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
In and of the Land: Indigenous Sovereignty and Property Rights in America, Australia, and New Zealand
By Sebastian Bates
Sebastian Bates is a rising first-year law student at Keble College, Oxford University.
On July 5, President Barack Obama – a member, by virtue of his 2008 adoption, of the Crow Nation – announced in an opinion piece published in Indian Country Today that he would be visiting the Standing Rock Sioux Tribe’s reservation in North Dakota. President Obama’s visit, which was his first to Indian Country since taking office, was only the fourth presidential tour of a reservation in history and therefore attracted a great deal of media attention. His article, however, deserves some reflection as well. Or at least, one particular concept President Obama refers to does. Twice in his article, the President refers to tribal sovereignty, a fascinating concept in American law. 
This principle of federal law has its roots in Article I, Section 8 of the Constitution, which states that “Congress shall have the power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” These words, known as the Commerce Clause (the final five are generally referred to, in turn, as the Indian Commerce Clause), establish that Native Americans tribes represent some kind of “third entity” – they are not states or foreign nations.
As in so many other questions of constitutional interpretation, it was Chief Justice John Marshall who most clearly articulated the generally-accepted interpretation of this provision. In the so-called “Marshall trilogy,” the Chief Justice laid down the framework for contemporary federal Native American law by characterizing tribes as “domestic dependent nations.”  As the 1993 edition of the American Indian Law Deskbook puts it, the Court’s rulings in these three cases were predicated on three principles: 
(1) by virtue of aboriginal political and territorial status, Indian tribes possessed certain incidents of preexisting sovereignty; (2) such sovereignty was subject to diminution or elimination by the United States, but not by the individual states; and (3) the tribes' limited inherent sovereignty and their corresponding dependency on the United States for protection imposed on the latter a trust responsibility.
The first of these principles – that Native American tribes continue to retain aspects of the sovereignty they held before European and American expansion into the New World, the sovereignty which allowed them to, for instance, conclude treaties with early English colonists – is not merely fascinating, however. It is also virtually unique.
The history of the British Empire is generally divided into two phases: the First Empire, which ended with the American Revolution, and the Second Empire, which saw Britain extend her might into the Pacific, and which ended with the First and Second World Wars. Of the states founded during the second wave of imperialism, only New Zealand and Australia have indigenous populations which, like the Native Americans, are a minority within their own countries. A brief examination of their respective legal statuses can make it clear how tribal sovereignty appears to be excusively an American concept.
Both New Zealand and Australia are Commonwealth realms, or constitutional monarchies in which the British Sovereign serves as head of state. According to both New Zealand’s Constitution Act of 1986 and the 1900 Commonwealth of Australia Constitution Act, national sovereignty – that is, the fullness of executive, legislative, and judicial powers – is vested in the monarch and is exercised, in accordance with the will of the people, through the Cabinet, Parliament, and judiciary respectively (in Australia, which has a federal system, these institutions are duplicated at the state level).
Thus the Maori of New Zealand and the Aboriginal Australians and Torres Strait Islanders of Australia cannot and do not hold or exercise sovereignty themselves, as sovereignty can rest only in the Crown. How the Crown came to hold that sovereignty is instead the key factor that determines the contemporary legal status of both groups of indigenous peoples.
Under the common law, as articulated by the great jurist Sir William Blackstone in his Commentaries on the Laws of England, territory could be claimed for the Crown in three ways: “by right of occupancy only,” if the territory was “desert and uncultivated,” or, if the territory was populated and cultivated, “by conquest, or [cession] by treaties.” 
In case of New Zealand, which is composed of two main islands, the densely-populated Te Ika a-Maui (North Island) and the more uninhabited South Island (Te Waipounamu), the Crown obtained sovereignty over the former by treaty, the Treaty of Waitangi, and the latter by discovery and occupancy. Under the terms of the Treaty of Waitangi, more than five hundred chiefs, taken to represent the Maori as a whole, agreed to cede kawanatanga, which the British used as a translation of “sovereignty,” to the Crown in return for tino rangatiratanga (an attempt to translate “the full exclusive and undisturbed possession”) of their taonga, or treasured things. 
Debate over the correct interpretation of these Maori terms has raged in the decades since the Treaty was first signed in February 1840, but today it is broadly accepted that the Maori are entitled to see their property, and their intangible cultural heritage, protected. Thus, for instance, the Maori language is an official language of New Zealand, alongside English and NZ Sign Language. Their rights protected by the Treaty of Waitangi, the Maori have played an important and central role throughout New Zealand’s modern history – for instance, the first Maori MPs were elected in 1868. 
In Australia, by contrast, sovereignty was claimed not by cession nor even by conquest, but by discovery and occupancy. The territory inhabited by the oldest continuous living culture on Earth was identified by British explorers as terra nullius – land belonging to no one, perhaps because Indigenous Australians did not, as Europeans and the Maori did, build many permanent structures nor “improve” the land in an immediately noticeable way. Because this fiction was employed, as an Expert Panel convened by the Commonwealth government in 2010 wrote, “[s]overeignty was not passed from the Aboriginal peoples by any actions of legal significance voluntarily taken by or on behalf of them.” 
It was not until 1992, with the High Court’s decision in Mabo v. Queensland (No. 2), that this doctrine of terra nullius was formally laid aside. The case, which revolved around a claim by the Meriam people to the Murray Islands in the Torres Straits, by virtue of their “native title” – a right based on their indigenous customs and traditional laws. Justice Sir Gerard Brennan, writing for himself as well as Chief Justice Sir Anthony Mason and Justice Michael McHugh, found that while “[t]he Crown's acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian municipal court” and that upon “acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in that part,” it is nevertheless the case that “[n]ative title to land survived the Crown's acquisition of sovereignty and radical title.” 
Thus, the Crown’s acquisition of sovereignty, while out of step with common law, was found to be nonjusticiable. However, Indigenous Australians’ right to their traditional land, similar perhaps though less expansive that the right of the Maori to tino rangatiratanga of their tangible taonga, was found to have survived that acquisition. Unlike the rights of the Maori, however, the rights of Indigenous Australians can and in many cases have been invalidated. “[T]he acquisition of sovereignty,” wrote Justice Brennan, “exposed native title to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title.”  Consequently, while Indigenous Australians may claim land by virtue of native title, their claims may be overturned if it can be demonstrated that their rights have been invalidated by some action taken by the Australian government, or that they have lost the continuous connection to the land necessary to sustain a “continued right.”
In the United States, tribal sovereignty has often been touted as a cure-all solution, even a panacea, for the very real issues facing the Native American population – issues that largely have their roots in the systematic mistreatment of their ancestors at the hands of Americans of European descent. The sad modern history of Indigenous Australians, stripped of the sovereignty that was theirs by right under the common law, and condemned by what Justice Brennan labelled an “unjust and discriminatory doctrine” to a harsh and century-long existence as “some hybrid of outlaw, foreign enemy, and protected race,”  seems to confirm that recognizing the sovereignty of Native Americans will in turn preserve their culture and protect them from the abuses endured by other indigenous peoples. The example of the Maori, however, demonstrates that sovereignty need not exist for a culture to thrive: indeed, the Maori are arguably the most successful indigenous population living in a colonial nation, anywhere in the world. Ultimately, the delicate situation of all three groups is a reflection of the different historic and legal realities of the three nations in which they live, and of the difficulties inherent in framing constitutions and laws for multiethnic, multicultural states.
 Barack Obama, “On My Upcoming Trip to Indian Country,” Indian Country Today, June 5, 2014, accessed July 3, 2014, https://indiancountrytodaymedianetwork.com/2014/06/05/my-upcoming-trip-indian-country.
 Cherokee Nation v. State of Georgia, 30 U.S. 1 
 Phillip J. Prygoski, “From Marshall to Marshall: The Supreme Court’s Changing Stance on Tribal Sovereignty,” The Compleat Lawyer (12): 16.
 William Blackstone, Commentaries on the Laws of England, (London: W. Strahan), accessed July 3, 2014, http://books.google.co.id/books?id=dfFbvY8jzY0C&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false.
 Treaty of Waitangi, articles I and II.
 John Wilson, “The Origins of the Maori Seats” (Wellington: New Zealand Parliamentary Library, 2009), 22.
 The Expert Panel on Constitutional Recognition of Indigenous Australians, “Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel” (Canberra: Blue Star Print, 2012), 22.
 Mabo v Queensland [No 2] (1992) 175 CLR 1
 David Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (Cambridge: Cambridge University Press, 1991), 151.
Photo Credit: Flickr user Andrew Schwegler
Your comment will be posted after it is approved.
Leave a Reply.