USQ Law Society Law Review
Emily Kelleher
Winter 2021
people in 19675. In Attorney-General v Brown6, Stephen CJ held that Australian lands were, from the time of its first settlement in 1788, the Crown’s possession in which property could be granted to its subjects only. Even up to 1979, the High Court of Australia ruled that the country was lacking civilization prior to 1788, disregarding any merit of indigenous legal traditions7. The landmark Mabo8 decision in 1992 finally recognized a form of native title that had not been extinguished by colonization9. This case will be discussed in more detail later in the article. The reason why Australia developed at such a rigid pace was a result of the court’s application of the doctrine of continuity placing a burden on Indigenous claimants to prove they had a normative system prior to Crown acquisition10. Difficulties arise here as many Indigenous claimants are so far removed from their original spaces that they cannot establish these connections. This is a result of the forced assimilation policies implemented by colonial Australia. In comparison, the United States applied the doctrine of discovery when recognizing indigenous land rights in Johnson v McIntosh11. Marshall CJ explained that Native American tribes were the rightful occupants of the land with the rights of possession and use, however, they could not exercise the power of disposal of the land as this power was based on the principle that discovery gave exclusive title12. Rather than completely denying any validation of their indigenous legal traditions as Australia did, the United States provided them with constitutional status13. However, this recognition came at a cost. When British colonialists came to the United States, they saw the opportunity of ‘gifting’ their legal traditions upon Indigenous people who already had their own14. In exchange for their lands, Native Americans would be afforded the opportunity of becoming more ‘civilized’15. Treaties were made with some Native American nations during the 18th century generally to make them allies during the wars16. The United States’ aims became essentially assimilationist after this period. During the 19th century, these treaties were used to constrict tribes to smaller amounts of land due to pressures of white settlers and mineral exploitation17. It was promised that in removing these tribes from their land base, they would be allowed to live together without interference, 5
Ibid 55, 56; Matthew Thomas, ‘The 1967 Referendum’ Parliament of Australia (Web Page) <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/2017/ May/The_1967_Referendum>. 6 (1847) 1 Legge 312. 7 Tarlock (n 2) 58; Coe v Commonwealth (1979) 53 ALJR 403. 8 Mabo v State of Queensland [No 2] (1992) 55 ALJR 408 [432]. 9 Siegfried Wiessner, ‘Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis’ (1999) 12 Harvard Human Rights Journal 57, 72. 10 Kent McNeil, ‘Judicial Treatment of Indigenous Land Rights in the Common Law World’ in Benjamin J. Richardson, Shin Imai and Kent McNeil (eds), Indigenous Peoples and the Law: Comparative and Critical Perspectives (Hart Publishing, 2009) 257, 265. 11 21 US 681 (1823). 12 Angela R Riley, ‘The History of Native American Lands and the Supreme Court’ (2014) 38(3) The Journal of Supreme Court History 369, 372. 13 Tarlock (n 2) 56. 14 Brian W. Dippie, The Vanishing American (University Press of Kansas, rev ed, 1991) 61. 15 Ibid. 16 Siegfried Wiessner, ‘American Indian Treaties and Modern International Law’ (1995) 7(3) St. Thomas Law Review 567, 570. 17 Ibid 571.
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